Obstetricians confront an impressive range of ethical challenges in clinical practice. The responsible management of these ethical challenges therefore becomes essential to the professional practice of obstetrics. The purpose of this chapter is to introduce the reader to the tools of ethics and to demonstrate how these tools of ethics generate a practical, clinically comprehensive, professional medical ethics for obstetric practice.
We emphasize a preventive ethics approach.1, 2 Preventive ethics aims to prevent ethical conflict in clinical practice by anticipating the potential for ethical conflict and designing ethically justified, practical approaches designed to minimize the occurrence of ethical conflict and to respond rapidly and effectively to ethical conflicts when, despite sustained effort to prevent them, they nonetheless occur.
The methodologic basis for the approach to obstetric ethics taken in this chapter is the professional responsibility model of obstetric ethics.3, 4
ETHICS, MEDICAL ETHICS, AND OBSTETRIC ETHICS
Ethics has been understood for millennia in global intellectual, cultural, and religious traditions to constitute the disciplined study of morality. Morality concerns our beliefs about what sort of people we should aspire to become; our obligations to each other, to our communities, to organizations, and society; the obligations of organizations to individuals, communities, and society; and the obligations of society to individuals, communities, and organizations. Ethics seeks to identify and critically assess those beliefs with the goal of improving morality.
Ethics undertakes this task by asking: What ought morality to be? To make this question more manageable and to generate practical answers that will guide the improvement of morality, this general question is broken down into specific questions: What sort of persons should we become? How should we act toward each other, communities, organizations, and society? How should organizations act toward each other, individuals, communities, and society? How should society act toward individuals, communities and organizations?
The tools of ethical reasoning
These questions are addressed using the two basic tools of ethics, ethical analysis and argument. Ethical analysis requires us to be clear about concepts, such as being a patient and professional integrity, that we invoke and to use those concepts with a consistent meaning. Ethical argument requires us to join ethical concepts together in a coherent way to provide reasons that together support conclusions. Simply listing disconnected ethical considerations does not count as argument. Nor does starting with conclusions and then going in search of supportive ethical considerations.
The discipline of ethics comes from two sources. The first relates to ethical analysis: adhering to the requirements of clarity and consistency in the articulation of ethical concepts. The second relates to ethical argument: going where our arguments take us. The discipline of ethical argument has an important feature: If one is not willing to accept the conclusion of an argument, one must show an error in the reasoning that supports it, correct the error, and then identify the conclusion that follows from the revised reasons. If one cannot do so, then one is required to change one’s mind by adopting the conclusion. This discipline of ethical argument is directly analogous to the discipline of deliberative (evidence-based, rigorous, transparent, and accountable) clinical judgment. When the evidence requires one to change one’s clinical judgment, the professionally responsible physician does so. The professionally responsible physician, by submitting to the disciplined study of morality that is ethics, sometimes will be required to change clinical ethical judgment.
Medical ethics is the disciplined study of morality in medicine. Medical ethics undertakes this study by asking specific questions: What does it mean to say that a physician is a professional? What obligations do physicians owe their patients, healthcare organizations, and society? What obligations do patients owe their physicians, healthcare organizations, and society? What obligations do healthcare organizations owe their patients, healthcare professionals, and society? What obligations do societies have to physicians, patients, and healthcare organizations?
Medical ethics should not be confused with the many sources of morality in a pluralistic society. These include, but are not limited to, law, the world’s religions, ethnic and cultural traditions, families, and personal experience. Professional medical ethics seeks to bridge these differences and identify the obligations of physicians to their patients in all global cultures and national settings.
Medical ethics as secular
The first step in doing so is to recognize that professional medical ethics is secular. This recognition was achieved in the eighteenth-century European and American Enlightenments.5 Secular professional medical ethics makes no reference to deity or deities, or to revealed tradition, but to what reasoned, evidence-based discourse requires and its products. At the same time, secular professional medical ethics is not intrinsically hostile to but respectful of religious beliefs. Therefore, ethical principles and virtues should be understood to apply to all physicians, regardless of their personal religious and spiritual beliefs, and regardless of their nationality or place of practice.5 The advantage of secular medical ethics is that it is trans-religious, transcultural, and transnational.
The traditions and practices of medicine constitute an obvious source of morality for physicians. These traditions provide an important reference point for professional medical ethics because they are based on the obligation to protect and promote the health-related interests of the patient. This obligation tells physicians what morality in medicine ought to be, but only in very general, abstract terms. Providing a clinically applicable account of that obligation is in clinical practice the central task of professional medical ethics, using ethical principles.2, 4, 6 We start with ethical principles that play a central role in professional medical ethics, beneficence and respect for autonomy.
The ethical principle of beneficence
In ethics generally the ethical principle of beneficence requires one to act in a way that is reliably expected to produce a greater balance of benefits over harms in the lives of others.2, 4, 6 In professional medical ethics, this principle requires the physician to seek a greater balance of clinical benefits over clinical harms in the lives of patients.2, 4 The task of beneficence-based clinical judgment is to reach reasoned judgments about the appropriate balance of clinical goods and harms in a particular clinical situation, such as the decision to perform a cesarean delivery.
Beneficence-based clinical judgment has an ancient pedigree. Its first expression in the history of Western medical ethics occurs in the Hippocratic Oath and accompanying texts.7 These texts make an important claim: to interpret reliably the health-related interests of the patient from a deliberative clinical perspective. This perspective is provided by accumulated scientific research, clinical experience, and reasoned responses to uncertainty. As rigorously evidence-based, beneficence-based clinical judgment is not based on the idiosyncratic judgment of the physician, i.e., merely on clinical impression or intuition. On the basis of this deliberative clinical perspective, focused on the best available evidence, beneficence-based clinical judgment identifies the clinical benefits that can be achieved for the patient based on the competencies of medicine. The clinical benefits that medicine is competent to seek for patients are the prevention and management of disease, injury, disability, loss of functional status, and unnecessary pain, distress, and suffering, and the prevention of premature or unnecessary death. Pain and suffering become unnecessary when they do not result in achieving the other goods of clinical care, e.g., allowing a woman to labor without effective analgesia.2, 4
In beneficence-based clinical judgment pregnancy is not a disease. It is instead a clinical condition: a naturally occurring biological process that creates risks of disease, injury, disability, loss of functional status, and unnecessary pain, distress, and suffering. As a consequence, the clinical management of the clinical condition of pregnancy comes under beneficence-based clinical judgment.
