1 Title: Prolonging the life of a brain-dead pregnant mother to save her foetus. Wamkelwe Zekhethelo Noluthando Khathi Student number: 1631996 Submitted to the Faculty of Health Sciences, University of Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree Master of Science in Medicine in Bioethics and Health Law (Research only). Supervisor: Professor Christopher Wareham Qualifications: BA (Rhodes), BA Hons. (Rhodes), MA (Rhodes), PHD (Milan) Position: Assistant Professor, The Ethics Institute, Utrecht University & Honorary Associate Professor, Steve Biko Centre for Bioethics, University of the Witwatersrand Date: 24 May 2022 2 3 Abstract Objective: To defend the claim that it can be morally justified to withdraw life-support to a brain-dead pregnant woman before the foetus is viable for a live birth using the following arguments: that preserving the mother’s life to save her foetus may be an infringement on her human rights and bodily integrity, that it can be morally justified to withdraw life-support to a brain-dead pregnant mother as the likely harms of continued life-support outweigh the benefit, and that life-support is a scarce and expensive resource. Methodology: This is an ethico-legal bioethics study as it will be assessing the South African law and related guidelines regarding the treatment of brain-dead pregnant women with reference to ethical principles and concepts. Conclusion: Life support is a scarce and expensive resource, and it can produce many complications for a maternal brain death patient. Prolonging the life of a maternal brain death patient using life support measures can violate her legal and ethical rights to autonomy, bodily integrity and human dignity. Therefore, I argue that it is ethically justified to withdraw life support from a brain-dead pregnant woman before her foetus is viable for a live birth. 4 Acknowledgements I'd like to express my gratitude to Professor Christopher Wareham, my supervisor, for his supervision, guidance, and support throughout the writing process. I'd also like to express my gratitude to my parents and family for their unwavering support and encouragement throughout this journey. 5 Table of Contents Introduction .............................................................................................................................................. 7 Chapter 1: Infringement of autonomy, bodily integrity and dignity. ..................................................... 18 1.1 Autonomy...................................................................................................................................... 18 1.2 Informed Consent ......................................................................................................................... 26 1.3 Patient Dignity ............................................................................................................................... 30 1.4 Patient Bodily Integrity ................................................................................................................. 33 1.5 The mother as the primary patient ............................................................................................... 35 1.6 Autonomy, bodily integrity, dignity and brain-death ................................................................... 40 1.7 Chapter conclusion ....................................................................................................................... 41 Chapter 2: The likely harms of continued life-support outweigh the benefit. ....................................... 43 2.1 Beneficence applied to a maternal brain death case ................................................................... 43 2.2 Nonmaleficence applied to a case of maternal brain death ......................................................... 49 2.3 Harms of Life Support for a pregnant brain-dead mother ............................................................ 52 2.4 The overall benefit of prolonging the life of a brain-dead pregnant mother ............................... 71 2.5 Chapter conclusion ....................................................................................................................... 74 Chapter 3: Life-support is a scarce and expensive resource. ................................................................. 75 3.1 The state of the public and private healthcare in South Africa .................................................... 76 3.2 Maternal death patient vs other critical care patients – rationing of intensive care unit services ............................................................................................................................................................ 84 3.3 Should physician continue to provide futile treatment if its free or the patient, or their family are willing to pay for it? ...................................................................................................................... 94 3.4 Chapter conclusion ....................................................................................................................... 96 Chapter 4: South African laws and health care regulations about withdrawing life-prolonging treatment. – Analysis and Critique ......................................................................................................... 97 4.1 Termination of Pregnancy Act ...................................................................................................... 98 4.2 Right to Bodily Integrity, Dignity and Autonomy ........................................................................ 101 4.3 Legal status of the foetus vs legal status of the mother ............................................................. 106 4.4 Regulation on end-of-life care/intensive care ............................................................................ 108 4.5 Maternal brain death case review .............................................................................................. 111 4.6 Chapter conclusion ..................................................................................................................... 114 Chapter 5: Objections chapter. ............................................................................................................. 116 6 5.1 Moral status of a foetus objection .............................................................................................. 116 5.2 The Potentiality objection ........................................................................................................... 120 5.3 ‘Personhood of the mother vs personhood of the foetus’ objection ......................................... 122 5.4 Foetal rights and Interests objection .......................................................................................... 126 5.5 Pro-life objection ......................................................................................................................... 128 5.6 Chapter conclusion ..................................................................................................................... 130 Conclusion ............................................................................................................................................. 131 References ............................................................................................................................................ 135 Appendix: Turnitin Report .................................................................................................................... 145 7 Introduction 1.1 Background In the recent case of Munoz v. John Peter Smith Hospital in Texas, United States, the court ordered the body of Mrs. Munoz to be removed from life-support and released to her husband and family. Mrs. Munoz was declared brain-dead at 14 weeks pregnant. For the next 9 weeks, her team of health practitioners kept her on life-support because they believed they were following the instructions of the Texas Health and Safety Code. The Texas Health and Safety Code states that life-support must be provided to pregnant women who are patients (McQuoid-Mason, 2014). Mrs. Munoz's husband decided to sue the John Peter Smith Hospital, won, and received a court order to have her removed from the life-support. The court ruling was established on the fact that Mrs. Munoz was no longer considered a patient because she was legally and clinically dead (McQuoid-Mason, 2014). In South Africa, there is no code like the Texas Health and Safety Code, but a similar court ruling could take place because according to the National Health Act 67 of 2003, death means brain death. Brain death is when the brain can no longer independently sustain the patient’s vital functions without special medical intervention (Brody, 2021) In a literature review by Esmaeilzadeh et al. (2010), it was found that there were thirty cases in a period of twenty-eight years similar to that of Mrs. Munoz. Of those thirty cases, only twelve viable births of healthy children took place. All thirty cases were provided with the necessary respiratory, nutritional, and physical life-sustaining treatment to aid foetal maturation (Said et al., 2013). 8 A crucial concern for brain-dead pregnant women is from which gestational age should the pregnancy be supported if at all. The gestational age and foetal age at the time of the maternal brain death are important factors to consider when deciding on somatic support for foetal maturation. It could be argued that the requirement of extended somatic support becomes more justifiable as the foetus approaches viability, especially when the gestational age at which surgical abortion is allowed has been surpassed (Said et al., 2013). Presently, there is no defined minimum gestational age that would limit a doctor’s efforts to provide life support to a brain-dead pregnant mother and her foetus in the United States of America. Nevertheless, there is a correlation between gestational age and the likelihood of survival after birth (Said et al., 2013). One of the longest recorded periods of somatic support was one hundred and ten days/ sixteen weeks reported by Dr Said (2013). Said et al. (2013) then concluded that gestational age at the time of brain death is no longer a significant consideration as medical advances in life support can maintain vital functions for extended periods. These advances in life support and critical care however do not prevent the long list of possible complications to the maternal brain death patients. 1.2 Rationale In South Africa, a guideline like the Texas Health and Safety Code does not exist. The Health Practitioners Council of South Africa has published guidelines on withholding and withdrawing treatment. However, they do not include guidance on cases of pregnant brain-dead mothers and their foetuses. This means that medical teams 9 overseeing such cases would need to act according to their discretion without contravening and laws. This study is important because it explores to what extent do factors like maternal and foetal rights and interests count or contribute to decision- making for both the family and medical team. 1.3 Research Question Is it morally justified to withdraw life-support to a brain-dead pregnant woman before the foetus is viable for a live birth? 1.4 Thesis Statement I argue that it can be morally justified to withdraw life-support to a brain-dead pregnant woman before the foetus is viable for a live birth. 1.5 Aim To defend the claim that it can be morally justified to withdraw life-support to a brain- dead pregnant woman before the foetus is viable for a live birth. 1.6 Objectives o To argue that preserving the mother’s life to save her foetus may be an infringement on her human rights and bodily integrity. o To argue that it can be morally justified to withdraw life-support to a brain-dead pregnant mother as the likely harms of continued life-support outweigh the benefit. 