By L. Syd M Johnson
When Brain Death/Death by Neurologic Criteria (BD/DNC) occurs during pregnancy, complex questions emerge concerning the moral and legal status of the brain dead pregnant person, the continuation of life-sustaining treatment to save a fetus, the exploitation of pregnant bodies, and the potential conflicts between the prior, autonomous wishes of pregnant persons and the interests of others.
In the aftermath of the 2022 Dobbs decision in the United States that overturned the right to abortion, several states have enacted laws that severely restrict access to abortion, and prohibit the withdrawal of life-sustaining treatment from pregnant patients, sometimes explicitly including brain dead pregnant persons. In its 2023 BD/DNC practice guidelines, the American Academy of Neurology (AAN) states that “ethical analysis of whether to continue organ support in a pregnant person determined BD/DNC should largely focus on the welfare of the fetus,” and advises that discussions with patient surrogates should focus on “the risks and benefits to the fetus of continuing maternal organ support”. This guidance follows the AAN position statement on brain death accommodation , which carves out an exception to accommodate prolonged continuation of “organ support” not for the sake of the patient, but for the sake of a viable fetus.
A recent case in Georgia, in which Adriana Smith, a pregnant 30 year old woman, was declared brain dead, highlights how restrictive abortion laws and the AAN’s BD/DNC practice guidelines work in concert to effectively remove the pregnant person from ethical and legal consideration. Smith, has been maintained on life support for several months. The hospital has determined that they are legally prohibited from withdrawing treatment under Georgia’s restrictive abortion law, and plan to continue until a viable fetus can be born. Smith’s family objects, and has described the involuntary treatment as “torture” for them. Georgia’s law is vague and expansive enough — defining abortion to include the use of any “means whatever” — to raise genuine concerns about criminal liability for physicians who withdraw treatment from pregnant patients:
- A person commits the offense of criminal abortion when… he or she administers any medicine, drugs, or other substance whatever to any woman or when he or she uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.
- A person convicted of the offense of criminal abortion shall be punished by imprisonment for not less than one nor more than ten years.
The AAN maintains that the brain dead person is deceased and that “Death by BD/DNC criteria is equivalent medicolegally to death by cardiopulmonary criteria”. This is the party line across brain death policies and guidelines, both in the US and in practice guidelines elsewhere. If the brain dead pregnant person is dead and therefore no longer a subject of moral consideration, then foregrounding the interests and welfare of a living fetus — or other living persons — seems to logically follow. The ethically troubling consequence is that the pregnant person’s body can be used as a “human incubator,” a mere means to the ends of others, potentially exploited in a way that the pregnant person, when alive, would not have wanted. This puts AAN guidance, like restrictive anti-abortion laws, squarely in conflict with the bodily and reproductive autonomy of pregnant persons, and with ethical best practices in obstetrics that prioritize pregnant persons, their autonomy, and their preferences in treatment (and non-treatment) decisions.
The ability of brain dead individuals to gestate a fetus and give birth to a living infant has been well documented in the medical literature, and raises important and vexing questions about the medical, ethical, and legal status of “dead” but pregnant patients. The AAN BD/DNC guidelines acknowledge that the status of pregnant patients is unique, but only insofar as what we do to and through their bodies may affect the welfare of others. This reduces the brain dead person to the moral status of a functioning uterus, which is, in effect, what restrictive abortion laws also do. The pregnant person is ethically excised, their interests and preferences rendered irrelevant. Some patients may well have desired that life supporting treatment continue for the sake of a viable fetus, even if it means months of ongoing treatment after brain death. Individuals and their families, if they reject brain death as death for religious or philosophical reasons, may similarly want supportive treatment to continue, not just for the sake of the fetus, but for the sake of the pregnant person. Others who accept brain death – like Adriana Smith’s family — would see a grotesque violation of human dignity and bodily autonomy in continuing to treat them after death (or even after a catastrophic brain injury that does not result in brain death). If we accept that the prior, autonomous preferences of a person matter ethically when decisions about, for example, organ donation, or posthumous rites, are made, then it’s not a stretch to accept that the prior, autonomous preferences of the brain dead and pregnant patient must also matter, and must be similarly decisive with respect to what is done to their bodies, and what is impermissibly exploitative.
While brain death is rare, and brain death during pregnancy is even rarer still, the ethical and legal conflicts raised by these cases are exacerbated by restrictive anti-abortion laws, but also by the intentional policy of removing the interests and preferences of the brain dead individual from ethical consideration by emphasizing their status as deceased former persons who no longer have rights. Foregrounding the welfare of a fetus further pushes the pregnant, brain dead person out of consideration. As a matter of reproductive justice, whenever continuation of treatment because a brain dead individual is pregnant is contemplated, the reproductive rights, autonomy, and preferences of the patient — including their preferences about and for the unborn fetus — should be prioritized, whether this means continuing supportive medical treatment, or discontinuing it.
Author: L. Syd M Johnson
Affiliation: Center for Bioethics and Humanities, SUNY Upstate Medical University
Competing interests: None declared
Social media: @sydmj.bsky.social