The purpose of a living will is to allow individuals to specify what type of life sustaining treatments they would want in the event that they were injured or developed a terminal illness and were no longer able to make or communicate decisions for themselves (Roth 122). While people are entitled to have some authority in what happens to them after they die they should not be able to decide this unilaterally. Their decisions have an impact on their families, friends, doctors, and most directly, on their unborn children. It is also pertinent to clarify that the state has a legitimate interest in the lives of its citizens, especially in those of pregnant women. Reflecting this interest, thirty seven states specifically address pregnant women in living will statutes and thirty four states of these states mandate certain criteria in the event that a living will has to be carried out. The criteria range from automatically invalidating a pregnant woman’s living will (in more than twenty states) to allowing women to decide regardless of their pregnancy and the stage of the fetus’ development, which occurs in two states (Roth 123). While this is a step in the right direction the rest of the states should be forced to join the status quo and protect the life of a woman’s unborn child, even if she asked in her living will to not be given life sustaining treatment under any circumstances.
Stipulations that force a woman to be kept alive while the fetus has a chance to survive clearly balances a woman’s right to refuse treatment and control over future care with the state’s interest in protecting the life of the fetus. One must realize we are talking about an incompetent, ‘brain dead’ individual who is unaware of what is happening to her body. While her heart continues to beat and her lungs continue to fill with air she cannot live without these machines. Those close to her must realize this body is not really her anymore—her cognitive capacities are gone forever and therefore so is her personhood. Logically, no argument could be made that she is the same individual she was when she made the advance directive or living will, so why should it still be kept? This prior directive should not have the moral authority to govern the treatment of this, in effect, new person, or to be blatant, non person (Sperling 45). The priority in this situation should be the fetus.
What I mean is simple. While “her ‘story of life’ does not end with her biological condition of incompetence” she no longer has the mental capacity to be a human being (Sperling 45). In most cases she cannot feel. She cannot think. She cannot move. She is dead in almost every sense of the word. Literally, her body is an uninhabited shell—except for one thing: the fetus. Conversely, the fetus carries a promise of life. It has the potential to become an independent human being and therefore the state should have an obligation to protect it (Sperling 45).
Allowing the pregnant woman to die would result in the death of another, potentially separate, human being. The mother, even if she consented in her living will to end her life while she was pregnant is not consenting now. One may argue that keeping her alive against her wishes to save the child would be like keeping the woman from her right to have an abortion, but when looking at it objectively is it really? For instance, how do you know the woman was truly aware of the consequences of her actions when she made the will? There was no twenty four hour waiting period or other important restraints on flippant decision making. One cannot be sure if all of her options were even presented to her at the time she made this decision. And if she was fully aware of all of the options, how do can you be sure she didn’t change her mind after making the will and hadn’t had the opportunity to change it? She may not have expressed her thoughts to other people. These questions are especially important when making decisions about women carrying babies in their second or third trimester of development. If she wanted to end its life she would have done so in the first trimester. Does the fact she did not seem to indicate she wanted to have the baby? Of course is does.
It is also important to recognize that abortion laws are established and maintained for healthy women who do not want to give birth to their child(ren) for a variety of reasons that a ban on abortion would force them to ‘endure’. This is not the case with a terminal mother. The live birth of her baby would have no affect on her life and therefore it would not be preventing her from anything conscious to her. The ‘follow up’ on her wishes after the death of her brain would only affect the people around her. It would rob families and others that cared for her of the opportunity to keep a part of her with them, in the form of a child. Would a mother really object to that? Keeping the fetus alive is not denying a woman’s right to die; it is simply creating a win-win situation for all involved. The woman’s desire to die would simply be delayed. Once viable, the mother’s wishes will be followed and her body would be allowed to expire completely but until then it is rational and ethical to mandate doctors to protect the child.
The Equal Protection Clause should also be applied to protect potential life because we are indeed talking about a human, albeit small and momentarily dependent. A fetus is a human with eyes and a heart beat after only six weeks. At ten weeks it is a ‘small scale’ baby, with its body in complete formation. At twenty four weeks the fetus is considered viable and could survive outside of its mother’s womb. The fetus is not a mass of cells, it is a growing human organism that should be able to experience life and not be sacrificed to meet a demand for ‘immediate death’ (Understanding Pregnancy Week by Week).
