The ‘Should Brain-Dead Women Be Used As Surrogates’ Debate, Explained

A philosophy paper platformed by Fox News and the Daily Mail has gone viral, as the question it poses feels a lot less abstract in our post-Roe v. Wade reality.

By Kylie Cheung | February 6, 2023 | 4:30pm

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The ‘Should Brain-Dead Women Be Used As Surrogates’ Debate, Explained

Our post-Roe v. Wade country has essentially turned pregnancy into the Wild West—a woman forced to carry fetuses with parts of its skull missing, useless abortion exceptions that no one understands casually tossed around, a debate over forcing child rape survivors to carry pregnancies to term, maternal mortality rates set to sky-rocket. And adding to this, now, the sudden, apparent supremacy of embryos’ and fetuses’ rights over those of actual pregnant and pregnant-capable people—a concern that’s been inflamed by a recent viral debate about whether brain-dead people with uteruses should be used as surrogates.

Last week, a paper by a Norwegian philosopher originally published in the Journal of Theoretical Medicine and Bioethics in November began making the rounds after being elevated in tabloids like the Daily Mail and Fox News. In her paper, philosophy professor Anna Smajdor argues that—with potential surrogates’ consent—“whole body gestational donation,” or WBGD, should be normalized like organ donation. Smajdor wrote: “Since we are happy to accept that organ donors are dead enough to donate, we should have no objections to WBGD on these grounds. WBGD donors are as dead as other donors—no more, no less.” She also argues that “pregnancies can be successfully carried to term in brain dead women,” and “there is no obvious medical reason why initiating such pregnancies would not be possible.”

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The paper has understandably sparked outrage, though its many critics—including Game of Thrones alum Nathalie Emmanuel—inaccurately claim that Smajdor is calling for governments to impose WBGD on brain-dead individuals without their consent. Smajdor’s paper, instead, suggests that people with uteruses should have the option to request that their bodies be used as surrogates, just as anyone can request to be an organ donor upon their death.

Yet, even with consent accounted for, the philosophical debate remains eerie and unsettling because, frankly, it feels like the natural direction in which we’re already heading. Women’s bodies are effectively being treated as incubators, machines whose reproduction is subject to government surveillance, regulation, and punishment.

Even before Roe was overturned, pregnant people faced criminal charges for endangering their fetus after allegedly using substances, or after reckless driving—even after surviving violence. Doctors have called the police on patients who go to the emergency room for miscarriage or stillbirths, holding them liable for the outcomes of their pregnancies. Post-Roe, adults and children have been denied life-saving medications that can induce miscarriage or impact fertility. In Mississippi—and other states—you can be denied a divorce while pregnant. All of these situations are predicated on the separation of “the fetus from the pregnant person,” Lauren Wranosky, a research associate at Pregnancy Justice, told Jezebel last month. It’s the prioritization of the life of a potential human over the actual human carrying it. The natural end-game of this certainly seems like pregnant people’s near-lifeless bodies kept alive solely to harvest babies.

And, of course, prior consent to WBGD doesn’t account for everything—a person can change their mind about being used for surrogacy at any time, but not have the opportunity to address this before befalling some tragedy and winding up in a coma. In their comatose state, they’ll hardly be able to advocate for themselves. And if they are impregnated while brain-dead, what are their rights, then? People facing pregnancy-related emergencies in states with abortion bans are constantly turned away from hospitals, told not to seek care until they’re on the brink of death or simply redirected to travel to states without bans, by doctors who fear prison sentences for helping them.

Much of the criticism surrounding Smajdor’s paper is rooted in misinformation about what it does and doesn’t say. Still, its salience in the public conversation right now, specifically, reflects something deeper in the wake of the Supreme Court revoking 50 years of reproductive rights.