Neither Lawful Nor Moral


Marlise Munoz collapsed in November 2013 from a blood clot in her lungs while pregnant with her second child. She was taken to John Peter Smith Hospital in Ft. Worth, Texas, a public hospital operated by the Tarrant County Hospital District, where she was put on life support. Media reports said that in the weeks after her admission physicians at the hospital subsequently concluded that Mrs. Munoz was clinically brain dead.

Her baby was 14 weeks from conception when she collapsed. The baby’s father and the husband of Marlise, Erik Munoz, claimed also that his wife’s doctors told him that the child’s lower extremities were deformed. However, the child was alive, and there are prior cases in medical history where children in these cases have survived. Nevetheless, Mr. Munoz, wanted life support removed from his “clinically dead” wife, even though that action would directly kill his clinically alive child.

The hospital kept Mrs. Munoz on life support because the Texas Advance Directives Act says in part: “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.” The hospital, correctly, said that she couldn’t be taken off of life support because she was pregnant.

Mr. Munoz filed a lawsuit to force the hospital to terminate the life support. The case was initially assigned to the the 17th District Court in Tarrant County where Judge Melody Wilkinson, a Catholic, is the presiding judge. However, she immediately recused herself from the case without comment. The case was then transferred to the 96th District Court where the matter was heard by Judge R. H. Wallace.

After a two hour hearing on January 24, 2014, Judge Wallace ordered the hospital to discontinue life support by the following Monday if it did not appeal. The hospital did not appeal, and on the day before the court’s deadline the hospital disconnected the life support that by then was clearly life support as  much for the child as the mother. The child was killed 21 weeks from conception.

Judge Wallace said when he rendered his decision that the law on which the hospital relied did not apply to a deceased person, and because the hospital had concluded that Ms. Munoz was clinically dead it did not apply in this case. He then went on to justify his decision, in part, under Roe vs. Wade and a woman’s right to abort. He was misguided, and he was wrong, and the hospital should have appealed.

Erik Munoz argued, and the court agreed, that the law refers to a pregnant “patient,” and because his wife was clinically brain dead she was no longer a patient. But the law obviously was intended to protect the unborn child in cases where family members think that their loved one is dead or going to be dead very soon. In short, the law was written with the child in mind, and not the mother, and it is reasonable to think that the word “patient” is a reference to a mother, whether clinically brain dead or not. To think otherwise, as Judge Wallace did, would unreasonably narrow the law’s intended effect.

Both Mr. Munoz and his wife’s parents claimed that Mrs. Munoz, while not having a written advance directive (living will), orally expressed her desire not to be kept on life support. But it is highly unlikely that she told them she would want her life support removed even if it killed her child, and no such statement or expression by Mrs. Munoz was reported in the media before the trial or reported to have been proved by evidence at the trial. In fact, no witnesses testified at the trial.

Mrs. Munoz’s parents supported the decision to remove life support, which they understood would result in the death their grandchild. “It’s not a matter of pro-choice and pro-life,” Munoz’s mother, Lynne Machado, told the New York Times. But of course that is not correct. Her daughter’s baby’s life was held in the balance, and so it was very much a pro life matter!

“It’s about a matter of our daughter’s wishes not being honored by the state of Texas,” Ernest Machado complained. “All she is is a host for a fetus. I get angry with the state. What business did they have delving into these areas? Why are they practicing medicine up in Austin?” He is correct on the “host” part. Definitely, Mrs. Munoz continued to host her child… as she was doing before her collapse. He was not correct that the state government had no interest in protecting the unborn child, who may have been only a “fetus” to him, but who was, in fact, a human being with legitimate demands on him and the rest of society to be accorded all rights of a human being… most especially the right to life.

To the question as to whether it was legally permissible to kill the child in the womb of Marlise Munoz, the answer is no.

The Texas law was interpreted by Judge Wallace to not pertain to the the Munoz mother and child. But the law was passed just for such cases as this one, to avoid an abortion even if that word is not used, and the meaning of the word patient should not be twisted to avoid the intent of the law. The hospital’s refusal to remove the life support of mother and child was correct and in fulfillment of its duty under the law.