The ethical principle of non-maleficence
The ethical principle of non-maleficence requires the physician not to cause harm. This is sometimes treated as an absolute, allowing no exceptions. This is a common mistake; non-maleficence is best understood as expressing the limits of beneficence-based clinical judgment. This ethical principle is also known as Primum non nocere or “first do no harm.” This commonly invoked dogma is really a Latinized misinterpretation of the Hippocratic texts, which emphasized beneficence while avoiding harm when approaching the limits of medicine to maintain or improve the patient’s condition or to alter the course of disease or injury.2, 4, 6 Non-maleficence should be incorporated into beneficence-based clinical judgment when the physician approaches the limits of beneficence-based clinical judgment, i.e., when the evidence for expected clinical benefit diminishes and the risks of clinical harm increases, then deliberative beneficence-based clinical ethical judgment requires the physician to proceed with great caution. The physician should be especially concerned in such clinical circumstances to prevent serious, far-reaching, and irreversible clinical harm to the patient.
We emphasize that there is an inherent risk of paternalism (interfering with a patient’s autonomy for the patient’s good) in beneficence-based clinical judgment. By this we mean that beneficence-based clinical judgment, if it is mistakenly considered to be the sole source, not just of professional responsibility but also of moral authority to control the course of obstetric care, invites the unwary obstetrician to conclude that beneficence-based judgments can simply be imposed on the pregnant woman in violation of her autonomy. Paternalism becomes dehumanizing treatment of the pregnant woman and, therefore, should be avoided in obstetric practice.
The ethical principle of respect for autonomy
The antidote to paternalism is respect for the pregnant woman’s autonomy.2, 4, 6 This ethical principle requires the physician to empower the pregnant woman to make informed decisions about the management of her pregnancy. The most important way that physicians fulfill this obligation is to identify medically reasonable alternatives to the pregnant woman and to identify alternatives that, while technically possible, are not reliably judged to be medically reasonable. “Medically reasonable” means that there is a beneficence-based clinical judgment that a form of clinical management or intervention has a reliable evidence base for expected net clinical benefit. There is no ethical obligation to offer a technically possible alternative that does not meet this test for being medically reasonable.
The informed consent process
When the condition for being medically reasonable is met, the alternative should be offered, along with the other medically reasonable alternatives. Sometimes the evidence clearly supports one alternative as clinically superior to others or as the only medically reasonable alternative. In such clinical circumstances, the physician should recommend this alternative to the pregnant woman. Sometimes the evidence clearly supports an alternative as not medically reasonable. In such clinical circumstances, the physician should not offer this alternative to the pregnant woman and should recommend against it should the pregnant woman ask about it.
Patients’ decision-making capacity
Patients exercise their capacity for autonomous decision making in response to alternatives that are offered or recommended by the physician in the informed consent process. The capacity for autonomous decision making has three components. (1) absorbing and retaining information about her condition and the medically reasonable diagnostic and therapeutic responses to it; (2) understanding that information, i.e., evaluating and rank-ordering those responses and appreciating that she could experience the risks of treatment; and (3) expressing a value-based preference.8 The physician has a role to play in each of these. They are, respectively: (1) to recognize the capacity of each patient to deal with medical information and not to underestimate that capacity, provide information (i.e., disclose and explain all medically reasonable alternatives) and recognize the validity of the values and beliefs of the patient; (2) not to interfere with but, when necessary, to assist the patient in her evaluation and ranking of the medically reasonable diagnostic and therapeutic alternatives for managing her condition; and (3) to elicit and implement the patient’s value-based preference.2, 4, 6
United States common law on simple and informed consent
The common law in the United States played an important role in clarifying the physician’s obligation to provide information to the patient to empower her to make informed decisions. The common law made the important contribution of identifying the concept of simple consent. The concept of simple consent was established in a landmark gynecologic case, Schloendorff v. The Society of The New York Hospital. Simple consent concerns whether the patient says “yes” or “no” to medical intervention.9, 10 To this day in the medical and bioethics literature, this decision is quoted: “Every human being of adult years and sound mind has the right to determine what shall be done with his body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”9
The concept of informed consent further evolved in the common law to include disclosure of information sufficient to enable patients to make informed decisions about whether to say “yes” or “no” to medical intervention.10 Two accepted legal standards emerged. The professional community standard defines adequate disclosure in the context of what relevantly trained and experienced physicians actually tell patients. The reasonable person standard, which has been adopted by most states in the United States (where the states regulate the practice of medicine, not the federal government), goes further and requires the physician to disclose “material” information. This phase means information that any patient in a particular patient’s condition needs to know and that the lay person of average sophistication should not be expected to know.
This is a very abstract formulation of the concept of material information. It can be made clinically applicable in a straightforward way: Patients need to know what the physician thinks is clinically salient, i.e., the physician’s beneficence-based clinical judgment about medically reasonable alternatives: what they involve and their clinical benefits and risks. The reasonable person standard has emerged as the accepted ethical standard.2, 9 We therefore adopt it in this chapter. On this standard, the physician should disclose to the pregnant patient her or the fetus’s diagnosis (including differential diagnosis when that is all that is known), the medically reasonable alternatives to diagnose and manage the patient’s condition, the short- and long-term clinical benefits and risks of each alternative, and the evidence-based, deliberative judgment of the physician that the clinical benefits outweigh the clinical harms.
