The Battle Over A Brain-Dead Pregnant Woman’s Body Transformed Her Family Into Political Activists

Erick Munoz, center, husband of Marlise Munoz is escorted by attorneys. CREDIT: AP PHOTO/TIM SHARP
Erick Munoz, center, husband of Marlise Munoz is escorted by attorneys. CREDIT: AP PHOTO/TIM SHARP

National media may have moved on from last year’s battle over whether Marlise Muñoz, known in headlines as the “brain-dead pregnant woman,” was allowed to be released from life support in Texas last year — but her family hasn’t. In a new documentary, they’ll have a chance to talk about their journey from grieving loved ones to political activists, as well as the complex issues animating their cause.

Tentatively titled The Pregnancy Exclusion, the forthcoming documentary has been filming over the past year in the hopes of giving the family a different and more expansive kind of platform.

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“After January, when Marlise had been taken off life support, it was suddenly like — poof! — the story was over. But they felt like they had been through the wringer and their story was not over,” director Rebecca Haimowitz told ThinkProgress. “It’s a story that deserved to be given more attention, and shown in a way that delves into all the complexities of the issue and really humanizes it.” Haimowitz is currently working on raising money for the film’s production costs.

It’s no wonder the story captured national attention at the time. The Muñoz family waited two months before they could bury Marlise’s body, an act of closure that was denied to them because Marlise was pregnant when she died. After she suffered a massive blood clot and was pronounced brain dead, the hospital refused to take her off the respirator — citing an obscure state law that stipulates Texas may not remove “life-sustaining treatment” from a pregnant woman, even if that goes against her end-of-life wishes. Although Marlise was legally deceased, officials wanted to keep her hooked up to machines until the fetus that she was carrying could be delivered.

The family’s saga went on for weeks, as Marlise’s husband and parents told the press how painful it was to watch her body slowly decompose as she remained breathing with the help of a ventilator. Eventually, a federal judge ruled in the Muñozes’ favor, determining that the hospital could not apply the law in this situation because Marlise was already dead. One year later, however, the controversy over the rights of pregnant women is being renewed.

Just last week, a Texas lawmaker introduced a bill in direct response to the Muñoz case that would appoint legal representation for fetuses in future disputes over whether pregnant women should remain hooked up to life support. The sponsor of that bill, Rep. Matt Krause (R), says his proposal will “give the pre-born child a chance to have a voice in court.” If the measure advances to a legislative hearing, the Muñoz family is planning to testify against it.

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Marlise’s relatives are also readying legislation of their own. Before Texas’ legislative sessions ends on March 13, they’re planning to partner with a different lawmaker to announce an effort to change the current law regarding pregnant women’s end-of-life wishes.

The competing legislation could dredge up the same issues that arose over the high-profile battle for Marlise’s body. Reproductive rights proponents condemned the hospital’s actions as frightening and dehumanizing, decrying Texas for using a dead woman’s body to incubate a fetus, while anti-abortion groups lamented the fact that the federal judge didn’t fight to protect the unborn child.

But the issue doesn’t fall neatly along the traditional battle lines in the abortion rights debate. Marlise’s family members have always maintained that their quest to honor her end-of-life wishes wasn’t “about pro-life or pro-choice.” They said Marlise never wanted to be hooked up to machines, and they wanted to honor her memory — and say goodbye.

Haimowitz agrees, and says that’s why she was compelled to focus on the case. She was interested in using the documentary format to bring more nuance to the complicated questions surrounding bodily autonomy, pregnant women’s rights, and the far-reaching consequences of laws that are framed in terms of fetuses.

“I think a lot of people, when they hear about this case, they tend to think it’s a really black or white issue. But actually, one of the biggest questions this film asks is — who do you think should have the right to make this choice?” Haimowitz said. “I’ve had a lot of conversations with people about the film who start off by saying, I want you to know I’m pro-life, and I don’t believe in abortion, but I feel really strongly that the government overstepped its bounds in thinking it could make this choice for this family.”

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Haimowitz is hoping to finish her project next year, and is optimistic that it might spark more conversation about the issue of gender-based discrimination in advanced directive laws. Right now, more than 30 states have a “pregnancy exclusion” in their policies governing wills, advanced directives, and end-of-life care. These laws ensure that women don’t have the same freedom to plan for their deaths as men do, because their wishes may be invalidated if they become pregnant.

“The security that people are given by being able to write wills, make out advanced health care directives, make plans for their families is very important,” Lynn Paltrow, the executive director of National Advocates for Pregnant Women, told ThinkProgress. “It’s one of many laws that really make it clear that there really is a second-class status for people who have the capacity for pregnancy.”

Paltrow’s organization closely tracks the impact of fetal harm laws on women. In addition to pregnancy exclusion laws, there are other ways that carrying a fetus makes women more vulnerable to gender-specific legal scrutiny. Overly broad “fetal protection” or “unborn victims of violence” laws allow states to prosecute pregnant women for activities that allegedly harmed their pregnancy, like using drugs or attempting suicide. In states with these laws on the books, unexpected health events like miscarriages or stillbirths can put women at risk of being charged with doing something to provoke the pregnancy loss. In 2013, Paltrow and her colleague Jeanne Flavin published a study that confirmed these laws are being used not to protect pregnant women from crimes committed against them, but rather to target those women themselves for prosecution.

Many Americans simply aren’t aware that these policies exist, according to Paltrow, and are really surprised to discover that so many states don’t have to honor a pregnant woman’s end-of-life wishes. Cases like Marlise Muñoz’s are bringing more awareness to the controversial legal precedent of discriminating against people who become pregnant, as well as providing a powerful illustration of the ways in which laws that target women can end up hurting entire families.

Haimowitz echoed that sentiment. She wasn’t aware that so many states had pregnancy exclusion laws on the books until the Muñoz case unfolded in the headlines. “The idea that the state could have that control over someone’s body, even over their dead body, was just shocking to me,” she said.

As the information becomes disseminated more widely, Americans are increasingly motivated to action; in addition to the upcoming legislation in Texas, lawmakers in Wisconsin have already proposed a bill to repeal the pregnancy exclusion in that state’s advanced directive policies. Haimowitz, who interviewed Paltrow for her forthcoming film, hopes her documentary might be an agent for that type of change.

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“I think a good documentary film will really humanize a social issue in a way that few other things can,” she said. “Next year is an election year and I think people should be talking about this issue, and I think a documentary would be an excellent vehicle to get them talking about it again.”