SEMINAR IN ETHICS AND LAW: TERMINATION OF PREGNANCY AND ASSISTED REPRODUCTION

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1 1 UNIVERSITY OF OXFORD, YEAR 5 CLINICAL STUDENTS COURSE IN OBSTETRICS AND GYNAECOLOGY SEMINAR IN ETHICS AND LAW: TERMINATION OF PREGNANCY AND ASSISTED REPRODUCTION Dr Michael Dunn Dr Angeliki Kerasidou The Ethox Centre, University of Oxford Overview of Handouts 1. Materials for use during the session Page 2 2. Follow-up reading Termination of pregnancy Page 3 a) Revision of consent and children b) Sexual Offences Act 2003 c) The law relating to abortion The moral value of human life: Ethical arguments concerning termination and assisted reproduction Page 7 a) Moral status-based arguments b) Arguments beyond moral status

2 2 1. Materials for use during the session Termination of pregnancy A 14 year old girl conceived following intercourse without barrier contraception. She is now 8 weeks pregnant and requesting an abortion. Both she and her boyfriend do not feel that they are old enough to contemplate having a family as they are both at school. What legal and ethical issues are raised by the management of this case? The value of human life and the moral permissibility of abortion and assisted reproduction The Abortion Act makes certain distinctions about when it is permissible to terminate a pregnancy. Are these distinctions morally justified?

3 3 2. Follow-up reading Termination of Pregnancy a) Revision of consent and children The law is complex and not always clear. General rule: Do not allow a person under 18 years to come to serious harm on the grounds that the minor and the parents refuse consent for necessary and urgent treatment 16 and 17 year olds (governed by the Family Law Reform Act 1969) Are presumed to have capacity to give consent to medical procedures unless the contrary is shown. If they have capacity they can give consent. If the patient refuses consent then those with parental responsibility, or a court, can give consent to treatment which is in the child s best interests. Under 16 years old and Gillick competent (governed by common law) Children under 16 years old are presumed not to have capacity to consent unless they satisfy health professionals that they do have such capacity. However the common law case of Gillick established that a child, less than 16 years old, who does have capacity (is Gillick competent ) can give consent for medical treatment. The precise criteria for judging capacity ("Gillick competence") are not clear, but probably include understanding key facts, and coming to a reasoned decision. It is unlikely that the courts would consider children of 13 years or less to be Gillick competent in most situations, although there is no clear legal guidance on this matter. If the patient refuses consent the legal situation is as for year olds above. Children who are not Gillick competent At least one person with parental responsibility should normally give consent. Those with parental responsibility are under a legal obligation to act in the child s best interests. If all those with parental responsibility refuse consent for a procedure that the doctors think is strongly in the child s best interests, then the doctors should involve the courts, with a view to obtaining a specific issue order. This would effectively provide the doctor with the necessary consent. Such an order can be obtained within hours. The first step is for the doctor to contact their Trust s legal services department.

4 4 In an emergency, if parental consent is not forthcoming, and there is not time to involve the courts, act to save the child from death or serious harm. b) Sexual Offences Act 2003 Section 9: Sexual activity with a child (1) A person aged 18 years or over (A) commits an offence if (a) he intentionally touches another person (B), (b) the touching is sexual, and (c) either (i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13 Section 13: Child sex offences committed by children or young persons (1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18. The difference between being over 18 or under 18 is the maximum punishment, not whether or not a crime has been committed. c) The law relating to abortion The current law on abortion is best understood in its historical context. Before 1861 The law was governed mainly by common law. The principal points were: 1. Abortion, whether carried out by the mother, a doctor, or another, was generally a (serious) criminal act. 2. Carrying out an abortion for the purpose of saving the mother's life, may have been lawful, particularly if the mother's life were in immediate danger. It remained unclear, until 1967, the extent to which a doctor could carry out an abortion lawfully for the sake of the health of the mother. 3. The status of the fetus changed at the "quickening". The quickening was the point at which the mother first noticed fetal movements. It generally occurs in the second trimester, around weeks in the first pregnancy and often earlier in subsequent pregnancies. The quickening derives from Aristotle as the point at which the human life began - when the fetus became animated. The word "quick" means roughly "alive" as in the phrase: "the quick and the dead." 4. An abortion carried out after the "quickening" generally carried the death penalty. An abortion carried out before quickening was a criminal act but carried a lesser sentence.

