1 There is no universal consensus on what constitutes brain death. EF Wijdics, Brain Death Worldwide: Accepted Fact but No Global Consensus in Diagnostic Criteria, 58 NEUROLOGY 20 (2002). For the purposes of this Article, brain death means the irreversible loss of consciousness and the irreversible loss of all brainstem functions (including respiration).

We should distinguish among three different situations: “[(1)] Loss of capacity from cerebral injury with a chance of recovery[; (2)] Loss of capacity from cerebral injury with no chance of recovery[; and (3)] Pregnant women who are brain stem dead.” Nicola S. Peart et al., Maintaining a Pregnancy Following Loss of Capacity, 8 MED. L. REV. 275, 286 (2000). In the first two situations, treatment decisions are made by the patient's surrogate decision-makers and/or next-of-kin. When the patient's wishes and views are unknown, treatment decisions are made in the patient's best interests. Usually, that means that the patient-mother's interests prevail over her fetus. This Article will only deal with the third situation. Id.

2 See Deborah Lyon, Perimortem Cesarean Delivery, at http://www.emedicine.com/med/topic3398.htm (last updated Mar. 13, 2002) (discussing fetal viability).

3 David, R. Field et al., Maternal Brain Death During Pregnancy: Medical and Ethical Issues, 260 JAMA 816, 817 (1988)Google Scholar.

4 J.E., Heikkinen et al., Life Support For 10 Weeks With Successful Fetal Outcome After Maternal Brain Damage, 290 BRIT. MED. J. 1237, 1237-38 (1985)Google Scholar (describing mother's death at twenty-one weeks of gestation and child's delivery by caesarean section at thirty-one weeks of gestation).

5 Deborah, M. Feldman et al., Irreversible Maternal Brain Injury During Pregnancy: A Case Report and Review of the Literature, 55 OBSTETRICAL & GYNECOLOGICAL SURVEY 708, 709 (2000)Google Scholar.

6 I. M. Bernstein et al., Maternal Brain Death During Pregnancy and Prolonged Fetal Survival, 74 OBSTETRICS & GYNECOLOGY 434 (1989).

7 See Robert K. Arthur, Postmortem Cesarean Section 132 AM. J. OBSTETRICS & GYNECOLOGY 175, 176 (1978); Erich H. Loewy, The Pregnant Brain Dead and the Fetus: Must We Always Try to Wrest Life from Death?, 157 AM. J. OBSTETRICS & GYNECOLOGY 1097, 1097-98 (1987).

8 The term “Caesareans” traditionally referred to actions, which were “carried out on women who had died before delivering their babies.” Peart et al., supra note 1, at 295 n.84.

9 On April 24, 1999, Maria Lopez slipped into what doctors described as an irreversible coma. Liz Townsend, Twins Born Healthy After Mother Wakes From “Irreversible” Coma, at http://www.nrlc.org/news/1999/NRL899/twins.html (last visited Mar. 28, 2004). At that time, Lopez was pregnant with twins, leaving her family with the difficult decision whether to maintain her on life support until the delivery of her twins. Even though Lopez's family was advised to withdraw life support measures, they did not, and subsequently the two children were successfully delivered prematurely through cesarean section. Id.

10 See Richard Paige, Post-Mortem Pregnancies: A Legal Analysis, in New Directions for Our Gradual Evolution, DISPATCHES (Centre for Medical Law & Ethics, London, Eng.), Jan. 2000, at 2, available at http://www.kcl.ac.uk/depsta/law/research/cmle/disparchive/9(3).pdf (citing Univ. Health Servs., Inc. v. Piazzi, No. CV86-RCCV-464 (Ga. Super. Ct. Aug. 4, 1986) and stating that “[i]n this case, the court ordered that life support must be maintained for a brain-dead pregnant woman. The order of the court was supported by the child's father, but was opposed by the dead woman's husband. The child was delivered at twenty-two weeks, but died two days later.”).

11 Sophia Park, twenty-five years old, lost consciousness on November 17, 1999, and was declared brain dead ten days later. Park was ten-weeks pregnant. Park's husband and parents, a devoutly Christian family, asked their doctors at Toronto Western Hospital to have her kept on life support. The Park family went to the press and accused Sophia's doctors of trying to convince them to end life support. The fetus died on December 3rd, while Park was still on life support. See Jonathon Gatehouse, Family Fights To Save Foetus: Pregnant Mother Misdiagnosed, Now in Irreversible Coma, NATIONAL POST (Can.), December 2, 1999.

12 A young pregnant woman, Marion Ploch, died in a car accident on October 5, 1992. As she was only thirteen weeks pregnant, a decision was made to keep her on life support for a minimum of twelve weeks. Marion's parents feared that their daughter's body would be misused for an inappropriate experiment. Eventually Marion's doctors and parents agreed that she would remain on life support, but almost six weeks after her parents agreed to the treatment, efforts to save the fetus failed when the fetus spontaneously aborted. For a detailed description, comments, and public response to this incident, see Christoph Anstötz, Should a Brain-Dead Pregnant Woman Carry Her Child to Full Term? The Case of the “Erlanger Baby,” 7 BIOETHICS 340 (1993).

13 Carol Coulter & Geraldine Kenney, Brain-dead Woman Was Kept Alive Because of Pregnancy: Health Board Belived Case Could Pose an Ethical Dilemma, IRISH TIMES, June 15, 2001, at 1. In May 2001 in Ireland, a 14-week pregnant woman collapsed and suffered a brain hemorrhage and was declared brain dead. Due to uncertainty regarding the hospital's obligation to the fetus, life support was maintained until further opinion could be sought. The relevant health board decided to maintain the dead mother on life support, until the fetus died in utero, two weeks later.

14 Two legal cases of maternal brain death are reported. The husband of a woman who was twenty-eight-weeks pregnant and in a permanent vegetative state, asked for a judicial declaration that upon brain death the hospital would be compelled to deliver the fetus. The court did in fact issue the order. In the second case, the court refused to issue an order requiring the hospital to deliver the eight-month-old fetus. See infra Section IV, notes 303-305 and accompanying text.

15 An Istanbul hospital turned off life support for Nina Typol, a twenty-five-year-old pregnant German woman, who remained in a coma, after being shot in the head by her fiancé. Brain-dead German Woman's Organs to be Donated to Turkish Patients, TURKISH DAILY NEWS (Ankara), Feb. 8, 2003, available at http://www.turkishdailynews.com/old_editions/02_08_03/dom2.htm#d22.

16 A more complex, and yet real situation is where the vital organs of an irreversibly brain-damaged pregnant woman on life support could be harvested for organ donation. In the literature, there has been a report of two such cases. Feldman et al., supra note 5, at 708, 712-13.

17 See Janet Gallagher, Fetus As Patient, in REPRODUCTIVE LAWS FOR THE 1990S 185 (Sherrill Cohen & Nadine Taub eds., 1989). Gallagher strongly claims that:

Id. at 192.

18 Anne, D. Lederman, A Womb of My Own: A Moral Evaluation of Ohio's Treatment of Pregnant Patients with Living Wills, 45 CASE W. RES. L. REV. 351, 365 (1994)Google Scholar.

19 John, J. Worley, Foreword, The Lawyer's Duty to Promote the Common Good, 40 S. TEX. L. REV. 1, 13-14 (1999)Google Scholar.

20 Id.

21 Classical formulations of the principle of double effect require that four conditions be met if the action in question is to be morally permissible: first, that the action contemplated be in itself either morally good or morally indifferent; second, that the bad result not be directly intended; third, that the good result not be a direct causal result of the bad result; and fourth, that the good result be “proportionate to” the bad result. See Principle of Double Effect, 4 NEW CATHOLIC ENCYCLOPEDIA (1967), available at http://www.trosch.org/phi/dbl-efft.htm.

