By Marleen Eijkholt, Phd

When people asked my ethical opinion about Marlise Munoz’s case, the brain dead woman who was kept on support for her fetus, I believe they expected a quick answer: this is wrong. Clinical or medical ethicists are often called for a quick answer: this is right or this is wrong. However, answers about why X is right or why X is wrong do not come quickly. Often there are many rights and many wrongs in a story. My answer why it is unethical to keep Mrs Munoz on support is the result of a sum of rights and wrongs. In my opinion the ‘rights’ are less weighty than the ‘wrongs’, and I will set my arguments out below.

Marlise Munoz was 14 weeks pregnant when her husband found her unconscious and brought her to the hospital. The hospital found that she fulfilled the criteria of brain-death, but did not declare her brain death yet (according to the latest reports) . They kept her on ventilator and nutritional support and argued this was required under Texas law, suggesting that it was not allowed to withhold or withdraw life-sustaining treatment from a pregnant patient.

Keeping a brain-dead woman on ventilator and nutritional support to allow the fetus to mature can be right. I think the fetus deserves consideration and is vulnerable. I support the viewpoint that it is right to provide a voice for its interests, such as its interests in being born and living a worthwhile life. With the right type of support and acceptable health conditions, a child may have a fair chance to grow up as a flourishing person. Allowing a fetus to mature to reach the point of viability or to give it a more optimal birth situation and more changes of flourishing could be right. A living, healthy, flourishing baby is an important outcome and benefit of ventilator and nutritional support interventions on a brain-dead woman.

Intervening with a dead body by ventilator and nutritional support can also be right. For example, I support such interventions for consensual organ donation after death, as I think the benefits (continued and improved life for others, ideas about ‘altruism’ and ‘pay it forward’) outweigh the harms (intervening with the ‘dignity’ of the dead body). A dead body still has value and respect for a dead body is in important interest, but these interests must be balanced with other concerns.

However, important elements make the ‘wrongs’ more persuasive than the ‘rights’. Intervening without consent, in this case, is wrong. Marlise had indicated that she never wanted to be on life support in these circumstances. Also her family did not consent to the interventions. Accordingly, the interventions go against their wishes, and the interventions interfere with principles of autonomy of the person (and even the family unit as an entity). This point is exacerbated by the fact that the interventions were not minor interventions of short duration in this case. Support had to be provided for at least 10 weeks, up to the point of viability and even then the outcome was unsure. In my opinion it is wrong to intervening with a dead body for more than 10 weeks without consent and without a guaranteed outcome.

Some more elements in this case add up to the wrongs. For example, several factors mitigate the chances of a healthy, flourishing baby as an outcome. The baby would be born without explicit family support, i.e. its mother would have been deceased, its father and the grandparents did not back up its birth; they would have preferred to let Mrs. Munoz die in peace and vicariously the fetus she carried. Moreover, concerns existed about the fetus’ health. Reports suggested that the fetus suffered significant deformities, which could have impeded life as a flourishing being. I am not saying that a life with deformities is not worth living, but significant deformities may mean significant suffering and impair a flourishing being.

Finally, I am concerned about the slippery slope of keeping a brain-dead woman on life-support for the fetus, who has not yet reached the stage of viability. Would any female have to be tested for pregnancy once she is declared brain dead, or if she needs life support, and would there be any limitations to forcing medical interventions on her to keep the fetus alive? What if she were 4 weeks pregnant,8 weeks or 11 weeks?

My calculation of rights and wrongs means that I do not proceed from an ethical framework where one element is ‘sacred’. I do not think that ‘life is sacred’ or that ‘consent is sacred’. Such ethical frameworks could argue that the fetus would have to be kept alive as its life is sacred, keeping in mind that there is no other life competing with it (Munoz is no longer alive), or that without consent we cannot provide medical interventions, keeping in mind that the fetus cannot yet consent. Instead, I adopted a pragmatic and calculating ethical mindset to conclude that the interventions were wrong, and this mindset corresponds with practice and mostly with legal considerations.

On Friday 24 January 2014, the judge ruled that it is wrong to keep her on the medical interventions and suggested that the hospital should stop these. It’s unfortunate that the law seems to have been needed to provide the ultimate calculus; she needs to be taken off life support as she would no longer be a ‘patient’. It seems that the law always has the final say and offers the final calculation. We are afraid of legislation, and we are not afraid of doing something wrong if it is not against the law, no matter how it adds up.