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States Differ on Whether Living Wills Are Followed During Pregnancy

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Posted on Jan 31, 2014 | Share this post: Like Us on Facebook Join Us on Google Follow Us on Twitter

Over the weekend, Marlise Munoz, the pregnant but brain-dead woman who was kept alive by aTexashospital against her family’s wishes, was taken off life support.  It took a court order for the hospital to follow Marlise’s wishes, as expressed by her husband, not to have such extraordinary medical interventions.  It seems shocking that Marlise’s family had to go to court for this result, especially because we have the ability to state our wishes in advance medical directives (or living wills) and if we don’t, statutes usually provide for a specific family member, or members, to make decisions on our behalf.  (All 50 states have laws regarding advance directives, living wills, and/or health care powers of attorney.)

But, in some states, those measures can be ignored if a patient is pregnant.  Marlise was 14 weeks pregnant when her husband, Erick, found her unconscious, possibly due to a blood clot.  A Texas statute, at least as the hospital interpreted it, prevented life-sustaining treatment from being withdrawn, regardless of what she would have said in an advance directive, or what her family members knew to be her end-of-life wishes.  The Texas Advance Directives Act reads, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.”  The judge in the resulting lawsuit brought by the family ordered treatment withdrawn because Marlise was not a live patient but had been declared dead.

Thomas Mayo, an associate law professor at Southern Methodist University who helped draft the advance directive law, told the Fort Worth Star-Telegram:  “It never would have occurred to us that anything in the statute applied to anyone who was dead.  The statute was meant for making treatment decisions for patients with terminal or irreversible conditions.”

Texas isn’t the only state that makes exceptions for pregnant women’s end-of-life care.  More than thirty have some sort of provision that addresses advance directives in the event of pregnancy.  Among them:  Alabama, Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, and Wisconsin.

These state statutes vary.  Some, like theTexas law, automatically invalidate a woman’s advance directive if she is pregnant.  Others follow the Uniform Rights of the Terminally Ill Act, which calls for life-sustaining treatment to be continued if it is probable that the pregnancy result in a live birth.  Some provide an exception if the treatment will be physically harmful to the woman or prolong severe pain that cannot be alleviated with medication.  Yet other states incorporate the option to specify specific changes in treatment wishes in the event of a pregnancy.

Arizona is one of only a handful of states that does not address pregnancy in the statute, although the statute allows flexibility in drafting treatment wishes, so pregnancy always can be specifically included.  The state-established form in Arizona includes pregnancy in its checklist of clauses that can be added as follows:

 ____ C. Pregnancy: Regardless of any other directions I have given in this Living Will, if I am known to be pregnant I do not want life-sustaining treatment withheld or withdrawn if it is possible that the embryo/fetus will develop to the point of live birth with the continued application of life-sustaining treatment.

State laws governing advance directives/living wills vary in other important ways, including witness and notary requirements, and the effect of divorce (some automatically invalidate the appointment of a former spouse as an agent; others do not).  It is important, whether you are executing a new living will in your new state, or agreeing to serve as agent for a loved one who lives elsewhere, to realize that advance directives, while now common across the country, do have differences, and what is familiar to you in your own state might be quite different if you move or if you are trying to carry out your loved one’s wishes in a state with specific guidelines for living wills of pregnant women.