Adriana Smith, a 30-year-old mother and nurse, was declared dead in February 2025. But clinicians have kept her on organ support for the past three months. They say they are doing this to allow enough time for the baby to be born and comply with Georgia’s strict anti-abortion law. But the law does not actually require this.
Some states specifically limit removing treatment from a pregnant woman (despite her wishes) either when she is (a) alive but incapacitated (e.g. Texas) or (b) brain dead (e.g. Nevada).
But no such laws apply in this case. The hospital says the abortion law requires this. But removing mechanical ventilation or other support here would not constitute an abortion. So, the hospital is wrong. Continued treatment is not legally required.
Dead is dead. And except in peculiar exceptional situations in Nevada and New Jersey, there is almost NEVER a duty to continue treatment for an individual AFTER they have been determined dead.
Ga. Code Ann. § 16-12-141 defines “Abortion” as "the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child." This fails to fit the instant case in terms of both causation and intent.
First, the abortion statute speaks of "using, prescribing, or administering." None of that is proposed here. The typical path after determination of death by neurological criteria is to remove mechanical ventilation. That is a passive withdrawal or omission. It is not active "using, prescribing, or administering."
Second, the abortion statute requires that the conduct be with "purpose to terminate a pregnancy." That is not proposed here. The point of withdrawing organ sustaining treatment is to follow the standard of care after death determination.
Some have suggested the advance directive act, not the abortion act, is what requires Adriana's treatment. This is also untrue. That law addresses only "life-sustaining treatment." Since Adriana is dead, that law has no application to this case. This was the issue adjudicated in the Marlise Munoz case.
Not sure how you can say " that law has no application to this case"
ReplyDeleteThe 'Georgia Advance Directive for Health Care Act.' specifically prohibits "withholding or withdrawal of life-sustaining procedures [....] nourishment or hydration" if the patient is pregnant and the fetus is viable.
"... each person to whom a direction by the health care agent in accordance with the terms of the agency is communicated shall comply with such direction to the extent it is in accord with reasonable medical standards or other relevant standards at the time of reference.
31-32-9.
(a) Prior to effecting a withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration from a declarant pursuant to a declarant's directions in an advance directive for health care, the attending physician:
(1) Shall determine that, to the best of that attending physician's knowledge, the declarant is not pregnant, or if she is, that the fetus is not viable and that the declarant has specifically indicated in the advance directive for health care that the declarant's directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration are to be carried out; "
The Marlise Munoz case was in a different state (Texas) and so it doesn't apply here in any authoritative way.
Munoz is directly on point. Just as the Texas law on LST did not apply after death there, neither does the Georgia law on LST apply after death here.
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