American Journal of Law & Medicine

Maternal brain death.

I. INTRODUCTION

Pregnancy is a biological process that usually takes forty weeks. The more advanced pregnancy is in terms of gestational age, the higher the chances that the fetus would survive in case of a premature and unnatural delivery. Hence, when a pregnant woman is struck by brain death, (1) the fetus' chances of survival are seriously and immediately threatened. Until recently, there were two choices in such a situation: letting the mother (and the fetus) naturally die without further intervention or delivering the fetus through a cesarean section when the death of the fetus was a tragic but likely result. (2)

Recent advances in medical technology, however, have provided physicians with an ability to control over the time and manner of death in ways that were never previously considered by their patients. A new option has thus become available: maintaining the brain-dead pregnant woman on "life support" for the successful delivery of the fetus for periods as long as 63, (3) 70, (4) 100, (5) and even 107 days. (6)

Delivering a baby from a dead mother has some historical precedents. (7) Asklepios, the Greek physician, was supposedly delivered after the death of his mother. Julius Caesar was born via cesarean section performed on his dead mother. (8) Advanced developments in medicine, however, have enabled this proposed "treatment" to last longer with greater intrusion on the woman's body than ever before. Maternal brain death is not a hypothetical scenario. It has been reported in California, (9) Georgia, (10) Canada, (11) Germany, (12) Ireland, (13) Israel, (14) and Turkey. (15) No doubt, maintaining a brain-dead pregnant woman on life support is one of the advanced technologies that lead to a situation where the technical capacity develops before any moral consequences arise or any legal framework is devised with which to decide whether we should do what we can do. (16)

In this Article, I will discuss the moral and legal aspects of maintaining a brain-dead woman on life support for the successful delivery of her fetus. I will ask whether it is permissible to maintain artificially a dead woman solely for the sake of her fetus, and what is the motivation for doing so. Furthermore, I will inquire into whether there is any justification for this medical procedure or whether it is only performed out of a desire to save the fetus. (17) These questions will be approached from two different angles. First, I will look at legal frameworks related to pregnancy and to the treatment of the body of brain-dead patients under abortion law and under human tissue girl law, and I will examine their application to the case of a brain-dead pregnant patient. Following this analysis, I will look further into the main issues that arise directly in the case of maternal brain-death.

II. ABORTION LAW

Both abortion and the decision not to maintain a brain-dead pregnant woman on life support result in fetal death. Both contexts expose the tension between a woman's freedom to choose the way in which her body will be appropriated and the state's interest in the life of the fetus. One may argue that the decision to forego "life-sustaining" treatment does not possess the morally condemnable intent to kill the fetus, even when the woman is competent and aware of her pregnancy. When the woman dies of natural causes, her fetus will also die. While the termination of the fetus' potential life magnifies the human tragedy in such a situation, the mother is no more morally culpable for the fetus' death than she is for the condition that has devastated her own existence.

On the other hand, one can argue that the theoretical distinction between intentionally aborting a fetus and letting a fetus die is no more appropriate with the natural death of the mother, as the availability of medical technology to sustain artificially the life of the mother (and the fetus) creates the need for a more practical solution to address the question of what we should do with the woman at the time the treatment dilemma arises. (18) Therefore, abortion law analysis will be valuable in order to understand better the legal and ethical problems that occur in our situation.

There are two main theories on the morality of abortion. The conservative theory of abortion holds that abortion is never acceptable or, at most, is permissible only if it is necessary to bring about some great moral good such as saving the pregnant woman's life. (19) This theory is influenced by the principle of "double effect," which provides specific guidelines for determining when it is morally permissible to perform an action in pursuit of a good end in full knowledge that the action will also bring about bad results. (20) Under this principle, in cases where a contemplated action has both good effects and bad effects, the action is permissible only if it is not wrong in itself and if it does not require that one directly intends the evil result. (21) By applying the principle of "double effect" to abortions, the conservative theory of abortion allows distinction among cases where a pregnancy may need to be ended in order to preserve the life of the mother.

