In Georgia, a baby is growing inside his brain-dead mother, reigniting a debate about personhood — and abortion

Yahoo

a day ago

Adriana Smith was 8 weeks pregnant when she was rushed to the hospital after experiencing severe headaches and breathing problems that were later diagnosed as the result of blood clots in her brain. The Georgia woman was later declared brain dead, and doctors told her family there was nothing more that they could do for her.
There was, however, something they could do for Smith's baby — keep his mother nourished and breathing via life support, which is being done, even as some media coverage presents the case as a dystopian side effect of the Supreme Court's 2022 Dobbs decision, which returned abortion law to the states.
NPR's headline read: 'Hospital tells family brain-dead woman must carry fetus due to abortion ban.' ' Ms. Magazine's take was 'Adriana Smith and the Legal Horror of Reproductive Servitude in the U.S.' A USA Today headline read: 'A brain dead pregnant woman is a horror story. And it's Republicans' fault.' And in The Cut, 'We're just human incubators to them.'
The reaction has shown American culture's unwillingness to acknowledge nuance, even when stories are deeply complex, as this one is.
The case has also reignited the debate over 'personhood,' broadly seen as the legal conferral of rights and protections to a human being.
But the heart of the story is not politics or the law, but what it means to be human, and protected and loved.
In her new book, entitled 'Personhood,' Mary Ziegler, a law professor at the University of California, Davis, argues that the anti-abortion movement in the United States is better described as a 'fetal-personhood movement,' one that makes claims about the U.S. Constitution.
Over the past five decades, Ziegler writes, 'fetal-personhood claims have involved two core arguments: first, that a fetus is a separate, unique human individual from the moment of fertilization, and second, that because of that biological and moral uniqueness, the Constitution gives (or at least should give) that individual rights.'
Into this debate comes the 30-year-old nurse on life support at Emory University Hospital Midtown, a teaching hospital in Atlanta. Hers is not the first such case, but it comes at a time of heightened political tension, and initial remarks made by Smith's mother inadvertently helped to politicize the case.
April Newkirk has said that the family should have made the decision to keep her daughter on life support, not the state, and that she was worried that the child could be born with severe medical conditions that the family would have to contend with, in addition to caring for Smith's other child. (Smith, a nurse, is unmarried and has a 7-year-old son.)
'I'm not saying we would have chose to terminate her pregnancy, what I'm saying is, we should have had a choice,' Newkirk told a local reporter.
News reports quickly linked her remarks to Georgia's abortion law, which protects a fetus from the time a heartbeat is detected, usually around 6 weeks of gestation. But the Georgia Attorney General's Office has said that the law does not apply in this case.
In a statement provided to the Deseret News, a spokesperson said, 'Our prayers go out to the family of Adriana Smith during this difficult time. There is nothing in the LIFE Act that requires medical professionals to keep a woman on life support after brain death. Removing life support is not an action 'with the purpose to terminate a pregnancy'.'
It is unclear who made the decision to keep Smith on life support, but Ziegler said in an interview that it's understandable that people conflate the issues because 'Georgia's law is a personhood law. It's not just an abortion ban.'
When enacted, the LIFE act upended all of Georgia's laws because it said 'a 'natural person' is entitled to a robust body of civil rights — all of which, in Georgia, now apply to fetuses," Rachel Garbus wrote for Atlanta magazine.
Fetuses are now counted in the state's census; pregnant women are entitled to child support and tax deductions. Some scholars have said that fetal personhood allows for the prosecution of a pregnant women for child abuse.
It could be, Ziegler said, that although the attorney general said the removal of life support from a pregnant woman is not abortion, the hospital and its doctors reasonably fear that they could be charged with murder under the law.
'We've seen since Roe was overturned that a lot of doctors are very risk averse. ... They are erring on the side of caution because they could face felony criminal charges and really serious fines and the loss of their medical license,' she said. 'If there's any kind of ambiguity, even if it's not significant ambiguity, doctors are really reluctant to face the kinds of negative outcomes that are possible.
'Reasonable lawyers could disagree about whether taking her off life support would constitute an abortion, too. I know the attorney general's position is that it wouldn't, but that doesn't mean that's how prosecutors would see it,' Ziegler said.