10 o To argue that it could be morally justified to withdraw life-support to a brain-dead pregnant mother on account of life-support being a scarce and expensive resource. o To outline, critique and make recommendations on the South African laws and health care regulations about withdrawing life-prolonging treatment. o To address objections to the arguments such as the potentiality principle and the moral rights of the foetus. 2. Methodology This is an ethico-legal bioethics study as it will be assessing the law and related guidelines regarding the treatment of brain-dead pregnant women with reference to ethical principles and concepts. The law and relevant health guidelines do not give adequate guidance on cases on how to treat brain-dead pregnant women. Therefore, I will provide ethical considerations on the moral permissibility of withdrawing life-support from a woman like Mrs Munoz. Literature on this topic was collected and reviewed to achieve the aim of the study. To find the literature, search terms like life-support for brain-dead pregnant mothers, foetal rights, maternal rights, critical care, personhood, potentiality principle, abortion, termination of pregnancy and withdrawing life-sustaining treatment. The literature was collected from databases like Google Scholar and ScienceDirect as well as medical journals like the South African Medical Journal. 2.1 Argumentative Strategy 11 Preserving the mother’s life to save her foetus is an infringement on her human rights and bodily integrity. In the first chapter, I will discuss and apply the principle of autonomy to the case of maternal brain death. A brain-dead pregnant mother is viewed and perceived as a ‘natural’ incubator which violates her autonomy and bodily integrity (Said et al., 2013). The violation of these principles is unethical. Therefore, preventing the mother from being a ‘natural’ incubator by withdrawing life support is ethically justified in order to preserve her bodily integrity, dignity and autonomy. The ethical principle of respect for persons/autonomy translates to the capacity of a human for self-determination (Freeman, 2011). To qualify as autonomous, one requires the competence to make their own choices. The brain-dead patient does not have the capacity to be autonomous, but she still deserves to be respected. There are individuals legalised to make decisions on her behalf. There is an order of people authorised by the South African law that are suitable to make decisions on behalf of incompetent patients. The specified order of people goes as follows: spouse or partner, parent, grandparent, adult child, or sibling of the patient (Section 7(1)(b) of the National Health Act 61 of 2003). Inasmuch as the listed individuals are related to the patient, there is no guarantee that they will do what is best for the brain-dead patient and the foetus. There can be many external factors that would influence their decision like the hospital fees, the stage of the pregnancy and the expense of taking care of a baby that is not theirs. 12 For these reasons, I argue that withdrawing life-support from a maternal brain death patient may be ethically justified in order to preserve her dignity, bodily integrity and her perception by others as a human being. Serving as an incubator would diminish her dignity and bodily integrity. Against my argument, it can be pointed out that the brain-dead patient lacks the capacity to be autonomous and make their own decisions because they are unconscious and brain-dead. In response to the objection, I claim that despite being dead and not having autonomy, the brain-dead patient deserves to be treated with respect and her bodily integrity to be maintained. Unlawfully subjecting a corpse to intrusions by ‘life support’ mechanisms may be construed as a violation of the corpse and a crime under South African law (McQuoid-Mason, 2014). The likely harms of continued life-support outweigh the benefit. The second chapter demonstrates the likely harms of life-support for a pregnant woman. It is reported that extended life-support can elicit possible complications like infection, haemodynamic instability, diabetes insipidus, panhypopituitarism, poikilothermia, metabolic instability, acute respiratory distress syndrome and disseminated intravascular coagulation (Esmaeilzadeh et al., 2010). These possible complications would increase the risk of harm to a maternal brain death patient which would be unethical as they would go against the principle of nonmaleficence and beneficence because it is not decreasing or preventing the risk of harm 13 I argue that it is ethically justified to withdraw life support from a maternal brain death patient because the harms of life-support on a brain-dead pregnant mother, in addition to possible life support complications of a normal patient produce harm and outweigh the benefit of prolonging her life to save her foetus. As in the preceding section, there may be more harms than benefits to keeping a brain- dead pregnant woman on life-support. The principle of non-maleficence established the obligation to not intentionally inflict harm (Dhai, 2019) and is frequently associated with the health professional’s oath of service. This principle entails within it the avoidance of harm to a patient during treatment or research. When harm or injury cannot be avoided, it should be minimised as far as reasonably possible (Dhai, 2019). In compliance with this principle, minimising harm to a pregnant mother is refraining from subjecting her to continued life-support as it has more complications. A counterargument can be raised by using the case reported by Said et al. (2013) as evidence of successful life-sustaining treatment that resulted in the birth of a healthy baby. In this case, somatic support from a multidisciplinary approach was provided to a thirty-five-year-old brain-dead patient for one hundred and ten days (Said et al., 2013). To that I respond by highlighting the burden of scarce and expensive intensive care and the long list of possible complications of life support and pregnancy. Lives lost through using this resource for a foetus constitute an unacceptable harm, so that the burden is likely to be far greater than the benefit. It is also important to note that the successful case in the article by Said et al. (2013) earlier is unusual as life support to save a foetus does not have a high success rate. 14 Life-support being a scarce and expensive resource. The third chapter reviews and discusses life-support as a resource in South Africa. Life support is an expensive resource. In South Africa, intensive care units (ICUs) which provide life-support services are in tertiary and central hospitals. ICUs are a specialised hospital units for the provision of specialised medical care with strict monitoring and physiological organ support to critically ill patients (Marshall et al., 2017). Intensive care is unevenly distributed as more than seventy percent of the country's ICU beds are in the private healthcare sector and the remaining few are in the public healthcare sector (Mahomed and Mahomed, 2019). I agree with the literature and argue that intensive care is an expensive and scarce resource. With such few ICU beds in public healthcare institutions and considering the definition and purpose of an intensive care unit, brain-dead pregnant women may not be identified as critically ill patients. Therefore, prioritising such cases over other patients who need critical care can be said to be unfair. Healthcare provision is free for unemployed persons in a public health hospital but not in private healthcare. Furthermore, the average cost per admission into the neurological section of the ICU was estimated around R201 347 during 2015 and 2016 (Mahomed and Mahomed, 2019). This means that remaining on life-support for extended periods would amount to very high costs for the patient’s family as she most likely would stay in a private healthcare institution. It is also unfair to spend scarce intensive care resources on a maternal brain death patient when there may be other patients that would require the services more and that have a better prognosis than the mother. 15 Therefore, I argue that it is morally justified to withdraw life support from a pregnant brain-dead patient because the patient may not afford the stay and there are other patients that have a better prognosis than the mother and that would benefit more from the intensive care services. South African laws and health care regulations about withdrawing life-prolonging treatment. In the fourth chapter, I will outline the current South African laws and healthcare regulations on critical care and life-support for pregnant women. McQuoid-Mason (2014) concludes in his article ‘Overturning refusal of a hospital to terminate life support for a brain-dead patient until the foetus was born: What is the law in South Africa?’ that it is a criminal offense to keep a woman on life support to keep a foetus alive. This remains true if the deceased woman has not stated differently in their will and it is against the wishes of the spouse or family. I have also reviewed some laws like the (Choice) on Termination of Pregnancy Act No. 92 of 1996 and the constitutional rights to dignity and bodily integrity (Section 10 and 12 of the Constitution of South Africa, 1996) that could be relevant to the case of maternal brain death. I claim that these laws are not adequate in providing guidance for cases of maternal brain death. The laws are inadequate because they do not specify whose rights and interests should be preserved in the case of conflicting interests for parties who are incapacitated like in a maternal brain death case. Furthermore, the guidelines published by the Health Professions Council of South Africa (HPCSA) for withholding or withdrawing life-sustaining treatment do not include 16 guidance on how to treat a case with a brain-dead pregnant woman and her unborn foetus (Health Professions Council of South Africa, 2016). The lack of guidance for this treatment can hinder quality healthcare from being provided to the brain-dead pregnant patient/s and can undermine the robustness of the medico-legality of the healthcare provided (Heymann, 1994). I agree with McQuoid-Mason’s (2014) argument that it may be lawful to withdraw life support to a deceased pregnant mother. The South African law does not identify a foetus as a person unless it is born alive (McQuoid-Mason, 2014). It could be said that interfering with the deceased mother to preserve her life to save the foetus is a violation of the deceased's human rights and an infringement on their bodily integrity (McQuoid- Mason, 2014). A foetus having no legal status means they have no constitutional rights as they are not regarded as a person until they are born alive. Therefore, they do not possess the legal right to life (Section 11 of the Constitution of South Africa, 1996). Although McQuoid-Mason (2014) concludes that it is a criminal offense to subject a woman like Mrs Munoz to life-support unless stated otherwise, there is no direct statute prohibiting this. In the absence of definitive legal advice, I will turn to ethical concepts for guidance and provide recommendations for maternal brain death cases based on the ethical concepts discussed throughout the paper. Objections to the arguments such as the potentiality principle and the rights of the foetus. In the last chapter, I will focus on several objections to withdrawing life support from a pregnant mother including foetal rights and interests as an objection to withdrawing life 17 sustaining treatment from pregnant mothers. Personhood is granted at a certain point in the human lifespan, which has significant consequences for health care, law, and personal autonomy (Miklavcic and Flaman, 2017). The foetus as well as the mother have certain moral rights and status afforded to them. However, their moral rights and statuses cannot be equated. This is because their personhood is not equal. I argue that at times withdrawing life support from a brain-dead pregnant mother is ethically justified because the mother does not possess an equal moral status and equal personhood to the foetus. The argument could be opposed by indicating how potent the rights of the foetus are, such that they have equal rights as full persons because of their potential to become persons. Others believe that a human becomes a person from the point of fertilization. In addition, the stages of foetal growth represent personhood development rather than a foetus developing into a person (Miklavcic and Flaman, 2017). I claim, in response to that, that the personhood of a foetus is questionable and often contested. In light of their use of life-support, it undermines the rights of people whose personhood is uncontested. Therefore, it is not justifiable to prolong the life of the mother for the sake of her foetus because she has a higher moral status and personhood than the foetus. 