Furthermore, even beyond the Texas advance directive statute that applied in this case under federal abortion law there is no right for anyone but the mother to consent to the abortion of the pre-born child, and there appears to be no evidence that Marlise Munoz would ever have condoned aborting her child.

In spite of Judge Wallace’s reliance on Roe vs. Wade, husbands have no standing to object to an abortion or (most certainly) to force the mother to abort her child. It is a “right” left only to the mother. Even if the Texas law did not exist, the husband as father of the child and acting without the mother’s consent could not under Roe and its legal progeny consent to an abortion of the child.

There was no small irony in watching the pro abort crowd at the New York Times, Dallas Morning News, and other media outlets argue that Erik Munoz had the right to decide to abort his child without the express consent of the child’s mother when they have argued for decades that aggrieved fathers have no rights whatsoever to intervene and object when the mother seeks an abortion.

That Mr. Munoz and his pro abort media supporters argued that he did not intend to kill his child, only take his already deceased wife off of life support, begged the question. If she was truly dead then the life support was not for her, but for the living human being in her womb… whether deformed or not, and that was the question. And while a husband clearly does have a right to consent to treatment for his child, he has no legal right to kill his child. Per Roe that is consent only his wife can give. Mothers can kill their children; fathers cannot.

A troubling fact seems to be that the court did not appoint an attorney ad litem to represent only the interests of the unborn child. Unborn children who will be directly affected in some way in legal proceedings are entitled to the appointment of an attorney to represent their interests. There was no report that Judge Wallace appointed an attorney ad litem for the child.

The other important question is whether it was morally permissible to remove life support and thereby kill the child, and the answer is the same. No.

For what reason should Erik Munoz have been allowed to kill his child? So that he would be relieved of some of his pain? He didn’t need some court to help him kill his child. He needed someone to help him through his pain and to support him in saving the life of the baby he and his stricken wife joined with God to create, and a child in whom part of his wife would have lived on. He needed someone to help him see the big picture: His child was deserving of everything that he could do to protect that child.

Finally, although I am not a moral theologian, it does not appear that Mr. Munoz would have, had he by chance sought guidance from Catholic moral teaching, found relief under the principal of double effect. Under that teaching he could only harm the child if he was consenting to a treatment for his wife that would be intended as helping to save her life, even if it indirectly caused harm to the child. Withdrawing his wife’s life support was not a treatment that was necessary to save her life. Rather it was directly intended to kill the innocent child.

The consistently pro abort Dallas Morning News editorialized that “Munoz’s case could have been quickly resolved except for her pregnancy. Her body should not be kept going by artificial means only to serve as a human incubator. To do so represents a perversion of motherhood and the natural life-death cycle.”

Really? The Dallas Morning News fully supports incubator babies conceived in petri dishes and implanted in the wombs of surrogate mothers. More importantly, it is one of the deepest and most natural of instincts for a mother to protect her offspring, even to the point of giving her own life if necessary. Even animals in the wild do the same. Why would we think that Marlise Munoz would not have wanted to protect her child?

Maybe the child would have died in the womb, or not lived long after birth. But how could trying to save the child in this case be a “perversion of motherhood” merely because the mother’s protection of her child is aided by life support? If the human mother is beyond saving, but technology can save the human child, do we not use that technology to save the child?

The attorney for Erik Munoz, Heather King, railed in court that keeping the life support for the child only was using the mother’s body “as a science experiment.” I wonder what she would say if she found out that somewhere every day “clinically brain dead” people are kept on life support to keep organs alive for transplantation, organs that are transplanted into someone that the person on life support in almost all cases never even knew.

Hard cases frequently make bad law and bad judicial decisions. But the very essence of our humanity demands that we protect and defend the innocent and vulnerable (even deformed) among us, in the face of pressure to sacrifice them for the sake of expediency. This is precisely what the Texas law was intended to do, and this is precisely what human dignity demanded. Judge Walace let Erik Munoz kill his child, but his decison was neither lawful nor moral.


About Author

Robert J. Gieb has practiced probate law in Ft. Worth, Texas for thirty years. He is local counsel for Catholics United For Life of North Texas.