Under Georgia’s abortion law, mothers’ end-of-life wishes can be overruled

Smith’s mother has declined interviews with The Atlanta Journal-Constitution. Emory Hospital has declined to comment on Smith’s situation, citing federal privacy laws.

But even if Smith had a living will, her pregnancy could have overridden her end-of-life choices under Georgia law.

Smith’s mother said Emory University Hospital officials told her Smith would have to remain on life support to allow the fetus to continue growing because of Georgia’s abortion law. Her mother later clarified that the family intended to keep Smith on life support until the baby was born.

Attorney General Chris Carr, Georgia’s top prosecutor, said through his office that the abortion law did not require Emory Hospital to keep Smith’s body functioning.

A nuance in Georgia end-of-life laws could have also factored in the hospital’s decision to keep Smith on life support.

End-of-life care

Allison Whelan, a Georgia State University law professor who specializes in reproductive justice issues, said anyone who gets pregnant should create a living will to clarify their wishes for their end-of-life care and their wishes for their baby.

“I especially think it’s really important that when someone gets pregnant, that they are informed when they are receiving prenatal care about the importance of having a living will,” Whelan said.

Georgia residents can fill out legal paperwork to indicate they don’t want life-sustaining measures to be taken in the case of an emergency, incapacitation or terminal illness. Women must fill out an additional section to indicate what they want their end-of-life care to be if they are pregnant.

However, it’s not given that doctors will be allowed to remove life support from a pregnant woman under state law.

If a fetus is not viable, typically at around 22-24 weeks of pregnancy, Georgia law allows medical professionals to remove life support. However, if a fetus is viable, Georgia law overrides the stipulations in a living will and requires medical professionals to keep a mother on life support.

At Smith’s funeral last month, state Rep. Park Cannon, an Atlanta Democrat and abortion rights advocate, told mourners she plans to introduce legislation next year that would allow family to remove their loved one from life support even if they are pregnant.

Cannon told the AJC that she’s still working out details, but she hopes whatever legislation is filed allows family to have a larger role in end-of-life care. She said she plans to hold a private meeting with Smith’s family this month and then a public meeting in August to gather information.

Georgia Right to Life Executive Director Zemmie Fleck said the abortion law had nothing to do with Smith’s situation. Instead, she said, it was all about laws around living wills.

“Our position is, you do have two patients, you have a mother, and you have her pre-born child,” she said. “Unless you intentionally cause the death of that mother or that child, if they die naturally, you know that that natural death is not an abortion.”

Abortion law

After first saying the family was denied a choice, her mother later clarified they intended to keep Smith on life support until the baby was born. Smith was laid to rest June 28.

Smith’s baby, whom the family named Chance, was born by emergency Cesarean section on June 13 and is now in the NICU. Smith’s family had doctors remove her from life support a few days after Chance’s birth.

In addition to banning most abortions after a doctor can detect fetal cardiac activity, Georgia’s law also provides “personhood” status to the embryo — a change that has implications for state tax policy, population counts and even court orders. Medical professionals can typically detect fetal cardiac activity at about six weeks of pregnancy.

The “personhood” portion of state law is why Whelan said it’s likely both the abortion and living will statutes played a role in Smith’s care. Regardless of the existence of a living will, she said hospitals are likely to err on the side that shields them from criminal liability, such as being charged with manslaughter or murder.

“If a hospital is faced with violating a living will that could set them up to a medical malpractice case versus violating a criminal law, a hospital counsel might prefer the hospital face a medical malpractice case than a criminal case,” Whelan said.