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Hastings Women’s Law Journal

Abstract

Should a brain dead pregnant person be kept alive on life support, despite the family's wishes otherwise, in order to fully gestate the fetus? A 2013 grand rounds study out of United Arab Emirates found that medical technology has reached such an advanced stage that gestational age is no longer a barrier to whether or not a pregnant person may be kept on somatic support until the fetus is delivered. The study concluded that a brain dead pregnant person might serve as a "natural incubator" and successfully deliver a baby after the mother becomes brain dead at just 16 weeks' gestation. This comment examines maternal brain death from the lenses of both reproductive technologies and constitutional rights. If medical providers believe that the technology exists to make a dead body a beneficial "natural incubator," regardless of gestational age of the fetus or the family's wishes, the author warns that we risk losing the ability to draw the line between active reproduction and passive incubation in the female body. The author also draws upon comparisons between the U.S., Canada, and Ireland, and contributes to the legal dialogue about what rights an individual has against the state in cases of maternal brain death, and what the implications may be for assisted reproductive technologies and reproductive rights in the future.

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