Advance Directives, Rights, and Brain Death Pregnancies

By John A. Robertson

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”).[1]   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.”[2]  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.[3]  Indeed, a constitutional right to make future directives that bind oneself directly or through an agent has no constitutional precedent and poses many problems.

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Two year Old Boy to Inherit 11 Frozen Embryos

By John A. Robertson, Law School, University of Texas at Austin

A new twist on frozen embryo litigation is now before a Dallas probate court facing what to do with 11 frozen embryos after the parents were murdered.  They left no will and gave no instructions to the fertility clinic for disposition if they both died.  Under the Texas intestacy statute the only heir is a two year old boy.  The Master in Chancery appointed by the Probate Court has recommended that the embryos be maintained by the clinic until the two year old heir is 18, at which time he would acquire all rights to their disposition.[1]

Since there is no party asserting a claim over the embryos and their disposition will not affect other estate issues, the Master’s well-reasoned recommendations are likely to be followed by the probate court.  A key point is that there are no Texas or United States cases involving inheritance of frozen embryos when both parties have died and left no instructions with the clinic or in a will.  Almost all litigation in this area involves divorcing couples who want a different disposition than that to which they had agreed (A.Z. v. B.Z.) [2] or have left no instructions at all (Davis v. Davis). [3]  Most courts have refused to enforce prior agreements for use, despite the analytic weakness of the claim that doing so would force the other party, who has willingly provided gametes to create embryos, to procreate against his or her will.

Without a contesting party who provided gametes, the main question under Texas law is whether the embryos were “property” that would pass under the intestacy statute.  Noting that no Texas court had held them to be “property,” the Master also found that no Texas court had found them to be worthless.[4]  Since they can be the subject of an enforcible contract, the Master concluded that they have an implicit value under Texas law.  She recommended that if the probate court does not affirmatively rule that the embryos are  property, it should follow the Davis v Davis decision that they have a quasi-property status “in the nature of an ownership interest” that is subject to probate orders for settlement or distribution of an estate.[5]

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Introducing John A. Robertson

We’re excited to introduce and welcome John A. Robertson as a contributor to our blogging community.

13.06.26, robertson, john

John holds the Vinson and Elkins Chair at The University of Texas School of Law at Austin. He has written and lectured widely on law and bioethical issues. He is the author of two books in bioethics The Rights of the Critically Ill (1983) and Children of Choice: Freedom and the New Reproductive Technologies (1994), and numerous articles on reproductive rights, genetics, organ transplantation, and human experimentation. He has served on or been a consultant to many national bioethics advisory bodies, and is currently Chair of the Ethics Committee of the American Society for Reproductive Medicine. 

Recent publications include:

  • Paid Organ Donors and the Constitutionality of the National Organ Transplant Act, 40 Hastings Constitutional Law Quarterly 221 (2013).
  • Learning the Bad News, in Malignant: Medical Ethicists Confront Cancer at 39 (Rebecca Dresser, ed.; Oxford: Oxford University Press, 2012).
  • Caregivers, Patients, and Clinicians, in Malignant: Medical Ethicists Confront Cancer at 192 (Rebecca Dresser, ed.; Oxford: Oxford University Press, 2012).

Fetal Pain Laws: Scientific and Constitutional Controversy

By John A. Robertson, University of Texas Law School

A new front has opened in the abortion wars with laws that ban abortion at 20 weeks on the ground that the fetus is then capable of feeling pain.  Led by Nebraska in 2011, ten states have passed such laws, and Texas is now considering such a ban. Although affecting less than 1% of the 1.2 million abortions occurring annually in the United States, abortion between 20-24 weeks may be hugely important for women whose fetus has a lethal or severe genetic anomaly or who otherwise find that they cannot continue the pregnancy. If this challenge to Roe v. Wade ‘s viability line (24 weeks) is upheld, it would be an important victory for anti-abortion groups, spur more states to enact such laws, and signal that the Supreme Court is ready to reconsider other aspects of the abortion right.

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John Robertson on Cohen and Adashi on Made-to-Order Embryos for Sale

By John Robertson

Glenn Cohen and Eli Adashi have an interesting Sounding Board piece in the latest NEJM[i] on made-to-order embryos for sale.  A California clinic offering this option has garnered enormous publicity.  It might, however, have stimulated more bioethical thinking than actual demand for its services.

On the bioethical side, Glenn and Eli survey the relevant issues and conclude that what is most “new and unique here is the lack of clear legal guidance as to the parentage of the embryos in question.”[ii]  My impression is different– existing laws give sufficient support about parentage, if anyone wants to use them.  The clinic creating the embryos from separate gamete donations will have dispositional control of them, but no parenting questions arise until the embryos are gestated and brought to term.  True, there are few state laws on embryo donation as such. But in states with no specific embryo donation laws, those who have commissioned gestation will most likely have rearing rights and duties once a child is born until they arrange for an adoption.[iii]

Nor would the gamete donors in such states be able to claim rearing rights or be subject to rearing duties after such a birth.   Most states recognize gamete donor relinquishment of rearing rights and duties in resulting children with their consent to donation.  After the birth of a child, the gamete donors ordinarily would have no right to change their mind and acquire rearing rights or be subject to rearing duties, whether the donation was of sperm or egg separately or both combined into an embryo.