22 Michael, Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995 (2003)Google Scholar.

23 Roe v. Wade, 410 U.S. 113 (1973).

24 Doe v. Bolton, 410 U.S. 179 (1973).

25 Roe, 410 U.S. at 164.

26 Id. at 149-50.

27 Id. at 164-65.

28 Id. at 163.

29 Id. at 164.

30 “To a large extent, the issue [of viability] is symbolic, since ninety-eight percent of abortions occur in the first fourteen weeks [of pregnancy].” John A. Robertson, Reconciling Offspring and Maternal Interests During Pregnancy, in REPRODUCTIVE LAWS FOR THE 1990S 259, 267 (Sherrill Cohen & Nadine Taub eds., 1989).

31 Asim, A. Sheikh & Denis, A. Cusack, Maternal Brain Death, Pregnancy and the Foetus: The Medico-Legal Implications, 7 MEDICO-LEGAL J. IR. 75, 79 (2001)Google Scholar (quoting Attorney General v. X, [1992] I.L.R.M. 401, 442 (Ir.S.C.) (Ire.)).

32 Roe, 410 U.S. at 164-65.

33 476 U.S. 747 (1986).

34 Id. at 768-72.

35 410 U.S. 179.

36 Id. at 202 (reproducing the Georgia criminal statute that the Supreme Court was analyzing).

37 Id.

38 Doe, 410 U.S. at 186.

39 Id. at 179.

40 Id. at 202.

41 Id. at 189 (referring to dicta in Roe limiting the right to abortion on demand). See also Roe, 410 U.S. at 153-54.

42 Doe, 410 U.S. at 218 (Douglas, J., concurring).

43 Id. at 220-21.

44 492 U.S. 490 (1989).

45 MO. ANN. STAT. §§ 1.205.1(1), (2) (West 2000).

46 MO. ANN. STAT. § 188.205 (West 2000).

47 Webster, 492 U.S. at 506.

48 Id. at 514-17.

49 Id. at 519-20.

50 Id. at 518 (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546 (1985)).

51 Id. at 521.

52 Thomas, H. Murray, Moral Obligation to the Not-Yet Born: The Fetus As Patient, 14 CLINICS IN PERINATOLOGY 329, 332 (1987)Google Scholar.

53 505 U.S. 833, 878-79 (1992).

54 Id. at 876-78.

55 Timothy, Stoltzfus Jost, Rights of Embryos and Foetus in Private Law, 50 AM. J. COMP. L. 633, 646 (2002)Google Scholar.

56 R.S.C., ch. C-46, § 287 (1993) (Can.). Interestingly, the woman was also subject to a criminal penalty, albeit a lesser one than prescribed for the abortion provider. Section 287 reads:

Id.

57 Id. § 287(4).

58 Id.

59 R. v. Morgentaler, [1988] 44 D.L.R. 4th 385, 386 (Can.).

60 In practice, the criteria of endangering the woman's health were applied unevenly across locations and committees, and additional criteria (such as consent of a spouse, gestational limits, residency restrictions, etc.) were also required. Many hospitals did not establish committees, while others merely created a committee on paper, but its members never met to consider abortion applications. See Canada, Dept. of Justice, Committee on the Operation of the Abortion Law, Report (Ottawa: Minister of Supply and Services Canada, 1977).

61 Bernard Dickens, Legal Aspects of Abortions, in ABORTION: READINGS AND RESEARCH 16, 18 (Paul Sachdev, ed., Butterworths 1981).

62 Id. at 17.

63 Morgentaler [1988] 44 D.L.R. 4th at 385 (Can.).

64 Id. at 385.

65 Justice Wilson wrote:

Id. at 173-74.

66 Id. at 388.

67 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms therein contained subject to reasonable limits. Canadian Charter of Rights and Freedoms, S.C., ch. 11, schedule B, ¶ 1 (1982) (Can.), available at http://laws.justice.gc.ca/en/charter/#garantie.

68 Morgentaler [1988] 44 D.L.R. 4th at 388-89.

69 Id. at 388.

70 Compare Morgentaler, [1988] 44 D.L.R. 4th at 385 (Can.), with Roe v. Wade, 410 U.S. 113 (1973) (holding abortion is a fundamental right and declaring that a state anti-abortion statute violated plaintiff's personal liberty right).

71 Bill C-43 proposed to recriminalize abortions except where a woman's medical practitioner was of the opinion that her health or life would likely to be threatened, but the legislation was defeated in the Senate by a vote of 43 to 43 in January 1991. Ontario (Attorney General) v. Dieleman, [1994] O.R.3d 229 (explaining that a tie vote is deemed to be a negative vote under Senate rules).

72 Tremblay v. Daigle, [1989] 59 D.L.R. 4th 609, 634 (Can.).

73 Id. at 637.

74 Id. at 641.

75 Id.

76 Id.

77 Id. at 609.

78 Tremblay v. Daigle, [1989] 2 S.C.R. 530 (Can.).

79 Id. at 552-55.

80 Id. at 556-63.

81 Id. at 565-70.

82 Id. at 572.

83 Diamond v. Hirsch, [1989] M.J. No. 377 (QL) (Q.B.) (1989 Man. D. LEXIS 429).

84 Id.

85 Id.

86 Id.

87 Id.

88 Id.

89 Sanda Rodgers, The Legal Regulation of Women's Reproductive Capacity in Canada, in CANADIAN HEALTH LAW AND POLICY 331, 339 (J. Downie et al. eds., 2nd ed. 2002).

90 David, M. Kaplan, Fetal Protection Laws: Is There a Need to Renew the Abortion Debate?, 160 CAN. MED. ASS’N J. 1119 (1999)Google Scholar, available at http://collection.nlcbnc.ca/100/201/300/cdn_medical_association/cmaj/vol-160/issue-8/1119b.htm.

91 Charity, Scott, Resisting the Temptation to Turn Medical Recommendation into Judicial Orders: A Reconsideration of Court-Ordered Surgery for Pregnant Women, 10 GA. ST. U. L. REV. 615, 643 (1993)Google Scholar.

92 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 837 (1992).

93 Id. See also Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) (holding, in part, that a Missouri statute requiring consent for minor abortions within the first twelve weeks of pregnancy was unconstitutional).

94 Molly, C. Dyke, A Matter of Life and Death: Pregnancy Clauses in Living Will Statutes, 70 B.U. L. REV. 867, 876 (1990)Google Scholar (emphasis added).

95 Book Review, 9 IND. J. GLOBAL LEGAL STUD. 555, 567 (2002) (expressing author Margaret Somerville's concern that women will legally be able to have an abortion up to the day before she gives birth because of the Canadian Parliament's failure to act).

96 Dickens, supra note 61, at 22.

97 Peter, J. Longo, The Human Genome Project's Threat to the Human Constitution: Protections from Nebraska Constitutionalism, 33 CREIGHTON L. REV. 3, 19 (1999)Google Scholar.

98 See Chi Carmody, When “Cultural Identity Was Not an Issue”: Thinking About Canada—Certain Measures Concerning Periodicals, 30 L. & POL’Y INT’L BUS. 231, 250 n.60 (1999) (citing that freedom of choice in Canada is a large part of Canadian culture).

99 See, e.g., Tremblay, [1989] 2 S.C.R. at 552-55 (explaining in dicta that the framers of the Quebec Charter of Human Rights & Freedoms did not indicate any intention to consider the status of fetuses, and therefore fetuses, in general, are not accorded the right to life under the Charter).

100 Id.; see also Winnipeg Child & Family Servs. (Northwest Area) v. G.(D.F.), [1997] S.C.R. 925, 939 (Can.) (stating that a fetus has no rights or interest until birth).

