Are Embryos or Fetuses Brain Dead? Implications for the Abortion Debate

Abstract

Most state abortion definitions exclude the removal of a dead fetus, attempting to distinguish miscarriage and abortion care. But what does “dead” mean at the earliest stages of potential life? There is a consensus at the end of life that death not only encompasses the cessation of cardiac activity, but also brain death. This symposium essay considers whether life can only begin with the emergence of brain life and if so, how that might impact the abortion debate. The most rudimentary brain waves cannot be detected in an embryo before roughly the eighth week of pregnancy; the capacity for feeling and consciousness begin much later. If brain life starts at one of these points, one could argue that before that moment, terminating a pregnancy simply removes dead pregnancy tissue and is not an abortion according to state abortion definitions. This essay considers important critiques of this argument as a legal theory, including that the legal definition of brain death has an “irreversibility” element that is inapplicable at the beginning of life, that this strategy could exacerbate fetal personhood efforts that erase the pregnant person, and that this fundamentally philosophical question cannot be resolved by science, particularly in a moment of scientific distrust. The essay concludes that though the concept of brain life has some moral and rhetorical salience, it should not be pursued as a legal strategy.

Keywords: Abortion, Brain Death, Bioethics, Reproductive Rights, Reproductive Justice, Gender and the Law, Reproductive Healthcare, Pregnancy Loss, Philosophy and the Law