5 5 The Offences Against the Person Act 1861 The Offences Against the Person Act 1861 remains the definitive law in England. It gives statutory grounds to the effect that abortion is a crime (except where subsequent legislation provides protection against criminal prosecution). The Act replaced the death penalty for abortion by penal servitude for life. It also abolished any distinction between different fetal ages: the crime, and punishment, were the same whatever the fetal age. The Abortion Act 1967, amended 1990 The Abortion Act was designed to tackle two main issues. The first was increasing concern at the number of "back street abortions" that were being carried out, despite the fact that they were illegal. These were often medically quite unsafe and an increasing number of women were being admitted to hospital with complications resulting from such abortions. The second was the lack of clarity over the question of when a doctor could carry out an abortion for the sake of the mother's health. Doctors, acting in good faith in the interests of their patients, faced the possibility of criminal charges. The Act provides a doctor ("medical practitioner") who carries out an abortion within the terms of the Act, immunity from prosecution. It does not decriminalise abortion in general. Neither does it provide protection for anyone other than the doctor (and, following the House of Lords ruling in Royal College of Nursing of UK v DHSS [1981] for nurses as well). The original Act was amended in 1990 (the amendments were part of the Human Fertilisation and Embryology Act). Section 1(1) states: Subject to the provision of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith: (a) That the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family, or (b) That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman, or (c) That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated, or (d) That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. NB1. Except in an emergency two doctors are required to be of the opinion that abortion is justified on one of the grounds stated in the Act. NB2. Doctors normally date pregnancy from the first day of the woman's last menstrual period. This is not necessarily the day of conception (indeed it is unlikely to be so), and certainly not the day of implantation of the embryo in the uterus. It is generally assumed that when the Act states that "pregnancy has not exceeded its 24th week" it means 24 weeks since the first day of the woman's last period. But this is not clear - particularly if there is evidence that conception had taken place on a day after this.

6 6 Other key points concerning legal aspects of abortion and fetal damage a) Doctors may refuse to carry out an abortion on grounds of conscientious objection (section 4 of the Abortion Act). The burden of proof lies with the doctor to show that he did have a conscientious objection. Conscientious objection is not a defence however if the abortion is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman. b) The Abortion Act does not give a woman the right to demand an abortion. However a doctor might be found negligent either for not advising a woman (in appropriate circumstances) of the possibility of an abortion, or for not carrying out an abortion, where appropriate, under sections 1 (1b, 1c) (unless due to conscientious objection, see above). c) The fetus has no right to life. Thus, its status in law is dramatically affected by birth. A fetus cannot be the subject of child protection under the Children Act. d) A fetus probably has no legal right to be aborted. In other words damages could not be claimed on the grounds that had doctors acted differently (e.g. advised abortion) the child would not have been born; and, that it would have better for the child not to have been born. e) A woman has a legal right to refuse an abortion. f) The father of a fetus has no legal right to prevent a woman from having an abortion and no right to be consulted about it. g) Inter-uterine contraceptive devices (IUCDs) and morning after pills. IUCDs and morning after pills cause the loss of the embryo after conception but before implantation in the uterus. Is this contraception or abortion? The Attorney General said, in 1983 (see Brazier 1992 page 293-4) that there is no pregnancy until implantation. This is persuasive but not binding precedence. One judge, agreeing with this, dismissed a prosecution for criminal abortion based on the insertion of an IUCD. There have been no successful prosecutions for illegal abortion for either IUCD or morning after pill. h) Drugs causing abortion (e.g. Mifepristone). With the advent of effective medication that causes abortion of a post- implantation fetus (embryo) a new problem arises. Taking such a drug does not require surgical intervention and therefore does not require a doctor to administer it. Since the Abortion Act only gives exemption to a doctor (see Appendix 2) what would the legal position be if a doctor prescribed the drug, and the woman then took it herself. The 1990 amendment allowed such drugs to be taken in GPs surgeries. However, there remains a problem if the drug is administered by the patient herself. At the moment Mifepristone (also known as RU-486) is restricted to its administration by staff in hospitals. i) Selective reduction. Selective reduction is the process of killing one embryo or fetus in a multiple pregnancy. If a woman takes a superovulatory drug then many fetuses may develop (as many as eight in rare cases). The same can happen in IVF treatment if several embryos are implanted in order to maximise the chance of one developing. Occasionally more than three fetuses occur naturally. The purpose of selective reduction is to kill one or more of the embryos in order that the chance of survival of the remaining fetus(es) is improved. Until the amendment of the 1967 abortion Act in 1990 the position of selective reduction was quite unclear. The 1990 amendment clarified that the Abortion Act applied to the killing of any fetus, and therefore brought selective reduction under the provision of the abortion act. j) The living abortus. In carrying out a late abortion (under the Abortion Act) a doctor would be wise to ensure that the fetus is killed whilst it is still inside the uterus. If the fetus is alive outside the uterus it may acquire the legal protection of any new born baby. Killing it may be murder.