101 Judith Jarvis Thomson, A Defense of Abortion, in CONTEMPORARY ISSUES IN BIOETHICS 202, 209 (Tom L. Beauchamp & LeRoy Walters, eds., 5th ed. 1999).

102 For example, under common law, courts have refused to require individuals to donate bone marrow to dying relatives, or to permit hospitals to perform caesarean sections on unwilling patients. See, e.g., In re A.C., 573 A.2d 1235, 1244 (D.C. Cir. 1990); McFall v. Shimp, 10 P. D. & C.3d 90, 91 (Allegheny County Ct. 1978); see also Jeffrey Kahn, Commentary, Making the Most of Strangers’ Altruism, 30 J.L. MED. & ETHICS 446, 447 (2002) (“There is a history of courts refusing to require beneficent acts on the part of individuals, even if they would be lifesaving.”).

103 This legislation also deals with inter vivos gifts for transplants, that is, the extraction of organs from living persons. However, this Article will not discuss this issue.

104 See R., Alta Charo, Skin and Bones: Post-Mortem Markets in Human Tissue, 26 NOVA L. REV. 421, 425 (2002)Google Scholar (“[I]n most cases, the donor of a cadaver organ for transplantation cannot be paid for the organ, but the living donor of certain types of tissue (blood, sperm, eggs, genes) may be compensated.”).

105 See Alberta, Human Tissue Gift Act, R.S.A., ch. H-15 (2000) (Can.); British Columbia, Human Tissue Gift Act, R.S.B.C., ch. 211 (1996) (Can.); Ontario, Trillium Gift of Life Network Act, R.S.O., ch. H-20 (1990) (Can.); Manitoba, Human Tissue Gift Act, R.S.M., ch. 39 (1987) (Can.); New Brunswick, Human Tissue Act, R.S.N.B., ch. H-12 (1986) (Can.); Prince Edward Island, Human Tissue Donation Act, R.S.P.E.I., ch. H-12.1 (1988) (Can.); Yukon Territory, Human Tissue Gift Act, R.S.Y., ch. 89 (1986) (Can.); Nova Scotia, Human Tissue Gift Act, R.S.N.S., ch. 215 (1989) (Can.); Saskatchewan, Human Tissue Act, R.S.S., ch. H-15 (1978) (Can.); Nunavut, Human Tissue Act, R.S.N., ch. H-15 (1990) (Can.); Northwest Territories, Human Tissue Act, R.N.W.T., ch. H-6 (1988) (Can.).

106 See, e.g., Human Tissue Gift Act, R.S.A., ch. H-15, § 4(1) (2000) (Can.).

107 R.S.A., ch. H-15, § 5(1) (2000). The Alberta statute adds a same-sex partner to the list of the people who can make decisions on behalf of the deceased.

108 See Charo, supra note 104, at 425 (“Bodily integrity is a highly protected legal and cultural value in the United States, and informed, uncoerced consent is necessary before any bodily invasion.”).

109 See, e.g., Human Tissue Gift Act, R.S.A., ch. H-15 § 1(e) (2000). UNIF. HUMAN TISSUE DONATION ACT § 1 U.L.C.C. (1990) (Can.), available at http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1h1 (“‘[T]issue’ means a part of a living or dead human body, but does not include (a) spermatozoa or ova, (b) an embryo or fetus, or (c) blood or blood constituents.”).

110 Trillium Gift of Life Network Act, R.S.O., ch. H-20, § 1 (1990) (Can.) (defining “tissue”).

111 Civil Code of Quebec, S.Q., ch. 64, § 11 (1991) (Can.).

112 S.Q., ch. 64, § tit. 2, ch. 1, sec. 1, art. 19.

113 S.Q., ch. 64, § tit. 2, ch. 1, sec. 1.

114 UNIF. ANATOMICAL GIFT ACT (“UAGA”), NAT’L CONFERENCE OF COMM’RS ON UNIFORM STATE LAWS, § 3 (1987).

115 UAGA § 3.

116 There is some uncertainty as to who this person is. Such a person could be the executor nominated in a will, a close family member or the person in charge of the hospital where her body is lying, but there could be other persons that can fit to this description.

117 Human Tissue Act, 1961, c. 54 §§ 1-4 (1961) (Eng.).

118 1961, c. 54 §§ 1-4.

119 Human Tissue Bill: Explanatory Notes, at ¶ 4, available at http://www.publications.parliament.uk/pa/cm200304/cmbills/009/en/04009x--.htm (Dec. 4, 2003).

120 Id. at ¶ 5(a).

121 Id. at ¶ 5(b)(2). Paragraph 4 to the Bill provides the mechanism through which such an appointment should be made to be valid.

122 Id. at ¶ 5(c).

123 Loewy, supra note 7, at 1099.

124 Id.

125 See Jay, E. Kantor & Iffath, Abbasi Hoskins, Brain Death in Pregnant Women, 4 J. CLINICAL ETHICS 308, 311-12 (1993)Google Scholar.

126 Id. at 311.

127 Id. at 311-12.

128 Id. at 312.

129 Id.

130 Id.

131 Id. at 313.

132 Peart et al., supra note 1, at 295. Peart and her colleagues claim, however, that maintaining a brain-dead pregnant woman on life support is neither in nor against the woman's best interests, and could therefore be considered “‘a-therapeutic,’ because [the woman] has no real interests.” Id. at 290.

133 Id. at 283.

134 Id.

135 Id.

136 Id. at 283-84.

137 Id. at 284 n.37.

138 Robert Veatch, Maternal Brain-Death: An Ethicist's Thoughts 248 JAMA 1102 (1982).

139 Id.

140 Lyon v. United States, 843 F. Supp. 531, 536 (D. Minn. 1994).

141 See, e.g., Trillium Gift of Life Network Act, R.S.O., ch. H-20 (1990) (Can.).

142 Jacqueline, J. Glover, Incubators and Organ Donors, 4 J. CLINICAL ETHICS 342, 344 (1993)Google Scholar.

143 Richard Paige, Post-Mortem Pregnancies: A Legal Analysis, in New Directions for Our Gradual Evolution, DISPATCHES (Centre for Medical Law & Ethics, London, Eng.), Jan. 2000, at 5, available at http://www.kcl.ac.uk/depsta/law/research/cmle/disparchive/9(3).pdf.

144 See generally Moore v. Regents Univ. California, 271 Cal. Rptr. 146 (1990). In this case, the plaintiff had his spleen removed as part of his treatment for a particular form of leukemia. Id. at 148. On discovering that a cell line had been developed from this, which had the potential to generate a lot of money, Moore sued under a variety of headings. Id. at 148-49. The Supreme Court of California held that there were no, or only very limited, property rights in any cells removed from the human body. Id. at 155-56. The court dealt with the case by applying the principle of consent to medical treatment rather analyzing it from a property law perspective. Id. at 152.

145 20 Cal. Rptr. 2d 275 (Cal. Ct. App. 1993). In this case, William Kane had committed suicide and left behind vials of his sperm. Kane has also left instructions that the sperm was for the use of his partner, Deborah Hecht. Kane's existing child from his first marriage sought to challenge Hecht's right to use the sperm. Id. 276-77. The Court of Appeal ruled that sperm could be bequeathed in a will and that Kane had the capacity to decide upon the use of his sperm. See id. at 283-91.

146 T.G.I. Creteil, Aug. 1, 1984, Gaz. Pal. 1984, 2, pan. jurisp., 560. In this case, Alain Parpalaix stored his sperm before beginning treatment for testicular cancer. After his death, his widow asked for his sperm for insemination, but the request was refused by the sperm bank, CECOS. Id. The refusal was based on the assertion that sperm was an indivisible part of the body and could not be heritable property in the absence of specific instructions from the person with whom the bank had contracted. Id. The tribunal court held that by depositing the sperm, Alain Paraplaix's intentions were clear, and awarded the sperm to his wife. Id.

