The Alabama Supreme Court handed down an unprecedented decision in February, holding that stored frozen embryos created for in vitro fertilization (IVF) were “minor children” under a state wrongful death law. 

The impact on the medical community was immediate and acute. IVF clinics had to make an overnight choice between providing patient care and risking newfound civil or criminal legal liability. As a result, clinics across the state immediately suspended IVF procedures. 

The Alabama ruling followed on the heels of the Supreme Court’s Dobbs v. Jackson decision in June 2022, which ended the fundamental right to access abortion care, throwing the question of access back to the states. Doctors who treat pregnant patients are now operating under a patchwork of abortion bans and restrictions and the threat of state prosecution if they run afoul—even unwittingly—of rapidly changing laws.

As fetal or embryonic personhood debates continue, medical professionals will be forced to navigate an increasing number of time-sensitive and emergency situations amid a fraught and uncertain legal landscape. These conflicts are already playing out in the abortion context, but another looming example is whether a doctor will be able to honor a patient’s end-of-life wishes if she is pregnant.

In treating a patient who has no hope of survival, doctors typically endeavor to honor any end-of-life wishes, such as those contained in advance directives. These directives can include decisions about life-sustaining treatments and designation of a health care proxy. All 50 states and Washington, DC, recognize the validity of advance directives. 

However, as of early 2024, more than half of states also have laws on the books that automatically invalidate an incapacitated patient’s previously expressed end-of-life wishes if the patient is pregnant. In some states, these advance directive nullifications only apply at the point of fetal viability or the possibility of a live birth. In 12 states, however, these laws kick in at any stage of pregnancy. 

In 2014, Marlise Muñoz, a Texas woman who was 14 weeks pregnant when she was declared brain-dead after a pulmonary embolism, was kept on life support for three months despite her and her family’s clearly expressed wishes that her life not be artificially continued. The Texas hospital stated that it was prohibited by law from removing life support because Muñoz was pregnant, and they had a duty to preserve fetal life.

Scenarios like the one the Muñoz family faced are likely underreported. Families in crisis will often not pursue legal options or make their trauma public. However, it is likely that these situations will become more common in a post-Dobbs world as doctors continue to grapple with emerging uncertainties and fear of legal liability in the context of providing end-of-life care for pregnant patients.

Given this shifting terrain, it is impossible to predict how a pregnant person’s end-of-life care directives will be interpreted—even in the handful of states that allow patients to explicitly state their wishes. Still, it would be a wise practice for pregnant patients—or those who may one day become pregnant—to attempt to understand the complexities of their state law. They should also put a clear and specific advance directive in place—which is relatively easy to draft, sign, witness, and notarize, even without legal representation—that outlines their wishes in the event of pregnancy.

Article originally appeared in the Conversation. 

Fetal personhood at a glance:

• 14 states enforce total abortion bans 
• 7 states restrict access to abortion at gestational durations that would’ve been unconstitutional under Roe v. Wade
• 2% of live births annually in the US result from IVF
• More than half of states have laws that invalidate an incapacitated pregnant patient’s end-of-life wishes
• 1,037,000 abortions occurred in the formal health care system in 2023—up 11% from 2020
• 22 states and DC have “shield laws” that protect health care providers from legal or professional consequences enforced by states banning abortion