Status of the Fetus Abortion and Maternal-Fetal Conflicts

Status of the Fetus, Abortion and “Maternal-Fetal Conflicts” ISD II – Women’s Health Ethics and Health Law Jan. 29, 2003

Introduction § Myriad of ethical and legal issues specific to women’s health § Physicians will encounter some at the individual patient (clinical encounter) level § Others at societal/policy level

Examples of Ethical, Legal Issues Affecting Women’s Health § Violence issues § sexual assault, spousal assault § § § § Abortion Prenatal screening Surrogate motherhood Maternity leave policies Breastfeeding policies Emerging reproductive technologies Access to infertility treatments Status/use/ownership of gametes, embryos

Our Focus 1. Status of the fetus, abortion and maternal-fetal conflicts 2. Issues related to reproductive technologies • • #1 in the present session #2 in a later session (Feb. 14, 9: 30 -11)

Case § § B is 19 years old & 15 weeks pregnant. B’s partner may have been exposed to HIV. B’s physician advises her to have an HIV test. B is told that, if she does have HIV, there are treatments that can reduce the risk of HIV transmission to the child. § B refuses to have the test. – What ethical/legal issues does this case raise?

Issues § Ethical/legal status of the fetus? § Dealing with patients whose conduct you morally disapprove of § Fetal rights? § Maternal rights? § Paternal rights? – The best place to look for discussions of these issues is in discussions of abortion & related issues

Why Discuss Abortion in Medical School? § Most MD’s (particularly FP’s, Ob/Gyn’s, Psychiatrists, & Anesthetists) will face this issue (frequently) § Significant impact on patients’ well-being § How to deal with your own views Statistics – # abortions obtained by Canadian women? – # abortions per 1, 000 women aged 15 -44 in Canada? – # abortions in Canada for every 100 live births?

Therapeutic Abortions, 1998 Total Hospital Clinic Canada 110, 520 68, 290 41, 930 NF & L 820 343 477

Abortions per 1, 000 Canadian Women women aged 15 -44 women aged 20 -24 Canada 16. 1 32. 9 NF & L 6. 4

Abortions per 100 Live Births Total Canada 32. 2 NF & L 16. 4 Women < 15 yrs 15 -19 >44 yrs 241. 7 105. 8 86. 2

History § There is evidence that abortion has been practiced throughout human history (recipe for ‘abortion potion’ in Chinese text ~2600 BC) § Hippocrates (5 th Cent. BC) forbade abortions § Plato and Aristotle (4 th Cent. BC) endorsed it as a means of population control § In Western world, the debate on abortion has been conducted predominantly in a religious context

History of Abortion Law in Canada 1869 – Criminal law passed prohibiting abortion, max. penalty life imprisonment 1892 – First Criminal Code – criminalized not only abortion, but also sale, distribution and advertisement of contraception. . . 1969 - Decriminalization of contraception - s. 251 “therapeutic abortion” exception

Therapeutic Abortion Regime [s. 251], 1969 -88 § Abortion remained a crime (for abortion provider and pregnant woman) unless: – in accredited hospital – approved in advance by majority of 3 member “therapeutic abortion committee” – continuation of pregnancy likely to endanger life or health of pregnant woman

Developments in the 1970’s and 80’s § Dr. Henry Morgentaler opened clinics, initially in Quebec then other provinces, faced series of criminal charges, repeatedly acquitted by juries § 1976 - Badgley Report – concluded abortion law not operating equitably across country § 1982 – Canadian Charter of Rights and Freedoms came into force

Morgentaler (S. C. C. 1988) § 5 -2 decision, Court struck down s. 251 as being contrary to the Charter s. 7 Every one has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice. § variety of reasons given in majority judgments – some “procedural” (law not operating the way it was intended to, unequal access, delays, lack of therapeutic abortion committees, vagueness of term “health”, etc. ) – some “substantive” (the law violates woman’s liberty, “security of the person” and freedom of conscience)