However, Dr. Aaron Kheriaty, director of the Program in Bioethics and American Democracy at the Ethics and Public Policy Center, said that because Smith is considered dead legally, there is nothing in the law that requires doctors to keep her on life support. But, he said, 'It is a challenging case ethically and requires careful thought and discernment.'
Kheriaty personally believes that either choice can be morally and ethically permissible, and ideally the decision should be made by 'people who knew her the best,' based on what they believe the mother would have wanted — what medical and legal professionals call 'the substituted judgment criteria.'
And we shouldn't assume that every mother would want their child delivered in these circumstances, even if medically possible, he said.
'My reading in this case (Adriana Smith) is that the family is kind of conflicted.' That is all the more reason, he said, that the case should be 'de-politicized and brought out of the abortion debate.'
He added, 'I'm glad the AG's office is trying to make clear that the state's abortion law has nothing to do with this. The family needs to be supported. They don't need to be vacuumed up into debates about abortion.'
Smith's case is not unique; there have been similar tragedies, but this appears to be the first one in the U.S. since the Dobbs decision, which in part accounts for the hyper-politicized media coverage.
In 2013, a 33-year-old Texas woman who was 14 weeks' pregnant was declared brain-dead after suffering blood clots. After a two-month legal battle, a judge ordered life support removed. The woman's child was considered 'non-viable' because it had been deprived of oxygen for nearly an hour. In that case, the family wanted the life-support removed, while the hospital said it could not legally do so under Texas law.
There have been other cases with happier outcomes.
In 2005, a 26-year-old pregnant woman who suffered a hemorrhage because of advanced melanoma was kept on life support in Arlington, Virginia, for three months; her daughter was born prematurely but survived. The woman's family issued a statement that said, " Her passing is a testament to the truth that human life is a gift from God and that children are always to be fought for, even if life requires ... the last full measure of devotion.'
In 2015, a 22-year-old Nebraska woman who was 4 1/2 months pregnant was declared brain-dead after a sudden intracranial hemorrhage. Her son was delivered 54 days later, weighing just under 3 pounds, and his mother became an organ donor. 'Not only did she stay alive for 54 days after what happened to her, to give her baby life, but she also saved the lives of three other people,' the woman's mother, Berta Jimenez, said at the time.
Ziegler, at the University of California, Davis, believes that the battle over personhood will be a 'new civil war' in this country and will require people to think more deeply about an issue that, until this point, was 'sort of an abstraction.'
'A lot of conservatives believe not only that life begins at conception, but also rights begin at conception, without really having followed through what that means in cases like this one,' she said. 'People are going to either not go a step further like Georgia did and not have personhood laws ... or they are going to have to say 'here is what personhood means and here is what it doesn't mean.''
A similar debate about the rights of embryos arose last year when the Alabama Supreme Court issued a ruling about embryo storage after in vitro fertilization procedures. 'There's not enough clarity at the moment about what Republicans mean when they say personhood begins at fertilization,' Ziegler said.
Explicit carve-outs for unusual situations would be helpful, particularly in states with strict abortion laws, she said, as would giving doctors assurances that they won't face prosecution for making decisions in good faith.
Nationwide, the definition of personhood remains 'a disputed question in the law and in medical ethics,' Kheriaty said.
'The word 'person' does occur in the Constitution, in the 14th Amendment, and some have argued, including Josh Craddock, who is a legal scholar, that the word person in the Constitution should include unborn human beings."
But others say that not all human organisms should have the rights of personhood, with the philosopher and bioethicist Peter Singer even arguing that infanticide can be morally permissible.
'I personally think that's the road to every bad thing that's ever been done in human history,' Kheriaty said. He also noted that the Smith case raises a range of ethical questions, including whether America's standard for brain death, decided in the 1960s by a Harvard University committee, is the correct one, given that Smith is still able to gestate a child in her condition. 'A case like this raises questions about whether she is really dead,' he said.
Newkirk, the pregnant woman's mother, has recently said that the family hopes the child, a boy they have named Chance, will survive. Doctors believe the child can be safely delivered around the middle of August.
'Right now, the journey is for baby Chance to survive — and whatever condition God allows him to come here in, we're going to love him just the same," Newkirk told 11Alive reporter Cody Alcorn.