3. Ethics The study involves no human participants. The assessor committee has provided ethics approval. 18 Chapter 1: Infringement of autonomy, bodily integrity and dignity. In this chapter, I will argue that it is morally permissible to remove a brain-dead pregnant mother from life-support because it is infringing on her moral rights to bodily integrity, autonomy and dignity. I will introduce and apply the ethical principle of autonomy and related concepts to support my claim. In the first section, I will briefly introduce autonomy and argue that despite the mother not having the agency to be autonomous, she has intrinsic worth and still needs to be respected. In the second section, I will state that the mother will require a surrogate decision maker because she cannot provide her informed consent. I will argue that the surrogate decision maker may be influenced and provide misinformed consent that could undermine the integrity and dignity of the brain-dead mother. The third section will be on patient dignity. I will argue that dignity of a patient on life support is vulnerable and could objectify her body. In the fourth section, I will argue that the mother presents as a ‘ventilated corpse’ when placed on life support which undermines her bodily integrity. In the fifth section, I will claim that the mother is the primary patient and doctors have a duty to preserve her interests. For the last section, I will address the objection that the mother is dead and does not need to have her dignity, bodily integrity and consequently her autonomy be respected. 1.1 Autonomy In the first section, I will discuss the normative principle, autonomy. I begin by providing a brief history and introduction to the principle followed by its application to the case of the pregnant brain-dead woman. I will claim that, despite her lack of autonomy, the 19 mother must be respected. I will explore other concepts related to the autonomy principle like respect for persons and Kantian core ideas. These concepts will emphasise that the mother deserves to be respected despite being brain-dead. Introduction to autonomy The principle of autonomy is a well-known ethical concept. It is widely understood as the capacity to self-rule (Dhai, 2019). Autonomy is also identified as the competence to think, decide and act freely and independently (Gillion, 1985). It may appear simple and reasonable to exercise your autonomy, but it can be challenging if the individual is unable to convey their wishes clearly and efficiently. This is exemplified in my argument, in which a brain-dead pregnant mother is unable to articulate her decision to be placed on life support or withdrawn off it in order to save her foetus. The brain-dead patient no longer has the capacity to self-rule. Due to her diagnosis, she no longer has the competence to think, decide and act freely and independently. When this challenge is experienced, others tend to make decisions and form opinions for the pregnant brain-dead woman. Medical paternalism, which occurs when a practitioner makes choices based on what he or she feels is in the best interests of the patient or when patient decisions are ignored, has a long history in the field of medicine (Murgic et al., 2015). This form of practice was looked down upon because it undermined people’s autonomy. It was widely assumed that introducing the concept of autonomy as the centre of medical ethics would alleviate the problem of medical paternalism in healthcare (Saad, 2018). However, it seems that it has not solved all their issues with patient autonomy 20 like they assumed it will. For instance, exercising the autonomy principle would deter physicians assigned to a maternal brain death case from treating the patient like a vessel and rather treat them with respect and dignity. There are two prerequisites for the principle of autonomy to apply. These are liberty and agency. Liberty in this context means freedom from external interference and agency means the ability to take deliberate action (Dhai, 2019). In the case of maternal brain death, the mother does not have agency because she is brain-dead and does not possess the ability to take deliberate action. Thus, she cannot be autonomous because she does not meet the prerequisites for autonomy. Furthermore, the prerequisite of liberty is often contested because some settings, like family-centric communities or community-based societies, would prevent a person making medical decisions free from external influence (Saad, 2018). As mentioned by Dhai (2019), liberty in autonomy is the freedom to make decisions without any external interference. If a patient like Mrs Munoz came from a family-centric community, decisions around her treatment would be influenced by that environment. In a family-centred context, the tragedy of the situation may lead the surrogate decision maker or physicians to disregard the patient's bodily integrity and dignity, deciding to keep her alive on life support until the foetus can be safely delivered. Nevertheless, even if the patient's autonomy has been compromised, she is still entitled to protection of her dignity (Iserson, 1999). 21 Gillion (1985) insists on the distinction between autonomy and respect for autonomy. As previously defined, autonomy is the capacity to self-rule, and respect for autonomy is the moral requirement to respect the autonomy of others (Gillion,1985). I agree with Gillon (1985) that there is a distinction to be made between the capacity to self-rule and the obligation to respect another's ability to make independent decisions. Although the patient may not have the complete potential to be autonomous in the instance of maternal brain death, doctors still have a moral obligation to protect her autonomy even if its diminished. Respect for persons/autonomy Beauchamp and Childress (2013) proposed four core ethical principles in the discipline of bioethics and the first principle is respect for autonomy. They proposed this as a standard in which an individual’s autonomy in decision-making is respected (Dhai, 2019). As previously mentioned, autonomy is the capacity of an individual to make self- determined choices, therefore, respect for persons/autonomy is valuing a person’s self- determined choices and refraining from interfering with their actions unless it is harmful to others (Iserson, 1999). In the case of maternal brain death, it would be important to protect the well-considered ideas and choices that may have been previously expressed to those around her. Since the maternal brain death case is based on an incapacitated patient, it would be important to consider what the patient would have wanted. Davis (2002) introduces and argues that if we are morally required to respect a person’s autonomy and their healthcare decisions, then we must simultaneously respect their 22 intentions to make such decisions in advance such as in advance directives. This is known as precedent autonomy. Davis (2002) explains that precedent autonomy is the ability to respect the preferences made earlier by a now incapacitated patient. Respecting a patient’s intention to make healthcare decisions helps in the decision- making process like in a maternal brain death case. For example, if a pregnant mother is diagnosed as brain-dead, her previous intentions on if she would want to be kept on life-support should be considered. The circumstance of being pregnant can affect her previous intentions, but since she is brain dead and no longer conscious of her foetus, it should not influence her previous intentions. In the Munoz case, this was evident. One of the factors that prompted Mr Munoz to request that his wife be taken off life support was that his wife had previously stated her desire to be taken off life support if she was pronounced brain dead (McQuoid-Mason, 2014). I agree and claim that there is a duty to respect a patient’s autonomy and subsequently a duty to respect the intentions to make healthcare decisions that have been expressed previously. I argue that if a pregnant mother previously expressed that she would not want to be placed on life support if she was declared brain-dead, her wishes should be respected. I also claim that her circumstance of pregnancy may complicate the case but since she is brain dead and did not amend her wishes, her previous wishes should still be respected. However, precedent autonomy is not universally accepted. An objection could be made that precedent autonomy is difficult to apply since it's unclear if a preference can still be 23 ascribed to a now-incapacitated patient who never disaffirmed it but no longer understands it. Though that inference cannot be made, then perhaps precedent autonomy should not be respected at all - even so, how can a patient’s autonomy be respected by giving them something they don't want, even if they never said no to it? (Davis, 2002). For example, the precedent autonomy of a pregnant brain-dead patient to have her removed from life support (if she was to ever be pronounced brain dead) is difficult to fulfil because she never included different decisions to different circumstances like in pregnancy. I respond to this objection by stating that precedent autonomy should still be respected because surrogate decision makers or advance directives are heavily influenced by the patient’s beliefs. It is important to note and acknowledge that the patient was of a sound mind when they expressed their previous wishes. Therefore, those wishes should still be respected. A question could be posed claiming that if the autonomy of a brain-dead patient is diminished, is there still a duty to respect their autonomy. I respond by emphasizing the importance of human dignity and bodily integrity as aspects of autonomy. Honouring a patient's dignity and bodily integrity involves, to some extent, respecting their autonomy. Kantian core ideas Kant held humans to the highest regard and went further to state that humans deserved to be respected for merely being human (intrinsic worth). He, along with others, believed 24 that humans are the better creatures because their “intrinsic worth” and “dignity” made them valuable “above all price” (Rachels and Rachels, 2012). The difference between humans and non-humans, as stated by Kant, is that humans have ‘dignity’ in which other things lack. In addition, Kant believed that people are irreplaceable, and their death is a tragedy. Conversely, non-human things are replaceable, and no catastrophe occurs if they are broken or lost. (Rachels and Rachels, 2012). I agree with the claim made by Kant. I argue that the brain-dead patient has intrinsic worth and dignity because she is a human. Her brain death diagnosis and consequent death is a tragedy. Kant also believed that our duties as humans can be derived from one ultimate formula called the Categorical Imperative. He believed that we could gauge what we ought to do by simply appealing to reason. This principle devised by Kant has two formulae, namely the ‘Formula for Humanity’ and the ‘Formula for Universal Law’. In this paper, I will refer to the formula of humanity. The formula of humanity is expressed as a duty to ‘act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only’ (Rachels and Rachels, 2012). Individuals are valuable and we are morally compelled to treat them always as an end and never as a means only. This simply means that we ought to treat people well by promoting their wellbeing, respect their rights and decisions, and not cause them harm (Rachels and Rachels, 2012). 