A Horrifying Ethical Dilemma

What’s the most humane way to treat a pregnant rape victim who’s in a vegetative state?

File photo of the Hacienda HealthCare sign and building in Phoenix.
Hacienda HealthCare in Phoenix
Ross D. Franklin/File/Associated Press

Last month, a 29-year-old woman who’s been in a persistent vegetative state since she was a toddler went into labor and gave birth. An employee of the Arizona health care facility where she’s resided for more than 26 years swears no one had any idea she was pregnant until she started exhibiting signs of physical distress during labor. After testing the DNA of the newborn and male employees at the Hacienda HealthCare facility, law enforcement officials arrested nurse Nathan Sutherland, 36, on counts of sexual assault and vulnerable adult abuse on Wednesday morning.

There is some dispute over the victim’s condition. The chairman of the San Carlos Apache Tribe, of which the woman is a member, has said she is in a vegetative state, as has the Phoenix Police Department. But her family’s lawyer insists that she is neither comatose nor in a vegetative state, but living with “significant intellectual disabilities” that still allow her to move her limbs and face and respond to noises. (None of these capabilities are incompatible with persistent vegetative states.) Medical records reviewed by the New York Times stated that the victim is incapable of communicating or moving. Court records call her “incapacitated” and say she has feeding and breathing tubes; no one has disputed that she is incapable of consenting to sexual activity.

The details of this case are heart-wrenching and infuriating. This woman has spent nearly her whole life confined in an institution, one that is apparently so careless with her body that the team of medical professionals assigned to her care didn’t notice anything out of the ordinary when she was more than eight months pregnant. (Investigators believe Sutherland raped her between February and April; she gave birth Dec. 29.) While bathing her, while checking her for bed sores, while testing her vitals—no one noticed (or has said publicly that they noticed) an expanding waistline or breasts, nor felt a growth the size of a full-term infant in her abdomen. In response to a request for comment, a PR representative for Hacienda HealthCare replied, “Because of federal privacy laws, we are unable to discuss any aspect of this patient’s care.”

In every previous case of pregnancy by rape in vegetative or comatose victims I could find, medical professionals noticed that the victim was pregnant before she gave birth. They noticed in the case of a young Argentinean woman in a coma, whose family declined to initiate a police investigation in 2015. They noticed five months into the pregnancy of a 24-year-old quadriplegic and comatose Massachusetts woman in 1998. And they noticed a little over four months into the pregnancy of Kathy, a 29-year-old woman who spent a decade in a coma in upstate New York before making international headlines for her rape, pregnancy, and birth in 1996.

At the time, bioethicists and physicians called Kathy the first known patient to become pregnant while in a vegetative state. Her case presented a grave and complex ethical dilemma for her family, medical practitioners, and activists for and against reproductive rights. Should Kathy’s parents, who were responsible for her care, authorize an abortion in the second trimester of her pregnancy? Or should they consign her to the health risks of pregnancy and childbirth, the pain of vaginal birth or a cesarean section, and many months of physical discomfort to which her vegetative body cannot adjust?

Kathy’s parents found the decision quite simple. They were Catholic and anti-abortion, and claimed she would never have wanted to terminate a pregnancy. Before the car crash that put her in a coma at 19 years old, she was “always pretty pro-life,” according to a friend who’d heard her express that view in a class on current events at their Catholic high school. According to the family’s lawyer, Kathy’s mother, who ended up adopting and raising her grandchild, said, “I know my daughter, and if she could speak, she would want to have this baby.”

For other observers, the proper course of action was more complicated. Like the cases of Terri Schiavo and Marlise Muñoz, the latter a Texas woman who became brain-dead during the course of her pregnancy in 2013, Kathy’s pregnancy was a flashpoint in larger, ongoing political debates about life, death, and bodily autonomy. In the New York Times, health care lawyer and bioethicist Ellen Moskowitz wondered whether Kathy was being used “as a vessel,” asking, “Does that recognize her humanity? Is this something that offends the natural order?” She also expressed concern that the son Kathy would eventually bear—who the Rochester Democrat and Chronicle recently reported is approaching his 23rd birthday—might suffer “potential harms” from knowing his mother was both raped and forced to give birth with neither her consent nor her knowledge. Health law professor George Annas concurred with the idea that Kathy was being used as a vessel “for the sake of other people”—namely, her parents. In a story published in the Los Angeles Times, he called Kathy an “incubator” and raised the hypothetical scenario of parents wanting to artificially inseminate their vegetative child. “Would you say it’s the family’s prerogative?” Annas asked. “I think most people would be horrified at that notion.”

