Acute Health Division
Department of Human Services
AVictorian Government Department, Australia
Medical Practitioners Board of Victoria
Report on late term terminations of pregnancy
April 1998
Ethical Issues
Ethical principles for biomedical practice
Doctors work under a code of ethics that is implicit in their registration to practise. This has been reviewed by Breen et al,27 who list four moral principles that guide a doctor’s conduct towards patients as
Autonomy: The right of individuals to make decisions on their own behalf.
Beneficence: The duty to do the best for the individual patient.
Non-maleficence: The duty to do no harm, or at least to minimise harm.
Justice: A responsibility to the community at large as well as the patient, involving notions of fairness and equity.
In a review on Ethics and the Law and the impact of technology on prenatal development, McGivern from Murdoch University adds the principles of confidentiality and veracity. Confidentiality is the principle that respects the patient’s right for privacy and veracity recognises the obligation to provide truthful information to the patient about themselves and their clinical situation.28
These principles have direct relevance to the question of late term termination of pregnancy, as they involve the question of autonomy of the pregnant woman in relation to decisions about termination. They also address the question of providing best care of the woman without doing harm within the framework of clinical responsibility. They also apply to ensure that the doctor does not allow his or her own value judgment to be imposed on that of the patient or the community at large. The question of providing truthful information extends to information about the fetus, particularly if there is evidence of abnormality. The question of confidentiality is of great relevance in a sensitive situation of termination of pregnancy, particularly when the woman may be at risk of harassment from those who hold strong religious or philosophical views opposing to those of the woman.
Of further relevance has been how the rapid advances in medical and genetic technology, with the resultant ability to detect, and sometimes to treat, genetic defects, have outpaced law relating to intervention in pregnancy and the ethics of termination.
The status of the fetus
In relation to late termination of pregnancy, it has been stated that the ethical dilemma is centred on the status of the fetus. In a commentary for the Royal College of Obstetrics and Gynaecology, Paintin states that the fact that the fetus does not have status in law in the UK (or in Australia), is not a relevant consideration of whether the doctor has a duty to the fetus independent of that due to the mother.29
Is the fetus a patient of the obstetrician? Paintin argues that it is not, as if so it implies that the fetus is a person, as only a person can be a patient. From the U.S., on the other hand, Chervenak and McCullough propose that viable fetuses are patients but non-viable third trimester fetuses are not patients. Pre-viable fetuses are patients solely as a function of the woman’s autonomous decision to confer such status.30
Recent advances in fetal medicine have led to the fetus being visualised, studied and in some cases treated or operated on. From this one could argue that in such cases the embryo or the fetus could be regarded as a patient in its own right.31
From this it is of concern that by regarding the fetus as a patient independent of the mother, the woman’s autonomy is reduced. It has been argued however that this can only be justified if her ability to decide on intervention procedures is impeded by illness.29
McGivern considers the question of whether there is a difference between an embryo and the later fetus. Religious tradition tends to underlie much of the debate about this issue. Those supporting the view that a human life begins at or soon after conception hold a moral stance based on their religious grounds. They may find support in the genetic argument that the embryo holds all the genetic material that determines its uniqueness as a human being.31
It is however also strongly argued by others that human life is a gradual and evolving process, and when it begins is a personal view and will always be debated.
There are many other competing perspectives. At the other extreme from some traditional religious views are the argument that the fetus is not a person until it acquires, inter alia, consciousness and self-consciousness. This cannot be acquired until after birth.
Religious and philosophical attitudes to the question of the moral status of the fetus have never been able to find common ground. Issues such as when human life begins and when does it acquire independent moral status as a person cannot be reconciled by a philosophical or religious approach.30
Ethical status of the pregnant woman.
The ethical status of the pregnant woman is clearer. She is the patient and the ethical duties owed to her by her obstetrician and others providing for her care are paramount. In particular she is entitled to be fully informed about her fetus and respected as an autonomous person capable of making an informed decision about herself. Paintin in 1997 states that "reduction of a woman’s autonomy, either by persuasion by a doctor or imposed by a court can be justified only if her ability to decide is impeded by illness. It is unacceptable when based on the doctor having an ethical concept of the fetus that differs from the woman."29
Ethics related to fetal abnormalities and termination of pregnancy
The question of termination for fetal abnormality identified late in the pregnancy raises distinct ethical issues. In addressing this issue, Chervenak and McCullough considered the concept of the fetus as a patient and the ethical obligations owed to the third trimester fetus who has a significant abnormality. In addressing the care of the pregnant woman in this situation, ethical requirements are to provide full information about the fetal abnormality, the probability (or certainty) that the abnormality will be lethal and the probably of impaired cognitive function.15
This supports the ethical principle of respect for the autonomy of the pregnant woman and consideration of her right to make an informed decision about management of her pregnancy.
