Learning from the Tragedy of Marlise Munoz z"l

Last weekend the tragedy of the Munoz family in Texas came to an end. Marlise was a woman, a wife and mother, who was pregnant when she collapsed at home last November 28 and was taken to the hospital. She was declared dead at the hospital on the basis of a standard known as “brain death.”

The situation was complicated by the fact that in Texas, there is a law that “life-sustaining treatment” may not be withheld from a pregnant woman, out of concern for the unborn fetus. And in fact, Marlise Munoz's situation is the most dramatic illustration of a fact of modern medicine: that once a person is declared dead, it may be possible through a mechanical respirator to keep the body in a state that allows organs to continue functioning so that they may be harvested for transplant.

What do we call a body in that situation, with blood and oxygen moving through a body – alive or dead? How far does the imperative of preserving life, such as through the donation of organs, extend?

This a gray area in the law – both American law and Jewish law – as well as in the experience of medical professionals. It is a gray area too for people whose loved one has died, and it is a philosophical question about whether death is in fact a moment in time.

Here are few thoughts, from the perspective particularly of halacha (Jewish law). These are musings, not edited or polished. I write them too with the awareness that first and foremost this is a family tragedy, for Marlise Munoz's husband and small child.

Is brain death the same as death? Rabbi Daniel Nevins wrote a comprehensive paper for the Committee on Jewish Law and Standards of the Conservative movement. He reviewed both traditional Jewish legal definitions of death, and contemporary medical understandings of death. His conclusion is that death is defined in Judaism not as cardiac arrest, but as the irreversible cessation of spontaneous breathing. Part of the clinical determination of brain death includes this test, and thus a person who is declared brain dead is considered to have died under halacha.

How should we treat the dead body when its organs can be “harvested” for donation? The word “harvested” is a terrible word, obviously. It seems to be the term of art.

Most of the Jewish world has come around to the idea that organ donation is an example of pikuach nefesh, the preservation of life. It is not only permitted, but encouraged, for people whose organs could save another person's life to donate them. (Why is it not, therefore, required?) In much of the Orthodox world, and in Israel, organ donation is understood to be the saving of life.

In hospitals, there are or should be policies to prevent staff from hastening the death of a person who is about to die, for the sake of the condition of the organs or if the recipient is deteriorating, or for that matter if the staff would just like to go home sooner. There should ideally be protocols that separate the staff who care for the dying person from the staff that come to prepare the organs for transplantation.

There is an emotional dimension for the survivors, who know that a loved one has died, and yet who know or even see that the person is being treated in the same way he or she would if still alive but in a coma.  How do you begin to mourn someone who has died, but look as though being kept alive?

To my knowledge, no one has tried to codify how long a body can be kept in a state that perfuses the organs without violating the halacha of k'vod ha-met, respecting the body of the dead. Jews view the dead body as still sacred, and deserving of a prompt and respectful burial, before the body deteriorates. In the typical case of organ donation, burial is not delayed for weeks, or even for days. Where is the soul in relation to this body?

Is preserving the fetus equivalent to preserving organs for donation? This is the unique question of the Munoz case, which I imagine will become a classic case for us to reflect on and study for this reason. If the fetus is an actual person, on the border between life and death, then its life would surely weigh heavily.

In Jewish law, the fetus does not have the same status as a living person. We know this from the Mishnah's case of a woman in labor whose life is in danger because of the delivery. Before the head emerges and the baby can breathe, the fetus can be dismembered to save the mother; once the baby's head is out, the baby must be protected.

At the same time, halacha does not say that abortion is permitted right up to birth without restriction, and Jewish law has no clear statement about how to regard a fetus, given that it has a body and a heartbeat and is on its way to being born as a person.

Someone might argue that since Marlise Munoz was, so to speak, not in danger by being kept on the respirator, the Mishnah does not speak to this case. Unless the birth is causing danger right now, the fetus should be sustained.

I cannot see that we would maintain a dead body artificially for weeks as an incubator for a fetus, even if Erick Munoz had consented. It would be a terrible burden on him, on the medical staff, on the hospital even to have to make this decision.

Maybe I am influenced more by science fiction movies than by reasoned arguments, because I am placing a value of k'vod ha-met above pikuach nefesh, the dignity of the dead body over the preservation of life. Rabbi Michael Broyde, an Orthodox rabbi on the faculty at Emory University Law School, argues that Judaism encourages us to “play God”, in his words. But even so, I think keeping Marlise Munoz on a respirator for weeks after she was declared brain dead was far beyond playing God for good reason. 

Had she been not declared dead but was likely to die, I could see her pregnancy being a factor in deciding whether or not to let her go sooner. But in fact, she was dead. We have no prerogative to override death in this way. Dead bodies are not available for us to use (but...what about cadavers for medical training?).  Had I been on the ethics committee at John Peter Smith Hospital, what would I have said to keeping her body on the respirator for just one extra day, just as might be done in order to donate her organs? As I wrote above, how long is a gray area, but there would have been no point in just another day. What if the fetus had been closer to viability?

So these are difficult questions. They test the meanings of k'vod ha-met and pikuach nefesh, and they test our kishkes, our gut reactions. My prayers are with the Munoz family. Perhaps they will derive some comfort, eventually, from knowing that Marlise's life and her death will help teach us to think about these difficult and important ethical and spiritual questions.