Respect for autonomy does not require the physician to implement a patient’s preference simply on the basis that the patient has freely expressed it. Put another way, the exercise of rights by the patient should not be regarded as an absolute determinant of the physician’s clinical practice.2, 4, 11, 12
Obstetric ethics is the disciplined study of morality in obstetric medicine. Obstetric ethics undertakes this study by asking: What does it mean to say that the obstetrician is a professional? What obligations do obstetricians owe to pregnant, fetal, and neonatal patients? What obligations do pregnant women owe to the fetal patient, physicians, healthcare organizations, and society? What obligations to healthcare organizations owe to pregnant, fetal, and neonatal patients, physicians, and society? What obligations does society owe to pregnant, fetal, and neonatal patients, physicians, and healthcare organizations?2, 4
Ethical obligations to pregnant and fetal patients
The ethical principles of beneficence and respect for autonomy should guide professional obstetric clinical judgment and practice. There are beneficence- and autonomy-based obligations to the pregnant patient. The obstetrician’s perspective on the pregnant woman’s health-related interests provides the basis for the obstetrician’s beneficence-based obligations to her, whereas her own perspective on those interests provides the basis for the obstetricians autonomy-based obligations to her, as described above. Because of an insufficiently developed central nervous system, the fetus cannot meaningfully be said to possess values and beliefs. Thus, there is no basis for saying that a fetus has a perspective on its interests. There can therefore be no autonomy-based obligations to any fetus.
The fetus as a patient
Obviously, the obstetrician has a perspective on the fetus’s health related interests, and the physician can have beneficence-based obligations to the fetus, but only when the fetus is a patient. Because of its importance for obstetric clinical judgment and practice, the ethical concept of the fetus as a patient requires detailed consideration.2, 4
Developments in fetal diagnosis and management strategies to optimize fetal outcome have become widely accepted, encouraging the development of the ethical concept of the fetus as a patient. This concept has considerable clinical significance because, when the fetus is a patient, directive counseling, that is, recommending a form of management for fetal benefit is appropriate, and when the fetus is not a patient, nondirective counseling, that is, offering but not recommending a form of management for fetal benefit is appropriate.2, 4
One prominent approach for establishing whether the fetus is a patient attempts to show whether the fetus has independent moral status. The ethical concept of independent moral status for the fetus means that one or more characteristics that the fetus possesses in and of itself and, therefore, independently of the pregnant woman, the obstetrician or society, generate and therefore ground obligations to the fetus on the part of the pregnant woman and her physician. Many fetal characteristics have been nominated for this role, including moment of conception, implantation, central nervous system development, quickening, and the moment of birth.12 It should come as no surprise that there is considerable variation among ethical arguments about when the fetus acquires independent moral status. One view is that the fetus has independent moral status from the moment of conception or implantation.13 Another view is that independent moral status is acquired in degrees, thus resulting in “graded” moral status.14 Still another view holds, at least by implication, that the fetus never has independent moral status so long as it is in utero.15
Despite a centuries-old, global, and an ever-expanding theological and philosophical literature on this subject, there has been no closure on a single authoritative account of the independent moral status of the fetus. Given the absence of a single method that would be authoritative for all of the markedly diverse theological and philosophical schools of thought involved in this endless debate, closure is impossible and therefore should not be expected. Readers should be very skeptical of claims that a single account of the independent moral status of the fetus is universally authoritative. All attempts to explain the ethical concept on the basis of the purported independent moral status of the fetus are irresolvably controversial and thus provide no reliable clinical basis for the clarification or clinical application of the concept.
A clinically reliable explanation of the ethical concept of the fetus as a patient starts with the recognition that being a patient does not require that one possess independent moral status.16 The ethical concept of being a patient is clinically straightforward: a human being (1) is presented to a physician (or other healthcare professional such as a nurse midwife) and (2) there exist clinical interventions that are reliably expected to be efficacious, in that they are reliably expected to result in a greater balance of clinical benefits over harms for the human being in question.2, 4 In the technical language of ethics generally this is known as the dependent moral status of the fetus.
The authors have argued elsewhere that beneficence-based obligations to the fetus exist when the fetus is reliably expected later to achieve dependent moral status as a child and then independent moral status as a person.2, 4 That is, the fetus is a patient when the fetus is presented for medical interventions, whether diagnostic or therapeutic, that reasonably can be expected to result in a greater balance of goods over harms for the fetus and therefore for the child and person the fetus can later become during early childhood. The ethical significance of the concept of the fetus as a patient, therefore, depends on links that can be established between the fetus and its later achieving independent moral status.
The viable fetal patient
One such link is viability. Viability, however, must be understood in terms of both biological and technological factors. It is only by virtue of both factors that a viable fetus can exist ex utero and thus achieve independent moral status. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and achieve independent moral status given the availability of the requisite technological support, and when it is presented to the physician, the fetus is a patient.
Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. As a consequence, there is, at the present time, no worldwide, uniform gestational age to define viability. In the United States and other developed countries, we believe, viability presently occurs at approximately 24 weeks of gestational age.17, 18
The previable fetal patient
Before viability the only link between the fetus and its later becoming a child is the pregnant woman’s decision to continue her pregnancy to viability. The previable fetus is therefore a patient solely as a function of the pregnant woman’s autonomous decision to confer this moral status on her fetus(es).2, 4 Prior to viability, none of the interventions of obstetrics can benefit the fetus without the pregnant woman’s body as the necessary condition for later becoming a child and person. After viability, there is much that obstetrics can do to benefit the fetus, which, because it can exist ex utero (even with full technological support), no longer needs the pregnant woman’s body as a necessary condition for later becoming a child and person. Neither before nor after viability, however, should the fetus be considered a separate patient. Deliberative clinical ethical judgment about professional responsibility to the fetus as a patient always requires taking into account not only beneficence-based obligations to the fetus, but also beneficence- and autonomy-based obligations to the pregnant woman.
Directive counseling for fetal benefit
When the fetus is a patient, directive counseling for fetal benefit is ethically justified. In clinical practice, directive counseling for fetal benefit involves one or more of the following: recommending against termination of pregnancy; recommending against nonaggressive management; or recommending aggressive management. Aggressive obstetric management includes interventions such as fetal surveillance, tocolysis, cesarean delivery, or delivery in a tertiary care center when indicated. Nonaggressive obstetric management excludes such interventions. Directive counseling for fetal benefit, however, must take account of the presence and severity of fetal anomalies, extreme prematurity, and obligations to the pregnant woman.