To draw on the legal side of the argument, pregnancy clauses in living wills are needed because an advance directive or living will cannot authorize the performance of an unlawful act. Those who would comply with a woman’s request to withdraw from life sustaining treatment, knowing it would kill the child, would be committing a criminal offense (Sperling 50). Furthermore, it doesn’t make sense to claim that the state has no interest or ‘say’ in when or how you choose to die. This interest is reflected in suicide laws. A concrete example of this is that of Joe Caulk, a man who tried to starve himself in prison because he was set to serve a life sentence without the possibility of parole. It was determined by the Supreme Court that Caulk wasn’t incompetent or incapable of making the decision but the State’s “interests in maintaining an effective criminal justice system and in preserving life” took precedent over his right to privacy (http://www.nhbar.org/uploads/pdf/LexLoci47.pdf). The government has an established say on when it is and is not appropriate for an individual to die.
Finally, third trimester abortions are outlawed. Why would an individual be able to choose to eliminate their pregnancy via a living will if they would not be able to do so during this stage of pregnancy when she was alive? It would be a step backward for the state if it allowed pregnant mothers to forgo medical treatment that could result in a live birth of their child. The government’s interest in the life of the fetus has been reflected and carried out in realms other than abortion. The courts have mandated medical treatment for non consenting pregnant women many times in the past, in blood transfusions or cesarean sections to benefit the fetus (Sperling 47).
The idea that the government is involved in one’s intimate decisions should not be new; it plays a role in telling you where you can and cannot live, who you can and cannot marry, what you are able to do with your body (or not do with your body) while you’re alive, and yes, to a certain extent it dictates when and how you are able to die. A pregnant woman should have to undergo life sustaining treatment, at least until the fetus reaches viability. Her life is over but the life of the fetus is just beginning. Why would you not postpone death to create life?
DeGrandpre, Charles A. “Recent New Hampshire Supreme Court Decisions”.
Bar Journal. Vol. 26 No. 1. 1984. <http://www.nhbar.org/uploads/pdf/LexLoci47.pdf>.
Timothy Burch, “Incubator or Individual?: The Legal and Policy Deficiencies of Pregnancy Clauses in Living Will and Advance Health Care Directive Statutes”
Rachel Roth. Making Women Pay: The Hidden Costs of Fetal Rights, Excerpt from Chapter 5
Sperling, Daniel. Management of Post-Mortem Pregnancy: Legal and Philosophical
“Understanding Pregnancy Week by Week.” <http://www.pregnancy-period.com/pregnancy-week-by-week.html>.
While I understand Ashley’s reasoning why pregnant women should have to undergo life sustaining treatment until the fetus reaches viability, I have some hesitations towards some of the arguments.
She explained that it “is rational and ethical to mandate doctors to protect the child.” But if you claim that it is ethical for doctors to protect the child, is it still ethical for doctors to disregard a woman who specifically stated that she did not want any life sustaining treatment? Ashley also argues that the priority of the situation should be on the fetus, but why? What makes the life of the fetus more important than respecting a woman’s decision to reject life sustaining treatments?
But even though I am not sure why the fetus is more important that the woman’s wishes, I understand why the government has an interest in this topic. I cannot picture them not having an interest in this issue, and I agree that there should be pregnancy clauses in living wills due to the various circumstances that could occur. The government has established when and how it is appropriate for an individual to die in different situations, and I do not see how the government would view this issue any differently.
While Ashley explains that, “even if she [the mother] consented in her living will to end her life, while she was pregnant is not consenting now.” How do you know that the mother is still opposed to life sustaining treatments while she is pregnant? Instead of assuming that women would want their living will disregarded while they are pregnant, the living will should have specific circumstances, like pregnancy, under which women must state whether or not they would like to reject or accept life sustaining treatment.
Finally, the argument that families would be robbed of the opportunity to care for a child if the woman was permitted to die prior to fetus viability is not a strong point. Families want lots of things from their children. But do they always get it? Nope.
In her debate, Ashley argues that since a brain dead individual isn’t a “person” anymore (“her cognitive capacities are gone forever and therefore so is her personhood”), that “the priority in this situation should be the fetus.”