Borowski case § Borowski – anti-abortion advocate who had challenged s. 251 from the opposite end of the spectrum from Morgentaler § Morgentaler case reached S. C. C. first – s. 251 struck down § S. C. C. decided not to hear appeal from Sask. C. A. decision in Borowski that constitutional guarantee of life does not apply to fetus

Post-Morgentaler § 1988 – CMA – “The CMA’s position is that there is no need for this section [i. e. , s. 251] to be replaced. ” § Bill C-43 (1990) would have recriminalized abortion except where woman’s MD of the view that her life or health (including psychological health) likely to be threatened – criticized by both sides – passed by House of Commons, defeated by Senate 44 -43 – since then, no further federal legislation re abortion

Post-Morgentaler – Paternal Rights? § 1989 – 3 cases (Manitoba, Ontario, Quebec) in which injunctions to prevent abortions were sought by men alleging paternity § Daigle v. Tremblay (S. C. C. ) – injunction struck down - potential father did not have right to prevent abortion – fetus not a “human being” under Quebec Charter, – fetus must be born alive to enjoy legal rights

Attempted Provincial Regulation of Abortion § Several provinces (BC, Manitoba, NB, NS, PEI) enacted legislation or regulations limiting access to abortion or restricting medicare coverage for the procedure – all of these provincial provisions except PEI’s have since been struck down by courts

“Maternal-Fetal Conflicts” § Applications for judicial interference with pregnant women in the alleged interest of the fetus § A number of these cases, most involving maternal substance abuse/addiction, made their way through the courts in the 1980’s and 90’s, with differing results § This issue culminated in D. F. G. case (S. C. C. 1997)

Winnipeg Child and Family Services v. D. F. G. § Ms. G. 5 months pregnant with 4 th child, § § addicted to glue sniffing, 2 previous children disabled and wards of state CFS made application for order to detain and treat until birth of child Order initially granted, reversed on appeal In meantime Ms. G. successfully stopped sniffing, gave birth to apparently normal child S. C. C. agreed to hear appeal anyway, given importance of general issue

Winnipeg Child and Family Services v. D. F. G. (S. C. C. 1997) § 7 -2 decision § Majority held that courts do not have power to detain pregnant woman for purpose of preventing harm to her unborn child – fetus not a “legal person” in Canadian law – concern re “where to draw the line” if such orders could be granted § Up to legislatures if they want to change this

The Ethics of Abortion & Personhood § While a fetus has been declared not to be a legal person in Canadian law, this does not settle the question ethically § We turn next to a survey of ethical thinking about abortion & personhood

Why Does Personhood Matter? P 1. The fetus is a person. P 2. It is prima facie wrong to kill a person. P 3. Abortion involves killing a fetus. C. Abortion is prima facie wrong. – Premises 2 and 3 are normally accepted by both sides of the abortion debate. – Everything seems to ride, then, on the controversial claim that the fetus is a person.

Possible Accounts of Personhood 1. Strict biological account – human beings = persons 2. Pure sentience account – conscious beings = persons 3. Self-consciousness account – creatures capable of self-consciousness = persons 4. Soul account – beings with souls = persons 5. Relational account – those capable of taking part in social relationships = persons

1. Strict Biological Account § Human beings = persons § Strength: easy to tell whether the criteria has been met (although the definition might be controversial) § Weakness: Why should membership in a species be morally relevant? – Some complain this view represents a form of "speciesism" (compare with racism and sexism) – Answering the question: ‘what’s so significant about being human? ’ generally leads to one of the following accounts

2. Pure Sentience Account § Conscious beings = persons – Beings capable of experiencing (at least) pleasure/pain should be considered persons § Can we tell for certain whether a being is sentient? § Possible weakness: Some animals may turn out to be persons – The category person may be larger than the category human

3. Self-Consciousness Account § Creatures capable of self-consciousness = persons – i. e. , awareness of self as a continuing subject of experience § Not all animals would qualify on this account, but some might (chimpanzees, for instance) § How do we determine whether a thing is selfconscious? § What does “capable” of self-consciousness mean? – Capable today? In a year? Pending a medical breakthrough?

