January 17, 2014
Marlise Muñoz (33), and Jahi McMath (13) have been declared brain dead, but both are currently being kept alive via ventilator. The parents of McMath have fought to keep their daughter alive, as opposed to Muñoz, who is being kept alive against her family’s wishes. Both have been declared brain dead – McMath after surgical complications, and Muñoz after experiencing a brain embolism. Hospital officials are refusing to remove Muñoz from the ventilator because she is pregnant and they claim doing so would violate state law. Muñoz experienced an embolism when she was 14 weeks pregnant (the fetus is now approximately 20 weeks).
Hospital officials point to a provision in the Texas Advance Directives Act as justification for rejecting the wishes of Muñoz’s family. The provision (V.T.C.A., Health & Safety Code § 166.098) reads:
“A person may not withhold cardiopulmonary resuscitation or certain other life-sustaining treatment designated by the board under this subchapter from a person known by the responding health care professionals to be pregnant.”
There is some disagreement as to whether the hospital officials are interpreting the statute correctly and that in fact, the law was not meant to apply to individuals who have been declared brain dead.
An NPR article notes that the most common definition of death encompasses brain death. I ran a query this simple query in all state statutes to find definitions of death:
DEFINITION OF DEATH
My initial results include the Texas statute defining the standards used to determine death:
TX HEALTH & S § 671.001 – Standard Used in Determining Death
That statute includes the following statement in subsection (b):
“If artificial means of support preclude a determination that a person’s spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function.”
The query also delivers relevant results in other jurisdictions. For example:
K.S.A. 77-205 – Determination of Death: “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.”
KRS § 446.400 – Determination of Death; minimal conditions to be met
This statute also includes a reference to “total and irreversible cessation of all brain function” as a factor determining death.
ADDITIONAL RESEARCH REFERENCES
To review the rules regarding statutory interpretation in Texas, take a look at Key Numbers 361K1061 – 361K1400
361K1216, for example, considers whether similar statutes might be used as a construction aid:
Bowling v. City of Pearland, 478 S.W.2d 143 (Tex. Civ. App. 1972)