First they take away my tuna fish...

October 21, 2007 6:04 PM

California legal/medical/ethical question: In advance of my going to the hospital to give birth within the next few weeks, I decided to download and fill out California's standard Advance Health Care Directive form, i.e. a living will (and to have my husband fill his out too, as long as we were at it). However, Google informs me via multiple sources that this form, even if signed and notarized, is "not valid if pregnant". WTF?

Some sources, possibly older ones, say that a "living will" and a "health care power of attorney" are (or were) two separate things under California law. However, the only actual form I have found online, the Advance Health Care Directive form from the California Hospital Assiciation, is exactly the same as the one listed in the actual California Probate Code, except more nicely formatted for printing, and while it is considered the former of the two categories, a "living will", the California Medical Association's very helpful FAQ states that this Advance Health Care Directive Form now supersedes the old health care power of attorney. It's the form to fill out for California residents. But if it's also considered a living will, then does the "not valid if pregnant" rule come into effect?

I have not found any explanation as to why a pregnant woman would be unable to declare her own health care preferences, especially since California law goes out of its way to mention that a woman's right to abortion can be neither compelled nor denied, regardless of what her health care directive says.

So:
1) How can I declare my health care wishes in a legally binding manner prior to my giving birth?
and
2) The form is (or maybe was) considered invalid while pregnant? Seriously, WTF?

posted by Asparagirl to health & fitness (15 comments total)

What does your OB/GYN say about this? Chances are the hospital has their own advance care directive forms that you can fill out.

Kaiser has a FAQ about it too.

This could be a very interesting can of worms. I'd consider consulting an attorney about this as well. Chances are somewhere along the lines someone has said "you lose the right to say 'pull the plug' if there's a BABY involved.." - hopefully I'm wrong.
posted by drstein at 6:09 PM on October 21, 2007

I'm pretty sure that abortion is only legal if the fetus isn't 'viable'. You can't get an abortion when you're nine months pregnant (AFAIK). Given that, it wouldn't surprise me if similar thinking lead to women not being allowed to have the plug pulled if pregnant.

I think another issue could be that people would generally fill these out when pregnant, and could be put into a vegetative state while pregnant. It would be kind of tragic and probably against the wishes of the mother to have the plug pulled while she was still pregnant and terminate the child.
posted by delmoi at 6:20 PM on October 21, 2007

Well, of course, I'd be happy to put a line in my directive about "if I am incapacitated while pregnant, take all necessary actions to ensure the baby's survival, and then execute my health care wishes with respect to end of life care, organ donation, autopsy preferences, etc." But there doesn't seem to be a legally enforceable way for me to do that!
posted by Asparagirl at 6:41 PM on October 21, 2007

I'm guessing delmoi is on the right track. Most women don't fill these out thinking about the possibility of such a thing happening in a scenario where they are pregnant. Also, I'm guessing that in such a situation where someone was pregnant, after the baby was delivered, or whatever may be the outcome of the pregnancy, the living will would kick back in. And also just from a practical viewpoint, it would be an absolute disaster for a hospital to try and enforce there was a possible child left in the balance and the family was against pulling the plug. Sort of like how you need to tell your family you want to donate your organs, in addition to checking the box on your driver's license, because doing something like this against the family's wishes is a legal disaster.

And on preview, wouldn't hurt to type up that sentence, sign, notarize it and attach it to the other forms. No idea if it would be legally enforceable, but hey couldn't hurt.
posted by whoaali at 6:48 PM on October 21, 2007

There is. You can designate that your life be prolonged artificially in order to save the baby if you become incapacitated.

I would not worry about a living will at this time. You are a healthy woman going in to deliver a baby. If you go into distress they are going to do all things necessary to save your life.

I would concern myself with designating a medical power of attorney. Appoint someone to make health care decisions for you in case you are unable to.
posted by LoriFLA at 6:48 PM on October 21, 2007

If you go into distress they are going to do all things necessary to save your life.

Uh, that's exactly the problem -- what if I explicitly do not want to have my life saved if it would only mean staying on a ventilator as a brain-dead vegetable forever? Note that this issue has religious implications for me and my family too, as the more religious branches of Judaism do not allow someone's plug to be pulled if it is keeping them alive (i.e. their standard of "alive" is "breathing", not "has brain waves"), so making sure that the person doesn't get to that state in the first place is a real issue.

I would concern myself with designating a medical power of attorney. Appoint someone to make health care decisions for you in case you are unable to.

