New Texas Plan Would Assign Lawyers To Fetuses


In the aftermath of a high-profile legal battle over a brain-dead woman who was kept on life support against her family’s wishes because she was pregnant, one Texas lawmaker is readying a bill that would re-open the contentious debate.

According to the Dallas Morning News, a Republican lawmaker is preparing to introduce a piece of legislation that would appoint legal representation for fetuses in future disputes over whether pregnant women should remain hooked up to life support. State Rep. Matt Krause (R) believes that will allow a judge to hear both sides of the issue before making a decision about what to do.

“You’ll hear what the family wants, and you’ll also give the pre-born child a chance to have a voice in court at that same time,” Krause told the Dallas Morning News.

This issue sparked considerable controversy in Texas about a year ago, when the family of Marlise Machado Muñoz was prohibited from removing her from a ventilator after she suffered a blood clot that rendered her brain dead. Muñoz was about 14 weeks pregnant when she lost consciousness, and her family suspected that the subsequent lack of oxygen had severely harmed her fetus. They said Muñoz never wanted to be kept breathing with the help of machines, and they wanted to say goodbye — but the hospital treating Muñoz wouldn’t comply.


Hospital officials said they were bound by an obscure state law that automatically invalidates a woman’s end-of-life wishes if she is pregnant. That law stipulates “a person may not withdraw or withhold life-sustaining treatment” from a patient who is carrying a fetus. Muñoz’s family sued, arguing the law didn’t apply in this case because Muñoz was legally deceased and her fetus was no longer viable. They ultimately won their case and removed Muñoz from life support.

Now, almost exactly a year later, the issue may return to the forefront with Krause’s impending legislation. The Muñoz family isn’t pleased. They told the Dallas Morning News they’re offended by the way the bill will be framed — as if the state needs to appoint a lawyer for a fetus that doesn’t have any other advocates.

“To me that’s saying that my family was not looking out for the best interest of Marlise and the fetus,” her mother, Lynne Machado, said. “We feel our actions and decisions were based on what was best for both of them.”

It’s not unusual for state officials to appear in court to advocate on behalf of unborn children. As states defend harsh abortion restrictions against legal challenges, lawyers often argue that the policies are necessary because it’s in the state’s best interest to preserve the life of the fetus. And under overly broad “fetal protection” laws that allow states to prosecute pregnant women for using drugs, officials sometimes appoint legal representation for the fetuses but not for the women who carried them.

Sometimes, anti-abortion laws even explicitly stipulate that fetuses need lawyers. A particularly extreme parental consent law in Alabama, for instance, essentially puts pregnant teenagers on trial and forces them to make the case about why they need to have an abortion. The state is allowed to call witnesses to the stand to argue against the teen, as well as appoint a lawyer to represent the fetus. That law sparked widespread outrage, and even inspired a segment on the Daily Show during which correspondent Jessica Williams mocked a lawyer who’s responsible for representing unborn children. “You have a crazy-ass job, sir,” she told him.


In Texas, the state chapter of the American Civil Liberties Union is prepared to fight against Krause’s effort to expand legal rights for fetuses. According to a 2012 report from the Center for Women Policy Studies, Texas is one of 12 states that allows doctors to disregard pregnant women’s end-of-life wishes, and the ACLU has been trying to change those laws for years.

“The minute you become pregnant, you no longer have the right to decide for yourself,” Rebecca Robertson, the legal and policy director for the ACLU of Texas, told the Dallas Morning News. She said Krause’s proposal would make things even worse.

Machado, who says it was “torture” to watch her daughter’s body slowly decompose as she remained breathing with the help of a ventilator, plans to testify against Krause’s bill if it ends up advancing in the legislature.