Directive counseling for fetal benefit must occur in the context of balancing beneficence-based obligations to the fetus against beneficence- and autonomy-based obligations to the pregnant woman. Such balancing must recognize that a pregnant woman is obligated only to take reasonable risks of medical interventions that are reliably expected to benefit the fetal and neonatal patient.2, 4
The neonatal patient
When the fetus is born alive, the fetal patient becomes a neonatal patient. Perinatal ethics for the neonatal patient is guided by the core ethical concept of pediatric ethics, the best interests of the child standard.19 The best interests of the child standard generates the ethical obligations of perinatologists and parents to the child who is a patient.
Decision-making authority of physicians and parents
Because deliberative clinical judgment requires clinical expertise, the reliability of the physician’s deliberative clinical judgment about biomedical best interests of the child will, as a rule, be greater than the reliability of the parent’s clinical judgment about the biomedical best interests of the child. The degree or strength of the physician’s deliberative clinical judgment in all cases is a function of the level and quality of its evidence base. The stronger the evidence base, the stronger the reliability of the physician’s deliberative judgment about the biomedical bests interests of the child. When the evidence base is strong, the perinatologist should be directive in not only offering medically reasonable alternatives, but also recommending the medically reasonable alternative. The weaker the evidence base, the weaker the reliability of the physician’s deliberative clinical judgment. When the evidence base is weak, the perinatologist should offer but not recommend medically reasonable alternatives. This is especially the case when non-intervention may be as medically reasonable as intervention. Shared decision making becomes the appropriate approach in such cases.
The evidence base for deliberative clinical judgment about the psychological best interests of a pediatric patient is, as a rule, weaker than that for biomedical best interests. In addition, parents often have equal or even greater insight into the psychological well-being of their child. Neither the physician nor the parent can claim sole prerogative to make judgments about the psychological bests interests of the child. The physician should offer and recommend intervention when the evidence base for it is strong. When the evidence base is weak, the physician should offer but not recommend intervention. In both kinds of cases the approach should be shared decision making.
The evidence base for deliberative clinical judgment about the social best interests of the child is, as a rule, weaker than that for the psychological best interests. Indeed, there is often little or no reliable evidence for clinical judgments about the social best interests of the child. As a consequence, the reliability of parental judgment may be equal or even superior to the reliability of the pediatrician’s judgment. Shared decision making should therefore be the approach. The perinatologist should offer intervention and explain the limits of its evidence base, elicit the parents’ views and judgments, and work toward a consensus clinical judgment about the social best interests of the child.
Quality-of-life (engaging in life tasks and deriving satisfaction from doing so) considerations do not apply to infants, because they are not yet developmentally capable of having life tasks. Quality-of-life considerations also do not apply to children whose neurologic condition precludes having life tasks, i.e., children who have irreversibly lost the capacity to interact with the environment and thus grow and develop. There is also a more general problem with applying the concept of quality of life in pediatric ethics. Saigal and Tyson consider self-reported quality of life, its most reliable measure. Their review of the literature on the self-reported quality of life of individuals who are survivors of neonatal care leads them to conclude that “having a biological impairment does not automatically translate in a poor self-assessed quality of life.”20 It follows directly that, even if physicians or parents were, contrary to fact, reliable predictors of future quality of life of children with disabling conditions, they could not make accurate predictions because there is no stable relationship between future biological impairment and future quality of life. Because there is therefore no scientific foundation for predictive judgments of quality of life by physicians or parents, it is ethically impermissible to use the concept of quality of life to make such predictions in perinatal practice.
Parental authority and rights
The best interests of the child standard has an important implication for the ethics of parental authority over their children who are patients. Parental rights of decision making about the healthcare of a pediatric patient are a function of parents fulfilling their beneficence-based obligation to protect and promote the health-related interests of their child. To the extent that parents do not do so, for whatever reason they may have or express, their ethical authority over their child diminishes. Deliberative clinical ethical judgment must take into account whether the interests of child at stake are biomedical, psychological, or social and the strength of the evidence base for each before reaching a judgment that parental authority over a pediatric patient should be limited.
This aspect of perinatal ethics stands in sharp contrast to counseling pregnant women in the informed consent process about the management of pregnancy. Pregnant women have beneficence-based obligations to protect to the life and health of the fetal patient but are ethically obligated only to take reasonable risks to themselves to fulfill those obligations.2 Deliberative clinical ethical judgment must therefore always take into account not only the physician’s and pregnant woman’s beneficence-based obligations to the fetal patient, but also the physician’s beneficence- and autonomy-based obligations to the pregnant woman. Delivery makes an ethical difference: Perinatal ethics during pregnancy and after delivery differ because the ethical concepts of being a fetal patient and being a neonatal patient differ significantly. In all cases, beneficence-based obligations to the fetal patient must be balanced against beneficence- and autonomy-based obligations to the pregnant woman, who is the sole decision maker. For neonatal patients, the physician’s obligations to the neonatal patient are beneficence-based and both parents are decision makers.
THE PROFESSIONAL RESPONSIBILITY MODEL OF OBSTETRIC ETHICS
The professional responsibility model of obstetric ethics guides obstetricians in responsibly managing ethical challenges in clinical practice and research. For example, directive counseling for fetal benefit must take account of obligations to the pregnant woman, which creates the possibility of conflict between the physician’s recommendation and a pregnant woman’s autonomous decision to the contrary. Such conflict is best managed preventively through the informed consent process as an ongoing dialogue throughout a woman’s pregnancy, augmented as necessary by negotiation and respectful persuasion.2, 4 Respectful persuasion guides the obstetrician to appeal to the pregnant woman’s values, such as achieving a good outcome for her pregnancy, make recommendations based on those values, and respond to refusal with engaged dialogue aiming at having the pregnant woman reconsider her refusal.
This approach to obstetric ethics is known as the professional responsibility model of obstetric ethics.3, 4 The professional responsibility model of obstetric ethics includes respect for the pregnant patient’s rights and at the same time provides a powerful antidote to the rights-based reductionism that characterizes much of the literature on obstetric ethics. This oversimplification of obstetric ethics occurs when the only or overriding ethical consideration is rights of either the pregnant woman or the fetus.
