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A undated family photo shows Marlise Muñoz with husband Erick and their son, Marco

PREGNANCY AND BRAIN DEATH, AN EXTRAORDINARY FORM OF ORGAN DONATION

by Andrew S. Kubick

ETHICS AND MEDICS

A Commentary of The National Catholic Bioethics Center on Health Care and the Life Sciences
April 2015     Volume 40, Number 4
On the morning of November 26, 2013, Erick Munoz found his thirty-three-year-old wife, Marlise, unconscious and unresponsive on the first floor of their Texas home. Two days later, the medical staff at John Peter Smith (JPS) Hospital at Fort Worth determined that Marlise met the criteria for brain death. This meant the cessation of all medical treatment. The staff at JPS hesitated, however, because Marlise’s case presented an extremely rare ethical dilemma—discontinuation of life support would cause the premature death of the fetus in utero.1
Cases involving life-support decisions for brain-dead pregnant women seldom arise. A recent publication cites only thirty such cases globally since 1982.2 Regardless of their infrequency, they will occur again in the future.
The Catholic Church accepts a determination of death as the complete and irreversible cessation of all brain activ- ity when tests are performed properly by a “physician or competent medical authority in accordance with respon- sible and commonly accepted scientific criteria.” 3 Once brain death has been determined, a basic tenet of medical triage must be applied: prioritize those who can be saved. Doctors cannot salvage the health and well-being of the pregnant woman once neurological testing definitively determines brain death has occurred, but within the con- text of triage, the fetus of a brain-dead pregnant woman can be saved if there is immediate and prolonged treatment.
A Form of Organ Donation
Inescapably, these unique cases require the artificial maintenance of a corpus for the sole purpose of incubat- ing another human life. This is not a foreign concept as there is precedent for the continuation of respiratory and circulatory functions of cadavers for a defined period of time in order to harvest healthy organs for transplant.4 The ability to provide life-preserving bodily resources “not only shows respect for the cadaver but also increases its value, because it makes possible a new form of solidarity: preventing the premature death of other persons.” 5
All efforts must be made during these periods of somatic support to care for the deceased body of the preg- nant woman in a proper manner—treating her body with respect and charity.6 Medical staff and family members should maintain hyper-vigilance to avoid any abuse. Death should not eclipse the inestimable value of the sacrifice of  somatic support—itself a form of organ donation. As Pope St. John Paul II observed, “It must first be emphasized . . . that every organ transplant has its source in a decision of great ethical value: ‘the decision to offer without reward a part of one’s own body for the health and well-being of another person.’ Here precisely lies the nobility of the gesture, a gesture which is a genuine act of love.” 7
Benefits and Risks
The systematic process used by theologians and philosophers to discern moral obligation in life-saving or life-sustaining cases has developed over the centu- ries. While commenting on the liceity of amputation, Rev. Domingo Banez, a sixteenth-century Dominican, wrote, “Although a man is held to conserve his own life, he is not bound by extraordinary means but to common food and clothing, to common medicines, to a certain common and ordinary pain: not, however, to a certain extraordinary and horrible pain, nor to expenses which are extraordinary in proportion to the status of this man.” 8 This brief instruction provides an early, yet appropriate, interpretation of what man is morally obligated to accept in medical treatment.
The Congregation for the Doctrine of the Faith (CDF) reflected Banez’ observations in the Declaration on Euthanasia in 1980: “It will be possible to make a correct judgment as to the [ordinary and extraordinary] means by studying the type of treatment to be used, its degree of complexity or risk, its cost and the possibilities of using it, and comparing these elements with the result that can be expected, taking into account the state of the sick person and his or her physical and moral resources.” 9
The CDF cites a set of guidelines or criteria for moral decision making with regard to life-saving and life- sustaining treatment. Referred to as ordinary care, or proportionate means, the Church compassionately directs all patients in grave circumstance to accept and continue the use of reasonable means that preserve life. The use of extraordinary means is nonobligatory if they “do not offer a reasonable hope of benefit or entail an excessive burden, or impose excessive expense on the family or the community.” 10 Such interventions are also referred to as disproportionate.

Medical Literature
The proportionality of a medical treatment requires that the benefits outweigh the risks. In the case of somatic support following a determination of maternal brain death, withdrawing life support does not offer any health benefit for the deceased woman. Possible benefits of withdrawal concern the grieving process and closure following repose, the reallocation of medical devices to other patients who have a higher probability of recovery, and the preservation of financial resources. These benefits, however, must be weighed against the potential benefits enjoyed by the fetus.
