Clinical Bioethics Blog : Bioethicist : Bernard W. Freedman : Medical Consulting, Ethics, End of Life Decisions

Dr. Nicola Riley is being held without bail in Utah following her arrest on December 28. 2011. She worked for Dr. Steven Brigham in New Jersey, who owns abortion clinics.   Both of them have been charged with the crime of murder for performing late-term abortions in Maryland. Their apparent modus operandi was to “start” abortions in New Jersey and complete them in Maryland where abortion laws are less stringent.

Maryland has a Fetal Homicide Law that permits murder charges to be brought against people who “intend to cause the death of a viable fetus, yet specifically excludes physicians carrying out abortions. Section 2-103(e)  Murder or manslaughter of viable fetus states:

Inapplicable to medical professionals administering lawful care. -- Nothing in this section subjects a physician or other licensed medical professional to liability for fetal death that occurs in the course of administering lawful medical care.

Reuters News reported on January 9^th that : Cecil County State's Attorney Ellis Rollins said the case could be the first of its kind to test Maryland's 2005 fetal homicide law, under which murder charges can be brought against people who intend to cause the death of a viable fetus. The charge of murder could only stand if the medical treatment – the abortion – was found to be unlawful medical care.

About 38 other states have similar statutes and for the most part, these statutes have been applied, as the legislature intended, in criminal cases where an intentional injury to a pregnant woman that kills a fetus would result in a charge for murder.

The cases against Drs. Riley and Bingham are seemingly intended to test the use of this statute in cases of abortion. This case is especially egregious, as 35 and 36 week term fetuses are alleged to have been found in the doctors’ freezer.

Charges include both first and second degree murder.

In 2003, the United States Congress passed the partial birth abortion ban act defining defined as any abortion where the death of the fetus occurs when the “entire fetal head or any part of the fetal trunk passed the naval is outside of the mother’s body.”

(a)    Any physician who…, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.

In the 2007 case of Gonzalez versus Planned Parenthood, the United State Supreme Court in a five to four decision held that the congressional ban on partial birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to have an abortion.

Under this federal statute, the penalty:

Any physician who, … knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both.

It is unclear at this point what type of abortion was performed by Drs. Riley and Brigham. 

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 Informed Consent and Multifetal Reduction

by Bernard W. Freedman, Bioethicist

The New York Times ran a story on October 12, 2009, addressing the issue of multiple pregnancies after In Vitro Fertilization, IVF or intrauterine insemination IUI, and hormone therapy.  This article by Stephanie Saul, “Grievous Choice on Risky Path to Parenthood,” follows the patient Amanda Stansel, who, after being told she was carrying six fetuses, decided to reject multifetal reduction and accept the risks for herself and her children.

Following IVF or IUI, multiple pregnancies occur 10 times the rate as it occurs in a natural cycle.

Multifetal reduction is the intentional termination of the life of one or more fetuses for the purpose of allowing the other fetuses to survive. The label of “reduction” is a euphemistic misnomer. Multifetal reductions are a statistically anticipated need to terminate one or more fetuses. A choice is made as to whether or not to terminate, and if so, which fetus or fetuses are selected and on what criteria that selection is made?

Up until the time Mrs. Stansel had an ultrasound neither she nor her husband Thomas were warned of risks of a multiple pregnancy, including multifetal reduction and the unique increased risks due to Mrs. Stansel’s medical condition. The ultrasound showed that she was pregnant with sextuplets. 

Many people are desperate to have children and turn to artificial reproductive technologies for help. Unfortunately, many of these patients are not told of the ramifications a multiple pregnancy can have both for the mother and the child. Amanda Stansel was one of these patients who went forward with multiple embryo transfer without her informed consent.

Mothers often suffer significant physical problems which include severe bleeding and possibly death following multifetal reduction. Bereavement groups have been developed to deal with the guilt, fear and anguish over the loss due to ending the life of one or more fetuses or the difficult deaths or severe physical and mental disabilities that may follow for the remaining infants.

For the children, there are substantial increased risks of respiratory distress, intraventricular hemorrhage, bleeding into the brain with potential brain damage, dead bowel (necrotizing enterocolitis), developmental delays, cerebral palsy, and death.

So, what must physicians tell IVF and IUI patients who elect multiple embryo transfer?

Physicians must advise of all significant risks, including those risks that are unique to the patient that may increase the dangers to that patient and or the children who may be conceived. Physicians should not delegate the responsibility of obtaining an informed consent to medical assistants or leave it to written explanations in handout brochures in the office.

The physician must ensure and document that the risks are understood in realistic detail including the eventuality of the need for multiple fetal termination by injecting potassium chloride into the vascular system of the fetus and ending its life. The patient must understand that this risk can be avoided with single embryo transfer.

Physician Liability

Obtaining a real informed consent is difficult to do and it has been shown that most physicians are reluctant to do so. Nevertheless, if these risks are not fully explained and understood the mother cannot actually decide whether or not to proceed. The law prohibits any procedure from going forward without proper consent and it should be understood that liability for the injury, suffering or wrongful death of the mother or children could follow.

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A South Korean Ethics Committee uses a staged approach to Withdrawing Life Support

In follow up to this blog’s April 23, 2009 post: “Letting the Conscious But Incompetent, Non Terminally Ill, Patient Die.” A South Korean hospital used a staged approach to consider the withdrawal of artificial life support based upon the condition of the patient.

On June 11, 2009 an Ethics Committee at the Yonsei University Severance Hospital in Seoul Korea decided to remove a 77-year-old woman in a vegetative state from a respirator in accordance with a Supreme Court ruling. 