Right-based reductionism is best illustrated by the abortion controversy. One extreme asserts that fetal rights always override the rights of the pregnant woman. This is fetal-rights reductionism. Termination of pregnancy at any gestational age or for any reason is impermissible, regardless of whether the pregnancy is voluntary or not or viable or not.21 The other extreme asserts that the pregnant woman’s rights always override fetal rights. This is maternal-rights reductionism. Termination of pregnancy is therefore permissible at any gestational age and for any or many reasons.22, 23
Such rights-talk is initially appealing because of the simple dichotomy at its heart: one either has rights or one does not and, if one does, others must respect one’s rights. This simple dichotomy is simplistic and does not withstand close clinical ethical scrutiny. There is unavoidable controversy about the nature and limits of both fetal and women’s rights. Such rights are based on many factors, including cultural, political, and religious beliefs that do not lend themselves to compromise and are outside of the physician–patient relationship.
Consider the simplistic claim that a pregnant woman has unconditional right to control what happens to her body. The claim ignores a fundamental question: should this right be understood to come with limits or with no exceptions throughout the entire pregnancy? Professional integrity sets justified limits on the preferences of patients,11, 12 pregnant patients included. For example, a distraught woman who is 34 weeks pregnant reports that her husband has deserted her and insists on induced abortion immediately. The professional responsibility model requires her obstetrician not to implement her request because feticide is ruled out by the obstetrician’s beneficence-based obligation to protect the life of this fetal patient. The obstetrician should therefore recommend against feticide and explain that no conscientious obstetrician should implement her request. There are many such circumstances in which a pregnant woman’s request for an induced abortion should not be implemented unquestioningly.
Consider the simplistic claim that the fetus has an unconditional right to life or to complete gestation. The presence of a fetal anomaly incompatible with life belies such claims as lacking scientific and clinical foundation, because medicine has no capacity to correct such anomalies. Such claims lack an authoritative foundation in either religion or philosophy. There is no single authoritative perspective from which the incompatible differences of these diverse views on fetal rights can be resolved.2, 4 To insist on an unconditional right to life or to complete gestation therefore has no place in professional obstetric ethics.
The existence of maternal-rights reductionism approach in the literature is well documented in the context of an important topic in obstetric ethics, intrapartum management. This approach asserts an unconditional right of the pregnant woman to control her body in all aspects of the management of pregnancy: “ … the moral and legal primacy of the competent, informed pregnant woman in decision making is overwhelming.”15 Another expression of this approach at first seems to be non-reductionist. Its authors acknowledge patient safety as a “first-order issue”22 and support what they call “restrictive guidelines” based on protecting the life and health of pregnant women.22 The proponents of this seemingly nuanced approach, however, abandoned it favor of the maternal-rights reductionism model when they asserted: “Crucially, even when restrictive guidelines are warranted the rights of pregnant women to bodily integrity must be maintained.”23 Some express this approach explicitly, e.g., that “women have fully endowed rights that do not diminish with conception, nor progressively degrade as pregnancy advances to viability and birth.”23 The woman’s-rights reductionism approach has been used to claim the right of pregnant women to have a clinically non-indicated cesarean delivery.24, 25 Another example is the assertion of the pregnant woman’s autonomy as an “unrestricted negative right,” i.e., an unconditional right to non-interference with refusal of cesarean delivery: “autonomy is an inter-relational right – ultimately there is no circumstance in which someone should be brought to an operating room against their will.”26
Rights-based reductionism has no place in obstetric ethics, because it unacceptably distorts the professional nature of the relationship of an obstetrician to his or her patients. The professional obligations of the obstetrician originate in the ethical concept of medicine as a profession.
The ethical concept of medicine as a profession
The concept of medicine as a professional was introduced into the history of medicine by Drs John Gregory (1724–1773) of Scotland and Thomas Percival (1740–1804) of England. This concept requires the physician to make three commitments: (1) becoming and remaining scientifically and clinically competent; (2) protecting and promoting the health-related and other interests of the patient as the physician’s primary concern and motivation; and (3) preserving and strengthening medicine as what Percival called a “public trust,” a social institution that exists primarily for the benefit of society not its members (in contrast to the concept of medicine as a merchant guild).27
In the professional responsibility model of obstetric ethics obstericians have beneficence- and autonomy-based obligations to the pregnant patient and beneficence-based obligations to the fetal patient.2, 3, 4 The beneficence-based obligation of the obstetrician is to make evidence-based clinical judgments about diagnostic and therapeutic measures that are reliably expected to result in a greater balance of clinical goods over clinical harms for the pregnant or fetal patient. The obstetrician then empowers the pregnant woman’s autonomy by offering or recommending medically reasonable alternatives, as explained above.
The contrast with rights-based reductionism is stark. Fetal rights-reductionism, despite its simplicity and powerful initial appeal, has no place in obstetric ethics because it inevitably leads obstetric ethics into conceptual and clinical failure. This model therefore should be abandoned. Maternal-rights reductionism is a failure as well and requires the obstetrician to implement birth plans that unconditionally exclude cesarean delivery or the unconditional right to planned home birth. This model eliminates the obstetrician’s beneficence-based obligations to both the pregnant and fetal patients and therefore reduces the physician to a mere technician, indeed automaton. This model also has absurd implications, e.g., ruling out, as potential paternalism, strongly and repeatedly recommending that pregnant women who abuse tobacco and alcohol seek help and be supported in doing so. Respect for the pregnant woman’s rights allows simply accepting such clinically choices by patients because they have made clinically unwise, but autonomous, choices. This is abandonment from the perspective of professional responsibility for patients. The maternal-rights reductionism model, despite its simplicity and powerful appeal for many, also has no place in obstetric ethics because it inevitably leads obstetric ethics to conceptual and clinical failure. This model therefore also should be abandoned.
The informed consent process should be used as a preventive ethics tool to empower pregnant women to make informed and deliberative decisions.
THREE CONCEPTS OF JUSTICE
Ethical concerns about justice arise when resources are scarce. Justice requires that in the distribution of resources, each should receive what is due to him or her. Different concepts of justice define ‘due’ in different ways. Each strives to result in a fair distribution of benefits, i.e. access to resources, and burdens, the risks that could follow from lack of such access.
