A few years ago, you went to a lawyer who prepared an estate plan for you. You signed a couple of advanced directives known as a living will and an appointment of health care representative. Time passed and in 2018, you became pregnant. Then you learned that in that year the Connecticut General Assembly amended the statutes that govern advanced directives. Does this amendment impact your advanced directives in light of your pregnancy? Here is what you need to know.
First, a little background. If you had a living will in place prior to October 1, 2018, then a doctor was legally obligated to follow your instructions if you were in a terminal condition or permanently unconscious. That meant that the doctor had to allow you to die and not keep you alive through life support systems. But what if you were pregnant? Connecticut along with many states across the country did not apply this law if a woman was pregnant. In other words, if you were pregnant and either in a terminal condition or permanently unconscious, the doctor would have to keep you alive. So in that situation, a doctor could refuse to remove life support.
The problem this poses is that allowing a state to disregard a living will in the event of a pregnancy could conflict with a woman’s constitutional rights under federal law. Why? Because the U.S. Supreme Court decided that a woman has the right to decide whether she wants to have children and the Court has also decided that everyone has the right to direct their own medical care.
To address this situation, the Connecticut Legislature enacted Public Act 18-11, which became effective on October 1, 2018. This public act amended two statutes. The first is Connecticut General Statute Section 19a-575, which talks about the statutory form for a living will. This statute contains language that says if a woman’s condition is deemed to be terminal or if it is determined that she will be permanently unconscious, she must be allowed to die and not be kept alive through life support systems. In addition, it now says that if a woman is in that situation and she is pregnant, her living will can allow her to accept life support if her doctor or advanced practice registered nurse (hereinafter “APRN”) believes that doing so would allow her fetus to reach a live birth. In the alternative, the statute also permits a woman in that situation to simply have her living will apply, without any modifications. Thus, she would not be administered any life support regardless of whether a doctor or APRN believes that providing that to her would allow her fetus to reach a live birth.
The new public act also amended Connecticut General Statute Section 19a-575a, which sets forth the combined statutory form for the appointment of a health care representative and living will. The combined form allows a woman to appoint a health care representative as well as set forth her wishes regarding treatment if she is in a terminal condition or permanently unconscious. If a woman’s attending physician or APRN determines that she is unable to understand and appreciate the nature and consequences of health care decisions (which includes the decision to provide, withhold or withdraw life support), her health care representative can advocate for her decision under the living will. In other words, the law now says that if a woman’s condition is deemed to be terminal and she is pregnant, her health care representative can advocate for her decision to accept life support if her doctor or APRN believes that doing so would allow her fetus to reach a live birth. In the alternative, the new statute permits a woman’s health care representative to allow her living will to apply without any modifications, so that she will not be administered any life support regardless of whether a doctor or APRN believes that providing that to her would allow her fetus to reach a live birth.
The takeaway from this new legislation is that if you are a woman and there is a possibility that you could become pregnant, you should state in your living will and or the combined form, either one of the following: (a) whether you do not want life support administered to you under any circumstances; or (b) whether you wish to receive life support if a doctor or APRN determines that administering life support to you would enable your fetus to reach a live birth. In Connecticut, this choice now belongs to all women as of October 1, 2018. In addition, whatever you choose to do, it is imperative that you select a health care representative who will advocate for you and enforce your written wishes, if you are ever in this unique situation.
If you are a woman of child-bearing age and have thought about creating advanced directives for yourself, you should be aware of the recent changes in the law and how they might affect you. As well, if you have any questions about those changes, feel free to contact the estate planning attorneys at Cipparone & Zaccaro. We can help to create a clear and understandable estate plan for you by taking the time to explain the changes in the law and crafting advanced directives that accurately reflect your wishes.