Severance Hospital President Park Chang-il said:

   

“Though we should comply with the Supreme Court ruling, the patient is not facing impending death. So after conducting several meetings, we made the decision,” … “Under the three-stage guideline for death with dignity we came up with, we will make a prudent decision for patients who are in the second stage like the patient in question.”

Stage 1: patients facing impending death due to irrecoverable diseases such as brain death or impairment of multiple organs.
Stage 2: Patients in a vegetative state on respirators.
Stage 3: Patients able to breathe on their own.

Life support for patients in the first and second stages will be removed when certain criteria are clear such as patient self-determination, family consent and the ethics committee’s conditions are met.

In the light of the case discussed in the April 23 post, ethics committee should be required to pursue, with greater scrutiny depending upon the cognitive level and medical condition of the patient. It is unlikely that the ethics committee in Seoul would have approved of discharging a conscious but incompetent, non-terminally ill patient and resultant death.

Remember: The greater the cognitive and medical condition of a patient, the greater the level of scrutiny that is required before life sustaining treatment can be withheld or withdrawn. The greater the ambiguity the more need there is to err on the side of protecting the patient and to err on the side of life. Such an effort serves to protect the life of the patient and protect physicians and hospitals from potential liability.

 

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The Vatican and the 2004 President’s Council On Bioethics establishes a second class group of persons who they deem less worthy of dignity and respect.

On September 8, 2008, the Vatican issued a new statement on bioethics entitled “Dignitas Personae on certain bioethical questions.”  The Vatican’s paper updates church doctrine regarding the ethics and morality of individuals and the duties and authority of physicians in using in-vitro fertilization (IVF).  The Vatican has always demanded absolute and unconditional recognition of the respect and dignity owed to all persons from the time of conception.  This does not apply to persons conceived by IVF, who from the time of conception are relegated to a lesser class of personhood.

The Vatican identifies people born through IVF as not entitled to the same respect and dignity as owed to persons conceived without the interference of medical technology that requires any extracorporeal processes. The premise of the church is children be conceived “by the fruit of the conjugal act specific to the love between spouses.” If not so conceived, the person “… must be given a moral evaluation in reference to the dignity of the human person.”

In 2004, the President’s Council on Bioethics expressed an analogous point of view.

  The Council states that a child’s “being” is determined by in-utero sexual conception, without which the child is without an “identity.” This, the Council argues, is because the “character and significance of human procreation … all of the child’s being and identity, it owes to a continuous developmental process that begins with the union of egg and sperm and continues through an unbroken sequence of embryonic and fetal stages and active within the womb of the mother.”  The scientific basis for the Council’s position is that:

“… through the genetic recombination produced by the lottery of sexual reproduction, genetic novelty is assured, allowing for the gradual evolutionary emergence of new biological capacities and possibilities.  Humanly speaking, because these deep biological facts are lifted into human self-consciousness, procreation commonly establishes ties of belonging, rooted in begetting ritually significant for parents, children, and the larger society.”

It is these “ties of belonging, rooted in begetting” that the Council argues, that are the genesis of human worth and a basis to gauge the dignity and human rights to be afforded to such a person. So, the child lacks (does not lose), per the Councils reasoning, from the time of conception, an identity. Genetically we could see it as an agenesis of identity and dignity – and as a result, never belonging to the human community.   The distinction, therefore, is that a child born through normal sexual in utero conception is a child that is “created” while the IVF conceived child is “made.”

The concept of personhood has been struggled with for centuries. For Plato, personhood was the essence of the soul. Later, personhood was discussed in terms of Natural Law and the reflection of a truly unique identity, divinely created individual. Thus, the question: are IVF conceived persons, in the eyes of the Vatican, divinely created? If not, we can surmise from the Vatican’s statements that the unconditional respect and dignity enjoyed by all human beings in the eyes of the Church from the time of conception are not applicable to the IVF conceived child.

Under the Doctrine of Faith, the Vatican makes clear that a physician is not permitted to participate in IVF and interfere with the natural sexual procreation:

“… all techniques for heterologous artificial fertilization as well as those techniques of homologous artificial fertilization which substitute for the conjugal act, are to be excluded.  …, the doctor is at the service of persons and the human procreation.  He does not have the authority to dispose of them or to decide their fate.”

So, in order to accommodate the Vatican’s viewpoint, physicians must cease to perform or participate in IVF, and perhaps refuse to discuss the reproductive options available with their patients.  Following this argument further, physicians of would-be parents would have a moral obligation to refrain from using IVF, both for the sake of would-be parents as well as for the overall good of the community. Should physicians shun or care for IVF conceived persons?

It is of great concern that the Council, a pseudo-governmental organization, would stratify the moral and ethical standing of citizens. The Council’s position seeks to supersede procreative liberty and medical decision making with governmental definition of the qualifications to be human. This is antithetical to principles of a democratic society and to the health, welfare and unbiased treatment of persons born with the assistance of IVF.  

It is reported that there are more than 3 million people conceived with IVF. So, what becomes of these persons without a sense of being or identity? How can one be a moral agent in a community where human origins are graded? Are they to view themselves as neutered in someway because of their noncoital beginnings? Should they be reluctant to pass on to their progeny a genetic makeup that has no true identity? Should persons conceived with IVF be seen as lacking ensoulment? The pronouncements of the Vatican and the Council target all persons born with IVF assistance as well as their progeny-forever.  

In-vitro fertilization
Artificial Reproductive Technology
Dignitas Personae On Certain Bioethical Questions
Dignity
Morality
State Paternalism
Religion and medical decision making
Physicians as moral agents

 

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