One aspect of this transaction that is ethically unique is that divvying up embryos created from the same egg and sperm donor would lead to different recipients giving birth to full rather than half siblings, as is the usual situation with gamete donation (it could happen with excess embryos donated after successful IVF by an infertile couple, but that is rarer). Whether it creates a higher risk of full sibling consanguinity would depend on clinic practices in distributing embryos from the same batch to different recipients.  As Glenn and Eli note, donor registries might solve this problem, but none yet exist in the United States.

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John Robertson on “Is Selective Reduction Covered by State Abortion Law?” (Online Abortion and Reproductive Technology Symposium)

By John Robertson

The meeting at Rutgers-Camden on convergences and divergences between abortion and assisted reproduction (to use Glenn Cohen’s term) was stimulating and interesting on many fronts.  To pick up on one such issue, must physicians who reduce pregnancies to twins or singletons comply with state regulations for abortion?  Many of us thought that they were probably covered, even if they view themselves differently than physicians at abortion clinics.

In fact, selective reductions might not fit all state definitions of abortion.  Texas defines abortion as “the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant with the intention that the termination of the pregnancy by those means will, with reasonable likelihood, cause the death of the fetus.”  Texas Health & Safety Code # 171.002.

Since protection of fetuses is a main purpose of such statutes, a natural reading of the statute would be to view the termination of the pregnancy of a particular fetus, as occurs with selective reduction, to be covered.  On the other hand, precision in language is also necessary.  Since the intention of the physician is not to terminate the entire pregnancy, one could argue (perhaps with less support) that selective reduction where at least one fetus remains and the pregnancy continues is not covered.  Under prevailing notice jurisprudence, there is a plausible argument that this definition doesn’t give reasonable physicians, enforcers, or patients fair notice that selective reduction is covered by abortion statutes. (Of course, the legislature could easily revise the statute).

As a practical matter, a physician doing such procedures might prudently following state law in all respects, such as informed consent, 24 hour waiting periods, ultrasound if required, notice of adoption alternatives, etc. to avoid trouble.  There may, however, be situations in which compliance with such requirements in this already heavily freighted emotional context is especially onerous.  There may also be questions as to whether it extends to postviability abortions, where selective reduction is done to protect the health of other fetuses or newborns, though many of those cases might fall within the mother’s health exception.

In the end, the greatest importance of this question is to enrich the discussion and make us aware of the different situations that bring women to termination choices.  If one such path is through assisted reproduction, it reminds us that much more attention needs to be paid to hyperstimulation and transfer protocols so that the need for to “reduce” pregnancy is itself reduced.  Would laws that limit embryo transfer be constitutional?  Probably not, but that is another discussion.

I would be interested in hearing whether other state statutes are clearer and whether anything beyond what I have mentioned hinges on it.

On Behalf of John Robertson: May Guardians Terminate Treatment Without Judicial Review?

By John Robertson

Legal questions about end-of-life decisions have moved on since the paradigm-setting battles in the 1980’s and 1990’s.  It is now clearly established that a competent person has the right to refuse needed medical treatment and to make binding advance directives about treatment if she becomes incompetent.  Physician-assisted suicide is a policy choice for states, not a constitutional right.  National debate now focuses on providing palliative care rather than high-tech interventions to prolong  fading life.  Cost reduction consistent with these values remain an omnipresent dilemma.

Sticky legal issues, however, remain, particularly with regard to the care of incompetent patients, as a Minnesota trial court recently reminded us (In re the Guardianship of Jeffers J. Tschumy, Hennepin County District Court, Fourth Judicial District, #27-GC-PR-07-496, October 18, 2012).   The question before the court was whether a broad grant of power to a guardian to make decisions about consenting or not consenting to medical treatment includes the power to have treatment terminated that will result in the ward’s death.  While allowing treatment to be withheld in that case, the court decided that only a judge, not the guardian on his own, could make that decision.  An appeal is now pending.

The court’s opinion catalogued the main arguments for each position before coming down on the side of judicial review.  Allowing the guardian to decide without court review was supported by the broad language of powers granted to guardians—to make decision about providing or withholding medical treatment—and the legislature’s failure to list termination of treatment as something that was explicitly denied the guardian (as it had done with certain other procedures).  It would also be quicker and less cumbersome, expensive, and burdensome  both for judges and family members to have guardians empowered to terminate treatment.

On the other side were the argument that the awesome power to end life was not specifically granted the guardian, and the fact that guardians are often appointed years before such decisions must be made.  At that time of appointment there is usually little thought of ending the life at some future time, and guardians so appointed may have not expertise or training in such matters.  The court concluded that until the legislature decided otherwise, a guardian would have to return to court for permission to end treatment that would result in the ward’s death.

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