This chapter should be cited as follows: This chapter was last updated:
Chervenak, F, McCullough, L, Glob. libr. women's med.,
(ISSN: 1756-2228) 2012; DOI 10.3843/GLOWM.10449
February 2012

Introduction

Ethics in Obstetrics and Gynecology

Frank A. Chervenak, MD
Given Foundation Professor and Chairman, Department of Obstetrics and Gynecology, Weill Medical College of Cornell University, New York, New York, USA
Laurence B. McCullough, PhD
Dalton Tomlin Chair in Medical Ethics and Health Policy, Center for Medical Ethics and Health Policy, Baylor College of Medicine, Houston, Texas, USA

INTRODUCTION

Ethics is an essential dimension of obstetric and gynecologic practice.1, 2, 3 In this chapter, we present an ethical framework for clinical judgment and decision-making in the obstetrician-gynecologist–patient relationship. The chapter emphasizes a preventive ethics approach, which appreciates the potential for ethical conflict and adopts ethically justified strategies to prevent those conflicts from occurring. Preventive ethics helps to build and sustain a strong physician–patient relationship in the practice of obstetrics and gynecology. The key components of the ethical framework are definitions of ethics and medical ethics and an explication of the fundamental ethical principles of medical ethics, beneficence and respect for autonomy. We then show how these two ethical principles should interact in gynecologic clinical judgment and practice. We next show how these two ethical principles should interact in obstetric judgment and practice, with emphasis on the concept of the fetus as a patient, which is unique to the practice of obstetrics. We describe different concepts of the ethical principles of justice. We examine ethical issues in responsible resource management, emphasizing the virtues of the physician as a professional. Finally, we provide a guide for critically appraising the literature of ethics in obstetrics and gynecology.

TWO DEFINITIONS AND TWO ETHICAL PRINCIPLES

Ethics and medical ethics defined

Ethics is the disciplined study of morality. Morality concerns our actual behaviors and our beliefs about what standards our behavior and character should meet. Medical ethics is the disciplined study of morality in medicine and concerns the obligations of physicians and health-care organizations to patients as well as the obligations of patients.4

It is important not to confuse medical ethics with the many sources of morality in a pluralistic society. These include the law, our political heritage as a free people, the world’s religions (virtually all of which now exist in our country), ethnic and cultural traditions, families, the traditions and practices of medicine (including medical education and training), and personal experience. Medical ethics, since the eighteenth-century European and American Enlightenments, has been secular.5 It makes no reference to God or revealed tradition, but to what rational discourse requires and produces. At the same time, secular medical ethics aims not to be intrinsically hostile to religious beliefs. This can be a real challenge in the ethics of obstetrics and reproductive medicine. In medical ethics, ethical principles and virtues should be understood to apply to all physicians, regardless of their personal religious and spiritual beliefs.6

The traditions and practices of medicine constitute an important and enduring source of morality for physicians; they provide an important reference point for medical ethics because they are based on, and seek to implement, 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 in very general, abstract terms. Providing a more concrete, clinically applicable account of that obligation is the central task of medical ethics, using ethical principles.4


The ethical principle of beneficence

The ethical principle of beneficence in its general meaning and application requires one to act in a way that is expected to reliably produce the greater balance of benefits over harms in the lives of others.6 To put this principle into clinical practice requires a reliable account of the benefits and harms relevant to the care of the patient, and of how those benefits and harms should be reasonably balanced against each other when not all of them can be achieved in a particular clinical situation, such as a request for an elective cesarean delivery.7 In medicine, the ethical principle of beneficence requires the physician to act in a way that is reliably expected to produce the greater balance of clinical benefits over harms for the patient.4

Beneficence-based clinical judgment has an ancient pedigree in the history of medical ethics. The first expression of the ethical principle of beneficence in the history of Western medical ethics occurs in the Hippocratic Oath and accompanying texts.8 These texts make an important claim: to interpret reliably the health-related and other interests of the patient from a medical perspective. This perspective is provided by accumulated medical research, clinical experience, and reasoned responses to uncertainty. As it is rigorously evidence-based,9 beneficence-based judgment is thus not the function of the individual clinical perspective of any particular physician and therefore should not be based merely on the clinical impression or intuition of an individual physician. On the basis of this rigorous clinical perspective, focused on the best available evidence, beneficence-based clinical judgment identifies the clinical benefits that can be achieved for the patient in medical practice 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, and unnecessary pain, distress, and suffering, and the prevention of premature or unnecessary death. Pain, distress, and suffering become unnecessary when they do not result in achieving the other benefits of medical care, e.g. allowing a woman to labor without effective analgesia.4

Nonmaleficence means that the physician should prevent causing only or net clinical harm to patients and is best understood as expressing the limits of beneficence. Nonmaleficence is also known as “Primum non nocereor “first do no harm.” This commonly invoked rule is really a Latinized misinterpretation of the Hippocratic texts, which emphasized beneficence while avoiding harm when approaching the limits of medicine.4 Nonmaleficence 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 net clinical benefit diminishes and the risks of clinical harm increase, then the physician should proceed with great caution. The physician should be especially concerned to prevent serious, far-reaching, and irreversible clinical harm to the patient.

