Rare cases where a young woman in the relatively early stages of pregnancy is declared brain dead, such as the case that arose this week, raise a host of moral, ethical, biological and legal issues. In an Irish context must be added the constitutional factors brought about by the Eighth Amendment to the Constitution.
The woman in her 20s, on life support and at the centre of the current controversy, is about 16 weeks pregnant. She is reported to be brain dead – which means she would have lost function of her brain stem, the area at the base of the brain that drives breathing, circulation and other involuntary activities that keep the body alive. It means the woman is now being mechanically ventilated, with specific interventions to maintain cardiac and kidney function. She would be receiving full nutritional support and will be hydrated to keep her body within normal metabolic parameters.
Looking at the biological and medical issues in the first instance, key questions include how long can a foetus survive inside a mother who is brain dead, when is the correct time to deliver the baby by Caesarean section and what is the baby’s long-term outlook assuming it is delivered safely.
Because of their rarity, all doctors have to guide them are individual case reports. A 2010 systematic review of the management of brain-dead pregnant mothers carried out by doctors at the University of Heidelberg found just 30 cases worldwide in a 28-year period. In 12 of those cases a viable child was delivered after extensive life support for the mother.
Although they found no clear lower limit to the gestational stage which would restrict a doctor’s efforts to support both the mother and the foetus, the authors clearly state that the older the baby is when its mother is declared brain-dead, the greater its chance of survival. They found no information on how these children fared in the longer term.
We know from birth statistics that a baby born at 24 weeks has a 20 to 30 per cent chance of survival and a 40 per cent chance of being left with a severe disability. By 28 weeks there is an 80 per cent survival rate and a 10 per cent risk of severe handicap, while a baby delivered at 32 weeks has a 98 per cent chance of survival, with less than 2 per cent of these babies suffering serious disability.
In the patients identified by the German researchers, the longest a brain-dead mother received life support was 107 days; the average was a more modest 38 days.
Complications
In the current Irish case, doctors are likely to delay delivery until the baby is 34 weeks, which would require a further 18 weeks or so (approximately 126 days) of intensive life support for this target to be reached. In general the longer such an intensive care period would be, the more likely it is that a mother would develop complications such as infection, heart failure, acute respiratory distress syndrome and severe blood-clotting problems – all of which could cause the baby’s death if the functioning of the placenta was seriously compromised.
Ethical and legal considerations are of course paramount in a case such as this. When faced with brain death in a pregnant woman, a physician’s initial focus must be on saving the life of the foetus. In the later stages of pregnancy, this will involve supporting the mother until a Caesarean section can be carried out.
However, in early pregnancy brain death, the issue is more complex. The right to life of the mother and foetus help guide doctors to make decisions on an individual basis. In general, if prolonging the mother’s life is likely to have a positive outcome for the foetus then such intervention would be considered ethical.
However, the gestational age of the baby is a key factor in making this decision; many doctors across Europe faced with a brain-dead pregnant woman whose foetus was 16 weeks gestation, would be reluctant, on ethical grounds, to recommend life support for the mother.
Autonomous rights
Another view promotes a right-to-die argument on the woman’s part. Legally, issues that arise include whether a mother in such a situation could be considered what the medico-legal experts would term a “cadaveric incubator”. If so, and it can be argued that such a woman has no autonomous rights, then the rights of the foetus would prevail. Others have put forward the view that prolonged life support is in itself a form of organ donation to the baby.
In Ireland, two legal realities trump other considerations. One is the 2013 Protection of Life during Pregnancy Act; the other is the 1983 amendment to the Constitution. In practice, doctors treating the woman in a case such as the one that has been reported this week could not use ethical principles alone to guide their decision-making. Not because they are invalid but because the Constitution renders them effectively irrelevant.
It is not possible for statutory legislation to cover rare events, such as the case that came to light this week. It would be much healthier, in every sense of the word, if doctors and other healthcare professionals could approach each challenging case on its own ethical merits. Dr Muiris Houston is The Irish Times health analyst