The Texan flautist and the fetus

Imagine that when you woke up this morning, you found yourself lying next to an unconscious stranger. The stranger has a rare life-threatening illness, and unbeknownst to you he was plugged in to your organs during the night. You are now stuck to the stranger. If you disconnect the life support he will die. If, though, you remain connected to him for most of the next year his illness will have recovered, and he can safely ben unplugged. What should you do? Are you obliged to stay attached to the stranger? It might be generous of you to give up your body, and good if you choose to do so, but should we require you to remain connected?

The above story was first published by philosopher Judith Jarvis Thomson in a paper in 1971. It is often referred to as the ‘violinist analogy’ because the stranger in her story happens to be a famous violinist. It is a type of thought experiment, a hypothetical case used by philosophers to test our thinking about different problems. The violinist analogy was written by Thomson to reinforce a pro-choice argument. It would be wrong, argues Thomson, to force someone to remain attached to the unconscious violinist. By analogy, even if a fetus has the same rights as an adult, it would be wrong to force a woman to continue a pregnancy against her will.

There are echoes of Thomson’s strange and unsettling story in the current Texas case of Marlise Munoz. Marlise was 14 weeks pregnant when she had a sudden cardiac arrest. A massive blood clot had travelled to her lungs. Her heart stopped, and she needed extensive resuscitation. Tragically, although her heart could be restarted Marlise had suffered a catastrophic lack of oxygen to her brain. She was brain dead.

Ordinarily at this point life support would be withdrawn. However, Texas has an unusual law that prohibits doctors from stopping life support in pregnant women. Despite being legally dead, and against the wishes of her family, Marlise has remained connected to life-support machines for more than six weeks since her collapse. Her family has been told that treatment must continue until the fetus can be safely delivered.

What should happen in Marlise’s case? Must she remain attached to life support machines for the next 5 months? Her situation is different from Thomson’s analogy in one important respect – the central character is dead. We could reimagine the story in this way

Imagine that you are looking after a patient in a hospital intensive care unit. You come in one morning to discover that they have just died. You are about to disconnect the life support wires, when you discover that unbeknownst to the medical staff a second person, an unconscious flautist, had been attached to her life support during the night. If you disconnect the machines now the stranger will die, but if you continue the machines for some months he can safely be unplugged.

In this version of Thomson’s analogy, it appears less clear that we should disconnect the life support. Because the patient has already died, they have much less at stake. It might go against their previous wishes, it might delay their funeral but arguably we should continue life support in order to give the flautist a chance at life. Indeed it seems plausible that if there is ever a situation in which continuing a pregnancy against a woman’s wishes is justified – it is this situation. She cannot suffer pain or distress or anxiety from the continuing pregnancy. She cannot be put at physical or mental risk.

The above argument might be the sort of thing that Texas lawmakers had in mind when they drafted their legislation. However, it is worth noting one apparent consequence. The Texan law seems to accept that the woman’s interests are reduced by being in a state close to death (or already being dead). It appears to be justified to ignore her previous wishes and to cause distress to her family in order to save the life of another. If this argument is sound, though, it appears to have much wider implications. For though brain death in pregnant women is rare, there are many patients who die in intensive care who could save the lives of others – by donating their organs. Indeed there are more potential lives at stake, since the organs of a patient dying in intensive care may be used to save the life of up to seven other people.

If it is justified to continue life support machines for Marlise Munoz against her and her family’s wishes, it would also appear be justified to remove the organs of dying or brain dead patients in intensive care against their and their family’s wishes. Texas would appear to be committed to organ conscription.

 

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11 Responses to The Texan flautist and the fetus

  • Charlie says:

    First, it is at least extremely odd to describe a human organism who can gestate and give birth a baby, and in no immediate danger of dying, as “dead” or “nearly dead.” Doing so has implications we should really try to avoid: http://www.medscape.com/viewarticle/810812

    Second, we don’t know her wishes. We do know that others (with a strong interest in her not bringing this child to term) *claim* she would have wanted to be disconnected from life support if she was brain dead.

    Third, we don’t know anything at all–even from others–about her wishes with respect to life support in this situation *if she were pregnant.* In the absence of such evidence, we should be in favor of protecting the most vulnerable patient in this situation: the prenatal child.

    Fourth, one may claim that “the vulnerable prenatal child has the right to be sustained by her mother’s body via pregnancy” without it following that a “person X has a right to be sustained by random person Y’s organs.” The relationship of mother and child, and of pregnancy, is not analogous to organ conscription.

    • Robert says:

      Charlie, I agree. The initial story is similarly fatally flawed: in it, you just “found” yourself attached to a stranger. But a pregnant woman, in about 99% of cases, is pregnant as a result of a conscious act that she knows might result in pregnancy. If a pilot consents to fly an aeroplane, does he have the right to parachute out of it half way, leaving it to crash and burn? The only ethical course here is strict performance: the pilot must finish what he started. I hold that the same is true of pregnancy, and for the same reason: a life has entrusted itself to your care on the basis of your consent.

      In the case of the pregnant woman, I cannot see any overriding reason for deliberately killing her unborn child. If she is dead (which I dispute, but no matter) then she cannot care. And her families wishes cannot be binding on the child.

  • Dominic Wilkinson says:

    Hi Charlie,
    First, I am unclear about your questioning whether MM is dead. You seem to hold that although MM meets (apparently) all criteria for brain death that she is not dead because her body is capable of gestation. There are two possible interpretations of your view. First, it might be that you take this as an argument against current brain death criteria. If so, then perhaps MM should not have life support withdrawn, but also all current organ donation based on brain death should cease. Is that your view?
    Alternatively, you might have the view that although MM meets all the criteria for brain death, the fact that she is pregnant creates an exception to standard criteria. She should not be regarded as dead because her body is capable of gestating her fetus. But that seems an odd sort of view. The concept of brain death is based very clearly on the notion that in certain unusual circumstances a person’s body may be capable of being supported by medical technology, but they have permanently lost consciousness and a capacity to breathe. On that basis they are said to have died. It does not appear that being pregnant changes in any way the conceptual justification for thinking that MM is dead. It may, on your view, change whether or not life support should be discontinued – on the grounds that her (deceased) body is capable of supporting her fetus to live birth. That would be the conclusion of the flautist analogy, which I imagine you would support.
    I accept the points about MM’s wishes. I have only the evidence from media reports based on those who knew MM best. I am inclined to take them at their word. It seems highly plausible to me that a paramedic might hold the view about prolonged life support that MM is supposed to have endorsed. However, we should note that the type of indirect evidence of MM’s wishes (about what would she would like to happen to her body after death) is exactly the type of evidence that doctors usually have about patient’s wishes about organ donation in intensive care (either for or against). If you hold that it is OK to go against MM’s wishes because we can’t be sure whether or not she would have wanted to have life support continued, perhaps we might also be justified in going against a patient’s wishes not to donate their organs.
    But what if MM had provided a witnessed advance directive explicitly saying that in this exact situation she would not have wanted life support to continue? The Texan law appears to be that life support should continue even in that situation. (And I am guessing that you would support that view). So perhaps we shouldn’t get distracted by questions about what MM wanted or didn’t want.
    Finally, the claim about the rights of the prenatal child to be sustained by her mother’s body is clearly central to the whole question of abortion. That right is not taken (in Texas and in many other parts of the world) to outweigh the rights of the (living) woman. You are correct that the relationship between the fetus and the mother is different from the relationship between a person dying in intensive care, and some other individual dying for want of a transplantable organ. Perhaps that means that mandatory brain dead gestation is permissible but organ conscription is not. Nevertheless it seems that brain death gestation involves a bigger imposition on individuals like MM than organ conscription would – for a smaller benefit. If so, it is unclear why we should treat them so differently.

    • Charlie says:

      Hi Dom…this is a very complex case, and so we could easily run out of infrastructure in this forum in order to do the complexity justice, but let me try to answer your good questions.

      First, you’re right, it would be extremely odd to define death based on circumstances that have nothing to do with the situation of the individual in question–in this case, MM. (Sadly, we do this all the time in the Western clinical word–for instance, death is defined one way when someone is an organ donor and another way when they are not.) So my claim is rather about something I think almost everyone intuitively grasps: brain dead individuals who can gestate children are living human organisms who exhibit homeostasis. That they are aided by a machine does not change this conclusion about human beings with death brains (or virtually dead brains) any more than it does for human beings with an artificial heart or an oxygen tank. Rather than being forced into the strange claim that a living human organism exhibiting homeostasis is dead (often with the even more strange claim that someone who is “dead” should be taken off of “life” support), those who claim “brain death is really death” should be forthright about what I think most are really saying: that a certain level of neurological function is necessary for a human organism to be considered a person. However, for the reasons I suggest in the Medscape article, we ought not to go down that road. (What this implies for organ donation in the case of brain death is complex, and I really don’t have the time to go into it in this kind of forum, but for now I’ll simply assert that I see no reason why extraordinary means of treatment could not be removed from a person with a dead brain and then, once actual death has taken place, organs are removed for transplant.)

      Second, while you may be inclined to “take her family at their word” (I’d be more skeptical…given the obvious conflict of interest), their words have been about something other than the case in question. As far as we can tell, MM never discussed with her husband the situation she is currently in: namely, brain dead *and pregnant.* Have you heard something about this that I haven’t?

      Third, at least as far as current American abortion law is concerned, I think her wishes (insofar as we can know them) in this situation are quite important. Current law, as interpreted by our Supreme Court (especially in Casey and Webster), insists that the several states are justified in having a very strong interest in protecting prenatal children, with the proviso that such laws do not place an “undue burden” on a woman’s right to end her pregnancy. (This is one reason that, say, California’s very strong law against fetal homicide is understood to be perfectly constitutional.) If it could be determined that MM had the clear wish to be taken off of life support and end her pregnancy in the process, even if holding on a couple more weeks could save her baby, I suspect that our federal law would trump state law. But, in the absence of any such determination, Texas is well within their legal rights to insist that that this baby has a right to be sustained in the same way that all of us were sustained at this stage of our lives. There is no undue burden being placed on MM’s (American) legal right to end her pregnancy.

      • Dominic Wilkinson says:

        Hi Charlie,
        I agree that there are a range of issues here, and probably beyond the scope of the blog/comment format.
        It sounds as though you and Robert and I do not agree on brain death. But we can sidestep the issue of whether or not MM is brain dead.
        Firstly, it seems that the same situation would apply even if MM were not brain dead, but alive and profoundly brain injured (predicted to be in a vegetative state) and dependent on intensive care. In that situation, if there were good reason to believe that withdrawing intensive care were consistent with MM’s wishes it would be ethical to do so if she were not pregnant. Indeed, if there were good reason to believe that she would not wish for life sustaining treatment to be continued in that circumstance it would (I contend) be unethical to continue treatment. At least in some jurisdictions that might be considered a form of assault. But the Texan law, as far as I understand from media reports, would demand that treatment continue for MM because she is pregnant. The justification must be that it is ethical to continue or provide intensive treatment against the patient’s wishes because of the potential to save the life of another individual (the fetus). It seems that the same argument would justify providing elective ventilation and organ conscription to patients in intensive care who would otherwise have treatment withdrawn (without organ donation).
        Secondly, if you hold that MM is not dead, then it appears that she retains her right to an abortion. She is not currently able to express a wish to have an abortion. However, her surrogate decision-makers could have expressed that wish on her behalf. Again, there might be questions about how well they are able to provide substituted judgement in this setting. There would be the questions that you and Robert have raised about whether she had expressed her wishes about this specific situation. We might then go in one of two ways. We could accept that MM’s surrogates were presenting an accurate assessment of her prior wishes and acceded to her/their request for an abortion. (She could then have life sustaining treatment withdrawn, also in accordance with her wishes). Alternatively, if her surrogates were unable to provide good evidence of her previous wishes, then we would be left making decisions on the basis of MM’s best interests. In a situation in which MM were alive, but profoundly brain injured in the way that she appears to be, it would be, arguably, against her best interests to continue burdensome and invasive (“extraordinary” in your terms) treatment. It would be, therefore, in her best interests for her to have a termination of pregnancy and then to have treatment withdrawn.

        • Robert says:

          Hi Dominic

          Thank you for your courteous reply and careful analysis. I find your arguyments persuasive, and agree that this is not a clear-cut case. I agree also that the Texas law is too “one size fits all”. However, I remain unconvinced that the wishes of the surrogates should prevail. Yes, certainly, if that was the lady’s clear wish and she were not pregnant. But can we say she would have wished the same when knowing she was pregnant? Given that uncertainty, I think ethically we must err on the side of preserving the life of the child rather than ending it.

          Thank you again for causing me to think harder.

  • Anthony Drinkwater says:

    Dominic and Charlie, thank you for your interesting post and responses on this complex case.
    I agree with Dominic that the Texas law is very questionable, but not for the reasons you state. If I understand correctly, your argument goes :
    The law requires MM’s corpse to be kept functioning for the foetus,
    The logical implication of this is to also allow organ conscription
    As organ conscription is evidently immoral, this law is immoral

    But is it so evident that all forms of organ conscription is such a bad thing ?
    In France, for example, the law recognises a tacit consent to organ removal for a transplant from a dead person – in the absence of evidence (written or oral) to the contrary. It is however obligatory to search for evidence that would indicate the wishes of the deceased. In practice, therefore, no organs are removed without prior discussion with the family (who might know of or attest to a refusal by the deceased to accept organ removal). Note that this is not a case of giving priority to the family’s wishes, but to establish whether or not the deceased had personally expressed his wishes against organ removal.
    Of course, the family might conceivably lie about these wishes, and as far as I know a medical team would not go against the family’s view of the deceased’s opinion. So potential donor organs could be thus lost for transplant patients. I think that this is a pity, but it’s justifiable.
    Do you or others think that this whole process is immoral?

    Coming back to the MM case, my intuition is that the form of organ « conscription » described above is permissible but that brain-dead gestation is not. I’ll have to think harder about the reasons why, but they have something to do with the notion of persons, dignity, attitude to death, instrumentalisation…. ( also some other questions : what is the effect on a foetus of growing to maturity in a corpse? when will someone advocate using brain-dead women for surrogate pregnancy?)

    You might argue this is all too fuzzy and/or contradictory : that it’s akin to making ethics up as you go along. I’m tempted to reply by asking why we should expect to find a one and only one right moral answer to this type of question. Life is fuzzy too. I wonder whether ethics shouldn’t take this into account ?

    • Dominic Wilkinson says:

      Hi Anthony,
      thanks for your comment.
      I agree that the argument set out above could be seen as a reductio ad absurdum of brain-dead-gestation. However, my claim was more circumspect, and one based on consistency. The arguments in favour of brain-dead gestation seem to support organ conscription. If those who favour brain dead gestation do not wish to support organ conscription (and I suspect that most do not) they need to either revise their view on brain dead gestation, or explain the inconsistency.
      I also agree that it would be open for some to accept the comparison. So some may have the view that organ conscription is justified, and that there is no particular problem with brain dead gestation. You are right that we should be clear about what form of organ conscription we are talking about. The version you describe sounds more like a ‘presumed consent’ form of organ donation. Given the nature of the Texan brain dead gestation policy, the relevant organ conscription policy would look more like this: Intensive care should not be withdrawn (either because of brain death or because of poor prognosis) from patients whose organs would be able to save the life or lives of other patients. Instead intensive care should be continued or provided in order to allow them to donate their organs. (This is a form of “elective ventilation”). Their organs should be donated even if there is evidence that they would not have wanted this to happen, and even if their family objects.
      The most obvious reason for distinguishing between brain dead gestation (BDG) and organ conscription (OC) is on the basis that the individual whose life is to be saved is a fetus in BDG, and an adult (or several adults) in OC. But that would (on most accounts of moral status) tend to favour OC over BDG.

  • Michael Glass says:

    As with other commentators, the case of the Texan woman raises complex questions. If we accept that the woman is brain dead, in the ordinary course of events all efforts of resuscitation would be stopped and nature would be allowed to take its course. However, in this case, the woman is pregnant and the law of Texas has stated that the woman’s body should be kept functioning so that the unborn child’s life might be preserved.

    The family has stated that the woman had expressed the wish that she should not be resuscitated if she was brain dead. What is not clear, however, is what she would feel about this wish if she was pregnant. We do know that the family do not want her to be kept on life support. We do not know why the family is so against this intervention. As it is happening in the United States, it could well be that the family fears that it will be presented with the bill for the intervention, and the family is staring in the face of bankruptcy and the possibility that the child’s health, it it survives, may be compromised.

    One way to look at it might be to consider what would happen if a woman suddenly died in the 37th week of her pregnancy, or while giving birth. In this situation, every effort would be made to deliver the child. If the family did not want the child to be delivered, questions would be asked about the family situation, the situation of the woman in this family and why they were so much against the survival of the child. The same considerations would arise if the situation happened earlier in the pregnancy, back to the time when the child was not viable outside the womb. Back further, there have been cases where women have been kept on life support until delivery, so the case is not exactly unprecedented.

    On the other hand, the woman is brain dead, and that means that she is legally dead. The family has a right to have a say about the disposal of her body, but does that extend to the right to dispose of a fetus that is still living?

    This case has inevitably been taken up by both Right to Life and Right to Choose. The ethical questions raised by this case will be debated for many years.

  • J says:

    Hi Dominic,

    I’d be interested to get your opinion on the topic of why a deceased person’s stance on organ transplantation should be taken into account once they are dead.

    If we are to adopt a utilitarian (hedonistic or preference) approach to the issue of organ donation, and we are looking to create maximum benefit and/or maximum fulfilment of preferences, then can we really afford any weight to the wishes of a now-deceased person?

    After all, a deceased person is essentially a corpse; the pleasure of a corpse cannot exist, nor can the fulfilment of its preferences, as corpses obviously cannot experience pleasure or hold preferences.

    As such, I’m wondering how we can afford equal (if any) weighting to the wishes of a corpse vs. the livelihood of a living human who may benefit from an organ donation from the deceased.

    Of course, we do need to consider the emotional distress potentially inflicted on the family of the deceased, as well as the results for society as a whole if we were to disregard wishes put down by the deceased (e.g. how would wills be settled following death).

    Still though, it does seem a little nonsensical to seek to fulfil the preferences of a lifeless being, especially when they are being held up against the life of a living one.

    Thoughts?

  • Toni says:

    Sorry if this is brought up in other comments, but I’m worried about this statement:

    “If it is justified to continue life support machines for Marlise Munoz against her and her family’s wishes, it would also appear be justified to remove the organs of dying or brain dead patients in intensive care against their and their family’s wishes. Texas would appear to be committed to organ conscription.”

    It’s not clear to me why the case of delivering a baby would be analogous to donating organs. It seems to me that one of the particularly tricky things about abortion ethics is that (at least pro-life activists claim), women exist in unique relationship to the fetuses/embryos in their wombs. This special relationship, it is said, generates special obligations. One doesn’t have to be a pro-life activist to see validity in this: many people intuit (rightly, I would say), that a father has some obligations to his son that he doesn’t have towards someone else’s son. So, while it may prove the case that in fact dying patients *do* have obligations to donate organs, surely the analogy to the obligations arising in pregnancy doesn’t prove the argument. The differences are too great for the analogy to go through.

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