Right now in an Atlanta hospital room lies a 30-year-old nurse and mother, Adriana Smith. Ms. Smith, who is brain-dead, has been connected to life support machines for more than 90 days. Ms. Smith is pregnant.
“We didn’t have a choice or a say about it,” Ms. Smith’s mother told a local news outlet. “We want the baby. That’s a part of my daughter. But the decision should have been left to us — not the state.”
After the Supreme Court overturned Roe v. Wade in 2022, Georgia banned almost all abortions in cases where a fetus has a “detectable human heartbeat.” Legislators did not seem to have considered a situation in which a pregnant woman is legally dead. In this case there is much we do not know: What exactly did the hospital tell Ms. Smith’s family? What did they feel they could do in the case where a fetus continued to grow in the body of a woman who was brain-dead? Would they have counseled this family differently about their options before the fall of Roe?
Reproductive justice advocates have long been clear that abortion law is never only about abortion. It is about the exercise of control over all pregnant women, regardless of whether they plan to carry their pregnancies to term. That’s why the anti-abortion movement has pursued a broad agenda of legal personhood for embryos and fetuses. Though not all who cheered the fall of Roe might have understood the full ramifications of the decision, this kind of catastrophic event was inevitable, given the expansive and imprecise laws written by legislators who generally lack medical expertise, and the inability of politicians to fully predict every emergency situation.
The few facts of the case, as far as the public knows, are this: Ms. Smith was about nine weeks pregnant when she sought medical assistance for severe headaches, her mother told local news. She was sent home with medication. The next morning Ms. Smith was in distress and was rushed to the hospital. A CT scan discovered multiple blood clots in her brain. She was declared brain-dead, but her fetus’s heart continued to beat.
When faced with the deleterious effect of restrictive abortion laws on women, legislators and anti-abortion advocates have often blamed doctors or lawyers for misinterpreting those laws. Already, Georgia officials are divided over whether Ms. Smith’s barbarous condition is insisted upon by the law.
Emory University Hospital, once Ms. Smith’s place of employment, would not be legally allowed to remove organs from a brain-dead person without family consent if this person hadn’t previously registered her wish to be a donor, even if doing so could save or improve dozens of lives. However, according to Ms. Smith’s mother, the hospital informed her that, because of the fetus her daughter was carrying, it could not legally withdraw the artificial means of keeping her body functioning. Ms. Smith is now approximately 22 weeks pregnant. Her mother told the press she understood this state of limbo could continue for another 10 weeks. But she has also said it is possible that the fetus will have complications in survival, and gestation does not necessarily mean a live or healthy birth.
The hospital has told the press that it cannot comment on Ms. Smith’s case but that it acts “in compliance with Georgia’s abortion laws and all other applicable laws.”
Dystopian as her situation appears, Ms. Smith is not the first woman kept on life support to gestate a fetus. In 2013, Marlise Muñoz experienced brain death 14 weeks into her pregnancy. It took her husband two months to secure a court order to remove her from life support.
Both cases represent an experiment in allowing a fetus to gestate in a brain-dead woman’s body. Knowing the tremendous work that the body of a pregnant woman must do to sustain and nourish a pregnancy, the harm to the fetus from being trapped inside a body without a functioning brain cannot be known with certainty.
Last week, months after this saga began and in the wake of public outcry over the story, a spokeswoman for the Georgia attorney general’s office issued a terse statement: “There is nothing” in the state abortion legislation “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,” she said.
While the family has said they will embrace a baby should one be born alive, it is easy to see how physicians and the lawyers who advise them, hamstrung between attempting to follow the letter of the law while adhering to medical standards of care, could become confused and scared about what to say. That can lead to a bias for maintaining the status quo. The consequences of taking any action that could be construed as an abortion could mean prison time or the loss of a medical license.
If Georgia legislators care about life, they should be spending more time and money trying to decrease their state’s maternal and infant mortality rates, which are among the worst in the country, especially among Black women and their children. They should consider what financial resources will be made available to cover the cost of the extraordinary care currently being provided to Ms. Smith’s body, and the costs that may come if the fetus that remains inside her is eventually born alive in a state where health care access can be patchy.
While the circumstances of Ms. Smith’s reported dismissal from the hospital at the outset of her symptoms are still unclear, she would not have been the first Black woman to suffer catastrophically at the hands of health care providers who dismiss Black pain. And unethical experimentation on the bodies of Black women is not a new phenomenon in the United States.
In its attempt to control the outcomes of women’s pregnancies, the Georgia legislature has inserted chaos into a situation where families and medical experts must make heart-wrenching decisions about patients. Ms. Smith’s mother, her son and all of those who love her deserve the deepest sympathy for their loss and torment, but what is happening to Ms. Smith is not a celebration of life or a miracle. It is a co-optation of a woman’s death to engage in a frightening medical experiment with a deeply uncertain outcome for any child who may result. The tragedy of Ms. Smith’s death has only been compounded by the complications of a legal context that treats pregnant women as secondary to their fetuses, even in death.
Kimberly Mutcherson is a professor at Rutgers Law School.
Source photograph by Three Spots/Getty Images
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