It is important to recognize that there is an inherent risk of paternalism in beneficence-based clinical judgment. By this we mean that beneficence-based clinical judgment, if it is mistakenly considered to be the sole source of moral responsibility and therefore moral authority in medical care, invites the unwary physician to conclude that beneficence-based judgments can be imposed on the patient in violation of her autonomy. Paternalism is a dehumanizing response to the patient and, therefore, should be systematically avoided in the practice of obstetrics and gynecology.

The preventive ethics response to this inherent paternalism is for the physician to explain the diagnostic, therapeutic, and prognostic reasoning that leads to his or her clinical judgment about what is in the interest of the patient so that the patient can assess that judgment for herself. This general rule can be put into clinical practice in the following way: the physician should disclose and explain to the patient the clinically salient or important factors of this reasoning process, including matters of uncertainty. In neither medical law nor medical ethics does this require that the patient be provided with a complete medical education.10 The physician should then explain how and why other clinicians might reasonably differ from his or her clinical judgment. The physician should then present a well-reasoned response to this critique. The outcome of this process is that beneficence-based clinical judgments take on a rigor that they sometimes lack, and the process of their formulation includes explaining them to the patient. It should be apparent that beneficence-based clinical judgment will frequently result in the identification of a continuum of clinical strategies that protect and promote the patient’s health-related interests, such as the choice of preventing and managing the complications of menopause. Beneficence-based clinical judgment also identifies interventions that do not meet this test and should therefore be excluded from further consideration by the physician. Awareness of these features of beneficence-based clinical judgment provides an important preventive ethics antidote to paternalism by increasing the likelihood that one or more of these medically reasonable, evidence-based alternatives will be acceptable to the patient. These features of beneficence-based clinical judgment also provide a preventive ethics antidote to “gag” rules that restrict physician’s communications with the managed-care patient.11 All beneficence-based alternatives must be identified and explained to all patients, regardless of how the physician is paid, especially those that are well-established in evidence-based obstetrics and gynecology.

One advantage for the physician in carrying out this approach to communicating with the patient would be, we believe, to increase the likelihood of compliance.12 This is an especially pertinent consideration in gynecologic practice, where the patient often must monitor herself for clinical changes (e.g., a woman at risk for ectopic pregnancy), and take an active role in preventive medicine (e.g., breast self-examination), as well as in obstetric practice (e.g., self-observation for unusual weight gain or bleeding). Another advantage would be to provide the patient with a better-informed opportunity to make a decision about whether to seek a second opinion. The approach outlined above should make such a decision less threatening to her physician, who has already shared with the patient the limitations on clinical judgment.


The ethical principle of respect for autonomy

In contrast to the principle of beneficence, there has been increasing emphasis in the literature of medical ethics on the principle of respect for autonomy.6 In general, this ethical principle requires one always to acknowledge and carry out the value-based preferences of the adult, competent patient, unless there is compelling ethical justification for not doing so, e.g., prescribing antibiotics for viral respiratory infections. The female or pregnant patient increasingly brings to her medical care her own perspective on what is in her interest. The principle of respect for autonomy translates this fact into autonomy-based clinical judgment. Because each patient’s perspective on her interests is a function of her values and beliefs, it is impossible to specify the benefits and harms of autonomy-based clinical judgment in advance. Indeed, it would be inappropriate for the physician to do so, because the definition of her benefits and harms and their balancing are the prerogative of the patient. Not surprisingly, autonomy-based clinical judgment is strongly antipaternalistic in nature.4 In particular, some patients do not place the same priority on their health-related interests as do their physicians, an important potential difference – and point of conflict – between beneficence-based and autonomy-based clinical judgment.

