In the past few weeks, there have been two stories that have caught our attention regarding the issue of incapacity and the need for advanced health care directives.
The first news story unfortunately involved a minor child, who had been declared brain-dead by her doctors following complications from tonsil surgery. Her parents however wished to have her moved to another facility and the hospital was prohibited from discontinuing any life support. Here is an article regarding the matter from the end of December when the case began to receive national coverage – Jahi McMath’s family seeks to move brain-dead girl to another facility. Here is an update on the case as well – Brain-dead girl Jahi McMath released from California hospital.
While this case involved a minor child who could not execute a health care directive, this situation could happen to anyone. People go through surgeries – and what appear to be routine surgeries – all of the time. Complications can happen and if you want to provide direction on your wishes, you need to complete an advanced directive.
The second story involves a pregnant woman, Mrs. Marlise Munoz, who was declared brain-dead after collapsing from an apparent blood clot. Both her parents and her husband were prepared to say their good-byes to the woman and wished discontinue her life support, which they believed honored her wishes. However, under Texas law, medical officials are prohibited from removing life support from a pregnant woman. You can read about this case here – Pregnant, and Forced to Stay on Life Support. The article mentions a report by the Center for Women Policy Studies, which lists out the varying state laws with regards pregnancy exclusions from advance medical care directives.
According to the report from August 2012, thirty-seven states have pregnancy exclusions in their advanced medical care directives. The report classified the states as the following1:
- States that automatically invalidate a pregnant woman’s advance directive: Alabama, Idaho, Indiana, Kansas, Kentucky, Michigan, Missouri, South Carolina, Texas, Utah, Washington, and Wisconsin.
- States that require a pregnant woman to receive life-sustaining treatment if it is “probable” that the fetus will develop to the point of “live birth:” Alaska, Arizona, Arkansas, Illinois, Iowa, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Pennsylvania, Rhode Island and South Dakota.
- States that use a “viability” standard to determine the enforceability of a pregnant woman’s advanced directive: Colorado, Delaware, Florida and Georgia.
- States that have advanced medical directive statutes but are silent on pregnancy exclusions: California, Hawaii, Louisiana, Maine, Massachusetts, Mississippi, New Mexico, New York, North Carolina, Oregon, Tennessee, Virginia, West Virginia, and Wyoming.
- States that allow a clear option for women to write their wishes regarding pregnancy into their advanced directives and to guarantee that their instructions will be followed: Maryland, Minnesota, New Jersey, Oklahoma, and Vermont.
As you can see, for some individuals, depending on the state in which they lived, it would not necessarily matter whether they had an advanced directive in a situation similar to Mrs. Munoz. However, it is still essential to have a directive in place in case the law ever changes in some of those states to allow women to provide guidance regarding their pregnancy in their advanced directives.
For questions to consider when completing a health care directive see Jamie Held’s article on Health Care Directive Questions and for the requirements to create a valid health care directive see Jayne Sykora’s article on Requirements for a Valid Health Care Directive.
1Greene, Megan and Leslie R. Wolfe, Pregnancy Exclusions in State Living Will and Medical Proxy Statutes, Reproductive Laws for the 21st Century Papers – Center for Women Policy Studies: August 2012.
