Would Marlise Munoz’s Fetus Have Survived? Should It Have?

By Michelle Meyer

This is post is part of The Bioethics Program’s ongoing Online Symposium on the Munoz and McMath cases, which I’ve organized, and is cross-posted from the symposium. To see all symposium contributions, in reverse chronological order, click here.

Had the hospital not relented and removed the ventilator from Marlise Munoz’s body, could the Munoz fetus have been brought to term, or at least to viability? And if so, would the resulting child have experienced any temporary or permanent adverse health outcomes? Despite some overly confident commentary on both “sides” of this case suggesting a clear answer one way or the other—i.e., that there was no point in retaining the ventilator because the fetus could never be viable or was doomed to be born with catastrophic abnormalities; or, on the other hand, that but for the removal of the ventilator, the “unborn baby” was clearly on track to being born healthy—the truth is that we simply don’t know.

Before getting into the limited available data about fetal outcomes in these relatively rare cases, a bit of brush clearing. The New York Times juxtaposed reports about possible abnormalities in the Munoz fetus with the hospital’s stipulation about the fetus’s non-viability in ways that are likely to confuse, rather than clarify:

Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem.

The hospital acknowledged in court documents that the fetus was not viable.

Whether intentionally or not, the nation’s newspaper of record implies — wrongly, I think — that the hospital conceded that the fetus would never be viable because of these reported abnormalities. In court, the hospital and Erick Munoz stipulated to a series of facts, including that Marlise was then 22 weeks pregnant and that “[a]t the time of this hearing, the fetus gestating inside Mrs. Munoz is not viable” (emphasis added). The hospital conceded nothing at all about any fetal abnormalities. In short, the Times, and many other commentors, have conflated “non-viability” as a function of gestational age with “non-viability” as a way of characterizing disabilities that are incompatible with life. As I read this stipulation, the hospital was not at all conceding that the fetus would never have been viable, had the ventilator remained in place. Rather, given the constitutional relevance of fetal viability, the hospital was merely conceding the banal scientific fact that the Munoz fetus was, at 22 weeks, not currently viable. There is nothing surprising in the least about the hospital’s “concession” about “viability” in the first sense, above: 22-week fetuses are generally not considered viable.But what about the health of the Munoz fetus, which Erick’s lawyers, in the midst of arguing for the ventilator to be removed, reported showed signs of being “distinctly abnormal“? There’s little point in speculating about what are at this point (and are very likely to remain) vague, second-hand reports of private medical records, and still less about the possible causes of any abnormalities, which may have been genetic. Rather, let me make two observations about relying on reports (even if verified) of fetal “abnormalities” to argue for the removal of the ventilator.

First, for those on the left, who are likely to have believed that the ventilator should have been removed in this case, there is some tension between that position and using the possible existence of fetal abnormalities to further suggest that continued gestation was a mistake. This is, of course, but one example of a larger and well-known tension between the left’s commitment to both pro-choice policies and anti-discrimination principles: once you make reproductive decisions a matter of private choice, it’s hard to critique those choices, including those made because of the perceived disvalue of particular fetuses, whether those who are “distinctly abnormal” or those who possess two X chromosomes. I myself do not believe that commitment to the full equality of existing persons compels the conclusion that it is always morally wrong (much less that it should be illegal) to choose not to bring certain kinds of people into existence, although I cannot defend that position here. Nevertheless, the tension is real, and it is somewhat surprising that so much has been made, so uncritically, of the “distinctly abnormal” Munoz fetus.

Second, many have said that, given the uncertain outcomes of posthumous gestation (discussed below), that such gestation constitutes experimental (or, if you prefer, innovative) therapy on behalf of the fetus/future child. I think that’s right. What strikes me as problematic is the corollary that often accompanies this claim—namely, that it would be wrong or unfair to the fetus (as opposed to Erick Munoz, already a newly single parent and young widower) of the hospital to bring it to term. The risks of research or innovative therapy are measured against the subject’s or patient’s alternatives. But had the Munoz fetus been born, and with disabilities, he or she would have had no other alternatives. That is, he or she would not have had a “choice” between a life with disability (caused, let us assume, by posthumous gestation) and a life without disability. Rather, he or she would have had a “choice” between a life with disability and no life at all. Philosophers will recognize this as the familiar non-identity problem. The conventional wisdom is that, unless we can say that life with disability is so harmful that nonexistence is preferable (usually thought to be an extraordinarily high bar), it is incoherent to claim that origins in posthumous gestation harmed the resulting child. There are, to be sure, problems with the non-identity problem itself, but we should at least keep its challenge to us in mind when evaluating claims that the hospital was subjecting the fetus to unethical experimental treatment. (It is perfectly coherent—and, in my view, compelling—to argue that the hospital was forcing unwanted parenthood, and indeed perhaps very expensive, emotionally fraught parenthood, upon Erick Munoz.)

