William & Mary Journal of Race, Gender, and Social Justice
“But I’m Brain-Dead and Pregnant”: Advance Directive Pregnancy Exclusions and End-of-Life Wishes
Marlise Muñoz was approximately fourteen weeks pregnant when she suffered a pulmonary embolism, and two days later doctors declared her brain-dead. Knowing Marlise’s end-of-life wishes, her husband, Erick Muñoz, asked her doctors to withdraw or withhold any “life-sustaining” medical treatment from his brain-dead wife. The hospital refused, and it relied on a Texas statute that automatically invalidates a woman’s advance directive in the event she is pregnant. Ultimately, the trial court held that the Texas statute does not apply to a woman who is brain-dead and pregnant.
This tragic situation warrants action to ensure that a woman’s end-of-life wishes are honored by family members, health care providers, and the state. Louisiana has already taken action. In response to the Muñoz case, in June 2014 the Louisiana legislature amended the state’s advance directive statute. Yet, based on the plain language of the statutes in Texas and Louisiana, the pregnancy exclusions do not apply to a situation in which a woman is brain-dead and pregnant, and this holds true for other state statutory pregnancy exclusions. Even if the pregnancy exclusions do apply to a pregnant woman who is brain-dead, they arguably violate a woman’s constitutional rights, including the right to terminate a pregnancy and the right to refuse medical treatment.
Therefore, state legislatures should propose a statute or amend the language in current pregnancy exclusions to clarify the applicability to a woman who is brain-dead and pregnant. State legislatures should also amend any statutory forms that address a woman’s end-of-life wishes, and both attorneys and health care providers should be proactive and discuss the issue with their respective clients and patients.