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The Pregnancy Exclusions: Respect for Women Requires Repeal Katherine Taylor
a
a
Drexel University Published online: 21 Jul 2014.
Click for updates To cite this article: Katherine Taylor (2014) The Pregnancy Exclusions: Respect for Women Requires Repeal, The American Journal of Bioethics, 14:8, 50-52, DOI: 10.1080/15265161.2014.925367 To link to this article: http://dx.doi.org/10.1080/15265161.2014.925367
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The American Journal of Bioethics
REFERENCES Esmaeilzadeh, C., C. Dictus, E. Kayvanpour, et al. 2010. One life ends, another begins: Management of a brain-dead pregnant mother-A systematic review. BMC Medicine 8: 74.
Spike, J. P. 1999. Brain death, pregnancy, and posthumous motherhood. Journal of Clinical Ethics 10(1): 57–65. Spong, C. Y. 2013. Defining “term” pregnancy: Recommendations from the Defining “Term” Pregnancy Workgroup. Journal of the American Medical Association 309(23): 2445–2446.
Downloaded by [University of Illinois at Urbana-Champaign] at 04:45 13 March 2015
The Pregnancy Exclusions: Respect for Women Requires Repeal Katherine Taylor, Drexel University Thomas Mayo (2014) argues that the immunity provision of the Texas Advance Directives Act (TADA) renders the act’s requirements optional, including the seeming mandate of its pregnancy exclusion: The act’s requirements are “preconditions that must be satisfied in order to obtain the immunities that TADA confers on health care providers” (17). In other words, Mayo claims, “TADA does not require compliance with its own provisions” (17); rather, hospitals and physicians can ignore the requirements of the act, but if they do so, they lose the benefit of the act’s immunities. In that case, they would have the same liability exposure that they always do when practicing medicine (Mayo 2014). Under this interpretation, Mayo argues that even if Marlise Mu~ noz had been alive, the John Peter Smith Hospital still had a choice to withdraw life support from her, in seeming violation of the TADA’s pregnancy exclusion, which states that “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” (Texas Health & Safety Code x166.049). If the hospital had done so, it simply would have lost its immunities under the act. Whether or not Mayo intends it, his interpretation of the optional nature of the pregnancy exclusion is of no solace to the millions of women who live in Texas and the 31 other states with similar pregnancy exclusions in their advance directive statutes (Meisel and Cerminara 2013). Mayo says that Texas hospitals may choose to ignore the prohibition against ending treatment for pregnant patients, but the statute seems to say otherwise. Furthermore, as a practical matter, only the rare hospital would allow the withdrawal of life support from a pregnant woman with these pregnancy exclusion laws on the books. The pregnancy exclusion laws in Texas and in other states are coercive in intent and effect, and should be repealed.
IS COMPLYING WITH THE PREGNANCY EXCLUSION “OPTIONAL” UNDER THE TADA? As an architect of TADA, Mayo’s interpretation that the act’s requirements are rendered optional by the immunities provision is certainly authoritative. However, the immunities conferred under the act do not appear to cover the pregnancy exclusion’s mandate to continue treating a pregnant patient. The immunity clause of the TADA limits the civil and criminal liability of physicians or health care facilities only in cases where treatment is withheld or withdrawn in accordance with the act’s requirements: The relevant section is entitled “Limitation of Liability for Withholding or Withdrawing Life-Sustaining Procedures,” and its subclauses specifically confer civil and criminal immunity to those types of situation unless reasonable care is not exercised when applying an advance directive (Texas Health & Safety Code x166.044). The pregnancy exclusion in the TADA is not a statutory provision that governs the withholding or withdrawing treatment. To the contrary, Section 166.049 prohibits providers from withholding or withdrawing treatment from a pregnant patient, no matter what her wishes or those of her valid surrogates. Therefore, it is reasonable to interpret the pregnancy exclusion as a mandatory prohibition, rather than simply a directive that the hospital must follow if it wants to avoid civil or criminal liability. Since this legalistic question is unclear, most hospitals would probably take the case to court before a making a decision about whether to withdraw life support from a pregnant patient. When deciding that legal question, a court would look partly to the legislative intent. The Texas legislature obviously intended to prohibit pregnant women (or their valid surrogates) from refusing life-sustaining treatment under the TADA, or else they could have drafted the law to
