By Joel Cox & Allison Bajada

“We’re just human incubators to them,” writes Gonzalez-Ramirez for The Cut. Those who are disturbed by the recent case of Adriana Smith – like this author – may not realize how often bodies are used as incubators through normothermic regional perfusion (NRP) for organ donation. For those unaware, doctors at Emory University Hospital declared Adriana Smith, a 30-year-old nurse and mother who was two months pregnant, dead by neurologic criteria – in other words, “brain dead” – after a medical emergency in February. The medical team has maintained Smith’s bodily functioning in order to deliver the child, citing Georgia’s strict anti-abortion law as the reason for continued support despite Smith’s legal declaration of death. This decision follows a slew of cases in the years post-Dobbs where strict anti-abortion laws have caused confusion about how to care for pregnant patients.

Setting the legality of the decision aside, we contend that cases in which a pregnant patient’s body is used as an incubator for a fetus are not relevantly different from NRP, which is used to keep organs viable longer in patients declared dead. In brief, NRP is utilized following a declaration of death based on the spontaneous cessation of respiration and circulation. The medical team then severs arteries to halt the flow of blood to the brain and places the body on a machine (known as ECMO, or extracorporeal membrane oxygenation), which mechanically pumps blood throughout the body. This is performed with the goal of maintaining organ viability for transplantation while eradicating any chance of resuscitation. The advent of this procedure has led to an expansion of the organ donor pool and an increase in transplant rates.

In both NRP and the maintenance of Smith’s body, the corpse is used as an incubator. In the former, the medical team aims to preserve the patient’s organs for transplantation, and in the latter, the medical team aims to preserve the fetus’ gestational environment until delivery. Care for the body is no longer care provided for the physical benefit of the patient but is performed in the pursuit of alternative good ends. Our goal is not to criticize NRP, but rather to highlight the connection between these cases and assert that supporters of NRP also implicitly support Smith’s treatment. Conversely, those who decry Smith’s treatment as wrong on the grounds of the impermissibility of using the body for incubation should also find NRP problematic. Many commentators have expressed outrage that Smith’s body is being disrespectfully used for incubation, but it is unclear how the maintenance of her body differs from NRP on an ethical level.

Supporters of NRP who oppose the maintenance of Smith’s body may object that these cases are disanalogous based on the differences in the nature of consent. Patients explicitly consent to organ donation, often when procuring driver licenses, but Smith did not explicitly consent to having her body used as an incubator for her fetus. The difference in the nature of consent does not ethically differentiate these cases, however, because we can infer implicit consent to the maintenance of Smith’s pregnancy. We have no reason to believe Smith wanted to discontinue her pregnancy, so the preservation of the fetus was a significant goal for her, supported by the preservation of her womb to gestate the fetus. In cases like Smith’s, preserving a pregnant patient’s body to maintain the fetus could even be more defensible than NRP due to childbirth constituting a weightier goal. Important to note is that neither organ donors nor pregnant women can truly provide fully informed consent explicitly; the procedure at the DMV fails to address all the procedures required in organ donation (meaning that NRP as a means is also implicitly consented to), and a pregnant woman will never be able to fully consent to all interventions required for the healthy delivery of her child.

One might also respond that the burden of treatment is vastly different between NRP and the preservation of a pregnant woman’s body. While NRP lasts a few minutes, the medical team has sustained Smith’s bodily functioning for months. Though this time differential can lead to increased physical, emotional, and financial burdens on a patient’s family and providers, along with ballooning medical costs for the institution, this also does not sufficiently differentiate NRP from Smith’s treatment. Had Smith only needed a few minutes of preservation before delivery of the fetus, the case might not have made national news, but her body would still have been used as an incubator. Regardless of the time spent incubating the fetus, the action remains the same in principle.

We do not intend to overlook the genuine ethical problems with the Smith’s treatment. Smith’s family has had no say in the matter of her care, due to a perceived legal requirement to incubate Smith’s body for the sake of preserving the fetus regardless of the family’s preferences. While this overriding of the authority of Smith’s family represents overreach by the state and dubious legal interpretation by the hospital system, it represents a separate problem from whether Smith’s body can be used to incubate the fetus in the first place. Concerns have also been raised regarding the health, viability, and dignity of the fetus as a result of the manner of its gestation. These too represent reasonable grounds to disagree with the treatment of Smith’s body, but the use of her body as an incubator cannot be problematic per se for proponents of NRP. Proponents of NRP who oppose the use of Smith’s body as an incubator must reckon with their beliefs or risk hypocrisy.

Authors: Joel Cox & Allison Bajada

Affiliations: Saint Louis University

Competing Interests: None to Declare