TBA Law Blog

Posted by: Eddy Smith on Apr 1, 2014

Journal Issue Date: Apr 2014

Journal Name: April 2014 - Vol. 50, No. 4

“To every thing there is a season, and a time to every purpose under the heaven: A time to be born, and a time to die …”

— Ecclesiastes 3:1-2

Two recent heart-wrenching news stories highlight the struggle between a woman’s constitutional right to refuse medical treatment and the state’s legitimate interest in protecting the life of her baby. The stories also serve as reminders of the importance of advance directives.

On Nov. 26, 2013, Marlise Munoz, a Texas woman 14 weeks pregnant, fell unconscious, did not breathe for one hour prior to being placed on a ventilator, and soon thereafter was declared brain dead.[1] It appeared that her baby had been deprived of oxygen and would not develop normally. Munoz had no written advance directive or living will, but her husband, Erick, who like Mrs. Munoz was a paramedic, asserted that she had made very clear to him that she did not want to be on life support.

A battle ensued for two months over the proper application of a Texas statute that prohibits withdrawing or withholding “life-sustaining treatment … from a pregnant patient.”[2] The hospital believed it was legally bound to implement all procedures that might give the baby a chance to be born. Mr. Munoz and other family members argued that the baby could not survive and, further, that the statute did not apply because the procedures could not sustain life when Mrs. Munoz was already dead and that she, therefore, was no longer a patient.[3] Ultimately, a court ordered that medical treatment be withdrawn and the baby did not survive.[4]

Shortly after Christmas 2013, a similar story began to play out in Victoria, British Columbia. Robyn Benson, 22 weeks pregnant, suffered a brain hemorrhage and was declared brain dead. Unlike the Munoz case, Benson’s husband Dylan and the doctors agreed to keep her on a ventilator until the baby could be delivered by C-section. The Bensons’ son Iver was delivered on Feb. 8 and Mrs. Benson’s ventilator was removed.[5]

Advance Directives and the Right to Control One’s Health Care

Questions about care in terminal situations came to the forefront of the nation’s consciousness in the 1970s and 1980s, as advances enabled medical care providers to keep respiratory and circulatory processes going when they previously would have ceased. States adopted legislation authorizing individuals to execute advance directives to declare their wishes for end-of-life care, and Congress passed the Patient Self-Determination Act[6] for facilities receiving Medicare and Medicaid dollars. The stories of Karen Ann Quinlan and Nancy Cruzan provided faces for the difficult questions and led to well-publicized litigation of the ethical and legal issues. In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court affirmed that every person has a Due Process Clause liberty interest in refusing unwanted medical treatment, but ruled that a state may require clear and convincing evidence that an incompetent person would not want life-sustaining care in a persistent vegetative state.[7]

Tennessee enacted its Right to Natural Death Act in 1985, allowing Tennesseans to refuse care in the event of a terminal condition[8] and, in theory, holding medical providers accountable for not following the patient’s directions.[9] Spurred by the publicity of the Quinlan and Cruzan cases, living wills and other advance directives have become foundational estate planning documents.

Death and Pregnancy

What generally is clear regarding the right of a woman to control her end-of-life health care can become quite cloudy if she is pregnant. Most states, declaring a state interest in the life of the unborn child, limit a pregnant woman’s right to terminate life-sustaining treatment. The limitations generally take one of six approaches[10]: (1) an advance directive has no effect while a woman is pregnant;[11] (2) an advance directive has no effect if it is probable, possible[12] or supported by medical certainty that the fetus will develop to live birth; (3) an advance directive has no effect if the fetus is “viable”;[13] (4) an advance directive has no effect if there is a medical certainty that the fetus can develop to birth and physical harm or pain to the woman can be alleviated;[14] (5) medical care can be withdrawn if there is a medical certainty that the fetus will not be born alive; and (6) there is a presumption that care should be continued, rebuttable by contrary provisions in an advance directive or clear and convincing evidence of the patient’s contrary wishes.

The Texas hospital struggled to determine whether the Texas statute, which absolutely prohibited discontinuing care, applied to a woman who was brain dead. News accounts of both stories illustrated the struggle by referring to the women as first being declared “brain-dead” and then later “dying” after medical procedures were withdrawn.

What would the result be in Tennessee? Tennessee is among 37 states that have adopted the Uniform Determination of Death Act,[15] which provides that an individual is dead if she has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem. Brain death is contrasted with a “persistent vegetative state,” where the patient has only the most basic brain function but no signs of emotion, willful activity or cognition.[16] In the former situation, medical care generally is to be administered only for so long as is necessary to harvest organs for donation (if desired). In the latter, the outcome generally is determined by advance directives or the decisions of a health care agent or surrogate. Tennessee has no statutory limit on discontinuing life-sustaining care for a pregnant woman or the implementation of an advance directive, so Tennessee hospitals should have no legal impediment to carrying out a woman’s wishes regarding end-of-life care simply because she is pregnant.

Planning for End-of-Life Care in Tennessee

Though limited in their facts, these stories remind all Tennesseans of the importance of planning for end-of-life care. The primary documents available to do that are living wills, durable powers of attorney for health care and advance care plans.

