Documents show arguments of husband, DA in case of brain-dead pregnant woman

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by JIM DOUGLAS and TODD UNGER

Bio | Email | Follow: @toddWFAA8

WFAA

Posted on January 23, 2014 at 8:59 PM

Updated Wednesday, Jan 29 at 10:26 AM

FORT WORTH -- Erick Muñoz filed an anguished and personal legal plea Thursday to remove his pregnant wife from life support.

He describes missing Marlise Muñoz' touch and “the way her hair smelled, and the way her eyes appeared when we looked at each other…”

In an affidavit supporting an amended motion, Erick Muñoz writes, “…one of the most painful parts of watching my wife’s deceased body lie trapped in a hospital bed each day is the soulless look in her eyes. Her eyes, once full of the 'glimmer of life,' are empty and dead.”

Marlise Muñoz fell unconscious on Nov. 26, 2013. Doctors at John Peter Smith Hospital declared her brain dead. She was 14 weeks pregnant at the time.

Erick Muñoz said his wife did not wish to be kept on life support. The hospital has refused to remove her from machines because of a state law preventing the withdrawal of life sustaining measures from a pregnant patient.

Muñoz' legal petition also includes a supporting statement from SMU law professor Thomas Mayo, who helped craft the law in Texas' Health and Safety Code. Mayo said the drafting group never considered the application of the law to “a dead person.”

Erick Muñoz and his wife’s family contend that she is legally dead. Muñoz family attorneys Heather King and Jessica Janicek released a statement Wednesday that explained what they say the family knows about the condition of the fetus and that in her current state, Mrs. Muñoz can't be considered a "pregnant patient."

"Were that to be true, then it would be incumbent upon all health care providers to immediately conduct pregnancy tests on any woman of childbearing age who becomes deceased, and upon determining the deceased body was pregnant, hooking the body up to machines in an attempt to continue gestation," the statement reads. "Surely, such a result was never intended nor should it be inferred."

In a brief written in response, the Tarrant County district attorney’s office points out that Marlise Munoz did not leave a written directive.

Erick Muñoz said he did not officially sign a Do Not Resuscitate (DNR) form, but said it was a topic that was "talked about" and mutually agreed upon. However, even with a signed DNR form, the statute to protect the pregnancy would take priority.

The district attorney's office said the fetus will be 22 weeks and five days at the time of a hearing on the issue Friday afternoon in the 96th District Court.

The state said Erick Muñoz' position “ignores consideration of the unborn child.”

Pro-life advocates like Kyleen Wright said they hoped the judge ruled in favor of the hospital.

"I've heard people talk about it, I've had calls today," she said.

Wright said she also thinks it is possible that a guardian ad litem, or an outside attorney, could step in to represent the unborn child -- although it wasn't clear if that would happen on Friday.

"Before we make a life or death decision, it wouldn't be totally inappropriate to have someone representing the baby," she said. 

The hearing is set for just after 3 p.m. in front of Judge R.H. Wallace. 

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