147 G.I. de Toulouse, 4 ch. civ., Mar. 26, 1991, 62 LaSemaine Jurdique 21807. In this case, having learned from the experience of the Parpalaix case, the sperm bank told Michel G., who was also about to undergo treatment for testicular cancer, and wished to store his sperm, that their policy was that posthumous insemination was unacceptable. Id. Michel's widow wanted to obtain the sperm, but it was held that the legitimate desire to have a child does not create an indefensible right to a child. Id.

148 842 S.W.2d 588, 594-97 (Tenn. 1992).

149 Davis v. Davis, No. 180, 1990 Tenn. App. WL 130807, at *2 (Tenn. App. Sept. 13, 1990).

150 The word “may” in English law can also support such a reading. Paige, supra note 143, at 5.

151 Hilde, Lindemann Nelson, The Architect and the Bee: Some Reflections On Postmortem Pregnancy, 8 BIOETHICS 247, 259 (1994)Google Scholar.

152 Trillium Gift of Life Network Act, R.S.O., ch. H-20, § 4(3) (1990) (Can.).

153 Allen Hunter, In the Wings: New Right Ideology and Organization 15 RADICAL AMERICA 113, 132 (1981).

154 See, e.g., CONTEMPORARY ISSUES IN BIOETHICS 273-74 (Tom L. Beauchamp & LeRoy Walters eds., 4th ed. 1994).

155 See, e.g., Peter Singer, Animal and the Value of Life, in MATTERS OF LIFE AND DEATH: NEW INTRODUCTORY ESSAYS IN MORAL PHILOSOPHY 280, 305 (Tom Regan ed., 1993) (“[M]erely being a member of the species Homo sapiens cannot carry with it any special moral status. Once this is accepted, it places [humans] who are not persons in the same category as non-human animals.”).

156 See, e.g., Joel Finberg & Barbara Baum Levenbook, Abortion, in MATTERS OF LIFE AND DEATH, NEW INTRODUCTORY ESSAYS IN MORAL PHILOSOPHY, 195, 227 (“The one-celled speck of protoplasm or small cluster of cells of which we speak has none of the characteristics we normally have in mind when we speak of persons.”).

157 See id. at 201 (“In the commonsense way of thinking, persons are those beings who, among other thins, are conscious, have a concept and awareness of themselves, are capable of experiencing emotions, can reason and acquire understanding, can plan ahead, can act on their plans, and can feel pleasure and pain.”).

158 See Mary Anne Warren, On the Moral and Legal Status of Abortion, in THE PROBLEM OF ABORTION 102 (Joel Feinberg ed., 2d ed. 1984). Warren claims that consciousness, reasoning, selfmotivated activity, advanced communicative abilities, and the presence of self-concepts are at least jointly sufficient for being a person. Id.

159 Biologically, this can be true. If the brain is taken to be the “seat” of all thought process, governing not only conscious thought, but also emotions, aesthetic sensibilities, capacity for social interaction, and spiritual awareness, then irreversible loss of brain function may constitute the death of a person. However, as Douglas Shrader argues, a human being is a composite of two intimately related but conceptually distinguishable components: a biological entity and a person. Douglas, Shrader, On Dying More Than One Death, 16 HASTINGS CTR. REP. 12, 13 (1986)Google Scholar. Humans, so the argument goes, may also be subject to different sorts of death. Thus, the person dies upon brain death, whereas the biological entity dies upon cessation of the heart. Id.

160 See discussion on the rights and interests of brain-dead mothers, infra pp. 479-487.

161 See 131 CONG. REC. S2261 (1985) (daily ed. Feb. 27, 1985) (statement of Sen. Hatch). For a general discussion of “human life bills” introduced in the last two decades, see Pamela, Harris, Compelled Medical Treatment of Pregnant Women: The Balancing of Maternal and Fetal Rights, 49 CLEV. ST. L. REV. 133, 139-40 (2001)Google Scholar.

162 James M. Jordan III, Note, Incubating for the State: The Precarious Autonomy of Persistently Vegetative and Brain-Dead Pregnant Women, 22 GA. L. REV. 1103, 1123 n.73 (1988).

163 See, e.g., R. v. Sullivan, [1991] 1 S.C.R. 489 (Can.). In Sullivan, two midwives assisted in a home-birth but, due to complications, were unable to deliver the baby. Id. En route to hospital, the baby was delivered stillborn. Id. The Supreme Court of Canada ruled that the midwives could not be convicted of criminal negligence in causing the death of the baby, because the term “person” as applied in section 203 to the Criminal Code (now § 220) does not include a fetus not born alive. Id. Criminal Code, R.S.C., ch. C-34, § 203 (1970) (Can.), amended by ch. C-46, § 220 (1985) (Can.), construed in R. v. Sullivan [1991] 1 S.C.R. 489. In Tremblay v. Daigle, the plaintiff attempted to obtain an injunction preventing a woman from terminating her pregnancy on the grounds that the fetus was a “human being” and had a “right to life” under section 1 to Quebec Charter of Human Rights and Freedoms. [1989] S.C.R. 530. The Supreme Court of Canada denied the injunction request because the fetus was not recognized as a juridical person under Canadian law.

164 Rodgers, supra note 89, at 342.

165 E.g., Winnipeg Child & Family Servs. [1997] S.C.R. at 945 (Can.).

166 Legislatures are affording greater protection to fetuses. For instance, some statutes criminalize the killing of a fetus as separate from homicide. Other states have gone even farther, including the killing of a fetus with malice aforethought in their definition of homicide. E.g., CAL. PENAL CODE § 187 (West 1999).

167 Civil law remedies are available primarily through actions for prenatal injuries. For examples in the area of succession and workman's compensation, where the fetus’ interests seem to be protected prior to birth, see Peart et al., supra note 1 at 293, n.76. For recognition of a duty of care owed to the fetus by an Australian court, see Watt v. Rama (1972) volume V.R. 353. British law confers the right to sue those who caused prenatal injury. Congenital Disabilities (Civil Liability) Act of 1976, c. 28, § 1 (Eng.). For a detailed discussion on the legal protection of the fetus, see Jost, supra note 55.

168 Peart et al., supra note 1, at 287.

169 Id. This is the case in England. E.g. Paton v. Trustees of The British Pregnancy Advisory Service and Another, 2 All E.R. 987, 989 (QB 1978) (Eng.). In Israel, the Capacity and Guardianship Law of 1962 states that every person is capable of having rights and obligations from birth until death. Nevertheless, section 33(a)(6) allows the nomination of a custodian to the fetus.

170 For an elaborate discussion on this model and two other models, see JOHN SEYMOUR, CHILDBIRTH AND THE LAW 191-202 (2000).

171 Winnipeg Child & Family Servs. [1997] S.C.R. at 945 (Can.). See Melanie, Randall, Pregnant Embodiment and Women's Autonomy Rights in Law: An Analysis of the Language and Politics of Winnipeg Child and Family Services v. D.F.G., 62 SASK. L. REV. 515 (1999)Google Scholar.

172 A-G's Reference (No. 3 of 1994), [1997] 3 All E. R. 936, 943 (describing the maternal-fetal relationship as “an intimate bond” the mother and the fetus as two distinct organisms living symbiotically). The court saw the fetus as a unique organism and, thus was reluctant to apply to such an organism the principles of a law evolved in relation to autonomous beings. Id.

