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Brain-dead Mothers?

An interesting (if infuriating) case has been in the news lately, of a Texas woman who died while pregnant, and whose body is being kept alive to maintain the viability of the fetus, against her pre-mortem wishes and against the wishes of both her husband and her mother.

Now this ought to be a very straightforward case. The woman is dead; she has no brain function at all. Her body is being kept breathing, its heart pumping, but she as a person has died. It’s recognized in our society that people have a say in how their body is disposed of (within legal limits) after they die, if they think to express it beforehand, and this woman did; she reportedly said she didn’t want her body kept alive after she died. If there is no record of the person’s wishes, then the next of kin gets to decide what is done with the body, and both her widower and her bereaved mother want her body taken off the ventilator and disposed of normally (buried or cremated).

So why is that not being done? Her body is being used in a way neither she nor her survivors (a deceased person and two living persons) want in order to keep a fetus (a non-person) viable. It’s hard to avoid the conclusion that her wishes are being disregarded, and her survivors are being put through considerable anguish and potential expense (the result if this goes on is likely to be a handicapped child) in order to apply the status of personhood to the fetus, or at least some of the aspects of that status, as a tactic to oppose reproductive rights for women in general.

Sadly it’s rather typical of the forced-birth movement that they are willing to wreak any amount of damage on real people’s lives to achieve their aims; they are typically not much interested in the quality of lives, only in their quantity. That to me is the reason to be angry over this travesty; primarily that real people are being hurt by it. and secondarily that the wishes of the recently deceased are being disrespected.

I see a lot of people decrying it because it’s “disgusting” or “creepy” or “unnatural” – those are very bad reasons to change the law. Some people believe homosexual love to be all those things; some even feel an equal relationship between opposite sexes is all of that. Do not base your laws on your personal ick factors if you want a just society.

I also see a lot of people decrying it because it “reduces women to the status of an incubator” or words to that effect; that’s much closer to a valid reason in this case, since the woman involved had expressed a wish before she died that this not be done with her body. However, had both she and her husband said “Keep the (potential) baby alive at all costs” it’s hard to argue that it would be wrong to do exactly what’s being done now. If she had even simply failed to consider the possibility and not expressed a preference, and her husband wanted to keep her body going in the hope of an eventual birth by C-section, it wouldn’t be disrespectful of women or treating women as incubators because that thing wrapped around that fetus? That’s not a woman. That’s just a subset of a dead woman’s organs, a warm corpse. Brain dead is dead.

If it were a woman – if her brain was still alive – then normal rules should apply. She should be kept alive unless she expresses a wish to be allowed to die. If she wanted to die, then she should be able to refuse food, at a minimum, and there should be no consideration of forcing her to stay alive until delivery. She should also be allowed to refuse the use of her body to the fetus if she so desired, just as she could refuse the use of her body to anyone else including an already born child of hers.

Had the woman expressed a preference to keep her body alive until the baby might be born, and her husband and mother not wanted it… well, that’s a trickier question. Should the wishes of the deceased be that binding on the living? Would the husband or mother be obligated to care for the child born of her artificially maintained corpse? If not, would it become a responsibility of the State to care for the child (who, remember, is very likely to have lifelong health issues)?

I tend to think that the answer is no, that once she is dead her wishes are secondary to those of the survivors, but I feel a little softness in my position there. I can’t quite put my finger on it, but I suspect there are angles I haven’t considered.

If anyone reads this, I’d love to hear some feedback!

~ by BT Murtagh on January 15, 2014.

Law, musings, Society