The Alabama Supreme Court issued an unprecedented ruling in February 2024, finding that stored frozen embryos created for in vitro fertilization, often known as IVF, “minor children” under a state wrongful death law.
The impact on the medical community was immediate and acute. Fearing recent civil or criminal liability if embryos were now considered “persons” under Alabama law, IVF clinics needed to make an overnight decision whether to supply patient care or incur that liability. As a result, there are several IVF clinics across the state IVF procedures were immediately suspended. And that most direct effectNaturally, Was on patients.
As Legal and policy researcher on reproductive rights – and girls of childbearing age – we fear that as debates over fetal versus embryonic personality proceed, healthcare providers can be faced with an increasing number of recent situations by which they have to balance legal liability and patient well-being.
These conflicts are already playing out over abortion, but one other looming example stays under the radar: whether a physician will have the ability to honor a patient's end-of-life wishes if she is pregnant.
In many states the reply might be no.
Doctors assess legal liability
The Supreme Court decision Dobbs v. Jackson In June 2022, the elemental right to access abortion care ended, returning the problem of abortion access to the states and reopening political debates about fetal personality. Doctors who treat pregnant patients are actually subject to a patchwork of abortion bans and restrictions vary from state to state.
Many gynecologists navigating this maze now practice with the looming fear of civil or criminal liability in the event that they come into conflict, even unknowingly, with rapidly changing state laws and judicial or prosecutorial interpretations of those laws. These fears should not unfounded: state attorneys general have threatened to prosecute doctors who provide medical care medically essential abortion care or assisting a patient in a state that has a ban on abortion have an abortion performed out of state. In fact, there have been pregnant women criminally charged with miscarriage.
These balancing acts occur even when pregnant patients find themselves in emergency situations.
A study from January 2024 details these conflicts in 13 states. After the Dobbs decision, gynecologists were found to delay clinical look after pregnant patients – even in emergency situations – out of fear of liability under the brand new unclear state laws.
Living will and exclusion of pregnancy
The abortion and IVF examples illustrate the tense and unsure legal landscape that medical professionals must navigate in time-critical and emergency situations. In short: There are not any rules and the chance is great.
We anticipate that physicians can be forced to weigh these same uncertainties and risks in probably the most traumatic situation: treating a patient who has no hope of survival. In such situations, physicians typically seek to bear in mind any pre-expressed end-of-life wishes the patient could have, similar to those contained herein Advance Directives. These instructions may include: Decisions about life-sustaining treatments and designation of 1 Healthcare representative.
Simply put, living wills are a way for patients to inform their families and doctors how they would really like to be treated medically in the event that they later grow to be incapacitated, similar to in a coma. All 50 states plus Washington DC recognize the validity of patient directives.
But not once you're pregnant. As of early 2024, greater than half of the US states will have laws on the books which robotically invalidate an incapacitated patient's previously expressed end-of-life wishes if the patient is pregnant. Law professor John Krause refers to those as “pregnancy restrictions” and notes that they exist in no less than 30 states. In some states, these cancellations of living wills only apply on Point of fetal viability or possibility of live birth. However, in 12 states, these advance directives are considered “pregnancy exclusions.” They occur at every stage of pregnancy.
That signifies that even when a pregnant patient previously had a written, notarized advance directive stating that she didn’t need to depend on organ support if she was unlikely to ever get well, a physician may very well be required under 30 state laws to disregard it fulfilling those desires and keeping her alive to sustain the pregnancy. And in 12 of those states, this requirement would apply even when the pregnancy was not viable. These exclusions would essentially require physicians to proceed organ preservation care in order that the pregnant patient's body may very well be used as an incubator for a fetus.
Currently, there are few reported cases of pregnant patients' living wills being revoked, although there are some heartbreaking examples.
A highly publicized case from 2014 detailed, like Marlise MuñozA Texas woman who was 14 weeks pregnant when she was declared brain dead was kept on life support for 3 months, although she and her family had clearly expressed a desire to not proceed her life artificially.
The reason? The hospital in Texas said this was the case prohibited by the Texas Living Will Act Because Muñoz was pregnant and so they had an obligation to preserve the lifetime of the fetus, they weren’t allowed to show off life support.
However, we suspect that scenarios like that of the Muñoz family could occur should not sufficiently reported. Families in crisis often won’t pursue legal options or make their trauma public. We also expect these situations to grow to be more common in a post-Dobbs world as physicians proceed to grapple with emerging uncertainties and fears of legal liability related to end-of-life look after pregnant patients.
Legislative labyrinths
It is evident that advance directives should not exempt from the personality debate, as the first goal of pregnancy exclusions is to guard the lifetime of the fetus.
Just as abortion restrictions vary from state to state, so do advance directive laws. The laws are extremely complex and sometimes require an intricate compilation of varied sections of state law. Therefore, even when a patient has an advance directive, it is probably going that few understand that these pregnancy exclusions even exist, let alone that they’re fully relevant.
Additionally, many states haven’t yet brought their advance directive laws into compliance with their abortion laws.
Arkansas, where Abortion is currently banned at any point in pregnancy provides an illustrative example.
When it involves end-of-life care, Arkansas law stipulates that physicians “shall” act in accordance with a certified patient’s health guidelines.
However, if the patient is pregnant, Arkansas law requires that the The same guideline mustn’t be followed “as long as it is possible for the fetus to develop to live birth with continued life-sustaining treatment.”
An Arkansas doctor attempting to respect a pregnant patient's advance directive and terminate organ-preserving care—and thus the pregnancy—would due to this fact be faced with quite a few questions: When is it “possible” for a fetus to become live birth? could? Is this an issue of clinical fetal viability, which in line with the American College of Obstetricians and Gynecologists is extremely case specific? impossible to “definitely explain”? And how does a physician reconcile Arkansas' abortion ban with the advance directive law, which apparently allows treatment to be withheld until “the fetus can develop to the point of live birth”?
Specific advance directives
Recent abortion and IVF cases have highlighted how medical decision-making is consistently changing and what this implies for medical care. Given this shifting terrain, it’s unimaginable to predict with any degree of certainty how policies regarding end-of-life look after a pregnant person can be interpreted, even within the few states that allow it for patients Express your wishes within the event of pregnancy.
However, it might be a sensible practice for pregnant patients – or those that may sooner or later grow to be pregnant – to try to know the complexities of their state's laws and create a transparent and specific advance directive that directly addresses their wishes within the event of pregnancy enters pregnancy.
image credit : theconversation.com