25 The formula of humanity does not instruct us to never treat an individual as a means but never as just a means. We can treat someone as a means but simultaneously treat them as an end to demonstrate that they are valuable in themselves. People must be treated with respect if they are to be treated as ends (Rachels and Rachels, 2012). In the main argument of the paper, the brain-dead patient is serving as a ‘natural incubator’ which is the only reason she is being kept alive. Consequently, it seems like she is being treated as a mere means to ensuring the survival of her child (an end). Indeed, this shows that her value and dignity are not respected. Her value and dignity have been reduced to just serving as an incubator. When the mother is treated as a natural incubator, it is a violation of her dignity and bodily integrity, and therefore her autonomy (Said et al., 2013). Therefore, making it morally wrong to keep her on life- support for the sole purpose of her foetus. An objection could arise that the mother may be treated as an end if bringing the child to term is what she wanted. I respond by stating that there is no way to be sure that the mother would want to be kept on life support for an extended period even if she is pregnant. Most individuals declare that should they be diagnosed as brain-dead, they would want to be removed from life support. To summarise the argument I have made, autonomy is the ability to self-rule because one has liberty and agency. A person's autonomy ought to be respected because human beings have an intrinsic worth that is their dignity. Furthermore, we ought not to treat human beings as merely a means to an end but as an end in and of themselves 26 (Categorical Imperative). In the main case of the paper, the brain-dead patient lacks agency but still deserves to be treated with respect. If she is treated as merely a 'natural incubator', she is merely being treated as a means only and not simultaneously as an end. Therefore, it is morally wrong to keep her on life-support for the purpose of her foetus. 1.2 Informed Consent Since the mother in the central argument of the paper is brain-dead and cannot verbally communicate her choices, she will acquire a surrogate decision maker to make decisions on her behalf as stipulated by the law. Therefore, in the second section of the chapter, I will be reviewing and applying the concept of informed consent to a case of maternal brain death. I will argue that the surrogate decision-maker could be acting under the influence of many factors like emotions and may not act or decide in the best interest of the mother. Informed consent has become a significantly valued concept in the fields of healthcare and health ethics. This is on account of historical autocratic and paternalistic health practices. Obtaining consent from a patient was never a foreign concept in medicine however it was hardly honoured in the past (Will, 2011). The responsibility to seek informed consent became a duty under current legal and medical standards only when lawyers and philosophers argued an inherent value in honouring a patient’s decision- making capacity as an autonomous being (Will, 2011). As a concept, informed consent is derived from the principle of autonomy and obtaining informed consent respects a patient’s autonomy (Dhai, 2019). Within the definition of 27 informed consent, are four critical components. These are ‘voluntariness, capacity, full disclosure, and understanding’ (Dhai, 2019). The patient described in the central argument of the paper is brain-dead. Vaguely, this means the patient is unconscious and is would not survive without being supported by life-sustaining measures. It presents a real obstacle for her, her physicians, and the treatment as she lacks the capacity and understanding to decide. This means that she cannot provide her informed consent and her autonomy is at risk. She is also unable to practice the four essential components of informed consent. Her capacity has been diminished because of her brain death diagnosis, and she is no longer capable of understanding. To combat this problem, certain individuals that are closely related to the patient are given the authority to make the decisions on her behalf. Legally, the order of authority goes from spouse or partner, parent, grandparent, adult child, or sibling of the patient (Section 7(1)(b) of the National Health Act 61 of 2003). Not seeing conventional signs of death like an absent heartbeat and breathing, cold skin and pallor make it difficult for families to reconcile with the fact that their loved one has been pronounced dead by neurological standards (Johnson and Westphal, 2018). This presents emotional and cognitively difficult challenges for the family which may cause them to make misinformed decisions going forward. I agree and argue that in the case of a brain-dead pregnant mother, her partner or family may not fully comprehend that keeping her on life-support is essentially having the foetus growing inside a 'corpse'. 28 This is the precise reason as to why Mr. Munoz, in the case of Munoz v. John Peter Smith Hospital, advocated for his wife to be removed from life-support. The court ruled in favour of Mr. Munoz because Mrs. Munoz was considered legally and clinically dead (McQuoid-Mason, 2014). In agreement with Mr. Munoz's decision, I argue that it is ethically justified to withdraw a pregnant brain-dead patient from life-support because the foetus is growing inside a corpse and her family may not fully understand this. The surrogate decision maker of a maternal brain death patient would be under a lot of strain and stress. They would be emotionally drained from having to make decisions for the patient whilst mourning their death at the same time. This could influence their lives for the duration of the treatment should they decide to prolong the life of the patient. The partner or family member of the maternal brain death patient may not make proper informed decisions or informed consent because they would be influenced by their emotional distress. One may counter by claiming that the maternal brain death patient's family and partner would receive counselling from the hospital to assist them in their decision-making process. However, this may not be enough, and they may still give misinformed consent. Furthermore, their lives would now be continually entwined with the hospital, since they would be required to provide approval for the patient's future treatment plans, resulting in increased stress and mental distress. Objection to informed consent One predominant objection with informed consent is that it is portrayed as the solution to medical paternalism amongst other issues. Consequently, it has created a polarity 29 between an “empowered, informed and autonomous decision-making patient" and an "all-powerful paternalistic authority (healthcare provider)" (Corrigan, 2003). The premise is that implementing and enforcing informed consent will safeguard patients' rights and welfare by allowing them to make free and informed decisions (Corrigan, 2003). Critics of this “empowered, informed and autonomous patient/all-powerful paternalistic authority” dualism often point out that this understanding of informed consent has minimal to no consideration of social aspects (Corrigan, 2003). Corrigan (2002) responds to this objection by stating that this reduction of informed consent to individualism disregards the cultural context within which the process of informed consent takes place. Moreover, it further promotes the individualism found in Western norms (Corrigan, 2003). I agree with Corrigan’s (2002) response. The individual afforded the authority to make decisions on behalf of the brain-dead patient will be influenced by their cultural or social understanding of brain death. This is despite information provided by the "all-powerful paternalistic” healthcare professional that would emphasise that brain death equals real death (Corrigan, 2002). Many cultures do not consider death according to neurological standards, real death. This is because a lack of traditional signs of death makes it difficult to accept that the person is dead. The family of the patient would be affected by the tragedy and could influence the partner of the maternal brain death patient to continue with life-support. This goes against the notion of informed consent because the individual making the decisions has been influenced. 30 In summary of the argument made, informed consent is the ability for a patient to make free and informed decisions about their health. However, this is not possible with a brain-dead person. As a result, an individual related to the patient will make health decisions on their behalf. At times, this individual will be influenced by their social and cultural understanding of brain-dead because the patient does not exhibit with the normal indicators of death. This might lead to misinformed decisions being made on behalf of the mother, compromising her autonomy. 1.3 Patient Dignity In this section, I will be discussing the dignity of patients in the intensive care unit. I will argue that their dignity is vulnerable and that being on life-support can violate their dignity and therefore their autonomy. In addition, I will claim that the dignity of a maternal brain death patient is jeopardized and reduced if she is placed on life support for an extended period merely for the survival of her foetus. Dignity can be described as the worth of every person (Law Insider, 2022). Dignity is important in respecting a patient and their autonomy. Any healthcare professional has an ethical obligation to maintain a patient's dignity (Moen and Nåden, 2015). A pregnant brain-dead patient is not in any control of her circumstances making her dignity and bodily integrity vulnerable. Because of the injuries, sickness, and treatment, intensive- care patients may lose control of their circumstances, have diminished autonomy and integrity, and be isolated from communication (Moen and Nåden, 2015). As a result, an intensive care unit where patients are given life support should be more than just a place to keep them alive, but also a place where they are treated respectively as individuals (Moen and Nåden, 2015). 