Pregnant and Brain Dead: How to Make Your Living Will Effective
The heart wrenching story of Adriana Smith exhibits both the legal limitations placed on Living Wills, and the impossibility of planning for every potential end of life decision we may have to face. Adriana, aged 30, went from having headaches one day to experiencing deadly blood clots in her brain the next morning, leaving her brain dead. To add to this tragedy, Adriana was well into her first trimester of pregnancy and under Georgia state law could no longer have her life support terminated due to the state’s abortion laws (and no, this article is not going to discuss abortion law, no no no). And while Adriana’s husband and family wanted her to pass away (even at the expense of losing her baby), what would Adriana choose? Does a brain-dead pregnant woman who only lived 30 years want to terminate her pregnancy by ending her life, or give birth to her child? A brain-dead pregnancy is such an unusual circumstance, who would think to plan for it?
“Dying On My Terms” Documents Are Ineffective; Focus on Choosing Your Health Care Agent
Remember: The language in your Living Will is only guiding, and usually not enforceable.
In most states your Health Care Agent in your Health Care Proxy is empowered to make all end-of-life decisions; your Living Will merely provides guidance to your Agent for circumstances you would want to “pull the plug” (i.e., cease life sustaining measures). If you no longer have mental capacity to make your own health decisions, and your Health Care Agent chooses to keep you alive in direct contravention of your instructions in your Living Will, your Living Will is powerless to override their decision. And no, the State wants nothing to do with enforcing your desire to end your life (“administering your death” does not have great optics at the polling booth).
The answer is to spend time determining who you want to make these decisions for you – i.e., choosing a suitable Health Care Agent – and telling them your end-of-life desires. If you think your choice will not follow your wishes, think of naming a back-up Agent to take your initial Agent’s position when you are declared to be terminally ill.
It is Impossible to Plan for Every “Life Termination Worthy” Circumstance
Living Wills cannot predict every possible monster float in the parade of horribles that would make you want to end your life. I had one client who was immobilized by an aneurism and could only wink to communicate (and was able to convey he wanted to die), but I’ve had another who was in the same condition who miraculously improved significantly. I’ve had more than one client say “If I can’t recognize my family, end my life” only to find when that moment happened they were still generally cheerful. What about a stroke that blinds you, or causes you to lose the ability to speak, or wrecks your memory, but you are otherwise in a decent condition?
The fact that there really are 6,000,000 ways to die (or live miserably) means that picking and choosing the exact circumstance that will lead to triggering your end-of-life decision is highly improbable.
Solutions: Stick to Concepts, Not Specific Conditions
Because it is so unlikely you will hit the bullseye on what condition will enact your wishes, you may prefer to choose general concepts in your Living Will that can guide your Health Care Agent’s decisions:
- SAVE THE MONEY FOR THE KIDS: Our last few days of life are often sucky and expensive with a low quality of life. If you prefer your family to receive the extra $60,000 rather than keeping your unconscious body hooked up to Soylent Green™ and Gatorade Zero, have your Living Will explicitly state you are okay with not burning huge sums of money on the final fumes of your life.
- DIE HIGH: The term “I want maximum pain relief” has always meant “Inject me with a horse load of opiates and turn on Iggy Pop, even if it causes me to stop breathing.” This should be in everyone’s Living Will anyway, as being fully aware of your immanent death can creep out the strongest of us.
- FINAL FAMILY VISITATION: You may want to inform your agent you prefer to give your extended family a reasonable chance to see you one last time. I would not define “reasonable” just in case your nephew decides finishing his vacation to Phuket is more important than rushing back to see your unresponsive body.
- “EUTHANASIA TOURISM”: If you are okay with a final vacation before you die, have your document state you are willing to have your Health Care Agent transport you to another state or country that may be a bit more lenient with ending your life on your own terms.
- INCLUDE A VALUES STATEMENT: Your Health Care Agent being told who you are (not what you want) can be the most powerful guidance you can provide. Statements like “I consider unwanted procedures to extend my life as a battery against me” or “If maintaining my life helps to maintain a life of another (pregnancy, organ donor, etc.) please maintain my life for only that necessary period of time” gives the necessary insights for unusual circumstances that could directly affect other individuals.
Adriana’s child was delivered and her own life support terminated during the writing of this article. We will never know whether she would have wanted to give birth to a child. And even if she had created a Living Will, it is unlikely such a circumstance would have been foreseen. The lessons to be learned regarding proper end-of-life preparation is (1) choose the correct Health Care Agents, (2) have open discussions with them, and (3) grant them guidance on your values instead of each unforeseeable circumstance.