Address correspondence to Katherine Taylor, Drexel University, College of Nursing and Health Professions, 3001 Market Street, Center for Bioethics, Philadelphia, PA 19104, USA. E-mail: [email protected]
50 ajob
August, Volume 14, Number 8, 2014
Downloaded by [University of Illinois at Urbana-Champaign] at 04:45 13 March 2015
Brain Death
expressly allow women or their families to make that decision. Mayo also notes that the rights bestowed by the TADA are “cumulative,” or not intended to supersede the common law rights of persons to refuse life-sustaining treatment, and this is true of most states’ advance directive statutes. However, courts in most states have not directly addressed those common-law rights for pregnant patients. And to the extent that pregnant women do have common law (and constitutional) rights not to be forced to stay alive for the sake of the fetus (which I believe they do), those rights may well be ignored in many cases, because providers (and their attorneys) tend to mistakenly believe that the advance directive statutes fully enunciate the extent of a person’s rights at the end of life (Taylor 1997). Finally, and critically, even if hospitals were to have a “choice” to stop treating a pregnant patient as Mayo claims, it is decidedly not one that most hospitals would risk making. The unreasonable fears of legal liability on the part of providers and hospitals are by now legend. Indeed, hospitals and providers often do not follow the advance directives of nonpregnant patients to withhold or withdraw treatment, partly because they believe it is best to play it safe and continue treatment in the case of any ambiguity (Pope 2013, 248–250). Surely in the case of pregnant patients those fears will be even greater, outweighing any legalistic interpretation that the exclusions may be ignored. The coercive effect of pregnancy exclusions is clear—as a practical matter, pregnant women and their families, like Marlise Mu~ noz’s family, will usually be held hostage to hospital lawyers and providers who fear legal liability if they stop treatment that may sustain the life of the fetus (Taylor 1997).
THE PREGNANCY EXCLUSIONS SHOULD BE REPEALED I have written elsewhere about the serious problems with pregnancy exclusions passed by Texas and 31 other states, and cannot cover all those problems here. (Taylor 1997; Taylor 2014). As a legal matter, the exclusions raise serious constitutional concerns under Roe v. Wade and its progeny cases (Taylor 1997). The pregnancy exclusions also should not withstand an equal protection challenge that adequately notices women’s subordination to men. The exclusions give women of childbearing years only a conditional right to make end-of-life decisions for themselves in advance, or to have their families make those private decisions for them—women are rendered a different class of persons with lesser rights, in many states from the earliest stage of pregnancy (Taylor 1997). These exclusions need to be seen in their larger context, as part of a disturbing national trend that views pregnant women first not as full constitutional persons, but as fetal carriers—elevating fetal life over the most basic rights of pregnant women to live free from state coercion, from interference in even the most private rights such as
August, Volume 14, Number 8, 2014
refusing life-sustaining treatment or a cesarean section (Paltrow and Flavin 2013). In the name of fetal protection, these types of laws also dangerously interfere with physicians’ ability to give their best medical advice to their patients (Charo 2014; Taylor 1997). This trend of passing laws that ignore women’s full personhood continues. The state of Louisiana has just passed a law that will limit the rights of pregnant women to refuse life-sustaining treatment. Recently, Tennessee decided it was wise to criminally prosecute pregnant women who abuse drugs, against the weighty advice of public health and medical experts. It is both revealing and disturbing to read what the legislators say about these laws. In Louisiana, the bill’s House sponsor said, “We have one goal in mind and that is to protect the sanctity of life in this country,” seeming to ignore the fact that women are independent, living persons who also deserve respect (Woodward 2014). In Tennessee, the legislative sponsor of the bill said of drug-using pregnant women, “These ladies are not those who would consider prenatal care. These are ladies who are strung out on heroin and cocaine and their only next decision is how to get their next fix” (Burke 2014). In one sweeping statement, she denigrates all drug-using pregnant women as persons unworthy of medical treatment or respect, ignoring the medical experts who remind us that drug addiction is a disease, that a large percentage of women who would be swept up by the laws are poor and of color, and that many of these women are not addicted to heroin or cocaine but to narcotics that were prescribed to them by their physicians. The pregnancy exclusions in Texas and other states are part of a national movement to treat fetuses as separate legal persons, as if they live somehow live apart from the women who gestate them. This is a dangerous legal fiction that cannot succeed without at the same time seriously eroding the bodily integrity and freedom of women to live as independent persons. Instead of trying to minimize the impact of these exclusions, we should repeal them. &