To understand the moral demands of the ethical principle of respect for autonomy, we need an operationalized concept of autonomy to make it relevant to clinical practice. To do this, we identify three sequential autonomy-based behaviors on the part of the patient: (1) absorbing and retaining information about her condition and alternative 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. 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, i.e. supported in beneficence-based clinical judgment), 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 diagnostic and therapeutic alternatives for managing her condition; and (3) to elicit and implement the patient’s value-based preference.4

The legal obligations of the physician regarding informed consent were established in a series of cases during the early twentieth century. In 1914, Schloendorff v. The Society of The New York Hospital established the concept of simple consent, i.e. whether the patient says “yes” or “no” to medical intervention.10, 13 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.”13 Simple consent is based on the legal concept of battery, or unconsented-to touching. The legal requirement of consent subsequently evolved during the middle-third of the twentieth century to include disclosure by the physician to the patient of information sufficient to enable the patient to make informed decisions about whether to say “yes” or “no” to medical intervention.10

There are two accepted legal standards for the physician’s disclosure obligation. The professional community standard defines adequate disclosure in the context of what the relevantly trained and experienced physician tells patients. The reasonable person standard, which has been adopted by most states, goes further and requires the physician to disclose “material” information, what any patient in a particular patient’s condition needs to know (not what that particular patient then and there needs to know) and the lay person of average sophistication should not be expected to know. Patients need to know what the physician thinks is clinically salient, i.e. the physician’s beneficence-based clinical judgment. This reasonable person standard has emerged as the ethical standard, and we therefore urge obstetrician-gynecologists to adopt it. On this standard, the physician should disclose to the 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, and the short-term and long-term clinical benefits and risks of each alternative.

A particularly important dimension of informed consent in practice involves what have come to be known as “advance directives.”14 Spurred by the famous case of Karen Quinlan in New Jersey in 1976,15 all states have enacted advance directive legislation.16

The basic idea of an advance directive is that a patient, when autonomous, can make decisions regarding her medical management in advance of a time during which she becomes incapable of making health-care decisions. The ethical dimensions of autonomy that are relevant here are the following:

  1. A patient may exercise her autonomy now in the form of a request for or refusal of life-prolonging interventions.
  2. Autonomy-based request or refusal, expressed in the past and left unchanged, remains in effect for any future time during which the patient becomes nonautonomous in the clinical judgment of her attending physician.
  3. That past autonomy-based request or refusal should therefore translate into physician obligations at the time the patient becomes unable to participate in the informed consent process.
  4. In particular, refusal of life-prolonging medical intervention should translate into the withholding or withdrawal of such interventions, including the administration of artificial nutrition and hydration.

The living will or directive to physicians is an instrument that permits the patient to make a direct decision, usually to refuse life-prolonging medical intervention in the future. The living will becomes effective when the patient is a “qualified patient,” i.e. terminally or irreversibly ill and also not able to participate in the informed consent process as judged by her attending physician. Court review is not required. Obviously, terminally or irreversibly ill patients who are able to participate in the informed consent process retain their autonomy to make their own decisions. Some states prescribe the wording of the living will or directive to physicians, and others do not. The physician should become familiar with the legal requirements in his or her own jurisdiction. A living will, to be useful and effective, should be as explicit as possible. The reader should become familiar with hospital policies on advance directives, which should reflect applicable law.

The concept of a durable power of attorney or medical power of attorney is that any autonomous adult, in the event that that person later becomes unable to participate in the informed consent process, can assign decision-making authority to another person. The advantage of the durable power of attorney for health care is that it applies only when the patient has lost decision-making capacity, as judged by her physician. Court review is not required. It does not, as does the living will, require that the patient also be terminally or irreversibly ill. However, unlike the living will, the durable power of attorney does not necessarily provide explicit direction, only the explicit assignment of decision-making authority to an identified individual or “agent.” Obviously, any patient who assigns durable power of attorney for health care to someone else has an interest in communicating her values, beliefs, and preferences to that person. The physician can play a facilitating role in this process. Indeed, in order to protect the patient’s autonomy, the physician should play an active role in encouraging this communication process so that there will be minimal doubt about whether the person holding durable power of attorney is faithfully representing the wishes of the patient.

The main clinical advantages of these two forms of advance directives are that they encourage patients to think carefully in advance about their request for or refusal of medical intervention, and that these directives, therefore, help to prevent ethical conflicts and crises in the clinical management of end-stage disease or injury, especially, of terminally or irreversibly ill patients who have decision-making capacity. Unfortunately, the use of advance directives is not as widespread as it should be.17 The reader is encouraged to think of advance directives as powerful, practical strategies for preventive ethics for end-of-life care, and to encourage patients to consider them seriously, especially patients with gynecologic disease – particularly gynecologic cancers – that could become or are life-threatening. The use of advance directives prevents the experience of increased burden of decision-making in the absence of reliable information about the patient’s values and beliefs.18

Advance directives are not physicians’ orders. However, respect for the patient’s autonomy requires the attending physician to translate a patient’s advance directive into appropriate orders in a timely and clear fashion.

