© 2013 N. V. Chernyak
2013 – № 2 (6)
Key words: bioethics, ethics committee, clinical practice, obstetrics, reproduction ethics, maternal-fetal conflict, pregnancy, involuntary hospitalization, phenylketonuria, PKU, USA
Abstract: Ongoing debates on fetus status (Harris 2000) preconditioned the absence of meaningful clinical resolution of reproduction ethics cases. The case under analysis represents the ethical dilemma of maternal-fetal conflict. In the paper the dilemma is approached from the perspective of rights theory (Beauchamp and Childress 2009), principlism (Beauchamp and Childress 2009) and feminist approaches to bioethics (Dworkin 1994; Sherwin 2007). First, moral and legal obligations of a patient are discussed in the context of prenatal and reproductive ethics. Then the author addresses broader context to bring into picture other aspects such as doctor-patient relationships, family dynamics, and public health. The conclusion contains recommendations. 1
Case study 2
A woman with phenylketonuria (PKU) presents at her obstetrician’s office. She has had one prior pregnancy where the child had maternal PKU. In light of the high risk of her fetus having maternal PKU, her physician recommended that she avoid another pregnancy. However she and her husband want to have another child and she becomes pregnant. She says she wants to have a healthy baby and will try hard to avoid the wrong foods. Having had a difficult hospitalization during her previous pregnancy, however, she is unwilling to be hospitalized again for percutaneous feeding with phenylalanine restricted protein supplements. Her obstetrician is wondering if the patient may be morally or legally obligated to comply with the recommended diet so that she might not have another child with maternal PKU. The doctor presents her query to the ethics committee of the hospital (McGowan 2013). 3
Ethical analysis of the case
The case under analysis illustrates the ethical dilemma referred in literature as a maternal-fetal conflict. The term ‘maternal-fetal conflict’ stands for the clash of maternal rights with the rights of a fetus (Harris 2000: 786). In the paper the dilemma is approached from the perspective of rights theory (Beauchamp and Childress 2009: 350), principlism and feminist approaches to bioethics (Dworkin 1994: 54; Sherwin 2007: 82). First, I will dwell upon moral obligations in the context of prenatal ethics and reproductive ethics. Then, I will analyze moral and legal rights associated with the case. Finally, I will address broader context to bring into picture other aspects such as doctor-patient relationships, family dynamics, and public health. The conclusion contains recommendations for the obstetrician.
In case of the pregnancy with the high risk of the fetus having maternal phenylketonuria (PKU), moral obligations of the pregnant woman to comply with the obstetrician’s recommendations can be interpreted in different ways. Essentially, the idea underlying the attitudes to maternal obligations to a fetus depends on the perception of a pregnant woman and a fetus as one entity or as two separate entities. Originally, that debate pertains to abortion discourse (Dworkin 1994: 54). Ronald Dworkin carries out a review of two opposite viewpoints among authors who write on abortion. Some treat «pregnancy as if a woman and her fetus were morally and generically separate entities», and rely heavily on the claim of woman’s privacy in their argumentation. The two separate entities are seen as either deliberately or accidentally connected in some way. The woman is entitled to have a «sovereign right» to sever the connection whenever she wishes (Dworkin 1994: 54). The consideration of a pregnant woman and her fetus as separate entities can be also based on the view of the fetus as “a separate ‘patient’ with needs that may or may not be congruous with those of the pregnant woman” (Meleo-Erwin and Katz Rothman 2010: 47). That stance is opposite to the feminist one mentioned earlier as it defends the needs of the fetus but not quite the autonomous rights of the pregnant woman.
Others draw attention to the unique character of the relationship between a pregnant woman and her fetus that makes it impossible to separate the fetus from the pregnant woman. Dworkin quotes a feminist writer MacKinnon’s opinion that is very powerful due to its metaphoric language: «by neglecting the mother’s perspective and assimilating her situation to that of a landlord or a woman strapped to a violinist, the privacy claim obscures, in particular, the special creative role of a woman in pregnancy. Her fetus is not merely “in her” as an inanimate object might be, or something alive but alien that has been transplanted into her body» (Dworkin 1994: 55).