173 See SEYMOUR, supra note 170, at 199-200.

174 THE HOURS (Miramax Films 2002).

175 RONALD DWORKIN, LIFE's DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA AND INDIVIDUAL FREEDOM 55 (1993).

176 IRIS M. YOUNG, Pregnant Embodiment: Subjectivity and Alienation, in THROWING LIKE A GIRL AND OTHER ESSAYS IN FEMINIST PHILOSOPHY AND SOCIAL THEORY 160, 167 (1990) (“The dominant culture projects pregnancy as a time of quiet waiting. We refer to the woman as ‘expecting,’ as though this new life were flying in from another planet and she sat in her rocking chair by the window, occasionally moving the curtain aside to see whether the ship is coming.”).

177 Moreover, commentators have argued that when the state subordinates a pregnant woman's choice to the rights of her fetus, the state is viewing the woman and her fetus as two distinct entities with hostile interests. See Dyke, supra note 94, at 886 (1990). For example, in AG v. X., the Supreme Court of Ireland stated, “[O]ne cannot consider the unborn life only as part of the maternal organism. The extinction of unborn life is not confined to the sphere of private life of the mother or family because the unborn life is an autonomous human being protected by the Constitution.” Sheikh & Cusack, supra note 31, at 79 (quoting AG v. X, [1992] I.L.R.M. 401, 442 (Ir. S.C.) (Ire.)).

178 LA. CIV. CODE. ANN. art. 25. (West 1999); Frank, A. Chervenak & Laurence, B. McCullough, Clinical Management of Brain Death During Pregnancy, 4 J. CLINICAL ETHICS 349, 349 (1993)Google Scholar.

179 Alan R. Fleischman, The Fetus Is a Patient, in REPRODUCTIVE LAWS FOR THE 1990S 249, 254 (Sherrill Cohen & Nadine Taub eds., 1989).

180 Id.

181 Id.

182 Peart et al., supra note 1, at 293. This would limit the right of the person responsible for burying the mother, commonly the next of kin, as the latter would not be entitled to possession of the body until the child is delivered (or died in utero). Another way to protect the fetus would be to claim that the fetus has an interest to be born healthy, such as argued by John Robertson. John Robertson, Reconciling Offspring and Maternal Interests During Pregnancy, in REPRODUCTIVE LAWS FOR THE 1990S 259 (Sherrill Cohen & Nadine Taub eds., 1989). This is an uncommon argument and I will not discuss it here. It is important to mention that when defined as an interest to be born healthy rather than as a right to life, the first has a weaker moral weight than the latter, and this is also acknowledged by Robertson himself, who asserts that this interest does not automatically override the mother's interests. Id. at 261.

183 Canadian Charter of Rights and Freedoms, S.C., ch. 11, § 7 (1982) (Can.), available at http://laws.justice.gc.ca/en/charter/#garantie.

184 See id. at §§ 3, 11, 15 (describing rights in terms of the individual, person, and citizen).

185 See, e.g., Winnipeg Child & Family Servs. [1997] S.C.R. at 942-45 (Can.) (stating that the law does not generally recognize rights of the unborn except for limited purposes once born alive and viable).

186 See, e.g., Roe, 410 U.S. at 158.

187 Peart et al., supra note 1, at 287; 3 Eur. Comm’n. H.R. Dec. & Rep. 408, 415 (“The ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman.”).

188 Thomson, supra note 101, at 206.

189 See Sheila A.M. McLean, Creating Postmortem Pregnancies: A U.K. Perspective 6 JUR. REV. 323 (1999).

190 Thomson, supra note 101.

191 Child & Family Servs. of Cent. Manitoba v. Lavallee, [1997] Man. R.2d 135 (Can.).

192 Id.

193 Id.

194 Id.

195 D. GARETH JONES, SPEAKING FOR THE DEAD: CADAVERS IN BIOLOGY AND MEDICINE 98 (2000).

196 Lyndon, M. Hill et al., Management of Maternal Vegetative State During Pregnancy, 60 MAYO CLINIC PROCEDURES 469 (1985)Google Scholar.

197 However, sometimes it is difficult to assess a clinical prognosis of the fetus, or such an assessment may take days or weeks, and in the meantime, the dead woman has to be kept “alive.” Id.

198 Peart et al., supra note 1, at 294. But see Feldman et al., supra note 5, at 710 (claiming that successful outcomes can occur even when the brain injury of the mother occurs much earlier than twenty-four weeks of gestation).

199 Peart et al., supra note 1, at 294.

200 A., Vives et al., Maternal Brain Death During Pregnancy, 52 INT’L. J. GYNECOLOGY & OBSTETRICS 67, 69 (1996)Google Scholar.

201 Bernstein et al., supra note 6, at 436; Jay E. Kantor & Iffath Abbasi Hoskins, supra note 125, at 308-09 (1993); Esther, Santos et al., Sheila's Death Created Many Rings of Life, 23 NURSING 44, 46 (1993)Google Scholar.

202 See James, J. Finnerty et al., Cerebral Arteriovenous Malformation in Pregnancy: Presentation and Neurologic, Obstetric, and Ethical Significance, 181 AM. J. OBSTETRICS & GYNECOLOGY 296, 298 (1999)Google Scholar.

203 The cost of maintaining a brain-dead pregnant woman over an extended period to produce a child is estimated to cost half a million US dollars or more. Id. at 300. Maintaining Donna Piazzi cost at least $1,200 per day, and caring for her baby in the neonatal unit cost $1,200-3,800 per day. Jordan, supra note 162, at 1110 n.25. Jeffery Spike, in his article on maternal brain death, estimates the cost to be at least $2,000 (U.S.) per day. See Jeffery, Spike, Brain Death, Pregnancy, and Posthumous Motherhood, 10 J. CLINICAL ETHICS 57, 60 (1999)Google Scholar; see also Nelson, supra note 151, at 251 (noting the 1993 cost of maintaining a postmortem pregnancy in a California county hospital was $3,200 per day). A possible solution to the high cost may be the state providing for “compensation” or expenses associated with the continued medical care of the incompetent pregnant woman's body. See 20 PA. CONS. STAT. §5414(c)(1) (2000). By this method, the state implicitly acknowledges its “taking” of the mother's body.

204 Gallagher, supra note 17, at 193-94.

205 But see Mari, Siegler & Daniel, Wikler, Brain Death and Live Birth, 248 JAMA 1101 (1982)Google Scholar; Veatch, supra note 138. The authors discuss the confusion, which rises in situations of maternal brain death and the difficulty in talking about the woman as dead while maintained on life support. Some authors suggest solving such a confusion by calling the “newly dead,” who is being maintained on life support, a patient in “a persistent brain death.” See Jeffery, Spike & Jane, Greenlaw, Ethics Consultation: Persistent Brain Death and Religion: Must a Person Believe in Death to Die?, 23 J. L. MED. ETHICS 290, 292 (1995)Google Scholar.

206 Peart et al., supra note 1, at 292 (“A woman who is brain stem dead is not [alive]….”).

207 Field, supra note 3, at 821; Norman, Frost, Case Study: The Baby in the Body, 24 HASTINGS CTR. REP. 31, 32 (1994)Google Scholar. But see Letter from Stephen Wear & William P. Dillon and Richard V. Lee, to editor, 261 JAMA 1728 (1989).

208 Peart et al., supra note 1, at 292 (“Once the mother has died, one could argue that life should take priority over death and the fetus should thus be accorded a right to life.”). See also Field, supra note 3, at 821.

209 The Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337 (1968).

210 UNIF. DETERMINATION OF DEATH ACT § 1, 12A U.L.A. 593 (1980); UNIF. BRAIN DEATH ACT § 1 (superseded 1980), 12 U.L.A. 65 (1978).

211 Id.

212 See generally CANADIAN CONGRESS COMMITTEE ON BRAIN DEATH, Death and Brain Death: A New Formulation for Canadian Medicine, 138 CAN. MED. ASS’N. J. 405 (1988).