4. Soul Account § Beings with souls = persons § How do we settle the question of what has a soul? § This is probably hopeless as a basis for public policy – No likelihood of getting agreement on what has a soul, let alone whether this is the right criteria

5. Relational Account § “Personhood is a social category, not an isolated state. Persons are members of a community” § “fetuses are not persons, because they have not developed sufficiently in their capacity for social relationships … In this way they differ from newborns, who immediately begin to develop into persons by virtue of their place as subjects in human relationships …” (Susan Sherwin) – Controversial, but influential

Is Personhood as Important as People Typically Think? § Arguments for and against abortion that don’t rest on claims about personhood – Judith Jarvis Thomson – Don Marquis § Some things may matter morally without being persons – E. g. , animals?

The Violinist Example § From a famous article by Judith Jarvis Thomson – A world-famous violinist has been attached to you without your consent. – He will die due to kidney failure if he is disconnected now. – He can be safely unhooked in nine months.

The Point of the Violinist Example § Thomson's Claim: It would be nice of you to remain hooked up, but, morally speaking, you don't have to stay hooked up. – So what? § Thomson's Point: Another person’s right to life doesn't always trump the right to control your body. § What does this tell us about abortion? – Relevance to pregnancy by rape? § The Remaining Problem: When does the fetus’ right to life 'trump' the right to control your body?

Marquis § “Why Abortion is Immoral” § Why is it wrong to kill ‘ordinary’ people? – "What primarily makes killing wrong is neither its effect on the murderer nor its effect on the victim's friends and relatives, but its effect on the victim. The loss of one's life is one of the greatest losses one can suffer. The loss of one's life deprives one of all the experiences, activities, projects and enjoyments that would have constituted one's future. ” § Killing us is wrong because it deprives us of a particular kind of future, 'a future-like-ours'.

Marquis’ Argument § Abortion is wrong in most cases because most fetuses have a future-like-ours. – Notice that this is not an argument based on the concept of being a person. It seems to rely on the potential to be a person. § A Possible Exception: "Presumably abortion could be justified in some circumstances, only if the loss consequent on failing to abort would be at least as great. “

The Point § These arguments may or may not convince you § They do make a case that it is a mistake to think that all ethical questions about abortion would be answered by resolving the question of whether fetuses are persons.

Dealing with Requests for Abortion § Suppose you are morally opposed to abortion. § How should you deal with a situation in which a patient asks for your assistance in obtaining one?

Case § Dr. G is a family physician practising in Little Cove, a rural Newfoundland community about 3 hours drive from St. John’s. § Dr. G is the only physician in Little Cove. There are 3 family physicians within a 1/2 hour drive. § Dr. G has strongly held personal views against abortion. § J, a 19 year old patient of Dr. G is about 11 weeks pregnant and wants an abortion. – Should G arrange the referral requested by J?

CMA Code of Ethics § “ 8. Inform your patient when your personal morality would influence the recommendation or practice of any medical procedure that the patient needs or wants. ” – Helpful, but not entirely on point. Can you simply inform your patient you don’t have anything to do with abortion, including referring her to someone who will perform abortion? – What if your patient is ill-informed regarding the availability of abortion? Must you correct her misunderstanding?

Central Clash § Two roles collide here: – Physician as an individual who is often required to use his/her individual moral judgment – Physician as part of a health-care system that makes services such as abortion available

CMA Statement on Induced Abortion (1988) § “A physician whose moral or religious beliefs prevent him or her from recommending or performing an abortion should inform the patient of this so that she may consult another physician. § No discrimination should be directed against doctors who do not perform or assist at induced abortions. Respect for the right of personal decision in this area must be stressed, …. § No discrimination should be directed against doctors who provide abortion services. ”

Referring Your Patient to Another Doctor § Notice the CMA Statement does not explicitly say what you must do aside from informing the patient of what you will not do § Be wary of refusing to provide any assistance to a patient seeking an abortion – – Must you make the referral yourself? Must you direct the patient to a doctor who will make one? What if there are other nearby physicians who can help? What if clinics are available that require no referral?