Care givers and loved ones must ask if an intervention can save the life of the fetus and if the subsequent neonatal care is likely to sustain it following cesarean birth. Studies have been published in recent years supporting favorable outcomes following a short and well-defined period of fetal life support. An analysis of fourteen cases reveals a fetus at sixteen weeks gestation or older has a survival rate of approximately 80 percent when carried to a term of twenty-eight weeks.11 Likewise, “the strongest indicator [for the success of] somatic support during pregnancy is when maternal brain death occurs between the 20th and the 32nd week of gestation.” 12
One case study reports a “normal” fetal outcome eleven months after birth despite the incident of maternal brain death occurring at only fifteen weeks gestation.13 The extraordinary nature of this case and its culmination in a successful cesarean following 107 days of support with intensive care gives pause to the assertion that twenty weeks gestation remains the earliest advised start for somatic support.
The fetuses of brain-dead pregnant women have a much higher survival rate when the mother’s death occurs at a more advanced gestational age. In a separate case, published in 2006, the determination of maternal death followed complications from an intracranial hemorrhage in a woman forty years old and in her twenty-fifth week of pregnancy. The medical staff initiated “full ventilatory and nutritional support, vasoactive drugs, maintenance of normothermia, hormone replacement and other support- ive measures required to prolong gestation and improve the survival prognosis of her fetus.” 14

Despite stable somatic support of the mother, during the final seven days of gestation, the fetus developed oligo- hydramnios and brain sparing.15 The presence of these two conditions necessitated immediate delivery via cesarean. The infant was born with a healthy Apgar score of 9 and 10. The medical team admitted the infant to the neonatal intensive care unit for observations, but at no time was medical intervention required. The healthy newborn child was discharged at forty days of life.16
A similar case, reported in the Middle East, involved the death of a thirty-five-year-old woman also following an intracranial hemorrhage. However, this death occurred much earlier, when the gestational age of the fetus was sixteen weeks. Despite various complications, the somatic support of her corpus successfully continued for 110 days
and culminated in the cesarean birth of a healthy male infant. The doctors who maintained treatment and pub- lished the case study reported, “Despite being a tragedy, maternal death can represent an opportunity to save the life of the fetus and for organ donation.” 17
These studies indicate that in many reported cases the fetus survives when the bodily function of the brain-dead pregnant woman is supported by medical interventions. They enjoy healthy lives. Modern technology and scientific innovation have made this possible, if not probable, given the proper circumstances and understanding the impact of gestational age.
Threats to the Child
The usefulness of treatment must also be discerned, that is to say, the adverse health effects, foreseeable risks, and alternative interventions. Slowing the decomposition of a corpus is medically possible with the understanding that decomposition cannot be fully arrested while incubat- ing a fetus in utero.
With regard to the fetus, the interventions that are imple- mented by medical teams and intensive care staff are fluid in that they can and often do change. Serious conditions can spontaneously arise that endanger the fetus, warranting interventions such as magnesium sulfate infusions for the prevention of preeclampsia or hemodynamic support using vasopressors for sustained adequate blood flow.18 Likewise, the uncommon occurrence of oligohydramnios and brain sparing can necessitate emergency cesarean prior to the completion of a full term. These possible interventions serve the end of sustaining and delivering a healthy infant. They are reactive in nature to unforeseen conditions but have, as their object, the health of the fetus.
There are no alternatives for continued somatic support of a maternal corpus to bring a fetus to viability. Scientists continue to investigate “artificial wombs,” but they are not yet available. Likewise, an abnormally early cesarean, that is to say one prior to the twenty-third week of gestation, will most likely fail. Therefore, the only option other than pre- serving the brain-dead pregnant woman’s bodily functions when the fetus is prior to twenty-three weeks gestation is the withdrawal of fetal life support. This will inescapably result in fetal death. Similarly, the foreseeable risks and adverse health effects of treatment are disproportionate to the plausible outcome unless they directly contribute to the systematic disintegration of the health of the fetus.
Additional Considerations
Particular care and a compassionate approach must also be utilized when considering familial repugnance to treatment. This criteria has little to do with the patient in question—the fetus. Rather, it concerns the repugnance of family members to the bodily deterioration attendant to prolonged somatic support of the deceased woman. In the Munoz case, the husband stated in an affidavit that his wife’s body was unrecognizable. His sad description refers to the natural deterioration of the human body, which is a process painstakingly difficult to observe in loved ones.  Yet medical science has developed procedures to arrest this process for a short time and, when prolonged for an extended time, delay it significantly.