A living will is a direction to health care providers that, if the principal suffers from a terminal condition, she wishes to die naturally without the administration of care to prolong life. The statutory form allows declarations of wishes regarding withholding of tube feeding and hydration when a terminally ill patient cannot swallow and regarding organ and tissue donation. Women of child-bearing age who do not want their living will to be implemented during pregnancy should add a statement to that effect in the living will.

Durable powers of attorney for health care, established pursuant to the Tennessee Durable Power of Attorney for Health Care Act,[17] authorize an agent to make health care decisions on the principal’s behalf if she is unable to communicate her wishes regarding such care. Among the issues that can be addressed in a health care power of attorney is whether to give the agent authority to override the principal’s living will or other advance directive, including a specific direction whether or not to implement the advance directive during pregnancy.

Pursuant to the Tennessee Health Care Decisions Act of 2004,[18] the Tennessee Department of Health promulgated a document titled “Advance Care Plan,” intended to serve the functions of both a health care power of attorney and a living will.[19] The advance care plan provides for naming health care agents and for defining in more detail the principal’s wishes for care in various terminal or irreversible conditions. It also has a space for special instructions, where wishes regarding care during pregnancy can be noted.

In the absence of a health care agent under a power of attorney or advance care plan, the Tennessee Health Care Decisions Act provides a process for appointing a health care surrogate. While that ensures that someone is authorized to make health care decisions for the patient, the surrogate might have no idea what the patient would have wished regarding end-of-life care while pregnant.

As medical technology continues to develop to sustain life functions and to measure death, new questions will arise and existing answers might prove inadequate. However, Tennesseans have the constitutional right and the effective means to declare their wishes for such care, and those wishes apparently will not be ignored solely because the patient is a pregnant woman.


  1. See Ed Lavandera, Josh Rubin and Greg Botelho, “Texas judge: Remove brain-dead woman from ventilator, other machines,” CNN, Jan. 24, 2014, http://www.cnn.com/2014/01/ 24/health/pregnant-brain-dead-woman-texas/.
  2. Tex. HS. Code Ann. §166.049 (2014).
  3. The language of Tex. HS. Code Ann. §166.049 seems to leave open the possibility that the fetus is the life to be sustained.
  4. Judgment, Munoz v. John Peter Smith Hospital, No. 096-270080-14, 96th Judicial District, Tarrant County, Texas (Jan. 24, 2014), available at: http://thaddeuspope.com/images/ MUNOZ_202053415-Judges-Order-on-Munoz-Matter.pdf. See also Caleb Hellerman, Jason Morris and Matt Smith, “Brain-dead Texas woman taken off ventilator,” CNN, Jan. 27, 2014, http://www.cnn.com/2014/01/26/ health/texas-pregnant-brain-dead-woman/.
  5. See NBC News, “Brain-Dead Canadian Woman Dies After Giving Birth to Boy,” Feb. 11, 2014, http://www.nbcnews.com/news/ world/brain-dead-canadian-woman-dies-after-giving-birth-boy-n27741
  6. 42 U.S.C. 1395cc (2014).
  7. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).
  8. Tenn. Code Ann. § 32-11-101 et. seq. “[E]very person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person’s own medical care, specifically including palliative care and the use of extraordinary procedures and treatment.” Tenn. Code Ann. § 32-11-102. “Terminal condition” is defined as “any disease, illness, injury or condition, including, but not limited to, a coma or persistent vegetative state, sustained by any human being, from which there is no reasonable medical expectation of recovery and that, as a medical probability, will result in the death of the human being, regardless of the use or discontinuance of medical treatment implemented for the purpose of sustaining life, or the life processes.” Tenn. Code Ann. § 32-11-103(9).
  9. Tenn. Code Ann. § 32-11-108. It is the author’s professional and personal experience that the provisions of a patient’s living will or other advance directive sometimes are ignored if family members or health care agents object.
  10. Daniel Sperling, “Do Pregnant Women Have (Living) Will?,” 8:2 J. Health Care L. & Pol’y 331 (2005).
  11. This is the most common form of limitation. Alabama and South Carolina are neighboring examples. See Ala. Code § 22-8A-4 (2014); S.C. Code Ann. § 44-77-70 (2013).
  12. Arkansas is a neighboring example. See Ark. Code Ann. § 20-17-206 (2013).
  13. Georgia is a neighboring example. See Ga. Code Ann. § 31-32-9 (2013).
  14. Kentucky is a neighboring example. See Ky. Rev. Stat. Ann. § 311.629 (2013).
  15. Available at http://www.uniformlaws.org/shared/docs/determination%20of%20death/udda80.pdf. Codified in Tenn. Code Ann. § 68-3-501.
  16. Timothy E. Quill, M.D., “Terri Schiavo – A Tragedy Compounded,” 352 New Eng. J. Med. 1630 (2005).
  17. Tenn. Code Ann. § 34-6-201, et seq.
  18. Codified in Tenn. Code Ann. §§ 32-11-113, 34-6-217, 68-11-224, and 68-11-1801 through -1815.
  19. Available at https://health.state.tn.us/AdvanceDirectives/PDFs/PH-4194.pdf.

Eddy R. Smith EDDY R. SMITH practices trust and estate law with Holbrook Peterson Smith PLLC in Knoxville. He is a fellow of the American College of Trust and Estate Counsel and past chair of the Tennessee Bar Association Estate Planning and Probate Section. He can be reached at edsmith@hpestatelaw.com.