Let's try this.
IF the death had been because of an infectious disease that was a danger to society, I can see the state/hospital refusing to release the body. (I.E. something that would cause an outbreak/pandemic) - that is not the case here.
Were it not for the pregnancy, the hospital would have done exactly what the family wanted without a second question. Wouldn't have mattered that Marlise made the mistake of not putting it in writing. Her husband would say "she did not want to be kept on machines." Okie dokie, machines turned off. End of story.
Agreed on both counts. Obviously pregnancy is not an infectious condition, however, I think you must admit that it establishes legal basis for refusing to allow immediate release/disposal of a body. Criminal investigations are the other general case where this is applicable and while no crime has been committed here (I'm certainly not going to assert that abortion is a crime, and have already made it clear I believe the Texas Law to be unjust), it does establish that the State may intervene in matters of a more individual nature, not just where there is risk of pandemic and mass hysteria.
The deciding factor that has made this such an unholy mess is that Texas has decided that it has the right to dictate in cases where a woman is pregnant. Meaning, the state has decided that a woman's body is not her own domain. She does not have the right to make end of life decisions for herself should the unthinkable happen and she die while pregnant. The state has stripped it's female citizens of the right to decide on their own. This is assuming the hospital is reading the law correctly. After all, the law states life sustaining treatment to pregnant patients. A dead person is not a patient, nor are brain dead patients able of recovering.
The refusal to follow the wishes of the next of kin, who are legally the only ones able to make the decision to pull the plug, is disturbing and disgusting. It isn't a matter of turning the body over to them. It is the fact that THEY are the ONLY ones legally able to make this decision and the hospital is ignoring them. Whether because it it is protecting it's ass or whether it's because they think they have the right to make the fetus their patient doesn't matter to me. The hospital is in the wrong here.
I believe you have a contradiction there. What is 'Life-Support' if not a life-sustaining treatment? Brain-death may represent the death of the individual uniqueness that is Marlise, but given that the machines are in fact sustaining the continued function of all other semblances of life, I fail to see how you can construe her as anything but alive in the most fundamental biological sense of the term. Certainly there's been no legal declaration of death so are you then appealing to some more metaphysical sense of the term? If so, by what basis do you assert it to take precedence over the biological and legal sense?
Regardless, in order for Mr. Munoz as next of kin to have the rights to decide to remove his wife from life support, she must still be in the legal sense 'alive'. In which case he does not have the right to determine the termination of her pregnancy in lieu of her explicit wishes. Note the phrase I use there, "termination of pregnancy" whether or not we call it an abortion, or natural death, her pregnancy is being terminated, and it is firmly established that her husband has no more right to presume the right to do so than the State of Texas.
Assuming though, for the sake of argument, that Mrs. Munoz is legally dead, then Mr. Munoz's only rights to Marlise's mortal remains are established as tentative property rights to dispose of her body according to tradition and the deceased's wishes. In that case, I assert that the State has sufficient reason to delay release of the body into his custody on the basis of continued medical examination of the pregnancy until such time as the viability of the fetus can be established and all possible legal ramifications thereof can be cleared.
As for the matter of the fetus. They have NO way of knowing if the fetus is viable right now. Can't determine brain waves on a fetus. Can't really go by the heart beat because the machines could very well be keeping it's heart going, just like it is Marlise's. This whole waiting game to be able to test is disrespectful to the next of kin who want the machines turned off so they can mourn both in peace. All this hospital has done is force this family into limbo.
Call me callous if you want but I am of the belief that if whatever deity you believe in wanted this child to be born, Marlise wouldn't have died.
callous, but I'm of the belief that no deity or other immaterial belief has anything to do with this, and it's pointless to speculate about what is 'meant to be'. Call me callous again, but I don't see why being disrespectful to the next-of-kin in order to give a new life a chance is so much to ask, let alone a violation of rights. As far as I'm concerned, it's just an extended stay in the hospital waiting area as they're daughter undergoes a particularly long term form of treatment in an attempt to save the fetus, or else no different than what any other family goes through waiting for a family member with a terminal illness.
The only difference being that they cannot make the decision to refuse treatment for her, because there is another life on the line and it can't be established if Marlise wouldn't have wanted to try and save it.