Friday, January 10, 2014

The treachery of agency and agendas

Take it from my cold, dead fingers

I heard about this yesterday, and it raises the question again:  when is "dead"?

The legal definition is "brain death."  By that definition, Marlise Munoz is dead.  But this is the linchpin of the controversy:

The hospital maintains that it is following the law, although several experts in medical ethics said they believed the hospital was misinterpreting it. A crucial issue is whether the law applies to pregnant patients who are brain-dead as opposed to those in a coma or a vegetative state. The law, first passed by the Texas Legislature in 1989 and amended in 1999, states that a person may not withdraw or withhold “life-sustaining treatment” from a pregnant patient.

Mr. and Mrs. Machado said the hospital had made it clear to them that their daughter was brain-dead, but hospital officials have declined to comment on Mrs. Munoz’s care and condition, creating uncertainty over whether the hospital has formally declared her brain-dead.
There is both the law and the issue: “A person may not withdraw or withhold life-sustaining treatment … from a pregnant patient.”  But life-sustaining treatment cannot be withheld from a corpse.  So there's the rub:  if the hospital declares Marlise Munoz dead, do they run afoul of Texas law?  And if they don't?

Well, it isn't quite that the law forces this conclusion.  It's more that the hospital (JPS) doesn't want to be left holding the legal bag in this matter.  But their non-committal statement is belied by the background of their outside counsel:

“JPS is encouraged by this development because the courts are the appropriate venue to provide clarity, direction and resolution in this matter,” J.R. Labbe, the hospital system’s vice president of communications and community affairs, said in a statement. “JPS remains focused on providing compassionate care to all patients while also following the law as it applies to healthcare in the state of Texas.”

The hospital’s outside counsel is Neal Adams, who led the drive to end abortions at JPS in 1988 and is on the advisory board of the Northeast Tarrant Right-to-Life Educational Association, based in Euless.
So yes, this goes a bit deeper than the "requirements" of the law.  Does the law require this outcome?  Or does a right-to-life advocate like Neal Adams insist to his client that it requires this outcome, for reasons that don't really have much bearing on a legal analysis of the applicable statute?  And, of course, that's why JPS now is "uncertain" over whether or not they have declared Ms. Munoz dead.

As long as the machines can keep her blood pumping and oxygenated, and her organs functioning, she can be what most right-to-lifers clearly think pregnant women are:  flesh incubators.

So this is not just a horror story about modern medicine and our power over death, which is really no power at all.  It's a horror story about how we treat the autonomy of the individual, and how we decide who is human, and who is "more" human, and what we do with, and to, people who have lost their power of agency.  Texas law created this problem; but it took a true zealot to turn it into an object lesson in man's inhumanity to man.

If the law, a blunt instrument in the best of cases, is going to be used to prevent abortions and promote as many pregnancies to viability as is technologically possible, perhaps it is time for us to face the consequences of such uses of the law, and to reconsider the legal system and its relationship to pregnancy and abortion.  Because this situation is absolutely morally indefensible.
Read more here:


  1. "As long as the machines can keep her blood pumping and oxygenated, and her organs functioning, she can be what most right-to-lifers clearly think pregnant women are: flesh incubators."


    Between a sentient woman choosing to have an abortion, and a brain-dead flesh incubator, the fetus fetishists will prefer the incubator Every.Time. [Same w/ a sentient woman choosing to have an End-of-Life policy which says "Pull the plug on my corpse, regardless of said corpse's uterine contents"]

  2. It's cases like this, I suppose, that illustrate how far apart our value systems really are.

    For the life of me, I cannot imagine how one can object to keeping an insentient mother alive temporarily so that her child can live. All depends, I suppose, on how one views those "uterine contents."

  3. She's not alive. She's dead. Period.

    She's a corpse. You can't keep a corpse alive "temporarily."

  4. I feel rather strongly about this, so I have to clarify the question of death.

    Brain-dead is the legal and medical standard for death. In this day of respirators and other devices, as well as organ harvesting, it has to be. As I said below, if you cannot harvest organs shortly after death is declared, they aren't much good to another patient. And since machines can keep hearts beating and lungs pumping, we cannot say death is the cessation of the heart or the lungs merely; unless we are going to be so cruel as to insist on signs of rot and decomposition as proof of death.

    Marlise Munoz is not in a persistent vegetative state (Terri Schiavo) nor in a coma (Ariel Sharon, who died after many years in a coma). She is dead. She is a corpse. If we deny the fact of her death because we reject the definition of brain death, we unravel a great deal of modern medicine, and open the door to a series of horrors far larger than the question of the effect of Ms. Munoz' condition on her pregnancy. As many have pointed out in this case, and in the Maha case, eventually decomposition will set in. What then?

    And we are back to the question: who decides on death? We've been making that decision for millenia; only now is it a problematic one on this level. But to decide a pregnant woman is not dead because she is pregnant, is a cruel and grotesque reversal of human history itself, and a bizarre insistence on the supremacy of one life over another, especially when the former is so dependent on the latter.

    It is to dehumanize one person in favor of another. As I said, I see no moral justification for that, at all. It unravels the very concept of morality, and reaches all the way back to Antigone, where the gods were angered because Creon sealed his niece in tomb, denying her life and denying her the afterlife, just as he did by refusing the burial of Polynices. We cannot refuse death to Ms. Munoz because we insist on the primacy of the life of her fetus. That is not an insistence on a different value system; to insist her corpse be maintained in a state that denies the reality of death, is to insist on neither value nor system, but simply the idolatry of an idea.

    Even God does not require that of us.