Dr. Jeffrey Ecker, a noted fetal medicine specialist, has an excellent piece on the Munoz case in Texas in a recent NEJM article (“Death in Pregnancy—An American Tragedy”). He shares the widespread view that brain dead pregnant women should not be maintained over the father or family’s objections. He does, however, suggest that maintenance may occur with family consent to enable the fetus be born with the best chance of survival.
The burden of his comment is on legal issues and rights. Because Texas recognizes brain death as legal death, the hospital had acted inappropriately when it relied on the Texas advance directive statute, which limits advance directives when a woman is pregnant, to maintain her over her husband’s wishes. The court ruled that since Ms Munoz was brain dead, the advance directive limitation which applies only to patients who are still alive, did not apply to a pregnant patient who was dead under cardiopulmonary or brain death criteria for death. His comment deserves laurels for its clear presentation of the statutory conflict and its resolution.
Dr. Ecker, however, like many other commentators, runs into trouble when he says that the hospital’s actions in the Munoz case, even if supported by statute are “a wrongful usurpation of the rights of individuals, in this case … women.” The problem is his the assumption that there is or should be a constitutional or legal right at Time 1 when competent to issue a legally binding directive at Time 2 when the maker is incompetent and indeed may have a different set of interests or none at all.
But there is no constitutional right to make a directive at Time 1 that binds at Time 2. Justice Sandra O’Connor concurring in the outcome in Cruzan mentioned a possible 14th Amendment right to appoint a health care proxy to make a decision at Time 2, but no other justice joined her. Indeed, a constitutional right to make future directives that bind oneself directly or through an agent has no constitutional precedent and poses many problems.
Second, even legislation giving effect to Time 1 directives at Time 2 have their problems. Time 1 interests and wishes (inferred by a family or proxy) may differ greatly from Time 2 interests. A bias in favor of Time 1 interests at Time 2 may creep in, treating the Time 2 person as if she had the capacities of a Time 1 person, even though she no longer does. Living wills are a fine fig leaf when doctors and families want cover to stop treatment at Time 2, but they are not the best indicator of the patient’s Time 2 interests or Time 2 choices (if at Time 2 they suddenly had the capacity to make choices at all). Indeed, the refusal of physicians in many situations to follow living wills arises precisely from this disjunction.
Consider also a Time 1 directive to maintain the patient at Time 2 despite the counter wishes of the family and clinician. Also, what if the father of the child wanted his Time 2 pregnant wife to be maintained so a child of their marriage might be born even if her Time 1 instructions directed otherwise?
Parsing further the analytic problems with advance directive laws are beyond the scope of this post, but one should not ignore their consequences. For example, Dr. Ecker argues that if a law prevents giving effect to a Time 1 directive at Time 2, the clinician should conscientiously object and even violate the law to protect the woman’s “right” to determine her fate at Time 2. If the law is otherwise substantially burdening her at Time 2, it may be unconstitutional on that ground alone regardless of a prior directive. But if it is not, then it is not violating her constitutional rights,—she has no constitutional right to make a Time 1 directive for Time 2– and by definition no statutory right in the circumstances exists.
The persons most directly affected in these cases are the family members, which was clearly the situation in Munoz. But Cruzan rejected the suffering of the family when it refused to overturn a state law requiring treatment of persons in persistent vegetative states when the family objected. There is insufficient constitutional precedent to support a separate right of the father or family to have treatment withheld regardless of a Time 1 directive for that outcome. Nor would there be a family’s “right” to override a state recognized “will to live” made at Time 1 when the family would like to discontinue further treatment at Time 2.
These points are even clearer if Texas had explicitly required that a brain dead or dying patient who is pregnant be kept alive despite the family’s objections. The constitutional question would be whether they had an independent right of their own to have the body provided them for disposition. Again, the hardship and suffering they experience from denying them control of the remains may support a common law tort or quasi-property remedy, but it is too weak a gruel for constitutional recognition. Nor would the constitutional case be stronger if the family’s case were supported by the patient’s Time 1 directive for control of remains at Time 2 if the maker were then pregnant.
I have been deliberately provocative here, and recognize that more can or should be said about privileging Time 1 over Time 2 decisions (readers respond!). I agree that dead, comatose or dying pregnant women should generally not be kept alive over their prior expressed wishes. I rely, however, on the interests of families and possibly resource constraints, not women’s rights.
 370 NEJM 889-891 (2014).
 Id. at 890.
 John A. Robertson, “Cruzan: No Rights Violated,” 20 Hastings Center Report 8-9 (1990).
 John A. Robertson and Rebecca Dresser, “Quality of Life and Non-Treatment Decisions for Incompetent Patients: A Critique of the Orthodox Approach,” 17 Law, Medicine & Health Care 234-245 (1989).