By Mary R. Anderlik
Health Law & Policy Institute

Some situations are so complex and so disturbing that their rarity does not detract from their importance. It is not every day that a pregnant woman arrives at a hospital dying or perhaps already dead, forcing a choice between letting nature run its course and deploying all available technology to combat the decay of the body in hopes of keeping a fetus alive to viability. However, due to the difficulty of the choice, and the tragic and often tangled circumstances, these cases merit the attention they attract.

In July of 1999, Tammy Martin was admitted to a Houston-area hospital in a coma. She was 14-weeks pregnant at the time. Her injury led to a face-off between family members asking that life-support be discontinued and a man claiming to be her common law husband and the father of the child, who sought to have life-support continued indefinitely, in the face of some evidence that Martin was already dead. (Physicians refrained from performing official tests pending receipt of a court order instructing them to proceed.) Other cases reported in the media occurred in 1993 and 1989 (in California) and in 1992 (in Germany) and a Georgia case reached the courts in 1986, under the name University Health Services, Inc. v. Piazzi.

How should decisions be made in these cases? Constitutional and common law establish that a competent adult has the right to refuse unwanted medical treatment. The court decisions suggest that the terminally ill, in particular, should not be subjected to the technology of medicine where this is contrary to their wishes. If a competent woman, pregnant or otherwise, clearly expresses her desire that life support be discontinued and that she be allowed to die, her wishes should be honored. When a court has ordered treatment of a pregnant women for the benefit of a fetus, there has usually been a direct medical benefit to the woman from treatment, as well as a reasonable expectation of benefit to the fetus, and/or the treatment has been relatively unintrusive. In any event, these orders have been sharply criticized by ethicists and legal scholars.

Where a person is no longer competent, and there is no clear expression of her wishes, courts typically apply a substituted judgment standard. The opinion in a 1990 case, In re A.C., provides the fullest guidance on these issues. (A.C. involved a caeserean section rather than maintenance on life support.) The D.C. Court of Appeals identified factors to be considered, including: (1) the person’s written or oral directions concerning treatment to family, friends, and health care professionals; (2) the person’s past decisions concerning medical treatment; and (3) the person’s value system. If uncertainty remains, the next step is to ask what most people would do in a similar situation, including considering the best interests of the fetus.

At this stage of the analysis, then, one might assess the likelihood and severity of any impairment to the fetus resulting from the precipitating injury or illness or the hazards associated with an attempt to sustain a pregnancy on life support. At some point in the early days and weeks of a pregnancy, any expectations of a good outcome for the fetus are unjustified, and the possibility of extending life support beyond brain death should not even be presented as an option. Advances in technology make it difficult to locate this point. The 1993 case appears to define the current limit. There, the woman was reportedly 17 weeks pregnant at time of death, and life support was continued for 105 days. The result was an apparently healthy baby. Other cases have had less fortunate outcomes.

While the D.C. Court of Appeals assumes the judge will apply the substituted judgment standard directly (soliciting information from the parties as necessary), the role of the judge might rather be to identify the party who combines knowledge of the pregnant woman with genuine concern for her well-being and the well-being of the fetus.

Analysis of these cases is complicated by a number of legal side-issues in addition to the big economic issue of who will pay if a decision is made to continue life-support.

Do the dead have interests? In the Piazzi case, which involved a woman determined to be brain dead, the court ruled that any constitutional or common laws rights she possessed were extinguished by her death. Her wishes were, in essence, found to be irrelevant, and she was not seen as having any interests. Many commentators have condemned this sort of reasoning, as contrary to our intuitions. Even if Donna Piazzi was no longer a person, her remains were more than a receptacle for a fetus.

Does the state have interests? In the abortion cases, the U.S. Supreme Court has ruled that a state’s interest in protecting potential life only becomes weighty enough to interfere with a woman’s privacy rights at the point of fetal viability. Although the contexts are not identical, these rulings should keep the state out of decisions to remove life support prior to viability.

What is the effect of a "pregnancy exception" in a natural death act? The court in Piazzi concluded that the right to a natural death was suspended by a provision of state law suspending a living will during pregnancy. Many states have similar provisions, but these should not be considered determinative for two reasons. First, the effect of these provisions is to make the state’s natural death or advance directive act inapplicable to situations involving pregnancy, not to prohibit the withholding or withdrawal of life-support from pregnant women. These acts typically conclude with a provision that confirms that they are nonexclusive, i.e., they leave other legal structures including the common law in place for situations not addressed. Second, even if a state statute purported to prohibit the withholding or withdrawal of life-support from pregnant women, it could not nullify rights secured by the U.S. Constitution. Actions have been brought seeking to invalidate pregnancy exceptions as violations of the right to privacy and the equal protection guarantee of the Fourteenth Amendment, as well as the First, Fourth, and Ninth Amendments. As yet there has been no ruling on these issues.

Cases such as Martin’s take us well beyond familiar territory. Consider the difficulty we have in choosing the words to describe who (or what) is involved: a person or a corpse, a fetus or a baby. It is unlikely that we will find any outcome wholly satisfactory. What we can hope for is a process of decision-making that is clear and reasonable and does as little as possible to exacerbate an already tragic situation.

08/12/99