Perhaps it is the family who, in desperate attempts to preserve a part of her memory, desires that she fulfill her pregnancy to term. But if this is against her will and she wishes to be allowed to die, it can be said that her body is being abused manipulated- turned into an incubator for the fetus. In this case, the woman is being considered strictly as a “vessel” or “lodging” for a fetus.
Ashley’s debate, referring to the Sperling article, says “It [the fetus] has the potential to become an independent human being and therefore the state should have an obligation to protect it.” Doesn’t this last statement sound similar to pro-life arguments used against abortion? Yet as we have discussed in class, a woman’s right to personal privacy should supersede the rights of the unborn “intruder”, as long as we are talking about pre-viability. McDonagh’s book showed us that one of the biggest misconceptions that society has towards pregnancy is that just because a woman is anatomically constructed/suitable for bearing a child does NOT mean that she is ever required to do so. While there are many situations where a woman is happy to give her body to a fetus, her voluntary acceptance is an active, critical part of its existence. Thus, if she is not actively and consciously present and continually involved in it’s existence (for example, if she is unresponsive), it is unfair and irrational to assume that she wants to continue providing for it. Therefore, what she has indicated in her living will should be respected.
Even if I’m not “alive” in the spiritual sense of the word, I do not want my right to privacy to be disregarded and my body to be utilized by another for its benefit without my explicit consent. But Ashley says that “the live birth of her baby would have no affect on her life and therefore it would not be preventing her from anything conscious to her”. Yet just because I am unresponsive does not mean that others should be allowed to violate me. If I am passed out drunk, it does not mean that my body can be violated since I don’t realize what’s happening to me. If I am not listed as an organ donor, medics cannot violate this request despite the fact that I’m dead and don’t know that they are taking my organs. If I’ve indicated that I don’t want to be supported by machines should I become incompetent, then doctors cannot disregard the way I want my body to be treated. I realize my argument is a little far-fetched, but I just wanted to be the devils advocate and bring up the other side.
Ashley’s argument makes sense. In the situation where we have to deal with a pregnant woman’s DNR wish, it seems logical to disregard her living will. The pregnant woman’s life is over when she is in a vegetative state, but that doesn’t mean the fetus’ life has to end. Ashley writes, “The live birth of her baby would have no affect on her life and therefore it would not be preventing her from anything conscious to her.” Arguably, the woman does not have the one of the essential human qualities, which is the ability to reason. If we accept this argument, we can say that her body is simply being used as an aide to the fetus that relies on her body for support. Basically, since the woman’s humanness has already died (in her lack of ability to reason), the family could grieve her loss and take comfort in the idea that her body is being used to help a potential life.
Ashley also points out that women who sign DNRs may not understand the consequences of this action. Of course, this is possible, and doctors should take this point into consideration – but only if they take it into consideration for men. Perhaps when any person is in a comatose state, there should be some sort of evaluation process to see whether he or she understood his or her choice. This seems like a hassle (which it is), but the alternative is simply respecting and acting on every person’s living will regardless of pregnancy, comprehension, or any other factors (which is actually the fairest and easiest solution).
Ashley makes an interesting case stating that the actual soul of the woman is gone, therefore what is left of the incompetent pregnant woman is simply the body. “While her heart continues to beat and her lungs continue to fill with air she cannot live without these machines. Those close to her must realize this body is not really her anymore—her cognitive capacities are gone forever and therefore so is her personhood.” This is an effective way to attempt to throw out the morality of upholding a woman’s right to privacy, being that the ‘personhood’ of the pregnant woman is nonexistent. On the other hand, and this may be gruesome, but would one then argue that it is morally acceptable to mutilate a corpse simply for the fact that the soul has left the body? If this happened to any of my friends or family members I would be horrified.
Ashley later on argues that the woman may not have been aware of the consequences when making the decision to not undergo life support. Wouldn’t this be true in any case involving a will? Also, we have come to the conclusion that the state should not withhold a right to a woman or man based on the theory that they may regret it. Therefore, the state should not have the right to disregard the wishes of the individual simply for the possibility that she may have not known what she was doing.