Feminists for Life members Suzanne Schnittman and Katherine S. Lammers presented a different analogy. In a 1996 op-ed in the Democrat and Chronicle, they said that aborting Kathy’s fetus would be an act of “double violence” akin to punishing a murderer with the death penalty. “Once a murder is committed, the loved ones of the victim cannot reclaim their relative or friend. They and the entire community … need an outlet for revenge,” Schnittman and Lammers wrote. “Removing the murderer from the face of the Earth, as abortion removes the unborn child who is the product of rape, seems to be a solution that will bring solace. … The child is no longer around to remind the victim of the rape. [But] is that how memory really works?”

A juror in the trial of the nurse’s aide who was eventually convicted of sexually assaulting Kathy offered a more bizarre interpretation of the crime. Two weeks after Kathy died of undisclosed causes a few weeks before her son’s first birthday in 1997, the juror, who was a clergyman, told the Democrat and Chronicle that she had been raped as part of a divine plan. “God has given life to this little boy for a reason,” he said. “I believe he is supposed to do something significant with his life. What it is, I don’t know. But I hope someday to find out. … One life has ended, but another is beginning.”

Medical ethics professor Jane Greenlaw, commenting on Kathy’s case to the Los Angeles Times in February 1996, posited that terminating the pregnancy-by-rape of a comatose woman would be just as fraught as forcing a person without the capacity to think to carry a pregnancy to term, give birth, and bring a new life into the world. “I think it’s wrong to assume that one of the choices has more moral implications than the other,” she said.

In her 2016 book The Ethics of Pregnancy, Abortion and Childbirth: Exploring Moral Choices in Childbearing, anti-abortion bioethics scholar Helen Watt expounded on those implications, arguing that while “the right not to be made pregnant while one is unconscious is unalienable,” it is the abortion of such pregnancies that “violates the woman’s bodily integrity, as well as her baby’s, in a truly intolerable way.” Since the rape of a vegetative woman cannot be undone, Watt wrote, the most ethical way to approach her pregnancy would be to simply let it continue. “An abortion would in fact be a new invasive act, fully avoidable, which would make the woman’s own invaded body the unwitting site of a violent invasion of her child’s,” she wrote.

It’s difficult, however, to read contemporaneous accounts of the delivery of Kathy’s child and argue that it was not an “invasive act” on her nonconsenting body. Robert Loeb, the spokesman for the hospital where she gave birth, announced that Kathy looked agitated when she went into labor, but never made a sound. “The mother is back in her room, relaxed and resting,” he told reporters afterward. “I think the family is pleased that they’ve reached this milestone.”

Studies have suggested that some people in comas and persistent vegetative states can feel pain—that’s one reason why they’re still anesthetized before any necessary surgeries. (In one recorded case of a woman who entered a vegetative state after a suicide attempt while pregnant, doctors administered an epidural when she went into labor because she appeared in distress.) Law enforcement officials handling Kathy’s case reported that she could feel pain and respond to some stimuli, even as she was entirely uncommunicative and oblivious to her surroundings. The idea of an unthinking, unknowing woman in possibly painful yet silent labor—and the absurd idea that she could be somehow “relaxed and resting” when she has no idea what’s going on—should give pause to those who see nonconsensual birth as somehow less of a violation than nonconsensual abortion.

None of these arguments have much bearing on the case of the San Carlos Apache woman who was raped and gave birth at Hacienda HealthCare last year, because her family was allegedly never given the opportunity to decide what she would have wanted. (And since she became vegetative at the age of 3, she never had the chance to learn what abortion and pregnancy were, much less develop opinions about them.) But thinking through the ethical dilemmas and questions of bodily autonomy that arise when a pregnant woman suffers severe brain damage—or when a severely brain-damaged woman becomes pregnant through rape—could be useful for women considering writing living wills, and lawyers or legislators working on issues of reproductive justice.

In some states, a woman’s living will is automatically thrown out when she gets pregnant, forcing her to incubate a fetus to term even if she becomes brain-dead. There’s an active movement to change such laws, and activists have had recent successes in states like Connecticut, which now allows people to specify in their advance directives whether and how they’d like to be cared for if they become both incapacitated and pregnant. Changes to these laws won’t help the Arizona woman in the news this month, but they could prevent similar injustices from befalling other women in the future.