213 See generally Marc-Andre Beaulieu et al., Guidelines for the Diagnosis of Brain Death, 26 CAN. J. NEUROLOGICAL SCI. 64 (1999).

214 UNIF. DETERMINATION OF DEATH ACT § 1, 12A U.L.A. 593 (1980).

215 Id. (stating also that the “determination of death must be made in accordance with accepted medical standards”).

216 See, e.g., GA. CODE ANN. § 31-10-16(c) (2001), available at http://www.legis.state.ia.us/GA/78GA/Legislation/SF/00200/SF00209/Current.html.

217 § 31-10-16.

218 Finnerty et al., supra note 202, at 302.

219 E.g. Jessica Berg, Grave Secrets: Legal and Ethical Analysis of Postmortem Confidentiality, 34 CONN. L. REV. 81, 91 (Fall 2001) (stating that although it is impossible for a body to experience legal harm after death, interests that existed ante mortem may continue to exist after death).

220 Spike & Greenlaw, supra note 205, at 293. See also Glover, supra note 142, at 343.

221 JONES, supra note 195. See also D. Gareth Jones, Lecture at Eighth Annual Jack W. Provonsha Lecture, Loma Linda University (Mar. 4, 1995), in 11 LLU CENTER FOR CHRISTIAN BIOETHICS, available at http://www.llu.edu/llu/bioethics/llethup114a.htm [hereinafter Jones Lecture].

222 JONES, supra note 195.

223 But see Jordan, supra note 162, at 1155 (arguing that “[i]n some circumstances the burden of maintaining a corporeal existence degrades the very humanity it normally serves.”).

224 Peart et al., supra note 1, at 297.

225 Id.

226 Matthew, H. Kramer, Do Animals and Dead People Have Legal Rights?, 14 CANADIAN .J. LAW & JURISPRUDENCE 29, 30 (2001)Google Scholar.

227 Id.

228 This is especially true in regards to interests in future child rearing. See Janice, MacAvoy-Snitzer, Pregnancy Clauses in Living Will Statutes, 87 COLUM. L. REV. 1280, 1298 (1987)Google Scholar.

229 ALLEN E. BUCHANAN & DAN W. BROCK, DECIDING FOR OTHERS: THE ETHICS OF SURROGATE DECISION MAKING 166 (1989).

230 Id.

231 It is important to see the distinction between the determination interest of what happens to one's own person from the self-interest a person has in what happens to another thing (which is not a person at all). This distinction has moral implications as the former interest has greater moral weight than the latter.

232 Sheila McLean uses even stronger language in arguing that we have an interest in not condoning an assault on the deceased. See McLean, supra note 189, at 341.

233 MARY WARNOCK, A QUESTION OF LIFE: THE WARNOCK REPORT ON HUMAN FERTILISATION AND EMBRYOLOGY 55 (1985).

234 McLean, supra note 189, at 336 (citation omitted).

235 Human Fertilisation and Embryology Act 1990, c. 37, § 28 (Eng.). However, this act was amended in 2003 to allow the register of deceased men's paternity. Human Fertilisation and Embryology (Deceased Fathers) Act 2003, c. 24 § 1 (Eng.).

236 JONES, supra note 195, at 42.

237 Id.

238 Id.

239 Some argue that maintaining the deceased on life support aids the grieving process. It “gives a family time to accept the reality of a sudden and unexpected event and to prepare for what would otherwise be a precipitous plunge into grief.” Spike & Greenlaw, supra note 205, at 292. See also Santos, supra note 201 (“The first 2 weeks after Sheila was declared brain-dead were the most difficult. Her husband visited daily. He was terribly distraught. Sometimes we’d find him lying next to Sheila, sobbing uncontrollably, his arms wrapped around her, clutching for the life that no longer existed.”).

240 Glover, supra note 142, at 344.

241 The case of Marion Ploch, for example, can teach us a lesson about the public reaction to such a procedure. See generally, note 12 supra.

242 Anstötz, supra note 12, at 344-45.

243 JONES, supra note 195, at 11.

244 Jones Lecture, supra note 221 (emphasis added).

245 N.J. STAT ANN. § 26:6A-5 (West 1996); N.Y. COMP. CODES R. & REGS. § 400.16(d), (e)(3) (2002).

246 See generally William, F. May, Attitudes toward the Newly Dead, 1 HASTINGS CTR. STUDIES 3 (1973)Google Scholar.

247 Id.

248 ROBERT S. OLICK, TAKING ADVANCE DIRECTIVES SERIOUSLY: PROSPECTIVE AUTONOMY AND DECISIONS NEAR THE END OF LIFE 140 (2001).

249 ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 191 (1981) (describing the unity of self as a “unity of a narrative which links birth to life to death as narrative beginning to middle to end”).

250 As Robert Olick explains, in his criticism of the opposite approach:

OLICK, supra note 248, at 148.

251 JONES, supra note 195, at 57 (citation omitted).

252 In re Quinlan, 348 A.2d 801, 807-11 (N.J. Super. 1975), modified 355 A.2d 647, cert. denied sub nom. Garger v. N.J., 429 U.S. 922 (1976).

253 Id. at 808-09.

254 Id. at 808.

255 Id. at 807.

256 Id. at 808.

257 Id. at 808-09.

258 Id. at 809.

259 Id. at 808.

260 Schloendorff v. New York Hospital, 105 N.E.2d 92, 93 (N.Y. 1914). See also The Council of Europe Convention for the Protection of Human Rights and Dignity of Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Medicine, available at http:http://conventions.coe.int/treaty/en/treaties/html/164.htm (prescribing that “[a]n intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.”) (visited Feb. 12, 2004).

261 Pratt v. Davis, 118 Ill. App. 161, 166 (1905).

262 Malette v. Shulman, [1990] O.R.2d 417 (Can.).

263 See, e.g., Civil Code of Quebec, S.Q., ch. 64, § 13 (1991) (Can.).

264 See, e.g., Malette [1990] O.R.2d at 425 (Can.).

265 See, e.g., Civil Code of Quebec, S.Q., ch. 64, § 10 (1991) (Can.).

266 See, e.g., Public Health Act, R.S.A, ch. P-37, §§ 29-36 (2002) (Can.).

267 McLean, supra note 189, at 329, 332.

268 Even if one argues that dead people do not have rights, the argument on interests can still be claimed.

269 E., Aziza-Shuster, A Child at All Cost: Posthumous Reproduction and the Meaning of Parenthood, 9 HUMAN REPRODUCTION 2182, 2184 (1994)Google Scholar. The right to reproduce posthumously will be discussed in Part V.B of this Article.

270 Health Care Consent Act, S.O., ch. 2, Schedule A (1996) (Can.).

271 S.O., ch. 2, § 10(1).

272 Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C, ch. 181 (1996) (Can.). The general rule is that a health care provider must not provide any healthcare to an adult without the adult's consent and must not seek a decision about whether to give or refuse substitute consent to healthcare, unless the healthcare provider made every reasonable effort to obtain a decision from the adult. However, in regard to major healthcare (defined in the statute), a healthcare provider may provide care to an adult without the adult's consent, if after consultation with those persons with relevant information, the healthcare provider decides that the adult needs the major healthcare, and the patient is incapable of or refuses to give consent, when the adult patient lacks an authorized surrogate decision-maker. R.S.B.C., ch. 181, § 14(1)(a); Hospitals Act, R.S.N.S., ch. 208 (1989) (Can.). Under the law of Nova Scotia, the general rule is that “where a person in a hospital requires medical or surgical treatment and is incapable of consenting to the required medical or surgical treatment for any reason and such person does not have a guardian or there is no one recognized in law who can give consent on his behalf to the required medical or surgical treatment, then the Trial Division of the Supreme Court or a judge thereof may upon ex parte application by the Public Trustee authorize the required medical or surgical treatment.” R.S.N.S., ch. 208, § 9(1); Civil Code of Quebec, S.Q., ch. 64, § 11 (1991) (Can.). According to this section, the patient's consent is necessary for care of any nature unless the patient is incapable of or refuses to give consent a person authorized by law or by the patient in advance may give consent. Like the other statutes here also we encounter a very broad definition to acts that require consent (“care of any nature”), which clearly can include the maintenance on life support for future delivery.

