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Texas Lawmaker Wants to Appoint Lawyers to Fetuses Whose Mothers are Brain-Dead

State Rep. Matt Krause wants legal rights for unborn children, but pro-choice activists say the move is a slippery ethical and legal slope.

by Kayla Ruble
Feb 12 2015, 8:55pm

A Texas lawmaker is pushing new legislation that would appoint lawyers to represent fetuses in court.

State Rep. Matt Krause (R- Fort Worth) has revealed plans to draft a bill that would grant legal representation for an unborn child in cases where the mother is brain-dead or otherwise incapacitated. The push for the legislation came in the aftermath of the high-profile case of Marlise Muñoz, who was left on life support for two months because she was 14 weeks pregnant, against the wishes of her family.

While Krause has yet to bring legislation to the house floor, he has said that the proposal would allow the courts to make better-informed decisions based on the best interests of all parties.

"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. "The judge weighs everything and he or she makes their decision based on that."

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Krause's proposal comes just a year after the Muñoz family fought a high profile legal battle with a local hospital over the fate of 33-year-old Marlise, who collapsed in November, 2013 after suffering a blood clot, and was pronounced brain-dead soon after. The family's initial requests for the hospital to pull her off life support were not granted, despite the fact that Muñoz had reportedly told her husband while she was alive that that would be her preference, if the occasion ever arose.

"We felt that they were pushing aside her wishes — pushing aside our wishes — and using Marlise as an experiment, if you will, to see how long the baby could survive," Lynne Machado, her mother, told the Dallas News.

Despite the family's explicit wishes, the hospital said they were legally obliged to keep Muñoz on life support, citing a Texas directive that states: "a person may not withdraw or withhold life-sustaining treatment" from a pregnant patient.

But the family took the case to court, saying that this law did not apply to Muñoz because she was legally dead and that a lack of oxygen flowing to the fetus following the collapse would likely have caused abnormalities. The family won their case, and in January, 2014, Muñoz was removed from life support when she was 22 weeks pregnant.

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Krause has said his proposed bill would affect cases like Muñoz's going forward. The family told the Dallas News that the proposal was an insult.

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

Granting legal rights to fetuses is a contentious issue that has been hotly debated in a number of states. At least 38 states have variances of "fetal homicide" laws, which define the fetus as a person and grants it rights accordingly. In some states, women can be held legally accountable for failing to protect their unborn fetuses, including for using drugs while pregnant. In some cases, officials have authority to appoint attorneys to represent the legal rights of the fetuses, and have done so without also appointing a lawyer to the mother.

Last spring, Alabama passed a controversial law that would give judges the power to appoint a lawyer to a fetus when a pregnant minor seeks an abortion without parental consent.

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Medical ethics expert Arthur Caplan, who is a professor at New York University, told VICE News that laws like these grant a personhood status that doesn't exist legally.

Decisions related to a woman's fetus should be her choice, Caplan said. But when a woman is unable to speak, "parents and partners know best," he said, adding that it often seems to be legislators — many whom have a distinct lack of medical expertise — that push for bills in this area, rather than the parties involved.

"I don't see hospitals calling for this, I don't see medical groups calling for this, I don't see families saying 'god I wish we had a lawyer for this fetus,'" he said.

The American Civil Liberties Union of Texas also criticized Krause's proposal, claiming the bill could make situations worse for families.

"The circumstances are so different from family to family that what you need is for the family to have the fullest latitude to do what's best for them," Rebecca Robertson, legal and policy director for ACLU Texas, told the Dallas News.

Caplan echoed these sentiments, saying fetal protection laws raise all sorts of ethical and legal quandaries. For example, a woman pronounced brain-dead in her first trimester of pregnancy would likely be treated differently than a woman who is approaching full-term pregnancy, he said.

While the Muñoz case made headlines worldwide, most cases like these are relatively straightforward and don't make waves, Caplan said. In most similar circumstances, the wishes of the patient and family are clear and are usually followed, he said. For this reason, introducing more legislation may only serve to complicate the process and create a "slippery slope" that imperils a woman or family's right to choose, he said.

"This is a solution in search of a problem," Caplan said. "Most people know what they want… there are not really a slew of [these] problems."

But "If there's anything you don't want — whatever your views are — you don't really want the state legislature coming to the bedside with bright ideas," he added.

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Follow Kayla Ruble on Twitter: @RubleKB