Utilitarianism is a theory of justice that makes central the obligation to produce the greatest good for the greatest number in the management of scarce resources. To be successful in guiding practical, day-to-day decisions about the allocation of resources, utilitarianism requires an account of the greatest good. For society overall, it has been difficult, if not impossible, to define what is the greatest good. The value of utilitarianism is the balance it seeks to achieve among benefits and burdens of scarce resources, so that inequalities do not become inequities, i.e. unfair. Critics of utilitarians have pointed out that sometimes utilitarianism results in inequities, i.e. shared distributions of benefits and burdens.28
Two other concepts of justice have been developed to address this problem. The first of these is a libertarian concept of justice. This concept of justice was developed to correct for tyrannical burdens that pure utilitarianism could create. In particular, libertarianism was developed to give priority to individual freedom and property rights, as correctives to the potential excesses of utilitarianism and, in the political realm, of state power. Libertarians argue that in a market that places different values on different services and products, and in which there is an equal opportunity to develop one’s talents, those who provide more highly valued services rightly earn more than those who provide less valued (though not necessarily less intrinsically valuable) services. Everyone should get to keep what he or she earns through these marketplace exchanges, reflecting the strong emphasis of the libertarian concept of justice on property rights. Libertarian theories emphasize fairness of process, rather than equality of outcomes.
The other concept of justice that has been developed is an egalitarian concept of justice. This concept was developed to protect vulnerable and disadvantaged members of society, who may lose out in a utilitarian distribution of scarce resources. This concept of justice corrects for unfair outcomes in the form of undue burdens on those least able to protect themselves.
These three and other concepts of justice remain in unresolved competition.29, It is fair to say that the medical ethics literature is strongly influenced by a concept of justice that calls for fair equality of opportunity (an element of libertarian justice) and protection of the least well off (an element of egalitarian justice). However, it is also fair to say that no single concept of justice shapes healthcare policy in the United States. This lack of a conceptually coherent policy is a long-standing feature of American healthcare. In particular, the United States has yet to create a universal right to healthcare, though there are selective entitlements, e.g. the elderly (Medicare), the medically indigent (Medicaid), and qualified veterans (a population that will, in the future, include increasing numbers of female patients).
RESPONSIBLE RESOURCE MANAGEMENT AND THE PROFESSIONAL VIRTUES
The practice of obstetrics is coming under increasingly powerful economic constraints, e.g. managed-care and resource-management strategies imposed by hospital managers and limited or reduced national budgets for healthcare spending, used by both private and public payers and by healthcare organizations to control the cost of medical care. Two main business tools are used to achieve this goal: creating conflicts of interests in how physicians are paid, diplomatically called “sharing economic risk”, and increasingly strict control of clinical judgment and practice through such means as practice guidelines, critical pathways, physician report cards, and retrospective chart review. Evidence-based guidelines aim to responsibly manage variation in the processes of patient care and thus improve outcomes. These business tools generate ethical challenges to obstetricians that seriously threaten the virtues that define the fiduciary character of medicine as a profession.30
In medicine, the physician in his or her fiduciary role is expected as a matter of routine and habit to fulfill obligations to protect and promote patients’ interests rather than pursue his or her own interests. Virtues are those traits and habits of character that routinely focus the concern and behavior of an individual on the interests of others, and thereby habitually blunt the motivation to act on self-interest as the physician’s primary consideration. We believe that four virtues constitute the physician–patient relationship based on the physician as fiduciary.2
The first virtue is self-effacement. This requires the physician not to act on the basis of potential differences between the patient and the physician such as race, religion, national origin, gender, sexual orientation, manners, socioeconomic status, or proficiency in speaking English. Self-effacement prevents biases and prejudices arising from these differences that could adversely impact on the plan of care for the patient.
The second virtue is self-sacrifice. This requires physicians to accept reasonable risks to themselves. As one example, physicians manifest this virtue in their willingness to care for patients with infectious diseases such as hepatitis, HIV infection, and tuberculosis, all of which are a potential threat to the physician’s health. In both fee-for-service and managed care, this virtue of self-sacrifice obligates the physician to turn away from economic self-interest and focus on the patient’s need for relief when the two are in conflict.
The third virtue, compassion, motivates the physician to recognize and seek to alleviate the stress, discomfort, pain, and suffering associated with the patient’s disease and illness. Self-effacement, self-sacrifice, and compassion provide the basis for a powerful ethical response to the business tool of conflicts of interest by the physician.
This response is strengthened by the fourth virtue, integrity. This virtue imposes an intellectual discipline on the physician’s clinical judgments about the patient’s problems and how to address them. Integrity prescribes rigor in the formation of clinical judgment. Clinical judgment is rigorous when it is based on the best available medical information or, when such information is lacking, consensus clinical judgment and on careful thought processes of an individual physician that can withstand peer review. Integrity is thus an antidote to the pitfalls of bias, subjective clinical impressions, and unexamined clinical “common sense” that can undermine evidence-based practice. Integrity provides the basis for the physician’s ethical response to the business tool of control of clinical judgment and practice.
The professional virtue of integrity should never be compromised, while the other three professional virtues have justified limits, based on careful reflection and argument. The task of medical ethics is to identify both the application and the limits of these four virtues. The concept of legitimate self-interest provides the basis for these limits. Legitimate self-interest includes protecting the conditions for practicing medicine well, fulfilling obligations to persons in the physician’s life other than the patient, and protecting activities outside the practice of medicine that the physician finds deeply fulfilling.
Fee-for-service unconstrained by fiduciary obligations could and did lead to harm to patients from nonindicated overutilization of resources. It is a violation of the standard of care to subject patients to unnecessary active intervention in order to achieve personal economic gain. Resource management unconstrained by fiduciary obligations puts patients at risk of harm by denying access to the standard of care. This will occur if patients are subjected to unnecessary risk from withholding appropriate care and intervention in order to achieve reduced cost.30, 31
Financial incentives to the physician and supervision of clinician decision-making with strict controls of utilization of services are the business tools managed-care uses. Forms of payment by managed-care organizations (MCOs), such as capitation and withhold, are illustrative because they deliberately impose an economic conflict of interest on the physician.32 Every time the physician uses a resource, e.g. consultation, diagnostic testing, or surgical procedures, the physician pays an economic penalty. The ethical challenge occurs when the patient’s interests are subordinated to the pursuit of financial rewards and thereby harmed by this underutilization.