On the other hand, Ashley makes a strong argument stating that, “It is also important to recognize that abortion laws are established and maintained for healthy women who do not want to give birth to their child(ren) for a variety of reasons that a ban on abortion would force them to ‘endure.’” With this in mind, one must look at the whole picture. The woman can no longer think, feel, touch, taste, etc. With this in mind, one must weigh the pros and cons of pursing the life of the woman for the sacrifice of ensuring another life. While this seems to me to clearly be an obvious matter, in actuality everyone’s morals are different and the state ought to respect everyone’s right to make their own decisions pertaining to what happens to their body.
Based on the argument made here will is general should not be followed. Families must realize that although the person’s body is still intact they are not still in the body. This type of argument would allow for people’s wills to be ignored as well and states could mandate that every person who passes away be cremated. Since they no longer have a right to a say about their bodily integrity when no longer mentally present then portions of will pertaining to burial or cremation should also be null and void. Does the promise of life override the rights of an individual? What about the case of a pregnant woman who is pregnant with a fetus that has been predetermined to have mental incapacities? Does the state still have a legitimate interest in keeping this fetus alive? The point is made that the woman has not fully understood the consequences of her living will when it is created. That is entirely the point of a living will. Living wills are drafted, usually with the help of lawyers, and are to ensure that various conditions that may arise are understood and can be handled according to the wishes of the individual. Living wills are easily changeable and if a woman wanted to have this section changed then she probably would.
It is said that not following the living wills and keeping the fetus alive by maintaining the mother’s life is a “win-win situation.” This is not necessarily true. In these cases could a woman not recover from mental coma and wake still pregnant and alive only by life sustaining measures. This is exactly what the woman did not want. The case of the man who attempted to starve himself in prison does not necessarily mean that the government should have a right to choose when a person can die. Also the reliance on past court and precedent does not indicate the way something should be. There has definitely been a good argument made here but most of the logic is justified under precedent. This is not how laws should be but rather how laws have been. If an argument could be made explaining why laws should be without the use of precedent I would be more convinced.
“While people are entitled to have some authority in what happens to them after they die they should not be able to decide this unilaterally.”
Why shouldn’t we have authority over what happens to our bodies after we die? We live in this world for many years, we die and regardless of what kind of person you were while you were alive; the least that people should respect are your last wishes.
“it is rational and ethical to mandate doctors to protect the child.”
It is ethical to use someone’s body without their consent? The fetus in this case is intruding her body by using all she has left. Before pregnancy, this may have not been the case because she probably consented to it (she was able to consent). Now she is unable to say out loud what she wants, that is why she made a living will in case situations were brought up where she could not speak for herself anymore, the living will would help her.
“And if she was fully aware of all of the options, how do can you be sure she didn’t change her mind after making the will and hadn’t had the opportunity to change it?”
In this case we cannot be sure, this situation is ambiguous because we are assuming that she would have had decided differently, but what is she wouldn’t have wanted it changed? This is an assumption that we cannot make for the women. I have to also agree with Haylie, we cannot make decisions for someone who we think might regret it. This just makes women seem like they are capable of making their own decisions therefore it is necessary to choose for them? No.
I am not saying that a fetus should be killed, doctors who see a fetus in liable stage is going to remove the fetus as soon as they can, however if the fetus is not yet viable then, the doctors need to respect her wishes. Waiting for death is unethical because is not letting her body rest in peace. Instead, ’delaying’ her death degrades her body to act as a machine that can be turned on and off on a doctor’s will, or in this case the legislations that allow this to happen.
I agree with Ashley in that the “decisions have an impact on their families, friends, doctors, and most directly, on their unborn children.” I think I agree with Ashley that the mother should be kept on life-support long enough for their child to be born. I say I think I agree with that because I go back and forth between, they should do anything they can to keep the fetus alive, and they should respect the mother’s wishes right away.
I agree with Ashley, when she said, “if she was fully aware or all of the options, how can you be sure she didn’t change her mind after making the will and hadn’t had the opportunity to change it?” Most mothers would do anything they can to save the life of their child if it was in danger, even if that meant doing something they didn’t want to do or weren’t comfortable with.
That is the same as if the mother was pregnant and in a coma. I know the mother wouldn’t be able to think while in the coma, but before she was in the coma, and even if she could think while in the coma, I would think she would want her child to survive even if that meant staying in the coma for a while longer. Like Ashley said, “[the mother’s] life is over, but the life of the fetus is just beginning. Why would you not postpone death to create life?”