Intensive Care Med (2004) 30:1484–1486DOI 10.1007/s00134-004-2305-6 B R I E F R E P O R T

Alan LaneAndrew WestbrookDeirdre GradyRory O’ConnorTimothy J. CounihanBrian MarshJohn G. Laffey

Maternal brain death:medical, ethical and legal issues

Received: 19 October 2003Accepted: 26 March 2004Published online: 24 April 2004� Springer-Verlag 2004

J. G. Laffey ())Department of Anaesthesia,Clinical Sciences Institute,National University of Ireland,Galway, Irelande-mail: john.laffey@nuigalway.ieTel.: +353-91-544608Fax: +353-91-544908

A. Lane · A. Westbrook · D. Grady ·J. G. LaffeyDepartment of Anaesthesiaand Intensive Care,University College Hospital,Galway, Ireland

R. O’ConnorDepartment of Obstetrics and Gynaecology,University College Hospital,Galway, Ireland

T. J. CounihanDepartment of Neurology,University College Hospital,Galway, Ireland

B. MarshDepartment of Anaesthesiaand Intensive Care,Mater Hospital,Dublin, Ireland

Abstract Case presentation: Wepresent the case of a pregnant womanwho experienced a cerebral venoussinus thrombosis resulting in braindeath at 13 weeks gestation. We dis-cuss the management of the motherand foetus following this tragic event.We also discuss the complex medical,legal and ethical issues that arosefollowing maternal brain death. Thecentral question is whether continu-ing maternal organ supportive mea-sures in an attempt to prolong gesta-tion to attain foetal viability is ap-propriate, or whether it constitutesfutile care. Discussion: Successfulmaintenance of maternal brain so-matic function to facilitate foetalmaturation in utero has been reported.While the gestational age of the foe-tus is central to resolving this issue,there is no clear upper physiologicallimit to the prolongation of somaticfunction following brain death. Fur-thermore, medical experience re-garding prolonged somatic support islimited. Finally, the legal rights con-ferred on the foetus may vary sig-nificantly depending on the jurisdic-tion in which the maternal brain death

occurs and may have important im-plications. Conclusions: A consensusbuilding approach, involving thefamily, is essential to resolving thesepotentially conflicting issues.

Keywords Maternal · Brain death ·Brainstem death · Foetus · Ethics ·Legal

Introduction

The irreversible cessation of brainstem function impliesdeath of the brain as a whole [1]. This concept is used incases in which life-support equipment obscures the con-ventional cardiopulmonary criteria of death, and is legallyrecognised in most countries worldwide [2]. It is gener-

ally considered unethical and futile to continue to supportvital organ function once a diagnosis of brain death hasbeen made [3]. However, the presence of a foetus fol-lowing maternal brain death mandates consideration ofthe appropriateness of continuing maternal somatic sup-port in order to prolong gestation to attain foetal viability.We present a report of maternal brain death at 13 weeks

1485

foetal gestational age and discuss the complex issues thatarose in response to this situation.

Case report

A 26-year-old woman presented with a headache and a decreasedlevel of consciousness. She was 13 weeks pregnant. Significantlaboratory findings included a high platelet count. Non-contrastcomputed tomography of her brain demonstrated a large mass le-sion of the left frontal lobe of uncertain cause, which was causingsevere mass effect and shift of the surrounding brain tissue. On thefirst day after hospital admission the patient’s condition deterio-rated, and the Glasgow Coma Scale score decreased from 9/15 to 5/15. Following sedation, tracheal intubation, and mechanical venti-lation repeat computed tomography revealed evidence suggestiveof a large sagittal sinus thrombosis with infarction of brain tissueand surrounding intracerebral haemorrhage and oedema. On thesecond morning a further deterioration occurred, and following thesecond series of brainstem tests she was declared brain dead. Ul-trasound examination of the uterus confirmed the presence of a live13-week gestational foetus.

The presence of a live foetus mandated consideration of whe-ther maternal organ supportive measures should be continued in anattempt to attain foetal viability. A broad based consultation pro-cess was instituted, involving the immediate family, the legal ad-visors of the local health authority and external medical and legalexperts. Counselling was provided to the family and independentlegal and medical advice offered. As the maternal next-of-kin dif-fered from the foetal next-of-kin, the father-to-be and maternalnext-of-kin were included in all family discussions. It was notpossible to determine with certainty whether the pregnancy hadbeen planned; however, it did appear that the mother had intendedto continue with the pregnancy.

