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.