7 7 The moral value of human life: An overview of the ethical arguments concerning termination and assisted reproduction It is universally accepted that the killing of children and adults is (almost always) morally wrong. However, the same consensus does not exist regarding the destruction of human embryos and foetuses. Some philosophers argue that human embryos and foetuses have no moral value, where others believe that they share the same moral status as adult human beings. This is an interesting fact given that human embryos and foetuses are, biologically speaking, human beings, and also given that all children and adults were themselves once embryos and foetuses. So, what is it that allows us to morally differentiate between embryonic and adult human beings, or to put it differently, when does human life become morally valuable? This is a philosophically important question and one that has serious implications for the moral permissibility of abortion and assisted reproduction. a) Moral status-based arguments It is often thought that the starting point for thinking about the ethics of abortion ought to be the moral status of the embryo and/or foetus. The 7 arguments below all make different claims about the factors that determine the moral status of human beings, according value to particular properties or characteristics. How moral status of human beings is accounted in these different ways has significant effects on the moral permissibility of terminating a pregnancy, and some arguments also impact on the moral permissibility of (certain forms of) assisted reproduction. 1. Human life is valuable from the point of conception According to this view, all instances of human life are equally valuable. Therefore, it is equally morally wrong to kill a 10 year old child as it is to kill a 10 day old embryo (or 10 minute old conceptus). The main justification for this view is that the human embryo is an independent human being, and therefore it deserves the same moral value as adult human beings. Religious beliefs that understand all instances of human life to be sacred, or a belief in the moral superiority of human beings (called speciesism), could provide an additional justification for this argument. Implications for abortion: Abortion is always morally wrong. Even in the case where the life of the mother is in danger, it will still be seen as killing one person to save another. Implication for assisted reproduction: Assisted reproduction through in vitro fertilization (IVF) is not morally permissible. During the IVF process a number of embryos are created. Not all of them get implanted and inevitably a number of human embryos are discarded. The destruction of spare embryos would be morally equal to the killing of adult human beings. IVF would only be acceptable when the process would become efficient enough not to require the creation of spare embryos th day theory The 14 th day theory argues that the human being acquires moral value only past the 14 th day of gestation. This theory is primarily based on three grounds: i) during the first two weeks there is not sufficient connection between the cells of the embryo to define it as an individual organism, ii) during the first 14 days of gestation the embryo can split into two, three or more embryos,

8 8 and iii) cell differentiation has not begun. After approximately 14 days of gestation, cell differentiation begins, the first signs of what forms the primitive streak appear, and it is no longer possible for the embryo to divide through the process of monozygotic twinning. These events mark the beginning of an individual human life and therefore, the 14 day old embryo acquires moral status. Implication for abortion: This theory renders immoral any type of abortion past the 14 th day of gestation. However, methods of contraception that prevent implantation of the conceptus, such as the morning-after pill or IUD, are morally permissible. Implications for assisted reproduction: This view does not raise any ethical concerns regarding the creation, preservation or destruction of human embryos for reproductive purposes, as long as these embryos do not pass the 14 th day of development. 3. Sentience and viability These two arguments are not the same but will be considered together because they occur approximately at the same time, around weeks of gestation. Sentience refers to the foetus s ability to feel and experience pain. Viability is the foetus s ability to survive outside the uterus. Sentience is a morally significant criterion as it denotes a being s ability to have meaningful experiences, and to have developed an interest for its own wellbeing. In addition to establishing the moral limits of aborting human foetuses, the argument from sentience is also deployed to defend animal rights. Viability is considered a morally important point because it signifies the time where the human foetus can survive as an independent human being, without the assistance of its mother s body. The UK law recognises the moral importance of viability, and stipulates the 24 th week as the limit of elective abortion under s. 1(1)(a) of the Abortion Act. Implications for abortion: Abortion prior to the point at which a foetus becomes sentient or viable is morally unproblematic. Abortion after this point is not permissible. Implications for assisted reproduction: There are no ethical implications regarding assisted reproduction that relate to the criteria of sentience and viability. 4. Birth Birth is the time that a new human being joins the human community. Some philosophers argue that the neonate acquires morally significant properties when it is born that cannot be possessed by a sentience foetus. These might include behaviour imitation (Bermudez, 1996). In most jurisdictions (including England) birth is the point at which a human being acquires legal personhood, and the legal rights associated with being a person. Implications for abortion: If one accepts that a human being becomes morally valuable only at the time of its birth, abortion at any stage of the pregnancy, even late abortions, is morally permissible. Implications for assisted reproduction: The moral permissibility of assisted reproduction is not affected by this theory.