I believe that a pregnant woman and a fetus should be seen more as one entity, first and foremost, because the fetus is located inside the body of the woman (Steinbock 2011: 39). However, to justify moral obligations of the pregnant woman to the fetus I would apply alternative way of framing the ethical dilemma at hand. Instead of the conflict-based model I would use the ethics of care (Sherwin 2007: 82) and the model of maternal-fetal relationships by Lisa Harris. This model focuses on shared needs of pregnant women and fetuses rather than on their mutually exclusive needs (Harris 2000: 788). Moral obligations to the fetus are rooted in natural and unavoidable relationships born due to maternal-fetal coexistence. As Steinbock put it, «[e]xercising [the] choice and becoming a parent imposes awesome responsibilities» (Steinbock 2011: 39). Those responsibilities and maternal moral obligations include the obligation to avoid prenatal harm to offspring from conduct during pregnancy (Robertson 1994: 20). In my opinion, the fact that the harm to the fetus is avoidable makes maternal moral obligations even stronger. It is important to mention that nowadays advancement of screening technologies and treatment methods make it possible to treat prenatal human life with respect in practice not just in theory of bioethics.
The counterargument to maternal obligation to a fetus supports the autonomous right of parents and their procreative liberty. From my viewpoint, it should be seen as irrelevant. According to Robertson, «parental conduct of mothers and fathers that unreasonably harms offspring is not part of procreative liberty» (Robertson 1994: 20). Procreative liberty is defined as the freedom to decide whether or not to have offspring (Robertson 1994: 16; Steinbock 2011: 206). According to John Robertson, «questions about pregnant woman’s […] conduct during pregnancy […] implicates liberty in course of reproduction but not procreative liberty in the basic sense» (Robertson 1994: 23). So when we talk about woman’s moral right to certain behaviors during pregnancy that can harm the developing fetus in utero, we focus on the liberty in course of reproduction. To my mind, acknowledging responsibilities and moral obligations to a fetus does not contradict that liberty but is embodied in it. To resume the first part of the paper, the moral obligation of the patient to comply with her obstetrician’s recommendations regarding her current pregnancy arise from the unique nature of maternal-fetal relationships and are embodied in liberty (Harris 2000: 786).
When we turn our attention from moral obligations associated with the current pregnancy to the future reproductive decisions, ethical justification would differ. The couple’s reproductive decisions should be analyzed in the context of procreative liberty. Procreative liberty is «central to personal identity, to dignity, and to the meaning of one’s life» (Robertson 1994: 24). From description of the case, we know that the patient was recommended by her physician to avoid another pregnancy. Difficult hospitalization during her previous pregnancy that resulted in her first child having maternal PKU reasonably makes the obstetrician concern about the fetus well-being. However, the family’s decision to have another child cannot be overruled. The ethical principle of personal autonomy supports such reproductive choice. This reproduction decision has considerable moral significance because it leads to the birth of a person. The moral significance of a reproductive decision along with the rights of reproductive autonomy imposes certain responsibilities on parents (Benatar 1999: 174). It also places the burden to provide serious moral justification to limit person’s reproductive choice. As a rule, reproductive choices can be limited if they entail substantial harm (Robertson 1994: 24). In the case at hand, the harm is still presumed and can be avoided so there are no grounds for the physician to take serious steps in order to restrict parents’ future reproductive decisions.
The moral obligations that we have argued a pregnant woman owns to her fetus are not legally enforceable. Although there is close relationship between ethical and legal duties, they are justified differently: «[l]egal rights are justified by normative structures in law, and moral rights are justified by normative structures in morality» (Beauchamp and Childress 2009: 351). They are related in a way that «ethical standard will influence conclusions about the appropriateness of criminal punitive measures in situations of potential or actual prenatal harm» (Harris 2000: 789).
This case can be presented in a form of conflicting moral rights—the maternal right to act freely versus the fetal right to life and well-being (Harris 2000: 787). In maternal–fetal medicine, experts disagree about whose rights have priority (Hellsten 2002: 56).