Please feel free to submit your thoughts and questions in the comments area.

Comments

[Gina Vega]

This is a heartbreaking situation, and one for which a firm "rule" would be helpful, so that the decision-makers have some of the "playing God" conditions removed from their realm. I cannot imagine keeping a dead body viable for the sake of acting like an incubator. It's just too horrible to contemplate. We cannot know what Marlene would have wanted to do, and we do not have the right to impose our own preferences on her, as she was unable to state her wishes.

[Rabbi Jon]

I learned from one note I got back from a physical that the term "harvesting" is being replaced by the word "procuring".

[Craig M. Parsons-Kerins]

There is, I think, a further complicating factor, which is - what (if any) are the effects on the developing fetus, depending on how long the fetus needs in order to reach a state where it could viably exist ex utero, in the body of the deceased? Would the child suffer from physical and/or cognitive issues following birth? Is the environment of the womb more than just an"incubator", but also a dynamic environment where the emotional ebbs and flows of the mother play a vital role in the developing brain and other organs of the fetus?

Issues surrounding the viability of unborn fetuses were, at one time, rather more straightforward - if the mother died, unless the child was on the verge of birth and an emergency cesarean could be performed (with a high infant mortality rate depending on the period in history), the fetus would die. QED.

With the advent of medical advances, we are in uncharted territory. To my thinking, maintaining minimal bodily functions to keep the mother around as a biological incubator is dehumanizing and a violation of human dignity.

Nonetheless - the pain of a father who loses both his wife and unborn child is almost unimaginable to me. If the body of the mother is kept functioning in order to enable the fetus to develop to viability, at least the father would have the solace of the child in his life. This, however, might also present issues - for example, is it possible that the father would have resentment or some psychological slight against the child surrounding the issues of his/her birth, and how those issues might play out in the shaping of the mind and life of the child.

I have no answer to the issue, except my emotional stance that it is wrong to maintain the body as an incubator.

On a tangent - with respect to halakha - if the mother passed away prior to the child's birth (if the incubator approach is seized upon), is the child halakhicaly (sp?) Jewish? Such a child would not come through the birth canal and would need to be cesarean delivered from a deceased mother. And, if the child were to be considered Jewish, would other things within Jewish law also pass - for example, were the child born to a Kohain, would that inheritance pass to the child? What about the strictures regarding the Kohanim and contact with the dead?

To return to the main point from your post - my inclination is to say that it is wrong to maintain the machinery of the body functioning in order to ensure the life of the developing fetus. It divorces us from vital parts of our animal nature which then get carried forward and affect the rest of the child's life - e.g., preemies born in the 1940s were placed immediately into incubation chambers, but not touched. In many cases, this seems to have contributed to emotional developmental issues which can be life shattering. I personally know an individual who was a preemie in the 1940s and the lack of physical attention has had marked effects on the adult life of the individual - a large part of my opinion on this derived from observation of the person and their interactions with siblings who were not born prematurely. The situation can only be exacerbated, I think, if the mother died prior to the child's birth.

I apologize for the lack of focus in this post - I am multitasking and should probably be paying attention to my job...but this is much more interesting....

[Craig M. Parsons-Kerins]

In response to the comment from Gina Vega - I am not sure that we can establish firm rules around these issues currently. Technological innovation and development is occurring at an increasingly dizzying rate. If you read some of the writing of Ray Kurzweil on the idea of the singularity, as well as writings of the transhumanists, or look at some of the cutting edge work in the biological sciences and their increasing use of cybernetics, even the very definition of who is a human can come into question. With these kind of tools at our disposal and how quickly new tools can be developed, I do not think we will have time to put rules in place that address new innovations with respect to medicine as the pace of invention increases - at least not easily.

The question of who decides such things - maintaining the body's functions despite brain death - becomes thorny, to say the least, I think. Should the state legislate whether or not a father "pulls the plug" on the body of his wife, ensuring the death of viable fetus, or allows the potential mercy of letting the fetus continue to develop and be brought into this world. Is it right to deny the surviving parent the chance to have his child in his life following the loss of his wife?

With respect to religious law and practices - the deciders would have to be very, very careful. They cannot be so old and learned as to be divorced from the visceral and emotional aspects of these kinds of situations, nor so far out of touch with the realities of the technological state of the world to be incapable of understanding what the technology is doing and where it will go (assuming the desire is to make forward looking laws and not simply answer the questions of the moment).

The issue of the rights and wishes of Marlene pose an interesting problem. Whose wishes have primacy - the surviving father seeking for the fetus to be born, the deceased wife or the fetus (though the last is covered, to my understanding, by halakhah as Rabbi Jon wrote with respect to saving the wife of the mother or the fetus in dangerous births - I assume it carries through to the existence or non-existence of rights for a fetus in situations similar to this).

I fear that, as time goes on, these kind of issues will become more common and even more difficult to resolve. For example, in utero genetic manipulation in order to prevent a Down's Syndrome child being born by "correcting" the damaged sequences - is the geneticist playing G-d, despite the positive outcome? Are they overstepping bounds that should be reserved for the Creator? Or - is this what we are SUPPOSED to be doing? Are we supposed to discover technologies to extend life, better it and bring it into the world...even if the vehicle of transmission of life is from one dead?

I have no real idea of how situations like this can effectively, humanely and halakhically (sp?) be addressed.