Full support of maternal somatic function continued to beprovided pending the resolution of the status of the foetus. Thissupport included mechanical ventilation, pharmacological supportof the cardiovascular system, enteral nutrition and endocrine re-placement therapy for pituitary failure, including corticosteroids,and thyroid hormone. Several complications developed, includingdiabetes insipidus, requiring correction of hypernatraemia and des-mopressin therapy, and a pulmonary infection that responded toantibiotic therapy. A later complication included the developmentof hyponatraemia secondary to renal salt wasting. Daily foetal ul-trasound studies were carried out to confirm the presence of a foetalheartbeat.

On the 8th day following maternal brain death loss of the foetalheartbeat occurred. Maternal somatic function continued to berelatively stable, with no evidence of overt sepsis or significantcardiorespiratory, renal or hepatic dysfunction. Consent was readilyobtained from the next-of-kin for maternal organ donation, and thiswas carried out.

Discussion

The mother and foetus are two distinct organisms. Ac-cordingly, maternal brain death mandates consideration ofthe appropriateness of continuing maternal somatic sup-port in an attempt to attain foetal viability. The key issue iswhether this is an appropriate option, with a reasonablelikelihood of success, or whether it constitutes futile ‘ex-perimental’ care with no hope of success. The ‘ErlangerBaby’ controversy, which led to international debate and

divided public opinion, clearly illustrated the potentiallydivisive nature of these issues [4].

Medical Issues

Prolongation of maternal somatic function constitutesexperimental care. The physician must extrapolate fromthe experience of sustaining organ function followingbrain death to allow for organ donation, and consult casereports [3, 5, 6, 7] and reviews [8] in the literature.However, a relatively predictable picture involving loss ofcardiovascular stability, complete pituitary failure, sepsis,and bradyarrythmias resulting in eventual cardiac arrestemerges [3, 5, 6, 7].

The likelihood of successfully maintaining maternalsomatic function depends primarily on the duration oftime required for the foetus to attain viability. The longestduration of successful maternal somatic support followingbrain death achieved to date is 107 days [5]. In this case,maternal somatic function remained relatively stable upuntil organ support was discontinued following deliveryof the infant. It is therefore possible, at least in theory, tosustain maternal somatic function for extended time pe-riods. A gestational age of 32 weeks is generally con-sidered the optimal time for delivery in this context [3, 5,6, 7]. In our case, the foetus would have required another133 days in utero, i.e. at least 3–4 weeks greater than thelongest recorded to date, to attain this level of maturity.However, maintenance of maternal somatic function to apoint where viability would clearly have been possible,i.e. to 24 weeks, is within the known range of medical andscientific possibility.

Ethical issues

Prolonged maternal somatic support can be consideredethical only if there is some—albeit poorly quantified—hope of success. It is clear that the nearer the pregnancyis to term, the more likely there can be a successfuloutcome. Nevertheless, the upper physiological limit tothe prolongation of somatic function in the absence ofbrainstem function is not known. However, strategies tomaintain maternal somatic function remain experimental.Thus the alternative viewpoint is that this constitutesmedical experimentation with little or no hope of success.

Other issues requiring consideration include the moth-er’s right to autonomy, the need to respect a body fol-lowing brain death and the woman’s right to die withdignity. Balanced against these considerations regardingthe mother are the ethical issues which centre on thefoetus. A key issue is an examination of whose interesttakes primacy, i.e. the interests of the foetus or those of themother. Further issues may arise where there is uncertaintyas to the identity of the next of kin, or where the mater-

1486

References

1. Pallis C, Harley DH (1996) From braindeath to brainstem death. In: Pallis C,Harley DH (eds) ABC of brainstemdeath. BMJ, London, pp 8–12

2. Wijdicks EF (2002) Brain deathworldwide: accepted fact but no globalconsensus in diagnostic criteria.Neurology 58:20–25

