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PHI305: Health Care Ethics Take Home Exam
Request for Abortion for a Retarded Daughter

Why does the situation described pose an ethical problem for the people involved, as opposed to a practical, legal, or technical problem? Explain what ethical principles are relevant to the case, how they apply to the case, and whether they conflict with each other. Are the ethical principles you mention generally accepted or controversial?

It is the moral responsibility of doctors to do what is best for their patients. There are 3 individuals involved here, mother, daughter, fetus, and their interests may conflict. So we need to work out what is best for each. We need to decide what the doctor's responsibility is to relatives of his/her patient. Clearly the mother is not a patient of the doctor in this context. The daughter clearly is a patient. Some would argue that for pregnant women, the fetus they carry is also a patient of the doctor.

We also need to work out what the rights are of the mother, daughter and fetus. Note that people can have a right to do what is not best for them. The daughter may have a right to be free of medical intervention even though she would be better off if she had an abortion. The right of the mother to decide what happens to her daughter, the right of the fetus to life, and the right of the doctor to refuse to do what the mother asks are all in question.

Note that justice is hardly involved in this situation at all. Justice, as we use the term here, is to do with the distribution of limited resources. The main way that justice enters into this case is in who should pay for the abortion if the daughter has one, and whether the mother should get more help from the state to look after her daughter and her possible grandchild. One could also ask whether there should be have previously been more social support for such a family, because if there had been, then this difficult situation might not have happened in the first place. But that's a larger issue that the doctor probably doesn't have the time to think about given his/her busy schedule.

Note that it is inappropriate to discuss this case in terms of the daughter's right to autonomy. She is severely mentally retarded, and so probably has a mental age of 5 or less. While such a person is competent to make some minor decisions for herself (clothes, food, and other day-to-day details) she does not have the comprehension to make more important decisions. In particular, she does not understand the outcome of sex, and she does not understand reproduction. One can only have a right to do X if one can want to do X and if one is able to do X. So the daughter does not have the right to control her life to extent to decide to have a child, because she doesn't understand that decision.

(This is different from saying that a person only has a right to do X if one is competent to cope with the consequences of X. It is much more controversial to say that young teenagers and the mentally ill do not have the right to have babies if they won't be able to look after those babies once they are born. It is also different from saying that the daughter in this case does not have a right to have sex. She is physically mature, and she can understand and enjoy sexual pleasure. We might have no right to deny her that opportunity. Of course, the difficulty is how to let her enjoy that right without getting pregnant.)

The fundamental issue here is whether we have a right to force the daughter to have an abortion. She would be unlikely to understand what an abortion is, and given her communication difficulties as a result of her deafness, we obviously cannot get informed consent from her. We do not have a general right to do whatever we like to incompetent people. Legal guardians have the right to order medically necessary treatments. But obviously parents and legal guardians do not have the right to order just any medical procedure. (For instance, what would we think of a parent who decided that his child should have a large tattoo on her arm?) Parents do not have the right to make decisions to order bodily invasive procedures which are clearly against the best interests of the child. That is a form of abuse.

So a major issue here is whether the abortion is in the best interests of the daughter. Even if it is, it might still not count as being medically necessary. We do know that an abortion carries with it less risk of complications leading to death than pregnancy. However, it is stretching it to say that this makes abortion medically necessary, since the actual chances of death are so small in the first place. If it were medically necessary in this case, it would be medically necessary in all pregnancies!

A much better case for the medical necessity of abortion could be made from the other particular circumstances of the daughter. She is wheelchair bound and severely retarded. We would want to find out whether being restricted to a wheelchair or a bed would make the pregnancy significantly more dangerous for her. (Maybe due to a possibility of blood clots? She would also probably have to have a C-section to deliver.) But it is the distress that she experienced as a result of the pelvic exam that is the biggest clue to the danger of the pregnancy for her. She would find the changes in her body very alarming, especially when she has to go through many more pelvic exams and other medical treatments. Imagine a 4 or 5 year old blind wheelchair-bound girl going through pregnancy! The experience would be more than unpleasant or inconvenient for her -- it might cause her psychological damage. So the best case we can make for the medical necessity of the abortion is the threat to her mental health.

(Who gets to decide what counts as the daughter's best interests? This is a much debated issue for the never-competent. In the case of people who are now incompetent, in a coma for instance, but were previously competent, we can try to work out what they would have wanted from their expressed views or the way they lived their lives. This is called "substituted judgment." But for never-competent patients, this makes no sense, because they never had and never could have an opinion about such matters. So we have to use someone else's value-scheme. Should this be the guardian's value-scheme, or the doctors', or the state's? What standards of evidence are appropriate here? This is a fertile ground for philosophical, moral and legal discussion.)

