Last December the country was captivated by a devastating tale of a husband and his expecting wife from Texas.   Erick Muñoz found his wife Marlise lifeless in their home and rushed her to the hospital.  Once there, the doctors told Erick his wife had likely suffered a pulmonary embolism.  They also informed him Marlise was expecting a child, and was fourteen weeks pregnant.  Prior to that conversation with the hospital, Marlise’s pregnancy was unknown to both him and the other members of their family.  She was tragically declared brain dead just two days after she was first admitted to the hospital.  “Brain death” is widely recognized as the irreversible end of brain activity, coupled with a failure of the respiratory system to work.  “Brain death” is a common form of a “legal death.”

Both Erick and Marlise were paramedics.  A previous conversation between the two left Erick with no doubt in his mind that Marlise would not want to continue to be artificially kept alive.  He, with the support from the other members of their family, asked that she be removed from all life-sustaining measures.

The hospital refused his request, citing Texas Health and Safety Code § 166.049.  This laws states, “[a] person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.”  This provision supersedes any personal directive and/or wish from a pregnant patient.  The hospital used this statutory provision to prohibit Erick from removing the life sustaining procedures, even though Marlise was legally dead.  The hospital used this statutory provision to keep the body of Marlise Muñoz functioning after death against her apparent will.

Kansas, like Texas, has a law that directly addresses this issue. Kansas Statute § 65-28,101 details that the Kansas legislature finds that adult persons in the state of Kansas have the fundamental right “to control the decisions relating to the rendering of their own medical care, including the decisions to have life-sustaining procedures withheld or withdrawn in instances of a terminal condition.” In order to effectuate this decision the legislature “declares… the right of an adult person to make a written declaration instructing his or her physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition (K.S.A. § 65-28,101).  This “right,” however, is limited by K.S.A. § 65-28,103 which details, “the declaration of a qualified patient diagnosed as pregnant by the attending physician shall have no effect during the course of the qualified patient’s pregnancy.”

Erick Muñoz ultimately filed suit in Texas State Court and the judge assigned to the case agreed that the law in Texas did not apply to patients who were already legally deceased.

But what result in Kansas?  The law makes it very clear that even if a woman has filed a “declaration” to medical personnel to withhold life-sustaining procedures, her wishes do not matter if she is pregnant.  Until the legislature clarifies K.S.A. § 65-28,103, or the courts are forced to arbitrate like the court in Texas, there is no clear cut answer of what effect, if any, brain death has on the law which requires artificially sustaining the body of a legally deceased pregnant woman.

Written By Jade M. Martin, Associate Attorney at Klenda Austerman, LLC

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