9 9 5. Personhood (after-birth) The personhood argument states that what is required for moral status is not just the capacity for consciousness, but abilities associated with self-consciousness, self-awareness, and language. This approach is grounded in the idea that what is morally significant about a human being is the capacity for rational thinking, and the ability to value one s own life a capacity for normative agency. It has been argued that human beings acquire personhood, and therefore moral status, around their second year of age. This argument has also been used to support the view that primates ought to be accorded full moral status (and that some human being with profoundly impaired cognitive abilities should be denied moral status). Implications for abortion: According to the personhood theory abortion is always morally permissible, as the only human being with moral standing involved is only the woman who requests the abortion. Late term abortions and even infanticide (or what has been called after-birth abortion in a recent controversial article in the Journal of Medical Ethics could also be morally justified under the personhood argument. Implications for assisted reproduction: Any method of assisted reproduction that requires the creation and perhaps destruction of human embryos would be morally permissible. 6. Gradualism According to the gradualist argument, the moral value of a human being increases as the being itself develops. Characteristics and properties such as sentience, viability, consciousness, selfconsciousness etc., are all morally relevant, and the human being becomes more morally valuable as these characteristics and properties develop. Gradualism can have many versions. The moral value of the developing human being could start at the moment of conception, or on the 14 th day of gestation. Moral value could be argued to peak at the moment of birth, or a couple of years after birth when some have argued that moral personhood is realised. Also, gradualism could acknowledge that moral value starts from point zero (no moral value), or from a point of some moral value. Where gradualism differs from the other theories presented here is that gradualism does not necessarily understand moral value to be an on-or-off property. For gradualism moral value is cumulative. There is no specific point in the developmental process that turns the human embryo or foetus from an object that should be accorded no moral value to one that should be accorded full moral value. Implications for abortion: The fact that gradualism does not recognised a cut-off point for moral status has significant implications for the moral permissibility of abortion. Depending on the version of gradualism one endorses, and the type of abortion (i.e. early or late termination), the moral implications would vary. However, since gradualism does not recognise full moral value to the human embryo or the foetus, abortion under specific conditions would be morally permissible. Implications for assisted reproduction: Again, depending on the level of moral significance one recognises for the human embryo at the blastocyst stage, implications for assisted reproduction would vary. For example, if one accepts a level of moral value to the human embryo, then the destruction of unwanted human embryos could be seen as morally impermissible.