The cost of treatment can be immensely burdensome. A 2005 study estimated the average cost of intensive care per day when mechanical ventilation is utilized. The mean cost of care and length of stay was $31,574 and 14.4 days. Costs were greatest in intensive care on day 1 at $10,794. This amount decreased on day 2 to $4,796 and stabilized on day 3 at $3,968. Adjusting for patient and hospital characteristics, the mean incremental cost of mechanical ventilation for intensive care was $1,522 per day.19
Applying these figures, a conservative estimate for one hundred days in an intensive care unit would cost approximately $152,200 without accounting for the novel treatments required to preserve a corpus and bring a fetus to viability. Moreover, the high costs in the ICU are often “followed in successful cases by the high cost of post-neonatal care.” 20 Support for premature infants born at twenty-four weeks gestation is considered to be one of the most expensive medical treatments available, with costs running well over $300,000 per neonate.21 This cost is substantially lower outside of the United States as medical care is often less expensive.
Yet should one put a price tag on a human life? Despite this undeniable economic duress, the protection of life at its most vulnerable stage is ultimately greater than material cost. To this end, Msgr. Maurizio Calipari cautions against “ambiguous interpretations” of economic reasoning for bur- densomeness, writing, “The fundamental good of human life is not quantifiable in merely economic terms and can- not be measured against dissimilar and inferior goods.” 22
During an address to the Participants in the Inter- national Congress on Life-sustaining Treatments and Vegetative State, John Paul II said, “Considerations about the ‘quality of life’ often actually dictated by psychological, social and economic pressures, cannot take precedence over general principles. First of all, no evaluation of costs can outweigh the value of the fundamental good which we are trying to protect, that of human life.” 23
Passive Euthanasia
During the Munoz case, news outlets and media debates drew close attention to the ambiguous health of the fetus. Lawyers arguing on behalf of the Munoz family cited grim prognoses for the child in utero, referring to the extended period of time in which the fetus was deprived of oxygen, indications of significant deformities in the lower extremities, hydrocephalus, and a possible heart defect. A summation of these “deformities” was openly referred to as “distinctly abnormal.” 24
Physiological evidence is crucial when determining the continuation of specific medical interventions as such conditions may possibly negate any benefit of treatment and only secure a “precarious and burdensome prolonga- tion of life.” 25 However, questions can and should arise as to the defined purpose of prenatal assessments and fetal monitoring during such a morally problematic time. Do they represent a bona fide effort to ascertain the necessary information needed to make an unbiased ethical decision, or are they a search for any and all emotionally compelling indicators used to justify the commission of morally illicit actions such as abortion or fetal euthanasia—minimizing the dignity of the fetus to a mere “quality of life” judgment?
Fetal life support is a proportionate treatment. The benefit of preserving the life and health of the fetus is greater than the immediate repose of the deceased pregnant woman. In cases of somatic support of pregnant women following a determination of maternal brain death, the sole living patient—the fetus—should be recognized as having a right to life and health. Similarly, the principle of beneficence requires the continuation of medical interventions deemed morally obligatory—in this case the continuation of fetal life support—because the good that can be enjoyed by the sole living patient is the absolute good of life and health.
If it is determined that the continuation of fetal life sup- port is beneficial, then the withdrawal of such treatment constitutes a gravely immoral act of passive euthanasia precisely because it causes the death of a patient through omitting life-saving medical care. Moreover, this act is non- voluntary, as the patient is incapable of giving informed consent. The act of omission is contrary to the moral law and a crime against the dignity of the human person.
Personalist Approach
The approach advanced here “prioritizes the objec- tive and ontological constitution of the human person” and sees the person as a unity of body and spirit, “as ens subsistens ratione praeditum (a subsistent being endowed with reason.)” 26 The objective and subjective elements of man are symbiotic. They exist in relation to one another, not in conflict. Through this understanding, “the ethical value of an act must be considered under the subjective aspect of intentionality but also in terms of its objective content and consequences.27
In cases of fetal life support, the intention to withdraw may be perceived as altruistic: allowing for the repose of the deceased mother, alleviating the patient’s family of excessive economic burden, or sparing the fetus from a shortened life of disability. However, at issue is life and the premature extinguishing of a human person. To this end, the Catechism teaches, “Human life is sacred because from its beginning it involves the creative action of God and it remains forever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being.” 28
In extreme circumstances, when the continuation of treatment is reckless, harmful, or ineffective; the practi- tioner and proxy are morally obliged to discontinue life support. The services of perinatal hospice are a beautiful and practical response to these moments of extreme sor- row during the passing of an infant child.29 With their assistance, a birth plan should be written and implemented that includes the sacrament of baptism for the child.