REFERENCES Burke, S. 2014. Tennessee bill would punish drug-using pregnant women. AP, Washington Times, April 18. Charo, R. A. 2014. Physicians and the (woman’s) body politic. New England Journal of Medicine 370(3): 193–195. Mayo, T. W. 2014. Brain-dead and pregnant in Texas. American Journal of Bioethics 14(8): 15–18. Meisel, A., and K. L. Cerminara. 2013. The right to die: The law of end-of-life decisionmaking. New York, NY: Wolters Kluwer. Paltrow, L., and J. Flavin. 2013. Arrests and forced interventions on pregnant women in the United States, 1973–2005: Implications for women’s legal status and public health. Journal of Health Politics, Policy & Law 38(2): 299–343.
ajob 51
The American Journal of Bioethics
Pope, T. M. 2013. Clinicians may not administer life-sustaining treatment without consent: Civil, criminal, and disciplinary sanctions. Journal of Health & Biomedical Law 9(2): 213–296. Taylor, K. 2014. State pregnancy exclusions are bad law. Online symposium on the Munoz and McMath cases. Available at: http://thebioethicsprogram.wordpress.com/2014/02/05/statepregnancy-exclusions-are-bad-law
Taylor, K. A. 1997. Compelling pregnancy at death’s door. Columbia Journal of Gender and Law 7(1): 85–165. Woodward, A. 2014. Lege committee backs bill to keep pregnant women on life support. Gambit: Best of Neworleans.com, April 28. Available at: http://www.bestofneworleans.com/gambit/ medical-child-support/Content?oidD2426925
Should We Scrap the Dead Donor Rule? Downloaded by [University of Illinois at Urbana-Champaign] at 04:45 13 March 2015
John Robertson, University of Texas Franklin Miller and Robert Truog (2014) argue that total brain death as a definition of death is biologically incorrect. They perceive a supported brain dead individual as still having biologically integrative functions such as hormonal balance, control of temperature, and the ability to heal wounds, fight infection, and even gestate a fetus. To them the concept is a legal fiction that should be scrapped for a more honest conversation about how to facilitate vital organ procurement. James Bernat (2014) and other scholars have proposed an organism as-a-whole approach to death, which they believe that total brain criteria of death would satisfy. The Bernat camp also argues that brain death is so well accepted nationally and internationally that whatever confusion exists can be cured by increased education and more biophilosophical analysis (Bernat 2014; Magnus et al. 2014). One implication of the Truog and Miller approach is the need to dump the “dead donor rule” (DDR) so that vital organs can be retrieved before the individual is biologically dead (Miller and Truog 2008; Robertson 1999; Truog and Miller 2014). As an ethical concept, the DDR protects against harming or wronging persons. The DDR also has a legal dimension. If the organ donor is not dead, removing vital organs would cause death and potentially be punishable as homicide. For vital organ procurement to occur legally under their approach, the DDR would have to be changed to be inapplicable to biologically alive brain-dead individuals on the ground that they lack interests and thus are neither harmed nor wronged by causing their biologic death by organ removal. The authors also think that scrapping the DDR would improve the coherence of donations after circulatory death (DCD) by allowing individuals to make advance directives that would permit vital organ removal when they have reached a state in which life-sustaining treatment is withheld (Miller and Truog 2008; Truog and Miller 2014). This would avoid the problem they think