273 In England, for example, the NHS Management Executive's document A Guide to Consent for Examination or Treatment states in the fourth chapter:

NHS MANAGEMENT EXECUTIVE, A GUIDE TO CONSENT FOR EXAMINATION OR TREATMENT (1990), cited in ROYAL COLLEGE OF OBSTETRICIAN & GYNECOLOGISTS, A Consideration of the Law and Ethics in Relation to Court-Authorized Obstetric Intervention, at http://www.rcog.org.uk/guidelines.asp?PageID=109&GuidelineID=33 (1994). See also CANADIAN MEDICAL ASSOCIATION, Code of Ethics, available at http://www.cma.ca/cma/menu/displayMenu.do?tab=422&skin=432&pMenuId=1&pSubMenuId=1&pageId=/staticContent/HTML/N0/l2/where_we_stand/code.htm (visited Feb. 10, 2004).

274 John, D. Blum, Internet Medicine and the Evolving Legal Status of the Physician-Patient Relationship, 24 J. LEGAL MED. 413, 448 (2003)Google Scholar.

275 This form of consent is more common in Europe and especially in regard to organ transplantation.

276 O’Bonsawin v. Paradis, [1993] O.R.3d 188 (Can.).

277 Such a test was employed in Canadian AIDS Society v. Ontario, [1995] O.R.3d 388 (Can.).

278 See Richard, E. Shugrue & Kathryn, Lindstromberg, The Practitioner's Guide to Informed Consent, 24 CREIGHTON L. REV. 881, 912 (1991)Google Scholar.

279 Letter, supra note 207.

280 Erin Nelson, The Fundamentals of Consent, in CANADIAN HEALTH LAW & POLICY 111, 114 (J. Downie et al. eds., 2d ed., 2002).

281 JONES, supra note 195, at 98.

282 Nelson, supra note 151, at 253.

283 The hierarchy there is as follows: person designated by an advance directive or durable power-of-attorney, guardian authorized by the court, spouses, adult children, parents, adult siblings, and other relatives in order of blood relationship. See, e.g. Alberta Human Tissue Gift Act, R.S.A., ch. H-15, § 5(1) (2000) (Can.). But see Letter, supra note 207. The letter's authors argue that preference should be given to what they call the “husband-father,” however, they don't address the question of the preference within this category assuming that they are two different persons.

284 Daniel, Schafer, Uber Leichenentbindungen am Ende des 20. Jahrhunderts: Historische Aspekte ethischen Handelns bei toten Schwangeren, 10 ETHIK MED 227 (1998)Google Scholar. Some circumstances require immediate action to save the fetus, requiring the physician to act without consulting the family. Recently, in Israel, physicians delivered a fetus from a woman who died during her eighth month of pregnancy. Had the physicians consulted with the family, they would have discovered its objection to autopsies, thereby also revealing its attitude about delivery of the fetus from their deceased daughter. The child died a day after delivery. http://images.maariv.co.il/channels/1/ART/477/314.html (last visited Nov. 15, 2004).

285 Letter, supra note 207.

286 For example maintaining life support from the twenty-second week of gestation to the twentysixth week. Id. at 1728.

287 It is not clear why Robertson focuses on the husband, instead of the biological father of the fetus. In the Piazzi case, for example, these were two different persons. See Piazzi, No. CV86-RCCV- 464.

288 John, A. Robertson, Posthumous Reproduction, 69 IND. L. J. 1027, 1053 (1994)Google Scholar.

289 Id. at 1055. This is similar to Sheila McLean's argument that “reproduction, per se, is not denied to the survivor, merely the ability to do so with a specific person (now deceased).” McLean, supra note 189, at 341.

290 Re F (In Utero), [1988] W.L.R. 1288; C. v. S & Another [1987] W.L.R. 1108; Paton v. British Pregnancy Advisory Serv. Trustees & Another, [1978] W.L.R. 687.

291 The case may be different regarding research involving pregnant women and their fetuses. American rules require the consent of the father with respect to research that “holds out the prospect of direct benefit solely to the fetus.” 45 C.F.R. § 46.204(e) (2003). However, if the father is unavailable, incompetent or temporarily incapacitated, the research may be performed without his consent. Id. No parallel provision applies to the mother. Therefore, obtaining consent from the mother seems to outweigh the same requirement as applies to the fetus’ father.

292 See generally Finnerty et al., supra note 202.

293 In the Piazzi case, for example, the controversy was between the fetus’ biological father who wanted to keep the mother “alive” and the woman's husband who opposed life support. Piazzi, No. CV86-RCCV-46. In the Mapes case, there was a disagreement between the brain-dead woman's boyfriend and her parents. The former planned to sue the hospital for keeping his comatose girlfriend on life support until the delivery of their child, the latter requested such treatment. Paige, supra note 143, at 2.

294 Sheikh & Cusack, supra note 31, at 80 (quoting Peart et al., supra note 1, at 294).

295 LAW REFORM COMMISSION OF CANADA, WORKING PAPER 28, EUTHANASIA, AIDING SUICIDE AND CESSATION OF TREATMENT 64-65 (1982).

296 By this, I mean a positive assertion rather than avoidance to decide.

297 Some examples include palpating the fetus through the maternal abdominal wall and uterus, measuring hormonal milieu through maternal urine and serum, and estimating statistical risks from parental medical histories.

298 For example, seeing the fetus in detail with ultrasound, assessing its condition with amniocentesis and fetal heart rate monitoring, and operating on it in utero. The medical profession's ability to visualize the fetus shaped the discussion on the fetus’ distinct moral and legal statuses to the fetus and was influenced by it. See supra notes 179 and accompanying text for discussion of this idea.

299 See Lawrence, J. Nelson & Nancy, Milliken, Compelled Medical Treatment of Pregnant Women: Life, Liberty, and Law in Conflict, 259 JAMA 1060, 1060 (1988)Google Scholar.

300 Sheikh & Cusack, supra note 31, at 79.

301 See Susan S. Mattingly, The Maternal-Fetal Dyad: Exploring the Two-Patient Obstetric Model, 22 HASTINGS CTR. REP. 13 (Jan./Feb. 1992). Still, the “Unity Model” is considered the dominant view by the medical profession. The 1996 Ethical Guidelines on Court-Authorized Obstetric Intervention states that “[t]he aim of those who care for pregnant women must be to foster the greatest benefit to both,” and that “[i]n caring for the pregnant woman an obstetrician must respect the woman's legal right to choose or refuse any recommended course of action and at the same time maintain the medical obligation to promote the wellbeing of mother and child.” ROYAL COLLEGE OF OBSTETRICIAN & GYNAECOLOGISTS, A Consideration of the Law and Ethics in Relation to Court Authorized Obstetric Intervention, at http://www.rcog.org.uk/guidelines.asp?PageID=109&GuidelineID=33 (1994) (emphasis added).

302 The Anatomy and Pathology Act § 6 (1953).

303 The opposite view applies as well: if the deceased agreed that the surgery would be performed after her death, the physicians are compelled to perform it even if the deceased's next-of-kin disapproves it.

304 The Anatomy and Pathology Act § 6C (1953). Interesting to note that the title of this section is “the salvation of the fetus”.