According to the liberal theory of abortion, abortion is always permissible, whatever the stage of fetal development. (22) This view emphasizes the freedom of choice and the right of a woman to make decisions that affect her body. An intermediate approach between the liberal and conservative approaches is that abortion is ethically permissible until a specified stage of fetal development or for some moral reasons that are believed to be sufficient to warrant abortions. Such a view was framed in the leading American cases of Roe v. Wade (23) and its companion, Doe v. Bolton. (24)

A. ROE v. WADE

In Roe v. Wade, a pregnant single woman brought a class action challenging the constitutionality of the Texas criminal laws, which prohibited procuring or attempting an abortion except for the purpose of saving the mother's life. The appellant argued she was unable to obtain a legal abortion in Texas and could not afford to travel to another jurisdiction, where it was legal under safe conditions.

In Roe v. Wade, the right to have abortion was recognized under the Fourteenth Amendment of the U.S. Constitution. (25) The Supreme Court ruled that only where state interests are compelling, may the state promulgate regulations limiting the woman's fundamental right of privacy. (26) Two compelling state interests were found as a woman approaches full term: preserving and protecting the health of a pregnant woman and protecting the potential for human life. (27) By dividing the whole process of pregnancy into three trimesters, the Court explained how these interests come into effect in the decision whether or not to terminate the pregnancy. During the first trimester of pregnancy (from conception to the end of the twelfth week), where an abortion may be less hazardous than giving birth, the woman and her physician are free to determine whether or not to terminate her pregnancy without regulation by the state. (28) During the second trimester of the pregnancy (until around the twenty-eighth week), the state's compelling interest in maternal health permits it to adopt regulations seeking to promote safe abortions. (29) Finally, when the fetus becomes viable, usually during the third trimester, the state may prohibit abortions except when necessary to protect the health of the mother. (30)

At the basis of this balancing of interests lies the assumption that the answer to the abortion dilemma can be found in the moral status of the fetus. Moral status is defined in terms of biological development, which has been roughly determined as the point of viability. The Roe Court, however, did not discuss the relationship between the moral status of a fetus and the point of viability. More specifically, the Court did not explain the justification for such a connection. This is not an obvious thing, as the Supreme Court of Ireland stated in AG v. X., "One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born life." (31)

Furthermore, it is not clear from the Court's decision in Roe v. Wade when exactly a fetus deserves moral protection and why the viability criterion is good enough to serve as an ethical judgment on the moral status of the fetus. Why not, for example, link other biological points during pregnancy to the fetus' moral status? Perhaps the fetus should enjoy moral protection before the point of viability, for example, immediately after conception, or after twenty-four weeks, where there is a 50% chance of surviving? Or perhaps the fetus should be afforded the moral status after the point of viability, for instance, after showing expulsion or extraction from the mother and breathing or after showing any other biological evidence of life such as a heart beat, umbilical cord pulsation, or definite voluntary muscle movement?

Although the fetus' moral status and the state interest in protecting it was used as an argument to counterbalance the protection of the woman's interest, the Court refused to hold that the fetus is a person within the meaning of the Fourteenth Amendment. Moreover, an exception to the state interest was given in Roe, which held that post-viability abortions can be proscribed unless it is necessary to preserve the life or health of the mother. (32) Indeed, this exception was later used in Thornburgh v. American College of Obstetricians. (33) In this case, the Court examined the constitutionality of a Pennsylvania statute that allowed in post-viability abortions the physician to use a technique that most likely would result in the birth of a live child, unless the technique would present a significantly greater medical risk to the life or health of the pregnant woman. The Court held that this provision was unconstitutional on the ground that the health of the woman is paramount, even after viability, and she cannot be forced to bear any greater risk to her health in order to save the viable fetus. (34)

B. DOE V. BOLTON

Soon after the Roe decision, the Court heard a similar case. In Doe v. Bolton, (35) an indigent, twenty-two-year-old married pregnant woman, who desired but had been refused an abortion after eight weeks of pregnancy, instituted an action seeking a declaratory judgment that the Georgia abortion statute was unconstitutional and an injunction against the statute's enforcement. The Georgia criminal statute at the time limited legal abortions to specific situations requiring a showing that continuation of the pregnancy would endanger the life or seriously and permanently injure the health of the pregnant woman, or the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect, or that the pregnancy resulted from forcible or statutory rape. (36) In addition, the statute required certain other procedural or evidentiary aspects of the approval and performance of abortions. (37)