exists in DCD. Once treatment is withheld and the heart stops for 2–5 minutes, the stoppage is considered irreversible because neither patient nor family have consented to resuscitation. If they had, the heart could still be resuscitated. The argument here is essentially one about truth or consequences, as the authors note elsewhere (Miller and Truog 2008). The authors are uncomfortable with the legal fictions of brain death and irreversibility in DCD, and think that more honesty would eliminate fictions without necessarily lowering organ supply. In scrapping the DDR in whole-brain death and DCD, one should keep in mind the implications of doing so. It would mean accepting the premise that death could be caused when an individual suffers no setback in interests. Whole-brain death is an example of such a case, but so are cases of anencephaly, persistent vegetative states, and perhaps other situations. A person could no longer actively murder a brain dead, anencephalic, or PVS patient because although alive, they lack the capacity to experience the harm or wrong that conscious individuals ordinarily would. Nor would it prevent doctors with proper consent from taking patients’ organs and thereby causing biologic death, regardless of whether patients are on life support at the time. Of course, the revision of the DDR could be limited to whole-brain death alone and none of the others. But to deny it to the other cases would be to maintain a fiction that those individuals have interests when they have none. With regard to DCD, Miller and Truog argue for allowing organs to be removed before biologic death has occurred when the individual has made an advance directive to have treatment withheld (it is unclear whether the individual would also have to consent to death by vital organ removal) (Miller and Truog 2008). Alternatively, a proxy could make the decision. In essence, someone who is alive and presumably has interests at that point (if they do not, then why require the advance directive?) may waive them at Time 2 when incompetent on the basis of a
Address correspondence to John Robertson, University of Texas, School of Law, 3508 Bridle Path, Austin, TX 78703, USA. E-mail: [email protected]
52 ajob
August, Volume 14, Number 8, 2014
The American Journal of Bioethics Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/uajb20
The Pregnancy Exclusions: Respect for Women Requires Repeal Katherine Taylor
a
a
Drexel University Published online: 21 Jul 2014.
Click for updates To cite this article: Katherine Taylor (2014) The Pregnancy Exclusions: Respect for Women Requires Repeal, The American Journal of Bioethics, 14:8, 50-52, DOI: 10.1080/15265161.2014.925367 To link to this article: http://dx.doi.org/10.1080/15265161.2014.925367
PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions
The American Journal of Bioethics
REFERENCES Esmaeilzadeh, C., C. Dictus, E. Kayvanpour, et al. 2010. One life ends, another begins: Management of a brain-dead pregnant mother-A systematic review. BMC Medicine 8: 74.
Spike, J. P. 1999. Brain death, pregnancy, and posthumous motherhood. Journal of Clinical Ethics 10(1): 57–65. Spong, C. Y. 2013. Defining “term” pregnancy: Recommendations from the Defining “Term” Pregnancy Workgroup. Journal of the American Medical Association 309(23): 2445–2446.
Downloaded by [University of Illinois at Urbana-Champaign] at 04:45 13 March 2015
The Pregnancy Exclusions: Respect for Women Requires Repeal Katherine Taylor, Drexel University Thomas Mayo (2014) argues that the immunity provision of the Texas Advance Directives Act (TADA) renders the act’s requirements optional, including the seeming mandate of its pregnancy exclusion: The act’s requirements are “preconditions that must be satisfied in order to obtain the immunities that TADA confers on health care providers” (17). In other words, Mayo claims, “TADA does not require compliance with its own provisions” (17); rather, hospitals and physicians can ignore the requirements of the act, but if they do so, they lose the benefit of the act’s immunities. In that case, they would have the same liability exposure that they always do when practicing medicine (Mayo 2014). Under this interpretation, Mayo argues that even if Marlise Mu~ noz had been alive, the John Peter Smith Hospital still had a choice to withdraw life support from her, in seeming violation of the TADA’s pregnancy exclusion, which states that “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” (Texas Health & Safety Code x166.049). If the hospital had done so, it simply would have lost its immunities under the act. Whether or not Mayo intends it, his interpretation of the optional nature of the pregnancy exclusion is of no solace to the millions of women who live in Texas and the 31 other states with similar pregnancy exclusions in their advance directive statutes (Meisel and Cerminara 2013). Mayo says that Texas hospitals may choose to ignore the prohibition against ending treatment for pregnant patients, but the statute seems to say otherwise. Furthermore, as a practical matter, only the rare hospital would allow the withdrawal of life support from a pregnant woman with these pregnancy exclusion laws on the books. The pregnancy exclusion laws in Texas and in other states are coercive in intent and effect, and should be repealed.