The virtue of self-sacrifice prohibits the physician from making the avoidance of such financial risk the primary consideration. Avoiding financial risk as one’s primary consideration involves an ethically pathologic process that leads naturally and quickly to the abandonment of self-effacement (economically driven managed care for some patients but not for others), compassion (patients’ health-related concerns do not matter but are only a means to maximize revenues), and integrity (the standard of care is sacrificed to maximize revenues). Importantly, physicians are not sanctioned by society to engage in the destruction of medicine as a fiduciary profession.
Physicians should not assume that MCOs and other payers are unwilling to negotiate contracts to reduce the severity of economic conflicts of interest. Physicians should therefore make a good faith effort to negotiate these matters. If the MCO refuses to negotiate and the economic risk of not signing the contract is very significant, then the physician should voluntarily accept the ethical responsibility to be alert to and manage these conflicts of interest well. First, integrity requires that the physician avoid the self-deception of underestimating any potential influence on clinical judgment and practice by the conflict of interest. Second, once these contracts are signed, the virtues add an important dimension to total quality management: diligent monitoring of conflicts of interest to prevent them from resulting in substandard care should be among the physician’s “accountabilities.” Third, the realities of managed care mean that, for the near term at least, increasing financial sacrifice may be required to protect the integrity of medicine as a fiduciary profession. Fourth, in group practice, there should be a fair sharing of economic self-sacrifice. In particular, individual efforts to tune the system to one’s economic advantage in a group (for example, avoiding the care of high-risk pregnancies), and to the disadvantage of colleagues should be avoided.
The second business tool of managed care – increasingly strict control of clinical judgment and practice – is a heterogeneous phenomenon. Some MCOs are poorly capitalized and poorly managed. They compete by price, with little or no attention given to the quality of their services. A “bottom line” mentality dominates, with economic savings and net revenue maximization the overriding values. These poorly managed companies have little or no understanding of or interest in the fiduciary nature of medicine, and so their controls of clinical judgment and practice are driven almost entirely by economic considerations.
Physicians subject to management controls by such companies face the very difficult challenge of trying to get such MCOs to constrain their economic interests by their fiduciary obligations, a daunting task but not, we believe, an impossible task. The concerns of ethics, especially to protect the integrity of the fiduciary enterprise, may frequently be swept aside when they are not ignored altogether. Nonetheless, physicians in such MCOs are the ultimate bulwark on which patients and society must be able to rely at the present time to protect patients from management’s unbridled pursuit of economic self-interest. Physicians, therefore, should strenuously resist and seek to change management controls driven solely by economic considerations. Evidence-based medicine is a powerful tool for achieving this goal. If physicians refused to cooperate with such poorly managed companies, systematic dissociation would result in a loss of market share or, more optimistically, better management. Being a physician-controlled, MCO provides no immunization against the ethical challenges of the business tools of managed care. These new physician-owned provider entities will not provide a solution in and of themselves to the ethical threats of conflict of interest and control of clinical judgment and practice. The virtue-based arguments we made will apply to these new entities without exception.
There is no conclusive evidence that preserving medicine as a fiduciary profession is impossible, even given the growing economic power of MCOs, other payers, and hospital managers.33 Ethics teaches us that business and economic power are not absolute and should always be called to account for their consequences. Society has not given MCOs the moral authority or permission to destroy the fiduciary character of medicine as a consequence of the pursuit of economic interest and power. Nor has society given physicians moral authority or permission to cooperate wilfully with this destruction. Quite the opposite, society counts on physicians because ultimately society can count on no one else to preserve and advocate for the fiduciary character of the medical profession.
APPRAISING THE NORMATIVE ETHICS LITERATURE
The normative ethics literature offers ethical analyses and argument about the behavior and character of physicians that is required in an ethically appropriate practice of obstetrics. Normative ethics differs from descriptive ethics, which uses accepted methods of qualitative and quantitative research to describe physicians’ behavior and attitudes, an important point of departure for normative ethics.34 Readers can use a simple, four-step approach to appraising the argument-based medical ethics that is intentionally analogous to that taken in evidence-based medicine. We have adapted these four steps from those of evidence-based medicine, which are (a) asking a focused question, (b) making a valid argument, (c) identifying the results of arguments, and (d) bringing the results of argument to clinical practice.35
Argument-based medical ethics should begin with a focused question that arises from actual experience in clinical practice. The purpose for asking a focused question is to produce argument-based conclusions that serve as valid and reliable answers to the question and thus as the basis for future decision-making. Argument-based ethics should then undertake ethical analysis and argument, of which review of pertinent literature is a key component. The third step of argument-based medical ethics is to identify the conclusions of arguments clearly. The fourth step of argument-based medical ethics is to assess the applicability of these conclusions to the particular scenario that evoked the question in the first place and to apply the results to the scenario when relevant.
1. Does the argument address a focused ethics question?
To guide clinical judgment, decision-making, and behavior in clinical practice, teaching, clinical research, and organizational culture, argument-based ethics in obstetrics begins with a clear, well-defined focus on a topic in clinical practice. There are a number of possible domains for a focused question, including theoretical issues (such as whether the fetus is a patient or a person), clinical issues for a specific patient population (the management of cancer during pregnancy), research issues for a specific population (surgical management of fetal spina bifida), organizational culture issues (quality improvement and cost control), and public policy issues (partial-birth abortion).
The ethical significance of the focused question should be explained. Its significance can be theoretical, as well as clinical. The perspective from which importance of the issue is claimed should be identified, including that of physicians, scientific investigators, patients, patient’s families and other support networks, payers, healthcare organization leadership, and scholars and public officials concerned with health policy. The relevance of this consideration is that the target audience for the use of the results of the argument should be clear.