Before analyzing legal rights of the parties involved in maternal-fetal relationships, it is necessary to determine whether a fetus has moral rights and can be given equal moral status with a pregnant woman. Today, there is no national or international consensus on the issue of fetal rights (Harris 2000: 787). Lengthy and rigorous debate on that matter preconditioned the absence of meaningful clinical resolution of such a difficult case. To make a step towards a possible resolution, I would agree with Bonnie Steinbock that fetuses couldn’t be given equal moral status with pregnant women (Steinbock 2011: 39). I would justify my position by leveling criticism at the idea that a fetus should be considered a person (Thomson 1971: 11), and it should have the same moral rights as a newborn child and a pregnant woman have. Some authors state that a fetus is already a moral person and thus has rights that have to be taken into consideration (Hellsten 2002: 56). As a result, a fetus became highly politicized entity that requires rights: «rights to be genetically free of defect, rights to be free from ‘abuse’ by pregnant women and rights to medical treatment» (Meleo-Erwin and Katz Rothman 2010: 48). Consequently, a woman and her fetus are perceived as separate patients: «[t]he fetus is imagined and shown to be trapped in a potentially hazardous gestational environment, and the role of obstetrics is to rescue the highest possible quality infant. And as babies and children have become products and mothers unskilled workers» (Meleo-Erwin and Katz Rothman 2010: 55). Thus, by giving the fetus moral rights we brought about a moral dilemma of maternal-fetal conflict that has no generally accepted solution to the present day. However, by denying personhood and equal moral rights of a fetus and a woman, I do not promote unrestricted rights of pregnant women.
When rights or values come into conflict, bioethics in the United States tends to allow individuals to resolve conflict themselves relying on the principle of the respect for autonomy. However, the state not always let individuals alone resolve moral and legal conflicts (Parens and Knowles 2007: 264). The notion of parens patriae gives the state power to intervene in case of an abusive or negligent parent (Paris, Schriber and Moreland 2007: 435). The proposals to public policy on that matter are very controversial as feminist and civil liberties groups protest against attempts to punish prenatal conduct (Robertson 1994: 173). Yet pregnant women should not be allowed to disregard the risk of prenatal harm to their offspring as in this case their autonomy is limited by the nonmaleficence principle (Beauchamp and Childress 2009). Thus, liberties associated with reproductive behaviors can be restricted if sufficient harm is involved (Steinbock 2011: 207).
In the US, women can be prosecuted for prenatal actions that harm offspring (Robertson 1994: 12). Increased public attention to the fetus health focuses on environmental and behavioral factors affecting fetus health (Robertson 10). One of the classic examples is substance abuse during pregnancy that can lead to miscarry, stillbirth, or child’s avoidable health problems. Women may face criminal charges in these circumstances (Steinbock 2011: 156).
Steinbock rejects criminal justice approach to problem of substance abuse in pregnancy (Steinbock 2011: 156). Harris argues that «there are serious problems with laws regulating pregnant women’s behavior in the name of fetal protection, i.e. with encoding maternal-fetal conflict into law» (Harris 2000: 789). Applying their conclusions to the case under analysis, I tend to agree that extending moral obligations to legal ones would be ethically questionable, hardly possible in existing clinical and legal environment, and might lead to such negative consequences as pregnant women avoidance of medical care or mothers’ alienation from babies. I would not give power to ethical committees on the lower level or courts on the higher level to oversee or enforce legal maternal obligations in a given case. My opinion is supported by the fact that at present «many courts have found ways to avoid holding women legally responsible for their prenatal conduct» (Robertson 1994: 173).
Speaking about broader ethical, legal and social implications, I want to say that they are closely interrelated. Maternal-fetal conflict might have a negative impact on family dynamics. That’s why clinicians should pay attention to broader scope of relationships that might be affected. In addition, if the case would involve legal actions, I would be concerned about the breach of trust relationships between a patient and a doctor that I envision as a necessary condition of ethically sound medical care. Finally, we should consider the issues of quality control and public policy that arise with prenatal conduct that risks harm to offspring (Robertson 1994: 173). The ethicality of punishing and seizing women for harmful behaviors caused partly by genetic diseases should be seriously questioned before encoding into law.
I would recommend the obstetrician to avoid unnecessarily adversarial when focusing on conflict of rights the patient and the fetus own. Rather, women and fetuses should be seen and referred as parts with common interests (Steinbock 2011: 155). Risky behaviors that harm child’s future might also endanger maternal well-being and undermine family dynamics. Importantly, whatever measures to prevent unreasonable harms to offspring are taken, they should be applied both to mother and father (Robertson 1994: 20). As the case doesn’t mention partner’s role and opinion, I would involve him before the case goes to the ethical committee of the hospital. This might be essential in order to understand underlying causes of harmful behavior (Robertson 1994: 173). As legal actions that would ensure implementation of the obstetrician’s recommendations would be difficult if not impossible to take, the medical team should apply educational methods and described in the paper approach to persuade the woman follow the recommendations voluntary.
1 The article represents a student essay written as a part of Fogarty International Ethics Training Program. Its contents are solely the responsibility of the author and do not necessarily represent the official view of the Case Western Reserve University or Fogarty International Center.
2 From McGowan (McGowan 2013). Used with permission.
The case is based on concepts that are presented in the following published texts:
Steinbock, B. (2011) Maternal Fetal Conflict, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, Oxford Scholarship Online (http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195341621.001.0001/acprof-9780195341621) (10.02.2014).
Robertson, J. A., Schulman, J. D. (1987) Pregnancy and Prenatal Harm to Offspring: The Case of Mothers With PKU, Hastings Center Report, 17 (4), p. 23–33.
3 The case under analysis and its discussion should be perceived from the perspective of present-day American legal and social environment. The argumentation in the article is based on American school of thought and its tradition of discourse in reproduction ethics.
Beauchamp, T. J., Childress, J. F. (2009) Principles of Biomedical Ethics, 6th ed., Oxford University Press.
Benatar, D. (1999) The Unbearable Lightness of Bringing into Being, Journal of Applied Philosophy, 16 (2), p. 173-180.
Dworkin, R. (1994) Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom, Vintage.
Harris, L. H. (2000) Rethinking maternal fetal conflict: gender and equality in perinatal ethics, Obstetrics and Gynecology, 96 (5), Part 1, p. 786-791.
Hellsten, S. K. (2002) Multicultural issues in maternal–fetal medicine. D. L. Dickenson (ed.), Ethical Issues in Maternal Fetal Medicine, Cambridge University Press, p. 39-60.
McGowan, M. L. (2013) Reproductive Ethics Unit Paper, BETH 402: Foundations in Bioethics II, Spring Semester [Blackboard materials], Cleveland, Ohio, USA: Case Western Reserve University, retrieved from Case Western Reserve University website in February 2013. (https://blackboard.case.edu/) (01.03.2013).
Meleo-Erwin, Z., Katz Rothman, B. ‘Choice’ and Justice: Motherhood in a Global Context. L. Davies, R. Daellenbach, M. Kensington (eds.), Sustainability, Midwifery and Birth, Routledge, p. 45–58.
Parens, E., Knowles, L. P. (2007) Reprogenetics and Public Policy: Reflections and Recommendations. L. Knowles, G. Kaebnick (eds.) Reprogenetics: Law, Policy and Ethical Issues, JHU Press, p. 253–294.
Paris, J. J., Schreiber, M. D., Moreland, M. P. (2007) Parental refusal of medical treatment for a newborn , Theoretical Medicine and Bioethics, 28, p. 427–441.
Robertson, J. (1994) Children of Choice: Freedom and the New Reproductive Technologies, Princeton University Press.
Sherwin, S. (2007) Feminist Approaches to Health Care Ethics. R. E. Ashcroft, A. Dawson, H. Draper, J. R. McMillan (eds.), Principles of Health Care Ethics, p. 79-85.
Steinbock B. (2011) Life Before Birth, Oxford Scholarship Online. (http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195341621.001.000 1/acprof-9780195341621) (10.02.2014).
Thomson, J .J. (1971) A Defense of Abortion, Philosophy and Public Affairs, Vol. 1 No. 1, p. 47–66.