305 Ruth Halperin-Kadary, “‘To Leave Life Behind You’: The Delivery of A Fetus from the Body of a Deceased – In Any Possible Case?,” in DILEMMAS IN MEDICAL ETHICS 107, 128 (Raphael Cohen- Almagor ed. Jerusalem: Hakibutz-Hameuhad: 2002).

306 Id.

307 T.M.A. 103/92 (The District Court of Jerusalem) Feb. 4, 1992, available at http://www.daat.ac.il/daat/kitveyet/assia/bazaq.htm.

308 Id.

309 Id.

310 T.M.A. 38/89 (The District Court of Jerusalem), Jan. 18, 1989, in A QUESTION OF AUTHORITY: WHETHER TO DELIVER A FETUS FROM THE BODY OF A DECEASED 17-18 (Ygal Shifran ed., Jerusalem: Rabanut Harashit Le-Israel: 2001).

311 The husband testified that he could not raise the child, and it was unclear if the unborn child would be handicapped. Id.

312 Piazzi, No. CV86-RCCV-464; Dyke, supra note 94, at 871.

313 Piazzi, No. CV86-RCCV-464; GA. CODE ANN. § 31-32-2 (2001) (stating that the directive “shall have no force and effect during the course of pregnancy”).

314 The court stated:

Piazzi, No. CV86-RCCV-464.

315 Jordan, supra note 162, at 1110 n.25.

316 In Israel, the Regulations of the Health Security (In Vitro Fertilisation) 1981 provide that there shall be no use of a deceased donor's ova. Nevertheless, frozen ova retrieved from a married woman, whose husband has passed away, may be donated to other women with the consent of the donating widow.

317 See, e.g., Parpalaix v. CECOS, T.G.I. Creteil, Aug. 1, 1984, Gaz. Pal. 1984, 2, pan. jurisp., 560. See also Hecht v. Superior Court, 20 Cal. Rptr. 2d 275 (Cal. Ct. App. 1993); Hart v. Shalala, No. 94-3944 (E.D. La. 1993); R v. Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All E. R. 687. But cf. the Rules Regarding Management of Sperm Banks and Guidelines for Artificial Insemination 1992 for contrasting legal view on posthumous reproduction by women (providing that a deceased's frozen sperm should be destroyed, unless the donor's widow requests, within a year from his death, to keep the sperm for further freezing). Until recently, the use of a frozen sperm after the death of the donor has been also approved by Israeli courts in two different cases. 1922/96 (The District Court of Tel-Aviv) September 21, 1997; 10440/99 (The District Court of Tel- Aviv) November 25, 1999.

318 The embryos then may be used by the surviving partner for reproduction, donated to others for reproduction, discarded, or used for stem-cell research. The latter, is not legal in Canada.

The Rios case is the only reported case in which both genetic contributors of an embryo died. A wealthy California couple received in vitro fertilization treatment in Australia. Two embryos were still frozen when the Rios couple died in an airplane crash. The couple left no written instructions regarding the fate of their embryos and a weighty debate arose about whether the embryos should be destroyed, made available for anonymous donation, or deliberately gestated in order to permit them to inherit an intestate share of the Rios estate. The State of Victoria committee recommended the disinheritance of the embryos and their adoption by another couple. George, P. Smith II, Australia's Frozen “Orphan” Embryos: A Medical, Legal and Ethical Dilemma, 24 J. FAM. L. 27 (1985)Google Scholar.

319 Assisted Human Reproductive Act, 2004, § 8(1) (Can.), available at http://laws.justice.gc.ca/en/A-13.4/index.html (last accessed on Oct. 30, 2004) (prohibiting the use of “reproductive material” without written consent, which presumably includes the use of in vitro embryos after the death of one or both genetic contributors). Recommendations in the past also been made that donors should be required to make written statements of intention as to the embryos’ fate in the event of the donor's death. THE LAW REFORM COMMISSION OF CANADA, MEDICALLY ASSISTED PROCREATION RECOMMENDATIONS § 5(1) (Ottawa: Ministry of Supply and Services, 1992). See also PROCESSING AND DISTRIBUTION OF SEMEN FOR ASSISTED CONCEPTION REGULATIONS, SOR/96-254.

320 The REGULATIONS OF HEALTH SECURITY (IN VITRO FERTILISATION) 1981 § 8(b)(2) (Isr.) (providing that a married couple's frozen embryo must be destroyed if the wife dies, but may be implanted in the widow's uterus up to one year following her husband's death and with a social worker's report).

321 Kristin, Antall, Who Is My Mother?: Why States Should Ban Posthumous Reproduction by Women, 9 HEALTH MATRIX 203, 227 (1999)Google Scholar. See Robertson, supra note 288, at 1031.

322 As Jeffery Spike asserts, “Most pregnant women look forward to their motherhood, and a loving relationship with their baby, and not simply to giving birth and then giving the baby away, never to be seen again.” Spike, supra note 203, at 64. In Spike's view, if circumstances do not allow anyone close to the deceased to raise the baby, the presumption should be that she would no longer wish to undergo the indignity of treatment. Id.

323 Antall, supra note 321, at 230.

324 While many single parents may still call on the other parent's aid financially and emotionally in the child's upbringing, in posthumous reproduction, the bereaved parent is bringing a child into the world without the option of assistance from the other parent. In addition, there are psychological implications for a child who learns his or her birth occurred after the death of his or her parent. See Ruth Landau, Planned Orphanhood, 49 SOC. SCI. & MED. 185 (1999).

325 There are a few methods to harvest the sperm. The “easiest” method is by exposing the testicles of the deceased to electric pulses. The invasive procedures include taking samples of sperm by stabbing the testicles, producing sperm cells in the laboratory from a testicle tissue that was taken from the deceased, and the most invasive procedure is the cutting down of testicles and producing sperm cells in the laboratory.

326 Susan Kerr, Post-Mortem Sperm Procurement: Is It Legal?, 3 DEPAUL J. HEALTH CARE L. 39, 67- 68 (Fall 1999).

327 Id. at § 8(2).

328 1130/01 (The Family Court of Haifa) January 9, 2002; Re German (The Supreme Court of Israel) March 13, 2002.

329 Roxanne Mykitiuk & Albert Wallrap, Regulating Reproductive Technologies, in CANADIAN HEALTH LAW AND POLICY 367, 410 (J. Downie et al, eds., 2d ed. 2002).

330 William, P. Dillon et al., Life Support and Maternal Brain Death During Pregnancy, 248 JAMA 1089, 1091 (1982)Google Scholar.

331 Id.

332 Id.

333 See generally Spike, supra note 203.

334 Id.

335 Id.

336 Peart et al., supra note 1, at 284.

337 Id.

338 Id. at 285

339 Id. at 285.

340 Letter, supra note 207.

341 However, the validity of such a directive may be suspect under existing law in some of the countries in the US. For a detailed discussion on this issue see in chapter 3 to my Management of Post- Mortem Pregnancy.

342 Carol, Diehl et al., The Brain-Dead Pregnant Woman: Finding Meaning to Help Cope, 13 DIMENS CRIT CARE 133 (1994)Google Scholar. In an informal survey, when asked if they would carry again for a brain-dead woman all responded affirmatively, but added that they pray they would never have to. Santos, supra note 201, at 48.

343 Jordan, supra note 162, at 1163.

344 See Nancy Gertner, Interference with Reproductive Choice, in REPRODUCTIVE LAWS FOR THE 1990S 307 (Sherrill Cohen & Nadine Taub eds., 1989).

345 Thomson, supra note 101, at 205. Gertner proposes a mechanism of tort claims in cases of breach of the mother's reproductive choices. Gertner, supra note 344.