Brain death in early pregnancy: A legal and ethical challenge coming to your intensive care unit?

Abstract

Increasingly, reports are emerging of maternal physiological support after brain death in pregnant women declared brain dead long before the gestational age of foetal viability. While these ‘miracle babies’ often receive significant media attention – such as the recent case of Catarina Sequeira – it is difficult to estimate the probability of a live birth in such circumstances given a clear publication bias in favour of reporting good outcomes. In a number of highly publicised cases, continuation of maternal physiological support after brain death has been attempted against the express wishes of the patient's family in jurisdictions where a foetal right to life is given weight in law. The legal issues around discontinuation of maternal physiological support after brain death have not yet been assessed by a UK court. The scenario is easily envisioned, however, where conflict emerges as to the appropriateness of such support. While there is no statutory definition of death in the UK, the courts have accepted brain-dead patients as legally dead upon completion of brainstem testing. However, as UK law grants few explicit legal rights to a foetus, it is unclear as to how conflicts are to be resolved. This article is not intended as a systematic review of the medical or legal academic literature, nor as a review of the clinical management of the pregnant brain-dead patient; rather, it aims to summarise the evidence base for maternal physiological support after brain death and the relevant case law. Using a recent case as an example, this article will outline the legal approach to death in the UK, contrast the status in law of a brain-dead mother and her foetus, and advance an argument of the circumstances in which maternal physiological support after brain death may be ethically justifiable. The authors hope this will assist the UK intensivist in the complex decision-making such cases demand.