For better or worse, questions about whether the Munoz fetus would have survived and, if so, what “survival” might have looked like are now moot. But these kinds of cases, although rare, will arise again. So let’s return to the broader question of what we know about fetal outcomes in posthumous gestation cases. The best data we have is analyzed in this 2010 systematic review, which found:

In 12 (63%) of 19 reported cases, the prolonged somatic support led to the delivery of a viable child. . . . Congenital defects were reported for only one infant, who was diagnosed with fetal hydantoin syndrome resulting from previous chronic phenytoin usage by the mother. Four infants required temporary mechanical ventilation because of neonatal respiratory distress syndrome or pneumonia. Fungemia was diagnosed in one infant, and he was treated with amphotericin B. However, not every infant was sufficiently followed to determine the long-term effects of prolonged maternal life support. Postnatal follow-up up to 24 months was available only for six infants. All of them developed normally and apparently had no problems related to their exceptional intrauterine circumstances.

The authors conclude: “According to our findings, prolonged somatic support can lead to the delivery of a viable child with satisfactory Apgar score and birthweight. Such children can also develop normally without any problems resulting from their intrauterine conditions.”

Such a small number of cases is not much, statistically, on which to make predictions. But fragile though these data are, it’s worth breaking them down a bit more, as it’s almost certainly the case that, if we ever have a sufficiently large number of cases from which to draw statistically significant conclusions, a variety of differences among the cases will turn out to impact fetal outcomes. For instance, at what gestational stage was the fetus when the mother met the criteria for brain death? What was the age and general health of the mother prior to brain death? What was the cause of maternal brain death? How long was the mother—and fetus—deprived of oxygen? And so on.

For instance, although 63% of cases overall led to viable delivery of a baby, things change a bit when we focus on fetuses whose gestational ages upon declaration of brain death were similar to the Munoz fetus (14 weeks). Breaking down the data, we find a case where the fetus was 15 weeks gestation at the time of brain death, was delivered successfully at 32 weeks gestation, and was developmentally normal at 11 months. We find a second viable birth (without follow-up data) where the fetus had been 16 weeks gestation at brain death. We also find fetuses who died at some point in utero, following declaration of brain death at 13, 14, 15, or 17 weeks gestation (5 cases total). And we find one 17 week gestation case in which the baby died at 30 days after birth, following delivery at just 25 weeks, from complications of premature birth (and so perhaps not directly related to posthumous gestation).

Again, the available data are too paltry to permit predictions to be made about any particular case; I would hate to have to use them to guide my own decision-making, were I in Erick Munoz’s position. But they do allow us to rebut both extreme positions sometimes expressed over the past several weeks (universal claims happily being rebuttable with a single counter-example): It is not the case that a situation like the Munoz case (at least “like” it in terms of gestational age at onset of maternal brain death) has never resulted in the birth of a healthy child; nor is it the case that, had the hospital and the Munoz family only allowed Marlise’s body to remain hooked up to the ventilator for a few more weeks, all would necessarily have been well. We would do well to be more epistemically modest the next time such a case arises.

[Cross-posted at The Faculty Lounge]

7 thoughts to “Would Marlise Munoz’s Fetus Have Survived? Should It Have?”

  1. Thanks, Michelle. Great series!

    Just wondering if you’ve seen anything about whether the mother here had made her wishes known in the event of pregnancy. I know she and her husband were both paramedics and had talked extensively about end of life care, but I haven’t seen discussion of the more specific question. Kind of interesting when you think about decision-making for future selves, and even the task of thinking through how advance directive templates should be structured.

  2. Thanks, Michelle. Great series!

    Just wondering if you’ve seen anything about whether the mother here had made her wishes known in the event of pregnancy. I know she and her husband were both paramedics and had talked extensively about end of life care, but I haven’t seen discussion of the more specific question. Kind of interesting when you think about decision-making for future selves, and even the task of thinking through how advance directive templates should be structured.

  3. Hi Holly. I have seen nothing indicating that she ever contemplated the situation she found herself in, and whether she would have amended her general end-of-life wishes during her pregnancy. The most that her husband and parents have said is that she had a general desire not to be on a vent in circumstances like these (e.g., brain death, and presumably similar states like PVS). It is very easy to imagine that, of those women who would not want a vent if they were ever determined to be brain dead (or in a PVS, or whatever), some would make a different choice for the duration of their pregnancy (perhaps depending on how far along they were in their pregnancy, perhaps depending on whether their surviving partner would want to parent under those circumstances), while others would maintain the same end-of-life preferences. More states than not have something similar to TADA’s pregnancy provision, but most people — including most clinicians — are unaware of these exceptions to advance directive statutes.

    Where we don’t have the woman’s specific wishes about end-of-life-care-during-pregnancy, we’re either in substituted judgment territory — where her family makes the choice they think she would have made, using their knowledge of her values — or, since she’s actually dead and not an incompetent patient, we’re in family law/right not to procreate territory, where Dad gets to decide (pre-viability, at least) whether he wants to be a parent under these circumstances (my preferred framework for brain death pregnancy cases). In the Munoz case, it looks like these two frameworks dovetailed towards the same conclusion. And in that sense, it was an easy case. (Imagine if Mom had been fervently pro-life and specifically wrote an AD providing for a vent in the event of her brain death, but Dad doesn’t want to be a single parent. Or Mom had provided for the vent to be withheld/withdrawn notwithstanding any pregnancy, but Dad wants to parent.)