IS COMPLYING WITH THE PREGNANCY EXCLUSION “OPTIONAL” UNDER THE TADA? As an architect of TADA, Mayo’s interpretation that the act’s requirements are rendered optional by the immunities provision is certainly authoritative. However, the immunities conferred under the act do not appear to cover the pregnancy exclusion’s mandate to continue treating a pregnant patient. The immunity clause of the TADA limits the civil and criminal liability of physicians or health care facilities only in cases where treatment is withheld or withdrawn in accordance with the act’s requirements: The relevant section is entitled “Limitation of Liability for Withholding or Withdrawing Life-Sustaining Procedures,” and its subclauses specifically confer civil and criminal immunity to those types of situation unless reasonable care is not exercised when applying an advance directive (Texas Health & Safety Code x166.044). The pregnancy exclusion in the TADA is not a statutory provision that governs the withholding or withdrawing treatment. To the contrary, Section 166.049 prohibits providers from withholding or withdrawing treatment from a pregnant patient, no matter what her wishes or those of her valid surrogates. Therefore, it is reasonable to interpret the pregnancy exclusion as a mandatory prohibition, rather than simply a directive that the hospital must follow if it wants to avoid civil or criminal liability. Since this legalistic question is unclear, most hospitals would probably take the case to court before a making a decision about whether to withdraw life support from a pregnant patient. When deciding that legal question, a court would look partly to the legislative intent. The Texas legislature obviously intended to prohibit pregnant women (or their valid surrogates) from refusing life-sustaining treatment under the TADA, or else they could have drafted the law to
Address correspondence to Katherine Taylor, Drexel University, College of Nursing and Health Professions, 3001 Market Street, Center for Bioethics, Philadelphia, PA 19104, USA. E-mail: [email protected]
50 ajob
August, Volume 14, Number 8, 2014
Downloaded by [University of Illinois at Urbana-Champaign] at 04:45 13 March 2015
Brain Death
expressly allow women or their families to make that decision. Mayo also notes that the rights bestowed by the TADA are “cumulative,” or not intended to supersede the common law rights of persons to refuse life-sustaining treatment, and this is true of most states’ advance directive statutes. However, courts in most states have not directly addressed those common-law rights for pregnant patients. And to the extent that pregnant women do have common law (and constitutional) rights not to be forced to stay alive for the sake of the fetus (which I believe they do), those rights may well be ignored in many cases, because providers (and their attorneys) tend to mistakenly believe that the advance directive statutes fully enunciate the extent of a person’s rights at the end of life (Taylor 1997). Finally, and critically, even if hospitals were to have a “choice” to stop treating a pregnant patient as Mayo claims, it is decidedly not one that most hospitals would risk making. The unreasonable fears of legal liability on the part of providers and hospitals are by now legend. Indeed, hospitals and providers often do not follow the advance directives of nonpregnant patients to withhold or withdraw treatment, partly because they believe it is best to play it safe and continue treatment in the case of any ambiguity (Pope 2013, 248–250). Surely in the case of pregnant patients those fears will be even greater, outweighing any legalistic interpretation that the exclusions may be ignored. The coercive effect of pregnancy exclusions is clear—as a practical matter, pregnant women and their families, like Marlise Mu~ noz’s family, will usually be held hostage to hospital lawyers and providers who fear legal liability if they stop treatment that may sustain the life of the fetus (Taylor 1997).