In the case of abortion, we also need to think about the moral rights of the fetus. This is complicated by the fact that it is probably the product of incest. (Since the daughter's retardation was a result of a brain tumor removed at birth, there is no reason to think that her condition is hereditary.) Some might say that even if the fetus has a right to life, in this case it would probably be better off not being born, because of the handicaps it could have and the social circumstances it will be born into -- i.e. it would be better off dead. However, most people these days tend to say that no matter how burdensome life is, it is still worth living.

Whether abortion is morally permissible is of course a topic of controversy. As an ethicist advising on this case, it is not my place to insert my own personal opinion here. The issue is whether the mother and the doctor have the right to make that decision when it is the daughter who will go through the procedure. Abortion rights are normally based on a woman's right to choose what happens to her body. But here the woman is not making the decision; others are. This difference makes abortion especially problematic, especially if it were not medically necessary. The doctor certainly has the right to refuse to do the abortion if s/he is morally uncomfortable with it. The hospital as an institution also has no moral obligation to find a doctor willing to perform the abortion. So the decision is up to the individuals involved. If they refuse to grant the mother's wishes, then she will probably go elsewhere and ask again, and she might even try to get the abortion performed illegally.

What are the main options available to the individuals involved? You should only include realistic options, and you may find it useful to explain why the options you are setting out might be useful. You should think creatively to suggest options that are not mentioned in the text.

The option of adoption needs to be explored further. Given the moral and legal problems that could arise, adoption might be the best option. The mother has already refused that possibility, but if the doctors made clear they were unwilling to perform the abortion yet were willing to help her with the pregnancy and adoption services, she might change her mind. Often adoption agencies will pay the medical costs of the pregnancy. However, we need to get clearer whether adoption is a realistic option. How likely is it that a baby that is the result of incest and which consequently has mental and/or physical disabilities will get adopted?

The mother is clearly under great strain, and if she can get more help from social services or local charitable organizations, that should be arranged. Her whole perspective might change if she gets more help. However, we must also realize we are working with time constraints. The older the fetus gets, the more morally questionable abortion becomes. Right now it is about 13 weeks. That means that they have about 8-11 weeks left before abortion probably ceases to be legal. (Some third trimester abortions are permitted when the health or the life of the mother are at risk, but this is increasingly becoming illegal. In the last few years, more and more states have made late-term abortions illegal.)

Looking for sources of money to pay for the abortion, should that be decided to the avenue to do down, is necessary. If the area is rural, there are probably very few if any abortion clinics. Going to the nearest one could involve significant travel, which might be difficult for the mother and her daughter, especially if they don't have easy access to a car.

What legal issues are relevant to making the decision?

Obviously, if she isn't already, the mother needs to become the legal guardian of her adult daughter as soon as possible. Appointing her guardian would involve legal costs however, and it is pretty clear that the mother won't be able to afford a lawyer or court expenses, unless she can get help with them. This needs to be looked into.

As we already know, it is unclear whether or not a judge would agree to allow the abortion. Making the case of the daughter's mental health might be our best chance of convincing the judge, although some judges are very uninterested in mental health issues. There are also risks in going ahead with the abortion without explicit judicial permission. Clearly the safest course of action for the doctors would be to tell the mother to go away. But that would probably be morally wrong, because this family needs help of some kind or other.

What further information would be useful in making your decision? For example, do you need more details about the patient, his/her family, medical procedures and the risks that they carry, or the social services that are available? Who would you ask to get this information?

This has already been discussed above. It would be useful to contact an expert in the health care of people with severe mental retardation to give us advice, and we'd need to talk to the hospital lawyer. We'd want to contact adoption agencies, social services, and local charitable groups. But note that since this case involves abortion, we might also want to not get too much attention from other people. The more people who know about this case, the more danger there is that someone will make a fuss and then if the case gets local or even national media attention, the hospital could be damaged. It could also lead to much greater distress for the mother, or it might lead to her getting more offers of help. It's hard to predict.

Who should be consulted in the decision-making process, and who has the rights or responsibilities to make the final decision?

This has been discussed above. The final decision about whether the hospital doctors should pursue the abortion option lies with them. It is up to the mother if she decides to go elsewhere.

Consider the reported reasoning of people in the case. Is their reasoning well-argued? Do you agree with it or not? Explain.

This has been discussed above.

What decision would you recommend? Explain why you believe this decision is more reasonable than any other.

Whatever we do, we should try to help this family. If the individual doctors are ready to be involved, there is a good case to be made that the abortion is medically necessary. The hospital does take risks in performing an abortion, and should take the advice from the hospital lawyer about what is the legally best way to get an abortion, especially since the lawyer will know most about the local legal situation and the probably court decisions. But even though the procedure could be legally risky, the hospital should not be too cowardly about the possibility of legal risk. We have to take risks all the time, and we have insurance. If we don't go through with the abortion, we should explore the adoption option, in combination with getting better social support for the family.