Brain Death, Pregnancy and the Law
Thursday 23 January 2014 @ 1.11 p.m. | Legal Research
A recent USA case of the brain dead Marlise Munoz being kept alive in order to facilitate the birth of her 14 week foetus again raises interesting question in regards to the impact of the law on the rights of both mother and foetus during pregnancy.
The Case in the USA
In the case of Ms Munoz, she collapsed at home with a suspected blood clot in her lungs, leaving the hospital with an agonising decision - it continued to support her biological life under a Texas law that prohibits the withdrawal of life support from a pregnant patient, despite her husband's wishes to remove life support and all treatment.
Similar laws prevail in roughly half the states of the US. The Texas law is among the most restrictive: regardless of the progression of the pregnancy, a woman must remain on life-sustaining treatment until she gives birth.
There is considerable types of variation elsewhere around the world, with factors including the probability that the fetus will develop to the point of birth, and the existence of advance wishes of the mother, playing variable limiting roles. Some states have no relevant legislation, while a small number allow women to state positive wishes about pregnancy in their advance care plans.
The Case in Australia
Australian jurisdictions have no such pregnancy-triggered restrictions for advanced care planning.
The ethical dilemma, however, which this case raises, is from the complex interrelation of distinct issues such as abortion, withdrawal of treatment, advanced care planning and women's rights.
In Australia, the introduction and debate surrounding the introduction of Zoe's Law (the Crimes Amendment (Zoe's Law) Bill 2013 and its amended counterpart) reflects this interrelationship.
The Bill, if passed by NSW Parliament when they begin to sit as early as next week in 2014, would criminalise grievous bodily harm to a fetus of 20 weeks gestation or more by recognising the fetus as a legal person. This could have an impact in the future on the advance planning and treatment decision of women and the decisions about withdrawal of treatment or other medical procedures, such as abortion while pregnant.
As stated by the Conversation,
Opinion polls consistently show that a majority of Australian support wide access to abortion, while often being uncertain or ambivalent about the status of the foetus. They seem to be concerned about the value of the foetus without seeing this as a danger to wide access to abortion.
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