In Canada, a Mrs Robyn Benson who had been declared brain dead when she was 22 weeks pregnant was treated with life support for 6 weeks to enable the child to be born, at her husband's request. However this only applies if such treatment will not be medically futile, as in the Munoz case where the fetus was 'distinctly abnormal'. a spouse) could therefore request a hospital to maintain the corpse with life support until the child is born. If there is no will, the deceased person's next of kin (e.g. Dead persons may also preserve their wishes in a valid will in terms of the Wills Act, or ask their next of kin to do certain things for them - even if the latter are not legally enforceable. However, it protects corpses and regulates their disposal. The rights of the dead under the common lawĪccording to the common law, a person's legal personality ends with death, and a dead person has neither rights nor obligations. However, a similar result could have been achieved in South Africa, because of the criminal law protection afforded to deceased persons and the lack of legal status of a fetus in South African law. South Africa has no law similar to the Texas Code, so such a ruling would not have been given if Mrs Munoz had died in this country. It ordered the withdrawal of treatment and release of the body, and found it unnecessary to rule on any of the other grounds mentioned in the application. The court only considered the first argument and held that the Texas Health and Safety Code did not apply because Mrs Munoz was dead. Mr Munoz did not mention that the fetus was 'distinctly abnormal', because it was not relevant to the case. He argued that the Texas Health and Safety Code disallowing the withdrawal of life-sustaining treatment from pregnant patients did not apply to dead people or their fetuses, and that the hospital was treating his wife's body in a criminal manner and was violating her constitutional rights. He asked the court to order the hospital to remove his wife from 'any respirators, ventilators or other "life support", and to release the body to her family for proper preservation and burial'. When the fetus was at 23 weeks' gestational age, Mr Munoz sued the hospital after the doctors told him that a Texas law forbade them to withdraw life support from his dead wife until the fetus's birth or a miscarriage occurred. Mrs Munoz was 14 weeks pregnant when a suspected pulmonary embolism left her brain dead. A South African court faced with the same situation would have issued a similar order for the removal of life support, but for different reasons, because there is no such Code here. Therefore, the Texas Health and Safety Code stating that 'life support' must be given to 'pregnant patients' did not apply to her. In a recent American case, the court ordered a hospital to remove life support from a person's brain-dead pregnant wife, finding that the woman could not be regarded as a 'patient' because she was dead. Here, unlawfully and intentionally subjecting a pregnant corpse to life-support measures to keep a fetus alive against the wishes of the family would amount to the crime of violating a corpse. In South Africa the court would have issued a similar order, but for different reasons. In a Texas case the court granted a husband an order for the removal of life support from his brain-dead pregnant wife after a hospital tried to keep her on it until the fetus was born. Professor of Law at the Centre for Socio-Legal Studies, University of KwaZulu-Natal, Durban, South Africa, and publishes and teaches in medical law Overturning refusal of a hospital to terminate life support for a brain-dead mother until the fetus was born: What is the law in South Africa?
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