Whether life support is continued or terminated, the one constant to be considered is innocent human life. To this end, John Paul II wrote, “Every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Rom 2:14–15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being to have this primary good respected to the highest degree.” 30
Andrew S. Kubick
Andrew Kubick, MA, is a post-graduate student in bioethics at Holy Apostles College and Seminary. He also teaches in the religion department at St. John Paul the Great Catholic High School in Dumfries, Virginia.
1 Tadeusz Pacholczyk, “Brain Death and Pregnancy,” Colorado Catholic Herald (February 21, 2014), 21.
2 Eelco F. M. Wijdicks, Brain Death (New York: Oxford University Press, 2011), 200.
3 US Conference of Catholic Bishops, Ethical and Religious Direc- tives for Catholic Health Care Services, 5th ed. (Washington, DC: USCCB, 2009), n. 62.
4 Elio Sgreccia, Personalist Bioethics, trans. John A. Di Camillo and Michael J. Miller (Philadelphia, PA: The National Catholic Bio- ethics Center, 2012), 644.
5 Ibid., 658.
6 Catechism of the Catholic Church, 2nd ed. (Washington, DC: USCCB,
2000), n. 2300.
7 John Paul II, Address to the International Congress on Transplants
(August 29, 2000), n. 3.
8 Domingo Banez was replying to Aquinas’ commentary on the
liceity of mutilation in the form of amputation (Thomas Aqui- nas, Summa theologiae II-II.65.1). See Daniel A. Cronin, “The Moral Law in Regard to the Ordinary and Extraordinary Means of Conserving Life” (doctoral dissertation, Pontifical Gregorian University, 1956), in Conserving Human Life, ed. Russell E. Smith (Braintree, MA: Pope John XXIII Medical–Moral Research Cen- ter, 1989), part 1.
9 Congregation for the Doctrine of the Faith, Declaration on Eutha- nasia (May 5, 1980), IV.
10 USCCB, Ethical and Religious Directives, n. 57.
11 Wijdicks, Brain Death, 200.
12 I. M. Bernstein, M. Watson, and G. M. Simmons, “Maternal Brain
Death and Prolonged Fetal Survival,” Obstetrics & Gynecology
74.3, part 2 (September 1989): 435.
13 Ibid., 434–437. This statistic was referenced in Wijdicks, Brain
Death, 201.
14 João P. Souza et al., “The Prolongation of Somatic Support in a
Pregnant Woman with Brain-Death: A Case Report,” Reproduc-
tive Health 3.3 (e-pub April 27, 2006): 1–4.
15 Ibid., 1–4. Oligohydramnios is a condition in which there is a
deficiency in amniotic fluid levels surrounding the fetus. Poly- hydramnios, by contrast, is dangerously high levels of amniotic fluid. While there are few treatments for oligohydramnios, if the fetus is close to term, the medical staff often prescribes labor induction. Brain sparing is a physiological response by which the fetus detects low levels of oxygen and in an effort to preserve the most vital organs (brain, heart, and adrenals) diverts oxygen-rich blood to them. This survival mechanism can protect the child for an estimated twenty-one days before medical intervention is required.
16 Ibid.
17 Abuhasna Said et al., “A Brain-Dead Pregnant Woman with Pro-
longed Somatic Support and Successful Neonatal Outcome: A Grand Rounds Case with a Detailed Review of Literature and Ethical Considerations,” International Journal of Critical Illness and Injury Science 3.3 (July 2013): 220–224.
18 Wijdicks, Brain Death, 202.
19 Joseph F. Dasta et al., “Daily Cost of an Intensive Care Unit Day:
The Contribution of Mechanical Ventilation,” Critical Care Medi-
cine 33.6 (June 2005): 1266–1271.
20 Wijdicks, Brain Death, 200.
21 John D. Lantos and William L. Meadow, “Costs and End-of-Life
Care in the NICU: Lessons for the MICU,” Journal of Law, Medi-
cine, and Ethics 39.2 (Summer 2011): 194.
22 Sgreccia, Personalist Bioethics, 685.
23 John Paul II, Address to the Participants in the International
Congress on Life-Sustaining Treatments and Vegetative State:
Scientific Advances and Ethical Dilemmas (March 20, 2004), n. 5. 24 Pacholczyk, “Brain Death and Pregnancy,” 21.
25 Sgreccia, Personalist Bioethics, 684.
26 Ibid., 57–58.
27 Sgreccia, Personalist Bioethics, 59.
28 Catechism, n. 2258, original emphasis. 29 Pacholczyk, “Brain Death and Pregnancy,” 21. 30 John Paul II, Evangelium vitae (March 25, 1995), n. 2.