THE PREGNANCY EXCLUSIONS SHOULD BE REPEALED I have written elsewhere about the serious problems with pregnancy exclusions passed by Texas and 31 other states, and cannot cover all those problems here. (Taylor 1997; Taylor 2014). As a legal matter, the exclusions raise serious constitutional concerns under Roe v. Wade and its progeny cases (Taylor 1997). The pregnancy exclusions also should not withstand an equal protection challenge that adequately notices women’s subordination to men. The exclusions give women of childbearing years only a conditional right to make end-of-life decisions for themselves in advance, or to have their families make those private decisions for them—women are rendered a different class of persons with lesser rights, in many states from the earliest stage of pregnancy (Taylor 1997). These exclusions need to be seen in their larger context, as part of a disturbing national trend that views pregnant women first not as full constitutional persons, but as fetal carriers—elevating fetal life over the most basic rights of pregnant women to live free from state coercion, from interference in even the most private rights such as
August, Volume 14, Number 8, 2014
refusing life-sustaining treatment or a cesarean section (Paltrow and Flavin 2013). In the name of fetal protection, these types of laws also dangerously interfere with physicians’ ability to give their best medical advice to their patients (Charo 2014; Taylor 1997). This trend of passing laws that ignore women’s full personhood continues. The state of Louisiana has just passed a law that will limit the rights of pregnant women to refuse life-sustaining treatment. Recently, Tennessee decided it was wise to criminally prosecute pregnant women who abuse drugs, against the weighty advice of public health and medical experts. It is both revealing and disturbing to read what the legislators say about these laws. In Louisiana, the bill’s House sponsor said, “We have one goal in mind and that is to protect the sanctity of life in this country,” seeming to ignore the fact that women are independent, living persons who also deserve respect (Woodward 2014). In Tennessee, the legislative sponsor of the bill said of drug-using pregnant women, “These ladies are not those who would consider prenatal care. These are ladies who are strung out on heroin and cocaine and their only next decision is how to get their next fix” (Burke 2014). In one sweeping statement, she denigrates all drug-using pregnant women as persons unworthy of medical treatment or respect, ignoring the medical experts who remind us that drug addiction is a disease, that a large percentage of women who would be swept up by the laws are poor and of color, and that many of these women are not addicted to heroin or cocaine but to narcotics that were prescribed to them by their physicians. The pregnancy exclusions in Texas and other states are part of a national movement to treat fetuses as separate legal persons, as if they live somehow live apart from the women who gestate them. This is a dangerous legal fiction that cannot succeed without at the same time seriously eroding the bodily integrity and freedom of women to live as independent persons. Instead of trying to minimize the impact of these exclusions, we should repeal them. &
REFERENCES Burke, S. 2014. Tennessee bill would punish drug-using pregnant women. AP, Washington Times, April 18. Charo, R. A. 2014. Physicians and the (woman’s) body politic. New England Journal of Medicine 370(3): 193–195. Mayo, T. W. 2014. Brain-dead and pregnant in Texas. American Journal of Bioethics 14(8): 15–18. Meisel, A., and K. L. Cerminara. 2013. The right to die: The law of end-of-life decisionmaking. New York, NY: Wolters Kluwer. Paltrow, L., and J. Flavin. 2013. Arrests and forced interventions on pregnant women in the United States, 1973–2005: Implications for women’s legal status and public health. Journal of Health Politics, Policy & Law 38(2): 299–343.