31 Findings by the World Health Organisation (WHO) in about forty countries found that most people selected dignity as the second most important concern in nursing care (Lin et al., 2012). As a result, the WHO has prioritised patient rights and maintaining their dignity as one of its goals (Lin et al., 2012). Moen and Nåden (2015) also found that for critical care patients to be treated with dignity by healthcare personnel turns out to be an important component of their descriptions of dignity. Patients' dignity was encouraged by nurses who cared about their patients and how they were treated, making them feel appreciated and respected during their hospital stay (Moen and Nåden, 2015). These findings show that dignity is an important notion in patient care regardless of their level of consciousness and that patients value being seen, respected and appreciated. It is therefore essential for the healthcare professionals treating a maternal brain death patient to treat her with respect because that promotes the patient’s dignity. Some argue that keeping a brain-dead pregnant woman on life support amounts to her being objectified and treated as a consumable body (Sperling, 2020) which does not preserve her dignity. This argument may be based on the fact that the woman is objectified because her value and purpose have been reduced to functioning as an incubator. She is no longer valued because of her intrinsic worth and symbolic existence but rather just breeding ‘body’ for her foetus. Where possible, ethical considerations should prioritize protecting the rights of the pregnant woman who is the primary patient more than the preserving the life of the foetus – an opinion supported by professional organisations like the International Federation of Gynaecology and Obstetrics (Sperling, 2020). Meaning, in instances like 32 maternal brain death cases, the mother’s interests, dignity and bodily integrity should be more important that the ensuring the birth of the foetus. Sperling (2020) further affirms that it can be argued that being on life-support infringes on the personal autonomy of a brain-dead pregnant woman as well as her right to respect and human dignity. In view of the mother being labelled a "ventilated corpse", it affects her symbolic existence and influences how others see and imagine her (Sperling, 2020). I agree with the views of Sperling (2020) that the human dignity and autonomy is infringed upon as her symbolic existence is affected because she is seen as a ventilated corpse. In some situations, a person would indicate (verbally, in an advance directive or living will) that they would not want life-sustaining care if they were ever in a vegetative condition or ruled brain dead — it is considered undignified. This is still true for many women, but they do not foresee becoming brain-dead whilst pregnant. As previously stated, the fact that the woman is pregnant should not be the sole or deciding factor in the decision-making process as she is unaware of the foetus and its progress. To summarise the points made, dignity is important in ensuring the autonomy of a person. I argued that keeping a brain-dead pregnant woman on life support objectifies her and treats her as a consumable body which does not uphold her dignity and autonomy. Additionally, placing a maternal brain-dead patient on life support for an extended period jeopardizes and diminishes her dignity. Thus, making it morally unjustified to keep her on life-support for the sake of her foetus. 33 1.4 Patient Bodily Integrity In this section, I will outline personal/bodily integrity and its relation to autonomy. Furthermore, I will argue that extended somatic support of a brain-dead woman presents her as a 'ventilated corpse' which violates her bodily integrity. Lastly, I will present more arguments from the comparison of such cases to abortion and gestational surrogacy that further explain and support the claim of a violation of bodily integrity. The concept of bodily integrity is associated to the principle of autonomy. This is because the capacity to decide upon one’s body (autonomy) validates and endorses their bodily integrity. Therefore, limiting or infringing on an individual's personal or bodily integrity is ethically wrong since it undermines their autonomy (Pellegrino, 1990). Said et al. (2013) acknowledged that prolonged somatic support for the pregnant mother ultimately reduces her to just an incubator and diminishes her right to autonomy and bodily integrity. Be that as it may, Said et al. (2013) claim that these issues are moot because the patient is deceased. I disagree with this claim because as mentioned earlier in this section, being reduced to a “ventilated corpse” is degrading and negatively affects her symbolic or significant existence. The objection that the patient is brain-dead and therefore has no rights to autonomy and bodily integrity dangerously implies that anyone can do as they please with the deceased’s body as can be done by the hospital in this case (Nienaber, 2014). I argue that even though the dead are afforded minimal legal rights, their ‘interests’ like dignity and bodily integrity still need to be respected and observed. 34 Claims are also being made that the prolonged somatic support for the pregnant mother can be ethically justified if the mother was to simultaneously become a prospective organ donor. Thus, it would be advantageous since the foetus would be the first to benefit from the mother's organs, which in this case would be the uterus (Said et al., 2013). However, others counterargue that the somatic support organ donation medications are poorly understood and therefore can have adverse effects on the foetus. (Said et al., 2013). Maternal brain death has been compared to abortion because they both result in the death of a foetus (Rahders, 2016). If literature has made this comparison, then some of the arguments that support abortion can be used to support or against maternal brain death. A popular argument for abortion is that women have a moral (and legal) right to make decisions about their bodies (bodily integrity, privacy, autonomy) (United Nations Human Rights, 2017). I claim that equally, maternal brain-death patients’ bodily integrity, privacy, and autonomy deserve to be respected. An unusual comparison can also be made between cases of maternal brain death and gestational surrogacy. Gestational surrogacy is a form of reproductive technology that allows for an embryo fertilised via in vitro fertilisation, to be implanted in a woman who is not genetically related to it (Yale Medicine, 2021). They are similar because in both cases, the women are essentially ‘natural incubators. An argument made by Ber (2000) against gestational surrogacy is the depersonalisation of the surrogate mother who becomes a “womb to rent”. Being a womb for rent undermines the dignity and bodily integrity of these women. 35 This argument shows that the mother is being used as a mere means to an end which is ethically wrong. Others counterargue this claim by emphasising that the surrogate mother autonomously chose to do this (Ber, 2000) and therefore is simultaneously being treated as an end. However, I disagree with this claim because most surrogate mothers are poor and therefore are not deciding autonomously as they are influenced by the financial incentive. Hence making this comparison, between maternal brain-death patients and gestational surrogate mothers, as both of their autonomy is undermined. In summary of the points made in this section, I have outlined personal/bodily integrity and its relation to autonomy. Additionally, I have argued that the prolonged somatic support of a brain-dead woman presents her as a ‘ventilated corpse’ which violates her bodily integrity and her perception by others. Lastly, I have demonstrated comparisons between abortion and gestational surrogacy to cases of maternal brain death. These comparisons further explain the similar violations of the bodily integrity of women. These said arguments support the claim that preserving the life of a pregnant brain- dead patient violates her bodily integrity and is therefore morally unjustified. 1.5 The mother as the primary patient In this section, I will be discussing the mother as the primary patient. I will be arguing that the foetus and the mother should be treated as separate patients because they have different moral status and subsequent interests. I will argue that the mother’s interests as the primary patient should be preserved because she has a higher moral status than the foetus. Following this, I will claim that the physician has a duty to protect the mother and her interests to autonomy, bodily integrity and dignity as she is the 36 primary patient. Moral status in this context refers to when an entity has interests that morally matter to a degree for the sake of that entity (Jaworska and Tannenbaum, 2021) When a mother enters a place of medical care, she is identified as the primary patient. Pregnancy, on the other hand, offers a unique situation in which each course of action must be assessed in light of the impact it will have on both the mother and the foetus at the same time. (Barr, 2019). Unfortunate circumstances can occur, and the mother could be pronounced brain-dead and therefore dead. After the declaration of brain death and the person has died, the continuation of life-support measures becomes a moot point because there is no life present (Barr, 2019). When the mother has died, the physician’s duty to protect and save her life ends. Hence it can be morally justified to withdraw life-support from a pregnant mother. It is important to acknowledge that the brain-dead patient was once a person, irrespective of the mother no longer being alive. For that reason, her body deserves to be treated with respect (Barr, 2019). It needs to be appreciated that although the mother can no longer feel the pain and discomfort of unnecessary treatments, she can still be harmed by unwarranted bodily intrusions (Barr, 2019). This reason further supports that it is generally unethical to continue life-support after a diagnosis of death has been made (Barr, 2019). Barr (2019) goes on to contravene the above statements by stating that in the case of a brain-dead pregnant mother, it is permissible to continue somatic support for a certain period for sufficient foetal development. She further states that after the birth of the 37 foetus, the somatic support of the mother “has reached its desired outcome” (Barr, 2019). This is a clear example of the justification of the mother being treated as a means to an end. As mentioned in section 1.1, it is morally unjustifiable to only treat humans as a means to an end without simultaneously treating them as an end (Rachels and Rachels, 2012). Another point raised by Barr (2019) is that the mother and foetus are “equally valuable individuals”. This is owed to the fact that the developing foetus is a person with equal moral value to other human beings (Barr, 2019). She further insists that physicians must appreciate that even after the death of the mother, they still have a live foetus patient to treat (Barr, 2019). I disagree with these reasons because a foetus is essentially a potential person, and the moral status of the foetus is not equal to that of the mother. The personhood of the foetus is questionable and often contested thereby making it unfair to compare it to the incontestable personhood of other human beings. These points will be further discussed later in the paper. This does not take away from a doctor’s duty to save the life of an endangered foetus. However as previously stated, it cannot be done at the expense of treating the mother to an end as well as at the expense of the respect she is owed. It seems that legally, courts have struggled to find the middle ground when the potential interests of the foetus and that of the mother are opposed (Burkle et al., 2015) There have been several legal cases reported in the past that question whether the mother and foetus should be treated as separate entities or not. Around the year 1885 38 in the case of Die-trich v Inhabitants of Northampton, a mother wanted to claim against a construction company for the death of her foetus after she had slipped and fallen on a bridge and had a spontaneous abortion. The court did not rule in her favour because the construction company was not liable for her foetus’s death as she herself had not sustained any injuries from the fall. The ‘single entity rule’ was developed from that case to define that a pregnant woman and her foetus are legally considered a single being (Burkle et al., 2015). This would mean that the mother and the foetus should be treated as one and their interests should not be distinguished even if they possess different moral statuses. This reasoning can be used to support the claim that the brain-dead pregnant mother should be kept on life support, not for her interests to bodily intergrity, autonomy and dignity but for the foetus’s interest to life as these interests are said to be of the same weight. Around 60 years later, the opposite happened. The case of Verkennes v Corniea, decided in 1949, was one of the earliest known cases in which the court ordered that the foetus and the mother be cared for separately (Burkle et al., 2015) and therefore should be treated as separate entities. Meaning that the individual interests of the mother do not weigh the same as the interests of the foetus because they possess different moral statuses and level of personhood. Furthermore, the courts in the 1949 case of Verkennes v Corniea stated that regardless of the maternal result, hospitals and attending physicians might be held responsible for providing insufficient medical treatment to the foetus (Burkle et al., 2015). Which would imply that just because the law identifies the mother and foetus as separate entities 39 does not mean that negligence to the foetus would be permissible. I agree with this statement as my argument does not support negligent and unjust treatment towards the foetus who is the secondary patient but rather that the interests of the mother should be preserved. Ethics organisations in the United States of America have since expressed that in extraordinary circumstances like the brain-death of a pregnant woman, treatment plans intended for protecting the foetus should not be implemented using court authority as it would be a violation of the pregnant woman’s autonomy (Burkle et al., 2015). More recently, the field of obstetric medicine has developed a new model on the dynamic and relationship between a mother and a foetus. It is termed the maternal-foetal dyad which regards a foetus as a distinct patient on its own (Mattingly, 1992). This further supports the notion of the mother being the primary patient. To summarise the argument I have made, the mother and foetus should be treated as separate patients following the maternal-foetal dyad. In the case of a brain-dead pregnant mother, the mother will typically be identified as the primary patient. So, for this reason, I argue that the physician should treat and protect the mother from being treated as only a means to sustain the life of her foetus (an end). It is morally wrong to treat a person only as a means without simultaneously treating them as an end. Additionally, court rulings in favour of preserving the foetus violate the pregnant mother’s autonomy. Therefore, making it unethical to keep the mother on life support to preserve the foetus’s life. 40 1.6 Autonomy, bodily integrity, dignity and brain-death For the final section, I will address the objection to the main argument made in this chapter. I will respond to objection by highlighting that the patients of maternal brain death deserve to die in dignity. A typical objection to the chapter argument is that the mother is dead and lacks the capacity to be autonomous, have dignity and bodily integrity. I respond by indicating that doctors and other healthcare professionals have a responsibility to treat a brain-dead patient with dignity because, while she is no longer "alive," she was once a human being (Barr, 2019). Having once being a human being holds more moral weight than being a potential human being because the mother has a social identity and has lived a life with experiences which she shares with the people she left behind. This is different from the foetus (potential person) because the foetus has not lived a life with experiences shared with others. This idea is further discussed in chapter 5. As well as the autonomy, rights, and respect for a brain-dead patient should not be overlooked. Maternal brain-dead patients are perceived in various ways by healthcare practitioners including but not limited to pregnant patients or cadavers/cadaveric incubators. This does not eliminate the harms, wrongs, or indignity they may still be at risk of receiving (Dickens, 2011). The brain-dead pregnant mother is kept on life-support not for her welfare but for the sake of her unborn foetus. As a result, her body is in danger of being utilized as a tool, an object, or an instrument (Dickens, 2011). 41 The International Federation of Gynaecology and Obstetrics led by Dickens (2011) recognises and agrees that women possess the right to die in dignity. Likewise, the intention to rescue a foetus does not absolve healthcare providers of their responsibility to respect the main patient's right to dignity —the woman (Dickens, 2011). To summarise the points of the section, an objection was raised that the mother is dead and lacks the capacity to be autonomous, have dignity and bodily integrity. I responded that the brain-dead pregnant patients should have their bodily integrity, dignity and consequently their autonomy to be respected and upheld despite their diagnosis of brain death. 1.7 Chapter conclusion In conclusion of the arguments made in this chapter, I have argued several claims to defend that preserving the pregnant mother’s life to save her foetus is an infringement on her autonomy, bodily integrity and patient dignity. I have done this by arguing that: (i) Human beings have an intrinsic worth that affords them the right to their autonomy and to be respected. A maternal brain death patient is reduced to a ‘natural incubator’ which is not morally right as individuals cannot be treated as only a means and not simultaneously as an end. (ii) A pregnant brain-dead patient cannot make informed decisions for herself. As a result, an individual related to the patient will make healthcare decisions on her behalf. At times, this individual may be influenced by their social or cultural understanding of death because the patient doesn’t present with the usual signs of death. This could lead to misinformed decisions being made on the mother’s behalf. 42 (iii) Dignity is important in preserving the autonomy of an individual. Keeping a brain- dead pregnant woman on life-support objectifies her and treats her as a consumable body which does not preserve her dignity and autonomy. (iv) Preserving the bodily integrity of a patient promotes their autonomy. Placing the maternal brain death patient on life support presents her as a ‘ventilated corpse’ which diminishes her bodily integrity and taints her perception by others. (v) According to the maternal-foetal dyad, the mother and foetus are two separate patients. In maternal brain death cases, the mother will be identified as the primary patient. Thus, the physician has a duty to treat and protect the rights and interests of the mother as the primary patient from being treated as a mere means to sustain the life of her foetus. (vi) A typical objection could be raised that the mother is dead, with no ability for autonomy, dignity, or bodily integrity. Despite the mother’s diagnosis of brain death, I argued that the patient's bodily integrity, dignity, and hence autonomy should be honoured and protected. Therefore, it is permissible to withdraw life support from a pregnant brain-dead patient in order to preserve her rights and interests to autonomy, bodily integrity and human dignity. 43 Chapter 2: The likely harms of continued life-support outweigh the benefit. In this chapter, I will argue that the harms associated with continued life-support outweigh the benefit. I will use the normative principles of beneficence and nonmaleficence to support my argument. In the first section, I will introduce and explain why the beneficence principle applies to this case. In the second section, I will introduce and explain the nonmaleficence principle and its application to the maternal brain death case. For the third section, I will argue that there are many harms of extended life support for a brain-dead patient and several additional harms associated with the extended life support of a pregnant mother. Lastly, I will address the typical counterargument to the overall argument made in this chapter that is successful births of viable foetus have occurred despite the complications of pregnancy, brain death and extended life support. 2.1 Beneficence applied to a maternal brain death case In the first section, I will introduce, discuss and explain the principle of beneficence and its relevance to the maternal brain death case. This is important because I will use the principle of beneficence, the duty to do good, to argue that withdrawing life-support from a pregnant brain-dead woman is morally justified. Beneficence is one of the four principles in the Principles of Biomedical Ethics. It refers to the moral duty to do good or act in the best interests of others (Freeman, 2011). It was established by Beauchamp and Childress (1994) as one of the four core ethical principles for ethical decision-making. This principle imposes a duty onto the physician to always promote the wellbeing and welfare of the patient (Dhai, 2019). Beneficence is 44 not only the active promotion of good but also includes prevention or removal of harm (Freeman, 2011). The notion of beneficence is not alien to traditional morality; in fact, it is derived from it (Dhai, 2019). It represents deeds or personal characteristics of “mercy, kindness, generosity, and charity” (Beauchamp, 2019). The history of ethical theory shows key features of beneficence being used in several ethical theories. However, these ethical theories develop radically different conceptual and moral interpretations of beneficence. Examples of this are seen in utilitarian theories and the opposing Kantian theories (Beauchamp, 2019). Application of Beneficence principle John Stuart Mill declares the concept of utility, often known as the “greatest happiness” principle, to be the fundamental underpinning of morals. In short, the principle states that acts are morally right in proportion to how they promote the pleasure of all persons and bad in proportion to how they promote the opposite (Beauchamp, 2019). In addition, Mill presents this principle as absolute and superior. This is a simple and straightforward interpretation of the beneficence principle because the benefit is maximised, and harm is minimised (Beauchamp, 2019). I agree with both Mill about the duty to promote of goodness. He agree that the duty to do good extends beyond just the physician and applies to everyone. In the case of maternal brain death, the physician must act for the benefit of his primary patient and the family must promote the best interests of their loved one. By doing this, they would be acting in accordance with the beneficence principle and therefore acting morally. 