It was further proposed that management strategies should rely on the extent that intervention conferred or denied a benefit to the fetus. The intervention strategies are:
(1) To proceed to term delivery without active intervention;
(2) A management plan that maximises the outcome for the fetus (aggressive obstetric management), or
(3) To terminate the pregnancy.
It was argued that fetuses without abnormality, and those capable, with medical care, of surviving with no deficit or a manageable deficit of cognitive developmental capacity will have a high expectation of benefit from aggressive obstetric management, and termination could not be ethically justified.
Those with a lethal abnormality derived no benefit from active obstetric management and thus termination was not unethical.
Those with lesser degrees of abnormality or risk of handicap may allow consideration of alternative management plans proposed to the pregnant woman, based on the expected degree of benefit of that management to the fetus and to the pregnant woman.15
These considerations become relevant when the fetus is found to have a serious disability and the mother requests termination because she does not wish to become the long term carer of a severely handicapped person. Thus the assessment of the degree of disability that might ethically be considered in determining the question of termination is critical. Helpful guidelines for obstetricians and paediatricians in the Netherlands (where late termination for fetal abnormality is legal) suggest that probable quality of life may be assessed for the extent the child/person would be
It has been argued that if it is ethical to terminate a pregnancy for these criteria in early pregnancy, it remains ethical at any stage of pregnancy whenever the diagnosis is made.
However, as the fetus becomes more mature, interpretation of these criteria becomes more stringent. Respect for the fetus is perhaps reflected by the fact that only 0.05% of terminations in the UK in 1994 was for fetuses of over 25 weeks gestation.29
In the UK there is an upper legal limit of 24 weeks for termination of pregnancy on grounds of health of the pregnant woman. However, there is no upper limit in law, for the termination of pregnancy on the grounds of substantial risk of serious handicap from fetal abnormality. It has been suggested that the difficult decision to terminate a pregnancy is made on ethical rather than legal grounds. It is based on value judgment regarding the degree of disability imposed by the fetal condition, and the wishes of an informed and counselled woman and her partner, who have requested termination of pregnancy in the third trimester.32
The ethical issues relating to the question of whether fetuses feel pain.
The question of whether fetuses suffer pain during late termination is clearly an ethical issue and has been raised to influence public and political opinion about late termination.33 The question is important because termination procedures should not cause pain to the fetus and because a mother may need reassurance that her fetus will not experience suffering. It may also be important because legal decisions on termination should be based on correct information.
The question of whether fetuses can experience pain was discussed in a debate published in the British Medical Journal in 1996.34
Pain perception (as opposed to physiological response) cannot be assessed in fetuses at present, but can be inferred from studies of fetal nervous system development.35 Although a fetus may show some response to a noxious stimulus, this is a reflex response at least until 26 weeks gestation, as nerve fibres responsible for pain do not begin to reach higher brain areas until 26 to 34 weeks gestation. Even then pain experience depends on development of consciousness which is not considered possible at this stage.33
Szawarski argued that we cannot experience pain unless we are aware of ourselves and our bodies.36 "On the other hand, there may be a moment in fetal development when the fetus begins to react to noxious stimuli even though no self is yet present". Lloyd-Thomas and Fitzgerald also consider evidence of fetal reaction to noxious stimuli and conclude that even though there is a response to stimulus at 23 weeks gestation, it does not mean that the fetus experiences pain. They conclude that it doesn’t.37
Moral and ethical issues for doctors in training and for nurses.
It is recognised that doctors in training and nurses employed in obstetric hospitals may be expected to assist in termination of pregnancy. Chervenak and McCullough consider the implications of ethics and religious conviction in obstetric residency programmes. They recommended that institutions or training programmes that may require residents to take part in termination procedures should require residents to document the basis of their objections to performing abortions in a rigorous way, and to define clearly the additional duties expected of residents in lieu of not performing abortions.(30) It would seem reasonable that these requirements could equally apply to nurses working in an obstetric hospital, and particularly if late terminations are to be performed.
In a discussion on moral issues for nurses in response to late termination for severe fetal abnormality, Curtin advocates clear hospital policy on all aspects of care. In particular she comments on the behaviour of nurses who refused care and then used their moral stance as a rationale for "morally repugnant behaviour (harassing or threatening patients and family members)".38