ajob 51
The American Journal of Bioethics
Pope, T. M. 2013. Clinicians may not administer life-sustaining treatment without consent: Civil, criminal, and disciplinary sanctions. Journal of Health & Biomedical Law 9(2): 213–296. Taylor, K. 2014. State pregnancy exclusions are bad law. Online symposium on the Munoz and McMath cases. Available at: http://thebioethicsprogram.wordpress.com/2014/02/05/statepregnancy-exclusions-are-bad-law
Taylor, K. A. 1997. Compelling pregnancy at death’s door. Columbia Journal of Gender and Law 7(1): 85–165. Woodward, A. 2014. Lege committee backs bill to keep pregnant women on life support. Gambit: Best of Neworleans.com, April 28. Available at: http://www.bestofneworleans.com/gambit/ medical-child-support/Content?oidD2426925
Should We Scrap the Dead Donor Rule? Downloaded by [University of Illinois at Urbana-Champaign] at 04:45 13 March 2015
John Robertson, University of Texas Franklin Miller and Robert Truog (2014) argue that total brain death as a definition of death is biologically incorrect. They perceive a supported brain dead individual as still having biologically integrative functions such as hormonal balance, control of temperature, and the ability to heal wounds, fight infection, and even gestate a fetus. To them the concept is a legal fiction that should be scrapped for a more honest conversation about how to facilitate vital organ procurement. James Bernat (2014) and other scholars have proposed an organism as-a-whole approach to death, which they believe that total brain criteria of death would satisfy. The Bernat camp also argues that brain death is so well accepted nationally and internationally that whatever confusion exists can be cured by increased education and more biophilosophical analysis (Bernat 2014; Magnus et al. 2014). One implication of the Truog and Miller approach is the need to dump the “dead donor rule” (DDR) so that vital organs can be retrieved before the individual is biologically dead (Miller and Truog 2008; Robertson 1999; Truog and Miller 2014). As an ethical concept, the DDR protects against harming or wronging persons. The DDR also has a legal dimension. If the organ donor is not dead, removing vital organs would cause death and potentially be punishable as homicide. For vital organ procurement to occur legally under their approach, the DDR would have to be changed to be inapplicable to biologically alive brain-dead individuals on the ground that they lack interests and thus are neither harmed nor wronged by causing their biologic death by organ removal. The authors also think that scrapping the DDR would improve the coherence of donations after circulatory death (DCD) by allowing individuals to make advance directives that would permit vital organ removal when they have reached a state in which life-sustaining treatment is withheld (Miller and Truog 2008; Truog and Miller 2014). This would avoid the problem they think
exists in DCD. Once treatment is withheld and the heart stops for 2–5 minutes, the stoppage is considered irreversible because neither patient nor family have consented to resuscitation. If they had, the heart could still be resuscitated. The argument here is essentially one about truth or consequences, as the authors note elsewhere (Miller and Truog 2008). The authors are uncomfortable with the legal fictions of brain death and irreversibility in DCD, and think that more honesty would eliminate fictions without necessarily lowering organ supply. In scrapping the DDR in whole-brain death and DCD, one should keep in mind the implications of doing so. It would mean accepting the premise that death could be caused when an individual suffers no setback in interests. Whole-brain death is an example of such a case, but so are cases of anencephaly, persistent vegetative states, and perhaps other situations. A person could no longer actively murder a brain dead, anencephalic, or PVS patient because although alive, they lack the capacity to experience the harm or wrong that conscious individuals ordinarily would. Nor would it prevent doctors with proper consent from taking patients’ organs and thereby causing biologic death, regardless of whether patients are on life support at the time. Of course, the revision of the DDR could be limited to whole-brain death alone and none of the others. But to deny it to the other cases would be to maintain a fiction that those individuals have interests when they have none. With regard to DCD, Miller and Truog argue for allowing organs to be removed before biologic death has occurred when the individual has made an advance directive to have treatment withheld (it is unclear whether the individual would also have to consent to death by vital organ removal) (Miller and Truog 2008). Alternatively, a proxy could make the decision. In essence, someone who is alive and presumably has interests at that point (if they do not, then why require the advance directive?) may waive them at Time 2 when incompetent on the basis of a
Address correspondence to John Robertson, University of Texas, School of Law, 3508 Bridle Path, Austin, TX 78703, USA. E-mail: [email protected]
52 ajob
August, Volume 14, Number 8, 2014