3. Field DR, Gates EA, Creasy RK, JonsenAR, Laros RK Jr (1988) Maternal braindeath during pregnancy. Medical andethical issues. JAMA 260:816–822

4. Anstotz C (1993) Should a brain-deadpregnant woman carry her child to fullterm? The case of the “Erlanger baby”.Bioethics 7:340–350

5. Bernstein IM, Watson M, SimmonsGM, Catalano PM, Davis G, Collins R(1989) Maternal brain death and pro-longed fetal survival. Obstet Gynecol74:434–437

6. Feldman DM, Borgida AF, Rodis JF,Campbell WA (2000) Irreversible ma-ternal brain injury during pregnancy: acase report and review of the literature.Obstet Gynecol Surv 55:708–714

7. Finnerty JJ, Chisholm CA, Chapple H,Login IS, Pinkerton JV (1999) Cerebralarteriovenous malformation in preg-nancy: presentation and neurologic,obstetric, and ethical significance.Am J Obstet Gynecol 181:296–303

8. Powner DJ, Bernstein IM (2003) Ex-tended somatic support for pregnantwomen after brain death. Crit Care Med31:1241–1249

9. Sheikh AA, Cusack DA (2001) Mater-nal brain death, pregnancy and thefoetus: The medicolegal implications.Medico-Legal J Ir 7:75–85

nal next-of-kin is not the foetal next-of-kin, as in thiscase.

Finnerty et al. [7] have raised three possible ap-proaches to these ethical issues. One approach views thesubject as a terminally ill, autonomous patient. In thiscase, maternal wishes as expressed previously wouldprevail, and it is important to determine the existence ofany previously expressed maternal opinions. In this case,although there was no explicitly expressed maternalopinion, it appeared that the mother had intended tocontinue with the pregnancy. A second approach is toview the subject as a ‘cadaveric incubator’ with no au-tonomous rights; in this case the rights of the foetus wouldprevail. A third approach is to view the patient as a vol-untary organ donor, whereby previously expressed ma-ternal views regarding organ donation assume impor-tance. In this case, the mother had not expressed viewsregarding organ donation.

Legal issues

Given that the mother is legally dead, in strict legalterms, her rights are no longer of relevance. The legalrights conferred on the foetus are closely linked to thematernal right to therapeutic abortion, generally dependon gestational age, and vary across Europe. A foetus of13 weeks gestational age has no legal rights in severalEuropean countries, including Sweden, Germany, France,Austria and Belgium. The foetus would have very limitedlegal rights in countries such as Denmark, Greece, TheNetherlands, Italy, Norway and Switzerland. In GreatBritain, Portugal, Spain and Luxembourg further limitedrights are conferred on the foetus. In the Republic ofIreland the foetus is accorded a right to life from con-ception [9].

Sheikh and Cusack [9] in considering the medicolegalimplications of this protection in Ireland maintain thatthere is an obligation to maintain a foetus to a viablegestational age. However, if the available medical evi-dence suggests that the foetus could not be successfullymaintained, this would be considered futile therapy andwould not be permitted [9]. This position is supportedby the advice of the Legal Advisor to the Irish Govern-ment, who in a previous similar case stated that with-drawal of ventilation, nutrition and fluids would notrequire legal sanction given that the likelihood of suc-cessful foetal outcome was considered to be remote (IrishTimes, 16 June 2001, ‘Attorney General refused case ofbrain dead woman’). Therefore even where the foetus hasconsiderable legal rights, there appears to be no legalimperative to continue maternal somatic support wherethere is little likelihood of a successful foetal outcome.

Conclusions

The key issue, in determining whether to provide ex-tended maternal somatic support following brain death inan attempt to facilitate foetal maturation, remains thelikelihood of a successful outcome. A consensus buildingapproach that includes the immediate family, appropriatelegal advice and external medical experts is central toresolving this issue. The immediate family must be cen-trally involved, and the wishes of the mother, whetherexpressed or implied, should be determined. The culturaland social differences that exist throughout Europe maymake it necessary for each country or institution treatingthese patients to develop their own guidelines.

Acknowledgements The authors wish to acknowledge the legalassistance and advice provided by Padraic Brennan, David Barni-ville B.L. and Donal O’Donnell S.C.