Who Owns the Human Body?

In August of 2000, I was fresh out of graduate school and had just launched the Center for Bioethics and Culture (CBC) when I learned that the University of California, Berkeley, was hosting a three-day conference titled “Who Owns the Body?” Since Berkeley was practically in my backyard, I signed up.

I think back often to the eye-opening lectures I heard at that conference. One seminar focused on the remains of Ishi, a Native American man famous in California history for being the last of the Yahi people. After being murdered in large numbers during the nineteenth century, the Yahi tribe was thought to be extinct until Ishi emerged from the wilderness in 1911. Even though Yahi tradition taught that the body should remain intact, researchers at the University of California carried out an autopsy after his death.

As a nurse, I was already aware that the concept of “brain death” and the criteria for what constitutes brain death were not settled, so I was particularly interested in Dr. Alan Shewmon’s session. Shewmon, a neurologist, was working at UCLA, where I had worked as a pediatric critical care nurse. Two decades later, he remains a controversial figure in the debate over brain death criteria. Shewmon’s research raises important questions about healthcare economics, and how the pressure to increase the number of organs available for transplant might mean organs are harvested from people who are, in fact, not dead at all.

While the thirteenth amendment abolished slavery, prohibiting us from owning another human being, there are still many unresolved questions today regarding bodily autonomy and the commodification of human beings, their bodies, and their body parts. Once human beings and their respective parts become available for sale, we understand how this commodification leads to the exploitation of more vulnerable people. The rich can buy, but the poor will have to sell.

In recent years, this subject has become increasingly controversial. For example, cell lines have been developed and patented and used to develop new drugs and therapies. Can those who hold the patent profit off the discoveries they make using your body? Do you and your heirs have no legal right to any of that money? Stories like those of Henrietta Lacks and books like Deadly Monopolies by Harriet Washington have raised these issues in the public consciousness.

Twenty-three years after the Berkeley conference, the topics of body autonomy and brain death are newly relevant. In November 2022, Anna Smajdor, professor of philosophy at the University of Oslo, published a scholarly article titled  “Whole Body Gestational Donation” (WBGD) in the journal Theoretical Medicine and Bioethics. Her argument is that women who have been declared “brain dead” could be used as “whole-body surrogates.”

Smajdor expands on an article published in 2000 by Rosalie Ber, in which Ber made the “novel suggestion” to use women in a persistent vegetative state (PVS) as gestational surrogates. Smajdor notes incredulously that “no jurisdiction has considered implementing Ber’s suggestion. This is surprising, given the degree to which surrogacy continues to provoke moral and legal controversy.” In Smajdor’s mind, her “adapted and extended version of WBGD offers a solution to the problems of surrogacy.” Perhaps Smajdor is making an ethical distinction between PVS and brain death, arguing that since brain death is not reversible (whereas it is possible to recover from PVS), it is more acceptable to use the wombs of brain-dead women for surrogacy.

Smajdor starts by noting that pregnant women who have been declared brain-dead or in PVS have already been kept alive on life support until their babies can safely be delivered by c-section. She acknowledges that someone in PVS or declared brain-dead cannot consent to be a surrogate, but argues that it would be “relatively simple to tweak” existing organ donation protocols for use in WBGD. If an individual has agreed in advance to being an organ donor, it could be assumed this includes her uterus, which is an organ.

What is the difference between keeping a brain-dead person on life support until her organs can be donated, and keeping her on life support so she can be impregnated and gestate a baby for someone else? Smajdor does not think there’s a substantive difference, as “the means and the justification are the same”: artificially extending life to save a life vs. artificially extending life to give life to a baby. One obvious difference is that, unlike many organ transplants, WBGD would not be life-saving. Although childlessness can be a painful cross to bear, no one will die if she can’t have a baby. But Smajdor is quick to point out that many organ donations are not life-saving but simply improve quality of life, such as cornea transplants. For Smajdor, WBGD is “more accurately described as ‘helping someone live.’”

In Smajdor’s view, organ donation is already “treating a patient’s dead body as a means to an end, rather than an end in itself.” “Since we are happy to accept that organ donors are dead enough to donate, we should have no objections to WBGD on these grounds,” she reasons. But perhaps this reflection should lead our reasoning in the opposite direction. As Gilbert Meilaender notes in his essay “Gifts of the Body,” in the context of buying and selling human organs, “We are reluctant to think through such concerns, however, for we sense that they may raise disquieting questions about organ transplantation generally. So, we are tempted to let them slide, and we prefer to begin in the midst of things, with particular questions that seem (even if deceptively so) more manageable.”

Smajdor certainly doesn’t want to begin with any disquieting questions. The late Willard Gaylin, who was recently hailed as “a Pioneer in Bioethics” by the New York Times, used to worry that we’d have “hospital wards filled with ‘neomorts’ used for education, teaching, research, and manufacturing.” But Smajdor is unconcerned. Is that because she fails to ask some of the most important questions about ethical use of the human body to accomplish our purposes and desires? Might we grant that a woman has died, and allow her to be given a proper burial, instead of putting her on life-support for perhaps a nine-month pregnancy? Is the body just a thing to be used for the good of another, or can it be said that we know persons because of their bodies?

Most strikingly, Smajdor never once mentions the rights of the babies who would be born through WBGD, nor does she show any regard for potential negative outcomes in their lives. Normally, researchers avoid testing even widely used drugs on pregnant and breastfeeding women, fearful of subjecting fetuses and infants to potential harm. Would it be ethical to create human beings with the intention of subjecting them to such an experimental process? Smajdor points out that embryos and fetuses are often “damaged or deliberately destroyed” in fertility medicine, and that many countries permit research on and destruction of human embryos up to fourteen days’ gestation (a limitation that is currently under attack). Thus, Smajdor blithely concludes, there is “little reason why preliminary experimentation should not go ahead.”

In WBGD, the donor would be “under absolute control and surveillance.” While Smajdor acknowledges that feminists are critical of medical control over living pregnant women, the WBGD “has no everyday life: her function is solely to gestate.” Smajdor presents this as a benefit. As someone who spent years working in intensive care settings, I can’t help but wonder: What would the effect of WBGD be on the developing child? Unlike the pregnant mother who sings and talks to her baby in the womb, gently rocking him and bonding before birth, this baby will be gestated by an unconscious woman, surrounded by the sounds of life-support machines and constant medical intervention. If and when these children learn of their method of conception and birth—that they were literally gestated in a dying woman, treated like a product ordered by and delivered to paying customers—how will they be affected? It’s hard to imagine that such children would not suffer significant trauma.

While Smajdor acknowledges feminist concerns about dissociating women from their reproductive systems and commodifying women’s bodies, these concerns have no bearing in her thinking. She views them as moot, simply because the woman in question has been pronounced brain-dead. There is no respect for the dead or the dying, and there is no consideration for the life that is becoming. There is only a stunted view of the person as a mere “foetal container.”

Proposals to use brain-dead women as “whole body gestational surrogates” are utterly inhumane. We don’t own the human body, but we do owe the human body—the embodied person, brain-dead or not—and the child in her womb. We owe them both respect and dignity.

Jennifer Lahl is president of the Center for Bioethics and Culture. 

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Image by Matt Bango licensed via Creative Commons. Image cropped.