10 10 7. The potentiality argument According to this argument, the human embryo or foetus is prima facie morally valuable because it has the potential to develop into a person (a rational, self-conscious and autonomous human being). This is an argument that can be used in conjunction with many of the theories presented above. One, for example, can hold the view that embryos are valuable from the moment of conception because they have the potential to develop into a valuable adult human being; or that a conceptus is morally valuable because it will soon develop into a morally valuable embryo at the 14 th day of gestation. Implications for abortion The potentially argument recognises that the developing embryo and foetus has moral value because of the fact that it will necessarily acquire full moral status at some ascertainable point in the future. It is likely, on this view, that all terminations would be impermissible. Implications for assisted reproduction The potentiality argument could make the destruction of surplus embryos in IVF morally problematic. Human embryos are potential human persons. To create human embryo and then deliberately denying them the opportunity to fulfil their potential could be seen as morally wrong. Donating surplus embryos for adoption could be a way to overcome this problem. b) Arguments beyond moral status The 7 arguments considered above all share one assumption: that the moral status of human life is central to ethical arguments about termination of pregnancy or certain procedures in assisted reproduction. More recently, however, philosophers have made arguments that the permissibility of destroying embryos or foetuses does not hinge upon moral status. 2 of the main arguments are discussed below. 1. Autonomy and bodily integrity This argument emphasises that a woman has the right to determine what happens to her body. No one (even a human being will full moral value) has a claim over decisions about another person s body, and every person should be able to protect their bodily integrity and exercise selfownership. Implications for abortion Historically men had exercised great power over women by controlling their sexuality and reproduction. The contraceptive pill and the legalisation of abortion gave women the opportunity to make autonomous reproductive choices. This theory defends a woman s right to choose to terminate a pregnancy based on her own value judgment. It is important to note that this theory does not necessarily reject the view that human embryo and foetuses have moral value. Judith Jarvis Thomson (1971), for example, argues that even if the foetus is a person with full moral status and a right to life, one still cannot force women to carry on with an unwanted pregnancy. Implications for assisted reproduction The person s right to autonomy, and in specific to reproductive autonomy, means that they should be able to decide when and how they procreate. If the right to reproduce is understood as a positive right, the implication is that the state ought to take all necessary steps to enable people to have children, potentially including unlimited access to all assisted reproductive methods.

11 11 2. A life not worth living This argument states that there are some lives that are not worth living because of their poor quality of life. From this argument, philosophers like Peter Singer have claimed that making the choice not to allow severely impaired children to come into the world through abortion (or by actively killing these children in the first few months of life) is morally permissible. The law in the UK partially adopts this view because it allows women to abort foetuses when there is evidence of a substantial risk that the child born will suffer from physical or mental abnormalities that equate with serious handicap (see s. 1(1)(d) of the Abortion Act. Implications for abortion As outlined above, this argument permits women to choose to abort a foetus that has high risk of being seriously handicapped. However, the potential implications of this argument are far greater if the concept of quality of life is interpreted more broadly. For example, the same argument could be used to justify terminations on the grounds of sex or minor impairment. If one could show that being a particular gender, or having a cleft palate (for example), would substantially impact negatively on one s quality of life in a particular context, then it would be morally permissible to terminate female foetuses or those with a cleft palate. Implications for assisted reproduction In IVF all embryos are routinely screened for abnormalities before they get transferred into the woman s body. Only healthy embryos are selected for implantation. It would be morally permissible to destroy those embryos judged likely to develop into foetuses and children with a life that is not worth living. Further Reading Bermudez, J.L. The moral significance of birth. Ethics 106 (1996): Chervenak, Frank, Laurence McCullough, and Zev Rosenwaks. "Ethical Dimensions of the Number of Embryos to Be Transferred in in Vitro Fertilization." Journal of Assisted Reproduction and Genetics 18, no. 11 (2001): Farsides, Bobbie, and Robert J Dunlop. "Is There Such a Thing as a Life Not Worth Living?" BMJ 322, no (2001): Gillon, Raanan. "Is There a New Ethics of Abortion?" Journal of Medical Ethics 27, no. suppl 2 (2001): ii5-ii9. Giubilini, Alberto, and Francesca Minerva. "After-Birth Abortion: Why Should the Baby Live?" Journal of Medical Ethics (2012). Hurlbut, William. "Embryos, Ethics, and Human Dignity." In Science and Religion in Dialogue, : Wiley-Blackwell, Manninen, Bertha. "Revisiting the Argument from Fetal Potential." Philosophy, Ethics, and Humanities in Medicine 2, no. 1 (2007): 7. Marquis, Don. "Why Abortion Is Immoral." Journal of Philosophy 86 (1989): Reiman, Jeffrey. "Abortion, Infanticide, and the Asymmetric Value of Human Life." Journal of Social Philosophy 27, no. 3 (1996): Saunders, Peter. "The Moral Status of the Embryo." Nucleus (2006): Steinbock, Bonnie. Life before Birth. New York: Oxford University Press, "The Morality of Killing Human Embryos." The Journal of Law, Medicine & Ethics 34, no. 1 (2006): Thomson, Judith Jarvis. "A Defense of Abortion." Philosophy and Public Affairs 1, no. 1 (1971). Tooley, Michael. "Abortion and Infanticide." Philosophy & Public Affairs 2, no. 1 (1972): Warnock, Mary. "In Vitro Fertilization: The Ethical Issues (Ii)." The Philosophical Quarterly 33, no. 132 (1983):