The District Court held that a constitutional right to privacy had been established broadly enough to encompass the right of a woman to terminate an unwanted pregnancy in its early stages by obtaining an abortion. (38) The court gave declaratory, but not injunctive, relief, invalidating as an infringement of privacy and personal liberty the limitation to the three situations specified in Georgia abortion statute. (39)

On appeal, the Court modified and, as so modified, affirmed the judgment of the District Court. (40) Following the rationale of the Roe decision, the Court held that a pregnant woman has no absolute constitutional right to abortion and that voluntary abortion at any time and place, regardless of medical standards, would impinge on a rightful concern of society. (41) The Court, however, did not refer to the trimester framework established in Roe, nor did it explain how to balance the competing interests involved. The Court found Georgia abortion legislation to be overly broad in favor of the state and not closely correlated to the aim of preserving prenatal life. (42) Hence, the Court ruled that endangering the life of the woman or seriously and permanently injuring her health are standards too narrow for the right of privacy that is at stake in a decision to abort. (43)

C. FOLLOWING ROE V. WADE

In addition to a massive public and political response, two kinds of judicial reactions followed from the Roe decision. The first was the expansion of the state interest in protecting potential life before the point of viability and even beyond the realm of abortions. The second was the abandonment of the trimester framework for an "undue burden" test.

1. The Protection of a Pre-viable Fetus Beyond Abortion

In Webster v. Reproductive Health Services, (44) the Court dealt with a Missouri abortion statute, which required physicians to conduct tests to determine whether the fetus is viable prior to an abortion on a woman who is twenty or more weeks pregnant. (45) The statute also prohibited the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life. (46) The first provision before the Court contained findings by the Missouri state legislature that the life of each human being begins at conception, and that unborn children have protectable interests in life, health, and well-being. The Court found this provision as imposing no limitations on abortions and conferring protections in tort and probate law on fetuses. (47) By doing so, the Court appeared willing to recognize the existence of fetal protection at least outside the context of abortion.

The Court also expanded the protection of a fetus in regard to its biological development. The Court ruled that under the Missouri statute, a physician would only be required to administer those tests that are necessary or useful to determine viability. (48) The majority held that the state's interest in protecting potential human life should come into existence not only at the point of viability as ruled in Roe, but even prior to that (during the second trimester). (49) Thus, the Court explicitly recognized that requiring physicians to perform viability-determining procedures on twenty-week-old fetuses directly conflicts with Roe because inevitably the requirement would result in the performance of procedures on non-viable second trimester fetuses. In doing so, the Court suggested that the state's compelling interest may exist throughout the pregnancy and not, as ruled in Roe, only upon and after viability. In its decision, the Court criticized the trimester framework of Roe as "unsound in principle and unworkable in practice." (50)

The Court in Webster explicitly stated that it did not overrule Roe, but rather based its decision on a narrow interpretation of Roe, as one that struck down a criminal statute of non-therapeutic abortions. According to the Court, the Roe decision could not be applied to the Webster case, which dealt with a statute prohibiting public funding, and that expanded the procedural protections for fetuses. (51) Whether this is convincing or not, the outcome of the Webster decision is far beyond the Roe decision, as it calls for a wide protection of the state's interest in potential life even when such a potential is very small.

2. Undermining the Viability Criterion

Viability is, as Thomas Murray claims, a slippery concept. (52) This is especially true when it is based on biological development of the fetus that is dependent upon a scientific knowledge, which is dynamic and changing. The legal standard of viability, which was framed in the Roe decision, did not last long. In Planned Parenthood of Southeastern Pennsylvania v. Casey, (53) the Supreme Court considered the constitutionality of amendments to the Pennsylvania abortion statute. It was a plurality decision reaffirming the Roe decision, but overruling the use of the trimester criterion and fetal viability as a standard by replacing it with an "undue burden test." (54) According to this test, a consideration has to be made whether a law's purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. In Casey, a profound interest in potential life had been established. This interest, however, was not based on the trimester framework.

Although Roe is still the leading decision in American abortion law, it is not clear if its main components--the trimester framework and the viability criteria--are well established in the judgments following it. As suggested, American courts deviated from the Roe decision in two different directions: further protecting the fetus and framing a more flexible test for state intervention in abortion. Moreover, the popularity of the Roe case is questionable. A recent poll in the U.S. shows that 52% of Americans agreed and 37% disagreed with the result of Roe v. Wade, while 50% identified themselves as pro-choice and 42% as pro-life. (55) With this level of division, it is also difficult to credit the Roe decision as expressing values that are representative of American public opinion and accepted by the public at large.