45 ‘Best interests’ model and Beneficence While the legal status of a brain-dead patient is that of a dead body, in clinical practice, brain-dead patients are frequently handled and thought of as patients who have irreversibly lost capacity, and courts have occasionally adopted this approach. It could be more appropriate to employ a decision-making model comparable to the "best interests" model that is utilized when patients lose capacity (Warren et al., 2021). In this model, clinicians would gather information about the patient from the family and consider the benefits and disadvantages of keeping the patient on life support. With this information, they can ascertain what is in the best interests of and what would benefit the patient more. As I will demonstrate below, keeping the mother on life support causes more of a burden than a benefit and therefore is not in the best interest of her or her surrogate decision-maker. Between the mother and the unborn foetus, a question might be asked as to who's best interests should be promoted (Nienaber, 2014). The best interest approach is frequently utilized in South African law, particularly in the children's act. The Children's Act 38 of 2005 states that all activities involving a child must be in the child's best interests. Which means that all actions should be providing a benefit to the child or protecting the child from harm. One may argue that the unborn foetus' interests should be taken into account just as much as the mothers. My argument considers the foetus’ interests, but they may not weigh as much as the mothers because of its questionable personhood. There are many perceptions of personhood, but for the context of this paper, I will be referring to 46 moral personhood of which entities judged on morally permissible or impermissible actions (Alzheimer Europe, 2022). The foetus is not recognized as a person under South African legislation, and hence is not protected by the Children's Act. I will discuss these points later on in the paper. In this section, I aim to argue that the mother’s interests should be promoted. The South African law does protect the pregnant brain-dead mother’s dignity regarding the desecration of her corpse or that society may not do as they please with her body (Nienaber, 2014). Nienaber (2014) argues that based on these perspectives, it is conceivable to claim, at the very least, that the law protects some of the corpse’s interests (to being treated with dignity), even if these are not 'rights' in the traditional sense. I fully agree with Nienaber (2014) that the law does protect the interests of the mother and therefore, the physicians and family of the patient should follow suit and be guided to pursue the same goal. The application of the Beneficence principle continued It is often debated whether the principle of beneficence is a moral obligation or moral ideal. Several ethical theorists argue that the duty or obligation to be beneficent requires great sacrifice and generosity that is extreme (Beauchamp, 2019). In the case of maternal brain death, the family may feel like they are making a great sacrifice by withdrawing life support and causing the death of the foetus. They could feel like they are experiencing a greater loss by losing both the mother and the child instead of just the mother. 47 The medical professionals assigned to a maternal brain death case could feel like their morals and values are compromised if they advocate for the withdrawal of life support. They could feel like the duty to be beneficent at all times requires a lot from them of it goes against what they believe. Some ethicists, on the other hand, have maintained that humans have no universal beneficence responsibilities, only beneficent obligations arising from professional jobs or other specified places of duty that are not part of ordinary morality (Beauchamp, 2019). This would apply to the hospital staff treating a maternal brain death patient. Due to their professional oaths, they have a duty to always act and promote goodness for their patient. And if they cannot fulfil that duty because it goes against their beliefs or morals, they can refer the patient to another professional who can treat and protect the patient (South African Medical Association, 2021) Bernard Gert believes that the only moral obligations, aside from those imposed by professionals and other stations of duty, are those imposed by moral rules that forbid harm or evil. The general objective of morality, according to Gert's view, is to reduce the cause of evil or harm, not to promote good (Beauchamp, 2019). In accordance and agreement with Gert’s view, the surrogate decision maker of the brain-dead patient has a duty to reduce the cause of evil or harm. This is similar to the nonmaleficence principle which I will expand on later in the chapter. Beneficence has been at the cornerstone of the institution of medicine. If the ultimate objective of clinical medicine is healing, which is a beneficent goal, then medicine is arguably an inherent beneficence enterprise that dictates the physician's professional 48 responsibilities and qualities (Beauchamp, 2019). Thus, physicians treating patients like Mrs. Munoz have beneficence obligations towards their patients. They have the moral duty to promote the overall good and wellness of their patients. This encompasses several positive actions like protecting and defending patient rights, preventing or minimising harm, removing conditions that lead to harm, rescuing patients in danger, and helping the disabled (Varkey, 2021) which has been aforementioned. For example, a pregnant brain-dead patient who is placed on life support is at a risk of being harmed by several complications associated with life support. These complications could even harm or result in the death of the foetus. The physician therefore has a duty to inform and advise on decisions that result in the least amount of harm for the patient and their family. It can be counterargued that keeping a maternal brain death patient on life support is a beneficent act because it prevents the death of the foetus. Some theorists, like Pellegrino, have restricted what counts as a medical benefit for patients. He claims that what is considered beneficial to the patient has been limited to healing, preventing injury, disease and death (Beauchamp, 2019). In essence, this objection claims that prolonging the life of the pregnant brain-dead patient is more beneficial than withdrawing the treatment because it prevents the death of the foetus. But at what cost? Preventing death is not the ultimate beneficent act especially if the family and the patient will suffer greatly as a result. I respond by stating that the range of benefits to a patient is broader than this. Beneficial acts can include providing cosmetic surgery for aesthetic purposes and improving 49 mental health as well as complying with requests for physician-assisted suicide for terminally ill patients to relieve them from their pain and suffering (Beauchamp, 2019). The controversy, therefore, is found in the scope of what counts as medical beneficence because the death of a patient can produce the net benefit (Beauchamp, 2019) like in the case of terminally ill patients or brain-dead pregnant patients. Withdrawing life support from a patient like Mrs Munoz may produce a net benefit by preventing harm from life support measures and sparing the family of a high hospital bill. An objection could also arise that since the pregnant patient is brain-dead, she can no longer be benefited because she is not conscious to experience it. I respond by restating that the range of beneficent acts is large. The brain-dead patient can still experience beneficence by being having her dignity and bodily integrity protected. She can also experience beneficent acts by not having her body harmed and intruded with life saving measures. To summarise the points raised in this section, beneficence is a normative principle that places a duty to promote goodness and prevent harm. The physicians and nurses treating brain-dead pregnant patients have a professional duty to promote overall goodness for their patients. The range of beneficent actions is broader than healing and preventing death, and in some cases, withdrawing treatment can be beneficial to the patient. 2.2 Nonmaleficence applied to a case of maternal brain death In this section, I will present and apply the principle of nonmaleficence to advance the main argument of the paper about withdrawing life support from a pregnant mother. I 50 will argue that there is a duty by health professionals to reduce harm. In addition, I will argue that life support measures can produce harm to the foetus and the mother and withdrawing this treatment can reduce the overall harm. Nonmaleficence is one of the four principles presented by Beauchamp and Childress in their principles of biomedical ethics. In essence, it is a duty to refrain from purposefully harming others (Dhai, 2019). The common belief is that anyone providing care to a patient has an overriding responsibility not to harm them (Dhai, 2019). It is therefore warranted to explain what harm means regarding this principle. The terms hurt and injury are often associated with nonmaleficence (Dhai, 2019). Harm is defined as “impairment of structure or function of the body and/or any deleterious effect arising therefrom. Harm includes disease, injury, suffering, disability and death (World Health Organisation, 2011) among other things. In addition, injury not only refers to harm but extends to injustice, violation, or wrongdoing. Nonmaleficence as a principle requires that unnecessary risk of harm is prevented and that when risk is unavoidable, it be minimized to the greatest extent reasonably possible (Dhai, 2019). The harm to the mother should be limited to her diagnosis. Subjecting her to life sustaining treatment results in intrusions to her body which increases the harm inflicted onto her. This harm includes the violation of her bodily integrity and dignity. And as previously mentioned in section 2.1, the nonmaleficence principle goes beyond preventing harm and includes minimizing the harm to the greatest extent reasonably possible. 51 I argue that jeopardising the dignity and bodily integrity of the maternal brain death patient is harmful because it’s a violation and an injustice. Therefore, going against the principle of nonmaleficence. Because the principle of nonmaleficence is an important concept in medicine, it is essential for the physician treating a patient to prevent or minimise the harm experienced by the patient. As mentioned in section 2.1 , this principle is closely related to beneficence. This is because the common objective in both principles is the prevention of harm. However, beneficence requires more than the principle of nonmaleficence because it additionally requires an individual to take positive actions to benefit others (promote good) (Freeman, 2011). Obligations of nonmaleficence are not inflicting harm and not imposing risks of harm, and obligations of beneficence are to promote good and to prevent or remove harm (Beauchamp and Childress, 1994). One could object and argue that the that prolonging the life of the mother to save the foetus is conforming to the principle of nonmaleficence because the death of the foetus is prevented. Additionally, it could be said that it is more harmful for the foetus to die than for the mother to be poked and prodded by life support machines. I disagree and respond by stating that the foetus is not a full person, and the dignity and bodily integrity of the mother should be promoted and protected. Furthermore, because the mother is brain-dead, she is unaware of the foetus's existence and hence cannot be affected by its death. To summarise the points made in this section, I have presented and discussed the principle of nonmaleficence. I have also argued that under the nonmaleficence principle, 52 not withdrawing life-support from a pregnant brain-dead patient is morally unjustifiable because undermining her dignity and bodily integrity is a violation and therefore a harm. 2.3 Harms of Life Support for a pregnant brain-dead mother In this section, I will state the types of life-support available for brain-dead patients as it is significant in understanding the complications. I will also discuss the moral distinction between withholding and withdrawing treatment. In addition, I will discuss the possible complications that can occur should a pregnant woman be on life-support for an extended period. Types of life-sustaining treatments A diagnosis of brain death is a very serious diagnosis. Essentially, it means that a patient’s brain is dead and can no longer independently sustain their vital functions without special medical intervention (Brody, 2021). In this case, the patient would need to be administered life-support to keep them alive. A pregnant patient diagnosed with as brain-dead is legally dead and cannot independently support their vital bodily function and would need special medical treatment to keep them alive. Life support is a form of treatment that refers to several types of machinery and interventions that keep a person’s body alive (Watson, 2019). This route of treatment does not only require machinery but healthcare personnel to monitor the patient and ensure that the patient is always stable. A case of maternal brain death would also require a skilled multidisciplinary team of healthcare professionals (Said et al., 2013) to ensure that all the bodily systems that would support the patient’s pregnancy are monitored closely. 