Daniel Sperling, Maternal Brain Death.

Daniel Sperling, Maternal Brain Death, 30 AM. J. LAW & MED. 453 (2004).

Recent advances in medical technology have provided physicians with an ability to control the time and manner of death. A new option has become available: maintaining a brain-dead pregnant woman on life support for the successful delivery of the fetus for periods as long as 107 days.

Both abortion and the decision not to maintain a brain-dead 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 fetal life magnifies the human tragedy in such a situation, the mother is no more morally culpable for the fetal death than she is for the condition that has devastated her own existence.

Some commentators have argued that maintaining the brain-dead pregnant woman on life support for the sake of her fetus can be considered as another form of post mortem gift. In a controversial article, Jay Kantor and Iffath Abbasi Hoskins argue that there are three possible models for analyzing the ethical dilemma concerning maternal brain death. In the first model, we may treat a dead pregnant woman as if she were alive with a severe brain injury. This model provides her with the same rights and duties towards the fetus as the ones held by a living woman. In the second model, a pregnant woman may be considered a mere incubator for her fetus, enjoying no rights relating to the treatment of her body. She is treated like an object, rather than a person. Hence, any duties toward her are not owed for whom she is, rather for the persons who are affected by how she is being treated. In the third model, a brain-dead pregnant woman may be treated like a cadaver organ-donor. Maintaining her on life support is analogous to maintaining any brain-dead patient on life support until her organs may be harvested.

Many are willing to concede that an individual life begins at fertilization, but not that there is a...