D. ABORTION LAW IN CANADA

In Canada, the earliest statutory prohibition against attempting to procure an abortion is the 1869 Act Respecting Offences Against the Person, which made the abortion of a "quick fetus" a crime punishable by life imprisonment. In 1892, this prohibition was incorporated into the Criminal Code, (56) and survived until 1969. Under pressure from the medical community, section 251 was amended in 1969 to allow for a therapeutic exception to the abortion prohibition. (57) Under the new section, the abortion had to be performed by a licensed medical practitioner in an accredited or approved hospital upon written advice of a three-member therapeutic abortion committee to the effect that the continuation of the pregnancy endangered the pregnant woman's life or health. (58) According to the law, whether a pregnant woman could have an abortion was wholly contingent upon the committee's assessment of the threat the pregnancy posed to her health or life. (59) Nevertheless, the woman could not represent her case to the committee. (60)

It is important to note that the 1969 amendments to the Criminal Code did not change the substantive law on abortions by liberalizing the legal grounds for terminating pregnancy. As Bernard Dickens argues, these amendments only addressed the means of ensuring the legality of an abortion before it is performed. (61) Before 1969, a physician acting in good faith could lawfully terminate pregnancy to save life, or physical or mental health. (62) The legality of the physician's action could be tested and confirmed only ex post facto. By the 1969 amendments, the legality of terminating pregnancy could now be established beforehand, by certification of a therapeutic abortion committee. A substantive approach to abortion law was established, however, by legal cases.

In R. v. Morgentaler, the Supreme Court of Canada considered, for the first time, the abortion question in the context of the Canadian Charter of Rights and Freedoms. (63) Dr. Henry Morgentaler, charged with illegally performing an abortion by the Province of Ontario, argued that section 251 violated several provisions of the Charter. (64) The majority of the court agreed that section 251 was a profound interference with a woman's body and, thus, a violation of a woman's right to security of the person. (65) The court, however, established that not all restrictions on abortion would violate this right. (66) Justice Bertha Wilson, for example, emphasized that section 1 of the Charter allows for the imposition of reasonable limits on the woman's right to security of the person. (67) She addressed the importance of the developmental facts of pregnancy by ruling that abortion legislation, which adopts a permissive attitude toward early term abortions and a more restrictive attitude toward late-term abortions, would probably be constitutional. (68)

The court also ruled that the state has a legitimate interest in protecting fetal life, although it did not directly consider the question of the fetus' legal personality, namely whether the term "everyone" in section 7 to the Charter also refers to the fetus. (69) Contrary to the American Supreme Court in Roe v. Wade, the Canadian Supreme Court neither declared that the right to abortion is a fundamental right nor referred to the right of privacy in overturning section 251 to the Criminal Code. (70) The Morgentaler decision, however, invalidated the only abortion law in Canada--section 251 to the Criminal Code--and abortion became a medical procedure subject to the provincial regulation of doctors, hospitals, and access to healthcare services. A legislative response to the Morgentaler decision has been unsuccessful to date. (71)

Abortion law in Canada was also influenced by other judicial decisions, in which injunctions were unsuccessfully sought to prevent women from exercising their right to abortion based on the recognition of the fetus as an entity entitled to constitutional protection. In Tremblay v. Daigle, (72) the appellant was eighteen-weeks pregnant at the time of her separation from the respondent, the fetus' father, and her decision to terminate her pregnancy. (73) The respondent obtained an interlocutory injunction from the Superior Court preventing her from having the abortion. The trial judge found that a fetus is a "human being" under the Quebec Charter of Human Rights and Freedoms and, therefore, enjoys a "right to life" under section 1. (74) The trial judge also based his conclusion on the Civil Code's recognition of the fetus as a juridical person. (75) The court concluded, after considering the effect of the injunction on the appellant's rights under section 7 of the Canadian Charter of Rights and Freedoms and section 1 of the Quebec Charter, that the fetus' right to life should prevail. (76) On appeal, the injunction was upheld by a majority of the Court of Appeal. (77)

On appeal, the Supreme Court of Canada declared that the substantial rights that allege to support the injunction preventing the abortion do not exist. (78) The court found that the fetus does not enjoy the right to life conferred by section 1, and held that there are good reasons for not finding any fetal rights under the Quebec Charter. (79) Additionally, the court held that the provisions of the Civil Code providing for the appointment of a curator for an unborn child and the provisions granting patrimonial interests to such child do not implicitly recognize that a fetus is a juridical person. (80) The court added that in Anglo-Canadian law, a fetus must be born alive to enjoy rights. (81) Finally, the court found nothing in the Quebec legislation or case law to support the argument that the father's interest in a fetus he helped to create gives him the right to veto a woman's decisions with respect to the fetus she is carrying. (82)

In Diamond v. Hirsch, (83) the respondent, a married woman in the eighth week of her pregnancy, sought an abortion out of fear from her father's reaction to her pregnancy. (84) The applicant asked for an order enjoining and restraining the respondent from having an abortion performed upon her. (85) In response to the applicant's argument on the unique moral status of the fetus, the court held that from a medical perspective it was not convinced that an eight-week-old fetus is in fact a distinct human being. (86) The court added that there is always the possibility for an involuntary miscarriage or still birth. (87) But the overwhelming consideration, which the court found to exist in the case, was the fact that the woman, as any human being, has an absolute right, subject to criminal sanctions, to control her body. (88) The choice to terminate pregnancy was fully her own.

The decisions discussed supra reflect the courts' reluctance to see the fetus as a "person" under the existing statutes of all legislative levels (from provincial to the Charter). Sanda Rodgers comes to the same conclusion after analyzing the case law, arguing that it would be unlikely that the reference to the term "everyone" in section 7 to the Canadian Charter would include the fetus. (89) Moreover, the cases mentioned supra also seem to be in accordance with the Morgentaler decision, thereby conferring on a woman the full freedom of choice with regard to abortion, at least in early stages of pregnancy.

E. APPLYING ABORTION LAW TO POST MORTEM PREGNANCY

How can abortion law contribute to our discussion of the maintenance of a brain-dead pregnant woman on life support? Roe's criterion on viability had a logical and biological basis. With respect to the state's important and legitimate interest in the health of the mother, the "compelling" point is approximately the end of the first trimester, since until that point, mortality in abortion is less than mortality in normal childbirth. From that point, the state can regulate the abortion procedure to the extent that it reasonably relates to the preservation and protection of maternal health. With respect to the state's interest in potential life, the "compelling" point is at viability, since at that point the fetus presumably has the capacity of meaningful life outside the mother's womb. State regulation for this sake can proscribe abortion during the period after viability, except when necessary to preserve the life or health of the mother.

Applying these rationales to the situation of a pregnant, brain-dead woman creates difficulties. Following the Roe principles, no state intervention, other than for the sake of the mother's health, should be allowed during the first and second trimesters of pregnancy. Proponents of maintaining a brain-dead pregnant woman on life support, however, would argue that if the woman is not being maintained on life support, she would not reach the third trimester, where the state apparently has a recognized interest in protecting potential life. (90) Although it is clearly true that without life support the fetus would not reach the third trimester, the trimester framework does not seem to imply an obligation to continue life support. Under this framework, the state interests, which can outweigh the mother's interests, are examined when the physical intervention is being considered, and not afterwards. Maintaining a brain-dead pregnant woman during her first or second trimester is not what the Court in Roe meant to create. (91) It is separating the act of intervention in the woman's pregnancy from the state's interest that justifies it. It is taking advantage of the mother's situation and protecting de facto potential life, at a point when it is clearly not viable. Thus, it is a fierce deviation from the Roe decision.

Indeed, as explained supra, the viability criterion and the trimester framework are difficult to apply. This is part of the reason why American courts replaced them with another test (undue burden test), or expanded their effect when they dealt with public funding (the Webster case). Moreover, the decisions following Roe emphasize that there may be another way to protect the state interest in potential life without interference in the pregnant woman's body. Such a way was explicitly formed in the Casey case, where the Court, while rejecting the rigid trimester framework of Roe, ruled that the task "[t]o promote the State's profound interest in potential life, throughout pregnancy" can be also fulfilled if the state "take measures to ensure that the woman's choice is informed," and to persuade her "to choose childbirth over abortion. …

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