Again, that's exactly the problem: the form I am talking about has superseded the old California medical power of attorney form.
posted by Asparagirl at 6:55 PM on October 21, 2007

I would speculate that you can fill out an advance healthcare directive for yourself, but not for your fetus. The fetus next of kin (usually its father) would have to be involved in any decisions relating to its health. Since the pregnant woman is the carrier of the fetus, that issue is transitive. But that's just a guess. Maybe the hospital or an attorney can give you the real reason.
posted by alms at 6:55 PM on October 21, 2007

Well that's just weird.

Most women don't fill these out thinking about the possibility of such a thing happening in a scenario where they are pregnant.
Actually, the first time I and many of my friends filled these out was precisely because we were preparing for labor & delivery. L&D can quickly turn into major surgery with lots of serious issues to consider and many birth classes recommend creating these forms if you haven't already. I'm in MA (along with most other people I know who filled out similar documents), so while I don't know why CA has this legal speedbump, I can tell you that other states don't see pregnancy as a reason to reduce your ability to communicate your medical wishes.

A few people you could call to try to sort this out (before calling a lawyer) would be your OB/midwife, a birthing class leader, a hospital ombudsman. They may have heard this question before and have either an explanation about the law or some suggestions for how to meet the letter of the law and your health interests. After that, I'd call a lawyer. Oh, and I wonder what would happen if you crossed state lines to create one? Would it be honored when you are back in CA?
posted by cocoagirl at 7:04 PM on October 21, 2007

My grammar is terrible tonight, but you get my drift.

I think a living will would be prudent if you were terminal at this moment. Since you are anticipating having a normal delivery, and you are in good health, a living will would most likey be moot during the actual delivery. This may sound irresponsible, but a living will is not very useful in your case until the baby is delivered. The person you designate as your medical power of attorney can make decisions to terminate life support, prolong your life to save baby, etc.

what if I explicitly do not want to have my life saved if it would only mean staying on a ventilator as a brain-dead vegetable forever?

If you are a healthy person that develops complications during delivery the medical team is going to do all things necessary to save your life. For example, if you hemorrhage or throw a pulmonary embolism, the physician is not going to think about possible outcomes. They are going to code you.

This is complicated in your case. I would definitely see a lawyer.
posted by LoriFLA at 7:10 PM on October 21, 2007

...throw a clot and develop a pulmonary embolism. Gosh, so dramatic!

I would also discuss this with your OB/GYN. Have you spoken with her about your specific concerns about life support? She'll give you some answers.

Congrats and good wishes for a healthy delivery.
posted by LoriFLA at 7:22 PM on October 21, 2007

Uh, that's exactly the problem -- what if I explicitly do not want to have my life saved if it would only mean staying on a ventilator as a brain-dead vegetable forever?

Asparagirl, you can't stay pregnant forever. If you go into a vegetative state, at some point the baby will still be delivered, and you will no longer be pregnant, and your living will will kick in (I would imagine). The "while pregnant" part would (I think) only apply while pregnant.
posted by delmoi at 7:33 PM on October 21, 2007

For the living will you can pick and choose what your wishes are, i.e. "no intubation".

Again, the living will may not be useful until after delivery and I cannot even fathom that a advanced health care directive (living will form) would override a medical power of attorney. They are separate things. I could be wrong, but I deal with POA and living wills on a regular basis.

IANAD and IANAL.
posted by LoriFLA at 8:03 PM on October 21, 2007

Don't ask your OBGYN ask a lawyer. They are the people who will know the answer to this question. You were right to think about addressing this question now. Get a qualified professional to answer your questions.
posted by Ironmouth at 9:02 PM on October 21, 2007

Your best defense is family that knows and respects your wishes. It's only the family that might contradict your living will.

From South Park, "Best friends forever": The lawyer turns up with the last page of Kenny’s will. On it, Kenny’s wish with life support says that “for the love of god, don’t ever show me in that condition on national television.”
posted by TeatimeGrommit at 9:13 PM on October 21, 2007

OK.
YOU are a victim of "porridge Brain syndrome" i.e. the fact that any male authority thinks you incapacitated for at least 101 days beyond childbirth, or whatever. Depends on the culture but in most legal systems a gravid or recently post-gravid woman is not 100% responsible for her actions.

Having been in that situation three times in my adult life, I'm not sure they're wrong. YMMV.
posted by Wilder at 12:58 PM on October 29, 2007