53 Life support comes in different forms (Watson, 2019), but I will discuss the different forms relevant to a maternal brain death case namely mechanical ventilation and artificial nutrition. Mechanical ventilation is provided to patients who suffer from severe lung conditions or those who cannot breathe on their own. The mechanical ventilator takes over the job of breathing and aiding with gas exchange and is very invasive (Watson, 2019). A patient like Mrs Munoz would require mechanical ventilation because her brain death diagnosis would render her incapable of breathing on her own. The use of this machinery also presents risks to the patient that can be detrimental to her and her foetus. Artificial nutrition is feeding nutrients to someone unnaturally by directly inserting the nutrients into the unconscious patient’s body (Watson, 2019). This type of life sustaining treatment is provided to patients because they can no longer feed themselves naturally or are unconscious. Artificial nutrition as a form of life sustaining treatment is necessary in a maternal brain death patient because they cannot feed themselves and the nutrition is essential for the foetus and its development. It would require meticulous measurements to ensure that the foetus is always receiving adequate nutrition. Nutrition is an important element in a foetus’ development. Which further emphasises the need for a skilled multidisciplinary team of healthcare professionals to monitor the foetal development and ensure the right amount of nutrients are given to the mother and baby. 54 The different types of life-sustaining treatments are sometimes believed to prolong the dying process unnecessarily in patients with poor prognoses like in maternal brain death, which has recently become a matter of concern and has led to the pointless suffering of patients (Eschun et al., 1999) and wasted healthcare resources (Siegel, 2009) that could have benefitted other patients who would have received more value from them. Is providing life support to the patient futile? Providing life-sustaining treatment to a patient that will not recover like a maternal brain death patient, can be regarded as futile. The concept of medical futility is a contentious topic, but any fair definition should define a situation as futile if there is no effective therapy or possibility of recovery (Siegel, 2009). Simply put, medical futility pertains to a physician's predictively stating, from available data, that further therapy will not improve the patient's condition as a result of irreversible disease or injury, and so should not be undertaken (Bernat, 2005). In a maternal brain death case, the prognosis of the mother will not be improved by placing her on extended life support and should not be continued. However, the pregnancy does add an additional consideration. Available data on maternal brain death cases do reflect positive outcomes but not for the mother who is the primary patient but rather the foetus she is carrying. The question of medical futility could then be directed to the unborn foetus of the pregnant brain-dead mother. One could ask whether the life support treatment is still futile if it will result in the successful birth of the foetus (a positive prognosis). Yet, the 55 treatment is not provided to the foetus but rather for the foetus. It would be considered futile to the mother and probably the opposite for the foetus. Nevertheless, there is no guarantee that proving this treatment will result in the successful birth of the foetus. Futile treatment is fundamentally unethical, as it costs money and may cause pain without providing any benefit (Siegel, 2009). In the maternal brain death case, the pregnant mother may be subjected to intrusive procedures and machinery that could increase her risk to harm. These intrusive procedures and machinery threaten her bodily integrity and do not benefit her but rather benefit her unborn foetus. According to some researchers, physicians have an ethical obligation not to provide futile therapy based on concepts of justice (Bernat, 2005). I agree with Bernat (2005) that it is unethical to provide futile treatment to the brain-dead pregnant mother based on the concept of distributive justice, and therefore physicians should not provide the therapy. I will elaborate on the fairness or lack thereof of providing this treatment to the maternal brain death patient at a later point in my paper. Withholding vs withdrawing treatment Following the discussion of life-sustaining therapies and futility for a brain-dead pregnant woman, the distinction between withdrawing and withholding life-sustaining therapy is raised. A large majority of the deaths in intensive care units today occur as a result of a choice to discontinue life-sustaining care, and end-of-life decision making has become a common and significant part of modern intensive care medicine (Vincent, 2005). 56 According to Beauchamp and Childress (1994, p. 199), there is no moral distinction between withholding (not initiating) and withdrawing (ceasing) life-sustaining treatment. Meaning there is no ethical difference that would render one act more immoral than the other. This ethical distinction is questioned because some people believe that withholding treatment from a patient is less unethical than withdrawing treatment. Beauchamp and Childress (1994, p. 199) believe there is no difference and conclude that treatment can always permissibly be withdrawn if it can permissibly be withheld. Decisions on whether to start or cease therapy should be based on the rights and welfare of the patient, as well as the advantages and disadvantages of the treatment (Beauchamp and Childress, 1994). I agree with Beauchamp and Childress that there is no ethical difference between withdrawing and withholding treatment. Withholding and withdrawing life sustaining care renders the same result. In the case if maternal brain death withdrawing treatment may be better by granting the family more time to come to accept the condition of the mother and to make decisions about her and the foetus. This is contrary to some beliefs shared by others. Some of the medical professionals feel justified in withholding treatments they have not commenced but not with treatments that have been initiated. They believe that decisions to withdraw life support reflect the belief that doing so makes them more accountable and liable for the patient's death (Beauchamp and Childress, 1994) because they actively stopped treatment. It might be because one action is a passive act by not interfering medically (withholding), 57 while the other is an active act by physically disconnecting the patient's life support treatment (withdrawing). I still maintain that there is no ethical difference between withdrawing and withholding life support. Different circumstances and developments of medical cases can require either withdrawing or withholding of treatment. Physicians assigned to a maternal brain death case can be hesitant to suggest or remove life support from the pregnant brain- dead patient however because of their view on withdrawing or withholding life support. Therefore, highlighting the lack in an ethical difference between withdrawing and withholding may reduce the guilt and hesitancy of withdrawing treatment. Vincent (2005) contends that withdrawing life support is ethically permissible for various reasons; however, I will focus on one of them. He claims that if withdrawal of treatment was not allowed, the intensive care units would overflow with terminally ill patients being treated with expensive treatment that is no longer beneficial to them. This is referred to as medical futility, which is the argument I presented in the preceding paragraph. Moreover, Vincent (2005) argues that not permitting life support therapy goes against the four principles of Principlism. The arguments made by Vincent relating to the withdrawal of care are similar to those I have made in this paper. In brief, he argued that not allowing withdrawal of care goes against the principle of autonomy, nonmaleficence, beneficence and justice. According to Vincent (2005), it goes against autonomy because no one wishes to remain on life support if they have no hope of recovering, resulting in many people making advance directives because they do not want to become undignified and be 58 burdensome to others. It also goes against the principle of beneficence because the life sustaining treatment is no longer advantageous to the patient. It violates the principle of nonmaleficence because even if sedation is provided to reduce the pain experienced by the patient, there still is some discomfort and distress (Vincent, 2005). It goes against the justice (distributive) principle because an intensive care bed may be obstructed if ineffective treatment is continued, making it unavailable for another patient who would benefit from intensive care. Furthermore, the expenditures of ineffective care might be better spent elsewhere (Vincent, 2005). Similar arguments have been demonstrated in this paper, as I previously mentioned, indicating that I concur with Vincent's (2005) points. Harms of Life Support Life support is a form of treatment that extends the life of a patient; however, it can cause some harm to the patient. A maternal brain-dead patient will require a great deal of treatment for both herself and the foetus, making life support treatment a little more challenging. This presents more risks to the pregnant mother compared to a regular brain-dead patient making it an important element to consider when contemplating treatment. Stabilising physiologic variables changed by the mother's neurologic injury and its therapy, treating the physiologic consequences of brain death, and restoring the favourable physiologic changes present throughout a normal pregnancy are all examples of the anticipated somatic support for the mother and foetus (Powner and 59 Bernstein, 2003). As mentioned earlier in section 2.3 , this is more than the anticipated somatic support for a regular brain-dead patient. The first course of treatment that would be administered to the brain-dead pregnant patient focuses on the mechanism that caused the brain accident (Powner and Bernstein, 2003). This course of treatment may entail exposing the mother to a range of medicines, fluid/electrolyte changes, and other treatments to stabilise her. The treatment could pose a risk to the foetus before the life support commences (Powner and Bernstein, 2003). In the article “One life ends, another begins: Management of a brain-dead pregnant mother-A systematic review”, Esmaeilzadeh et al. (2010) highlights many of the possible complications of extended life-support on a pregnant woman that may be harmful to her and the baby. Some of these include but are not limited to infection, haemodynamic i