A legal battle ensued, with the husband arguing that his wife would not have wanted to be kept alive artificially and the hospital arguing that Texan law prohibited them from removing life support from a pregnant woman. The court passed its judgment ordering that life support should be removed. This case raised both ethical and legal questions. This article aims to look at what the situation would be in South Africa for doctors faced with a similar scenario to that of the Texan hospital and doctors.
Distinguishing between brain death and a persistent vegetative state
Before dealing with the issue of pulling the plug or not, a clear distinction has to be made between whether the patient is brain dead or in a persistent vegetative state. The National Health Act defines death as "brain death". In South Africa, brain death is defined as "an irreversible and irreparable cessation of all the brainstem functions inclusive of complete cessation of the heartbeat, respiration, blood circulation and digestive functions". The significance of the definition is that in our law, a deceased person loses his or her constitutional and civil law rights, as a person's legal personality ends once that person is deceased.
In contrast to this is a person who is in a persistent vegetative state (PVS). Persistent vegetative state was defined in the South African case of Clarke v Hurst No and Others 1992 (4) SA 630 (D) as "a neurological condition where the subject retains the capacity to maintain the vegetative part of neurological function but has no cognitive function. In such a state the body is functioning entirely in terms of its internal controls. It maintains digestive activity, the reflex activity of muscles and nerves for low level and primitive conditioned responses to stimuli, blood circulation, respiration and certain other biological functions but there is no behavioural evidence of either self-awareness or awareness of the surroundings in a learned manner". A PVS patient is not considered to be dead and, therefore, does not lose legal personality, retaining those rights conferred by the Constitution and the common law.
Once this distinction has been made, it becomes easier to reach a decision with regard to withdrawing or continuing life support of the pregnant mother.
Withdrawal of life support in a brain dead pregnant woman
Even though a deceased person loses legal personality, there are still some interests of the deceased that are respected by South African law. For instance, in our criminal law it is a crime to violate a corpse. Therefore, it may be considered a violation of a corpse if a hospital or a doctor chooses to keep a pregnant brain dead patient artificially alive purely for the purposes of being an incubator until a foetus is viable, against her or her next of kin's wishes.
In South African law, a deceased person's wishes are to be respected if stated in a will, not in an advanced directive or living will, as these apply to people who are still alive (that is, not brain dead). Alternatively, the decisions lie with the next of kin, for example the spouse, partner, parents, etc. Therefore, in a similar situation to that of the Munoz case, if the deceased's family were to request that life support be withdrawn, the hospital would probably have to abide by this wish. The other side to this would be if the family wanted the deceased person to remain on life support. In such a case, the hospital would have to keep the life support on until the foetus was viable. The second scenario would apply unless the foetus is not healthy and medical treatment is futile, then a good argument would arise to remove the life support despite the family's wishes.
Withdrawal of life support in a persistent vegetative state pregnant patient
In this scenario, the patient is still alive and, therefore, retains all constitutional and common law rights owing to natural persons.
The pregnant woman's choice should be taken into consideration first and foremost. This may well be stated in an advanced directive or living will, although this is rare. It is considered acceptable to take into consideration a patient's advanced directive or living will as The Health Professions Council of South Africa (HPCSA) makes provisions for this. Alternatively, the patient may have communicated to family members her wishes should such an event occur. Importantly, the patient has a right to control of her body and her wishes ought to be respected.
In the event that the patient has no advanced directive, then the doctor has to obtain the consent of the next of kin (a spouse, partner, parent, etc.). If medical treatment is futile for both the mother and foetus and keeping the mother on life support would be futile, then life support may well have to be withdrawn, even if this is against the wishes of the next of kin.
What about the rights of the foetus?
Naturally one would ask the question, what about the foetus? Does the unborn child not have a right to live and be born? From a purely legal perspective, South African law does not afford rights to a foetus in the sense that a foetus is only considered a person once it is born alive and has breathed. A foetus has no legal personality under our law and, therefore, even if the foetus were to die it would be considered an abortion and not murder.
The position in South African law suggests that if faced with a decision regarding a pregnant PVS woman, the health care professional ultimately has to consider the wishes of the mother. Alternatively, the next of kin has the right to make a decision whether or not to continue life support. If the next of kin chooses to keep the patient on life support, then medical treatment should not be futile – for example where the foetus is severely deformed.
In respect of a brain dead mother, the opinion of the mother, if stated in a will, should be taken into consideration. Alternatively, the next of kin makes a decision on behalf of the deceased person. If it is the wish of the next of kin that life support should be removed, then this should be respected and the deceased woman should not be kept artificially alive as a mere incubator for the foetus. Should the next of kin wish to keep the deceased woman on life support until the baby is born, and if it is medically justifiable to do so, then the health care professional has to respect the family's wishes.
If faced with any of these scenarios, it is advisable for the medical practitioner to contact his attorney or insurer to obtain specific advice as the facts of each case differ and may well have an impact on whether or not it would be appropriate to continue with or discontinue life support.
