Surrogacy after death: an ethical debate

In November 2022, Dr. Anna Smajdor, a professor at the University of Oslo, published an article in “Theoretical Medicine and Bioethics” entitled “Whole Body Gestational Donation.” Whole Body Gestational Donation (WBGD) is a proposed form of organ donation that involves the use of the entire human body to bear a child, something commonly referred to as surrogacy. The difference between surrogacy and WBGD, as Smadjor coins it, is the same as between donating a kidney while alive and having “Organ Donor” on your driver’s license. The implication here is that the person volunteering a WBGD will be completely unconscious when the donation occurs. The donated organ can still be used — which in the case of pregnancy is solely possible if the only part of the person’s body that is “dead” is their brain. In this situation, the body is still well and functioning enough to support new life, but the person has no awareness of the pregnancy and cannot control any bodily functions.

This is why, following the release of Dr. Smajdor’s paper, headlines — which alarmingly came from very few, mostly-non-news sources — framed her paper as, “Brain-dead women should be kept alive and used as surrogates, professor suggests.” I chose very intentionally not to start this article with that kind of language, because I think it misrepresents the argument made and confuses the ethical issue at stake.

The concept of WBGD was not created by Dr. Smajdor. In fact, her paper is an expansion on a concept introduced in 2000 by Rosalie Ber, medical faculty at the Israel Institute of Technology. Ber’s publication, “Ethical Issues in Gestational Surrogacy,” was published in the same journal and discusses the ethics of surrogacy in general, specifically with regards to the social and biological designations of motherhood. I would find many hard-pressed to find moral issue with normal surrogacy, which is a regular part of reproductive dialogue nowadays. Similarly, it would be difficult for anyone to condemn regular organ donation as designated on drivers’ licenses, which is actually often considered to be the morally right thing to do. If you’re not using your organs anymore, why should you stop anyone else from using them, especially if it could save someone’s life? It is actually completely logical for Ber and Smajdor to have come to the conclusion that they did, which, simply stated, is that the womb is an organ like any other. And if someone fully and legally consents to their body being used to deliver a child, what other problem exists?

If you’re asking yourself, “Does this even work?” the answer is yes. Ber cites numerous examples of brain-dead women being victims of rape and carrying babies to term. There is also an example of a woman in a healthy, voluntary pregnancy who suffered a brain-fatal hemorrhage and carried her prehancy to term with no harm done to the fetus. In cases like these, there was no established directive to guide physicians and family members, and in most cases the other biological parent made the decision of whether or not to keep the mother alive for the sake of the baby. Some chose not to.

The issue faced, it seems, is one of women’s historical loss of power over their bodies. The implication that people with female reproductive organs could be used simply as vessels for new life is troubling, especially in the context of lessening reproductive rights in the past few years. Smajdor attempts to diffuse what she calls “potential feminist objections” by proposing that this type of donation would be possible for men as well. While this is biologically accurate and possible via implantation in another organ like the liver, as Smajdor acknowledges, it is so risky that it is almost considered fatal. Smajdor asserts that this is irrelevant because the donor is already dead, so it doesn’t matter if their body also dies in the course of donation, but I think that this is maybe where we begin to draw the line.

The question I ask now, beyond “Is this right?” is, “Why would this ever be necessary?” The population of Earth just increased to eight billion. There is no reason to be concerned about whether the very few eligible brain-dead people would consent to carrying babies. Smajdor even elaborates on the varying states of brain death and their relation to this donation concept — and for what? It may be a worthwhile addendum to a living will or advanced directive — for example, “If I am pregnant and suddenly become brain-dead, I wish for my pregnancy to be carried to term if possible.”

Outside of this, there is really no need to create the potential for those who wish to capitalize on women's bodies to do so any further, especially since normal, living surrogacy is not extremely difficult to come by. The concept of purposely impregnating and possibly killing brain-dead patients solely for the purpose of creating new life is, at the very least, alarming and divinatory of certainly unethical developments.