  4. Great post Michelle. I find the suggestion of viewing this a right not to procreate case fascinating! I wondered if he had not been the genetic father (indeed I suppose we don’t know for sure he was, given the rates of mis-attributed paternity) but where he was the woman’s husband and person we look to regarding substituted judgment. To put it another way, in any of the legal or media discourse here was reliance put on his interest in not being a genetic parent (and legal parent) to this child? Do you feel like that angle deserved more play?
    Glenn

  5. Great post Michelle. I find the suggestion of viewing this a right not to procreate case fascinating! I wondered if he had not been the genetic father (indeed I suppose we don’t know for sure he was, given the rates of mis-attributed paternity) but where he was the woman’s husband and person we look to regarding substituted judgment. To put it another way, in any of the legal or media discourse here was reliance put on his interest in not being a genetic parent (and legal parent) to this child? Do you feel like that angle deserved more play?
    Glenn

  6. Hi Glenn. I hope this won’t sound insensitive, given the family’s pain, but everything about this case is fascinating:

    Does TADA apply to brain dead pregnant women (pretty clearly not on a straightforward interpretation, but as Thad Pope points out in our symposium, one can make a not-crazy argument by pointing to the spirit, if not the letter, of the statute)?

    *How* does TADA apply to living pregnant women? Does it really tie the hospital’s hands, as it said, or, as Tom Mayo (who helped draft TADA) has argued, is it merely an immunity statute that permits providers to exercise discretion so long as they’re willing to waive TADA’s immunity protections?

    Is there tension between the pro-choice/feminist position that says that pre-viable, pre-sentient embryos and fetuses should not be considered to have interests or rights, on the one hand, and the pro-choice/feminist position that using brain dead pregnant women as “fetal incubators” violates their rights and/or interests, on the other hand?

    And, yes: When a woman is brain dead (or, perhaps, in a PVS or similar state), such that the constitutionally-protected interests she has in a usual abortion case disappear (or are significantly muted), how do we think about (1) the state’s interest in fetal/potential life and (2) the biodad’s interest in being or not being a genetic and/or legal-social parent?

    I do think that the last set of questions was given short shrift in most coverage of this case, although I’m not surprised — partly because there are so many legal and ethical issues in play in this case that some perhaps inevitably crowd out others; partly because I think that we’re so used to thinking about the right not to procreate in the context of a breathing, walking, living pregnant woman whose interests in avoiding genetic and legal-social parenthood + bodily integrity interests trump or make redundant the man’s interests in (not) procreating that we don’t know quite how to talk about the man’s interests in pursuing or avoiding parenthood; and partly because what the Erick said that Marlise would have wanted was consistent with any preference he might have had not to procreate under these circumstances (AFAIK, he never actually stated his own preferences about parenting under these circumstances, only about Marlise’s general end-of-life preferences and his preferences to be able to bury his wife and get closure).

    Again, without meaning to sound insensitive or trivializing the family’s pain, this is like a law and bioethics issue spotter. I hope to write more about these issues soon.

  7. Hi Glenn. I hope this won’t sound insensitive, given the family’s pain, but everything about this case is fascinating:

    Does TADA apply to brain dead pregnant women (pretty clearly not on a straightforward interpretation, but as Thad Pope points out in our symposium, one can make a not-crazy argument by pointing to the spirit, if not the letter, of the statute)?

    *How* does TADA apply to living pregnant women? Does it really tie the hospital’s hands, as it said, or, as Tom Mayo (who helped draft TADA) has argued, is it merely an immunity statute that permits providers to exercise discretion so long as they’re willing to waive TADA’s immunity protections?

    Is there tension between the pro-choice/feminist position that says that pre-viable, pre-sentient embryos and fetuses should not be considered to have interests or rights, on the one hand, and the pro-choice/feminist position that using brain dead pregnant women as “fetal incubators” violates their rights and/or interests, on the other hand?

    And, yes: When a woman is brain dead (or, perhaps, in a PVS or similar state), such that the constitutionally-protected interests she has in a usual abortion case disappear (or are significantly muted), how do we think about (1) the state’s interest in fetal/potential life and (2) the biodad’s interest in being or not being a genetic and/or legal-social parent?

    I do think that the last set of questions was given short shrift in most coverage of this case, although I’m not surprised — partly because there are so many legal and ethical issues in play in this case that some perhaps inevitably crowd out others; partly because I think that we’re so used to thinking about the right not to procreate in the context of a breathing, walking, living pregnant woman whose interests in avoiding genetic and legal-social parenthood + bodily integrity interests trump or make redundant the man’s interests in (not) procreating that we don’t know quite how to talk about the man’s interests in pursuing or avoiding parenthood; and partly because what the Erick said that Marlise would have wanted was consistent with any preference he might have had not to procreate under these circumstances (AFAIK, he never actually stated his own preferences about parenting under these circumstances, only about Marlise’s general end-of-life preferences and his preferences to be able to bury his wife and get closure).

    Again, without meaning to sound insensitive or trivializing the family’s pain, this is like a law and bioethics issue spotter. I hope to write more about these issues soon.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.