2. Are the results of the argument valid?
The validity of the results in an ethics argument rest primarily on the quality of its ethical analysis and argument using these concepts. Ethical analysis has two parts: assembling a reliable and comprehensive account of the facts of the matter, drawing on available evidence in the descriptive medical ethics and other empirical literature; and identifying and clarifying concepts relevant to evaluating the ethical implications of this information. Argument-based ethical reasoning must be grounded in clinical reality if it aims to have clinical application and should use concepts that are clearly articulated.
Arguments organize these concepts into an argument: a coherent set of reasons that together support a conclusion for how one should or should not act. Reasons in arguments are expressed in terms of appeals to one or more general ethical frameworks.36
DeGrazia and Beauchamp have identified and critically assessed five basic appeals.37 The first appeal is to tradition and practice standards, the quality of which is a function of the ethical analysis and argument that support traditional beliefs and current practice standards. The second is to ethical principles such as respect for autonomy, beneficence, nonmaleficence, and justice.2, 4, 6 When these principles are “specified,” i.e. clarified in their relationship to clinical reality, they provide compelling action guides. The third is general ethical theory, of which there are two types predominant in the argument-based medical ethics literature: consequentialism (the justification of a course of action depends on whether consequences of the right sort result from it) and deontological approaches (the justification of a course of action is grounded in considerations other than consequences). The fourth is casuistry, which involves appeal to relevantly similar cases and applying the reasoning about these paradigm cases to the case at hand. The fifth is to what is called “reflective equilibrium,” i.e. starting with considered judgments (those most likely to be free of bias) and exploring their joint implications for the principles that should together guide decision making and behavior. We would add a sixth, virtue-based appeals. These appeal to traits of character that physicians should cultivate as fiduciary professionals responsible for the care of patients and the management of healthcare organizations.38
Some appeals are not acceptable in argument-based ethics. Sulmasy and Sugarman provide a useful account of these mistaken forms of reasoning in argument-based ethics.39
First, historical practices do not by themselves justify conclusions. That something has been done or not done in the past, e.g. abortion, even if commonly done or prohibited, does not by itself justify our continuing to do or to prohibit it now. Second, majority opinions do not entail argument-based opinions, including majority opinions reported in well-designed surveys. The results of such studies provide important starting points for ethical analysis and argument but are no substitute for them. Third, the fact that something is permitted by law does not make it ethically permissible. The law is an important starting point for ethical analysis and argument, but should not be taken uncritically as the final word. The abortion controversy amply illustrates this point. Fourth, the opinions of experts do not in and of themselves count as the conclusions of well-reasoned arguments. Argument-based ethics arguments and books should not be judged solely on the basis of their source – an individual physician, a research group, or a professional association – no matter how prominent and accomplished.39 Instead, these works should be held to standards of intellectual rigor that are in their own way as demanding as those of evidence-based medicine and other standards for evaluating the medical and scientific literature. Fifth, the fact that something is biologically true does not by itself establish well-reasoned conclusions. It is an error to think that ethics can simply be derived from human biology. Finally, it is often said that there is no right or wrong answer in ethics. This is a disservice to physicians turning to the argument-based medical ethics literature. There are well-argued and poorly argued positions and they can be reliably distinguished. The latter appeal to “gut feeling,” free-floating intuition, and unsystematic clinical ethical judgment and decision-making, rather than judgment and decision-making that meet standards of careful reflection and argument that are the hallmarks of argument-based medical ethics. Much of the current “pro-life” versus “pro-choice” public discourse about the ethics and public policy of abortion suffers from this shortcoming.
The literature of argument-based ethics in obstetrics, as in many other specialties, is now very large, making it highly unlikely that there is no prior relevant literature that needs to be considered. Relevant literature should be cited and analyses and arguments from this literature should be presented clearly and accurately. In the basic and clinical science literature investigators are increasingly expected to elucidate the search strategies, including key words, databases, bibliographies, and other sources used. This same standard should begin to be met by the argument-based ethics literature.
In preventing readers’ bias,40 it is helpful to identify the disciplines represented among the authors. The argument-based medical ethics literature is distinctive in that work of high quality by non-clinicians should influence the clinical judgment and decision-making of physicians, just as work on infectious diseases of the reproductive tract by microbiologists or on pharmacokinetics of gynecologic cancer chemotherapy by pharmacologists rightly influences clinical judgment and practice. Argument-based ethics scholarship therefore should not be dismissed when only some or even none of the authors are physicians.
At the same time, the reader should beware positive or negative bias toward an argument, based on the reputation of the author(s) or of the journal. Just as in the basic and clinical sciences, the standing of authors and journals in obstetrics or in the field of bioethics is no guarantee of quality in argument-based medical ethics.
3. What are the results of the argument?
The results of argument-based ethics are the conclusions of ethical analysis and argument. As emphasized, they should be clearly stated and easy to find in the argument.
4. How should I apply the results in clinical practice?
The results of argument-based medical ethics can be helpful in at least three ways. First, they may have important practical implications, especially if the results incorporate evidence to support the clinical utility of acting on the conclusions of the paper. Second, they may have important theoretical implications, which do not depend on whether an intervention was performed and evaluated. Identifying such theoretical implications results in critical assessment and revision of ethical frameworks and appeals based on them. Finally, readers of the normative ethics literature of obstetrics should ask themselves how they should change their thinking (clinical judgment and reasoning), attitudes (toward patients, their families, and legal institutions), clinical practice, or organizational culture. This is a crucial step in the method of evidence-based reasoning and therefore in the methods of argument-based ethics, because the fourth step relates directly to improving the quality of patient care, teaching, research, and organizational culture.
In this chapter, we provide an ethical framework for both obstetric clinical judgment and practice based on the professional responsibility model of obstetric ethics.2, 4 Implementing this framework on a daily basis is essential to creating and sustaining the physician–patient relationship in obstetrics. This framework emphasizes preventive ethics, i.e. an appreciation that the potential for ethical conflict is built into clinical practice, and the use of such clinical tools as informed consent and negotiation to prevent such conflict from occurring. This framework comprehensively appeals to the ethical principles of beneficence, respect for autonomy, and justice, and the professional virtues of self-effacement, self-sacrifice, compassion, and integrity. This framework can be used to critically evaluate the literature of ethics in obstetrics.
This Chapter is authored by: