A new analysis shows that in half of the United States, an incapacitated woman’s decisions about health care choices—as documented in an advance directive—can be invalidated if she is pregnant. Published in JAMA, the report also found that the majority of advance directive forms did not disclose that information.
For the assessment, the authors searched Nexis Uni and Fastcase databases to identify statutes in the 50 states and the District of Columbia that governed treatment decisions for incapacitated pregnant women and were effective in February 2019. They also looked at official state advance directive forms from state legislatures, administrative agencies, and bar associations. The forms were reviewed for language about pregnancy, surrogate decision-making, likelihood of fetal survival as a criterion for decision-making, and notification about any pregnancy restrictions in a state’s statutes.
The authors found that in 38 states, pregnancy influences an incapacitated woman’s advance directive or surrogate decision-making but advance directive documents in only eight of those states mention pregnancy-specific care preferences. Pregnancy specifically invalidates a woman’s advance directive in 25 states, and in 19 states, a surrogate decision-maker is prohibited from withdrawing life-sustaining therapies from a pregnant woman.
In 18 states, restrictions can be imposed on exercise of advance directives by a pregnant woman when the treating physician believes that the fetus could survive if the mother had continued life-sustaining therapy. In Alaska, Georgia, and Oklahoma, physicians are required to perform a pregnancy test before withholding or withdrawing life-sustaining therapy from a woman of reproductive age.
Reflecting on their data, the authors said, “It is unclear whether the current legal framework achieves an ethical balance between the state’s interest in preserving fetal life and the interests incapacitated women may have in forgoing life-sustaining treatments.” In an accompanying editorial, ethicist Anne Drapkin Lyerly, MD, MA, posited that, “It is women who should decide—and their core values that should guide—whether and under what circumstances pregnancy would be a reason to delay their death, and when it would not.”