Status of the Fetus, Abortion and

1
Status of the Fetus, Abortion and Maternal-Fetal
Conflicts

• ISD II Womens Health
• Ethics and Health Law
• Jan. 29, 2003

2
Introduction

• Myriad of ethical and legal issues specific to
  womens health
• Physicians will encounter some at the individual
  patient (clinical encounter) level
• Others at societal/policy level

3
Examples of Ethical, Legal Issues Affecting
Womens 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

4
Our Focus

• Status of the fetus, abortion and maternal-fetal
  conflicts
• Issues related to reproductive technologies
• 1 in the present session
• 2 in a later session (Feb. 14, 930-11)

5
Case

• B is 19 years old 15 weeks pregnant.
• Bs partner may have been exposed to HIV.
• Bs 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?

6
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

7
Why Discuss Abortion in Medical School?

• Most MDs (particularly FPs, Ob/Gyns,
  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?

8
Therapeutic Abortions, 1998
Total Hospital Clinic
Canada 110,520 68,290 41,930
NF L 820 343 477
9
Abortions per 1,000 Canadian Women
women aged 15-44 women aged 20-24
Canada 16.1 32.9
NF L 6.4
10
Abortions per 100 Live Births
Total Women lt 15 yrs Women 15-19 Women gt44 yrs
Canada 32.2 241.7 105.8 86.2
NF L 16.4
11
History

• There is evidence that abortion has been
  practiced throughout human history (recipe for
  abortion potion in Chinese text 2600 BC)
• Hippocrates (5th Cent. BC) forbade abortions
• Plato and Aristotle (4th 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

12
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

13
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

14
Developments in the 1970s and 80s

• 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

15
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 womans
  liberty, security of the person and freedom of
  conscience)

16
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

17
Post-Morgentaler

• 1988 CMA The CMAs 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 womans 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

18
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

19
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 PEIs
  have since been struck down by courts

20
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 1980s and 90s, with differing
  results
• This issue culminated in D.F.G. case (S.C.C. 1997)

21
Winnipeg Child and Family Services v. D.F.G.

• Ms. G. 5 months pregnant with 4th 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

22
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

23
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

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Why Does Personhood Matter?

• P1. The fetus is a person. P2. It is prima facie
  wrong to kill a person. P3. 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.

25
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

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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 whats so significant
  about being human? generally leads to one of the
  following accounts

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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

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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
  self-conscious?
• What does capable of self-consciousness mean?
• Capable today? In a year? Pending a medical
  breakthrough?

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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

30
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

31
Is Personhood as Important as People Typically
Think?

• Arguments for and against abortion that dont
  rest on claims about personhood
• Judith Jarvis Thomson
• Don Marquis
• Some things may matter morally without being
  persons
• E.g., animals?

32
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.

33
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 persons 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?

34
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'.

35
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.

36
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.

37
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?

38
Case

• Dr. G is a family physician practising in Little
  Cove, a rural Newfoundland community about 3
  hours drive from St. Johns.
• 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?

39
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 dont 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?

40
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

41
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.

42
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?