BENEFICENCE-BASED AND AUTONOMY-BASED GYNECOLOGIC JUDGMENT AND PRACTICE

Beneficence-based and autonomy-based clinical judgments in gynecologic practice are usually in harmony. A woman may present with an ectopic pregnancy. The gynecologist should explain this diagnostic finding and the potential for maternal death and the unlikelihood of spontaneous resolution. In beneficence-based clinical judgment, evidence supports the view that surgical management provides a clear-cut greater balance of medical benefits over harms for the patient, whereas non-surgical management provides a clear-cut greater balance of medical harms over benefits for the patient. Beneficence-based clinical judgment requires a clear and careful explanation of these matters to the patient at a level of language and pace that she can reliably be expected to absorb, with no restriction from managed-care “gag” rules or from the physician’s own personal values and beliefs, and supports a definitive recommendation for surgical management. Respect for the patient’s autonomy also requires explanation of these matters, but goes further and obligates the physician to elicit the patient’s value-based priorities for the management of the newly diagnosed condition, which almost always coincide with beneficence-based clinical judgment. Synergy between beneficence and respect for autonomy occurs when the physician’s management plan is carried out in conjunction with the patient’s informed consent.

Sometimes, beneficence-based and autonomy-based clinical judgments are in conflict in gynecologic practice. In situations of conflict, neither beneficence nor respect for autonomy automatically should be taken to be overriding. Instead, both ethical principles should initially be understood as theoretically equally weighted. Thus, their differences must be negotiated in clinical judgment and practice. The competing demands of both principles must be balanced and negotiated in the specific clinical case to determine which management strategies protect and promote the patient’s interests. In the technical language of ethics, we are treating these principles as prima facie or potentially overridable, on the basis of careful reflection and argument in the clinical setting.4, 6

The process of negotiating conflict between the two principles is a function of several factors involved in gynecologic clinical judgment: subject matter; probability of net medical benefit; availability of reasonable alternatives; and the ability of the patient to participate in the informed consent process. When the subject matter is primarily technical in nature, such as the selection of an effective antibiotic regimen or intraoperative surgical technique, clinical judgment is justifiably beneficence-based. This is because technical matters largely concern the evidence-based benefits for aggregates of patients with a particular diagnosis and treatment plan. Such decisions are justifiably within the gynecologist’s purview. The individual values and beliefs of a particular patient cannot readily be taken into account in this process. By contrast, when the patient’s basic values and beliefs are at stake, e.g. the work-up or treatment of infertility or elective abortion, clinical judgment is justifiably autonomy-based. This is because particular diagnostic or treatment interventions can directly and adversely affect the basic values and beliefs of a particular patient, a matter that only each individual patient can decide. Such decisions are justifiably within the patient’s purview.

When the best available evidence indicates that the probability of net medical benefit for the patient of diagnostic or therapeutic medical intervention is high, e.g. chemotherapy for some forms of gestational trophoblastic disease, or surgical correction of a prolapsed uterus, beneficence-based clinical judgment is dominant. This is because, in such circumstances, the net benefit is clear-cut. The gynecologist is therefore justified in recommending interventions that have a high probability of net clinical benefit. By contrast, when that probability is low, e.g. experimental therapy for advanced ovarian malignancy or prophylactic oophorectomy at 40–45 years of age, clinical judgment is justifiably autonomy-based. This is because, when there is no clear-cut clinical benefit and significant clinical risks of intervention exist, the patient is in the best position to determine which trade-off makes the most sense. The gynecologist is therefore justified in offering these alternatives but not in recommending one as indisputably the best. When there is no medically reasonable alternative to manage the patient’s condition (e.g., removal of a ruptured ectopic pregnancy or screening for cervical cancer by Pap smears), clinical judgment is appropriately beneficence-based because there is no other alternative that to any degree protects and promotes the interests of the patient. The gynecologist is therefore justified in strongly recommending the intervention in question. By contrast, when there are medically reasonable alternatives, such as surgery versus radio therapy for stage 1A cervical cancer or a method of contraception versus tubal ligation, clinical judgment is appropriately autonomy-based. This is because reasonable alternatives all promote the patient’s interests to a significant degree, and no one alternative can exclude any other as unreasonable. The gynecologist is justified in presenting or offering the reasonable alternatives.

When the ability to implement the informed consent process is low, as for a patient with severe or profound cognitive disability or in a life-threatening emergency without time for consent, clinical judgment is justifiably beneficence-based. This is because it is impossible to determine the patient’s relevant values and beliefs, due to either significant irreversible cognitive impairment or urgent lack of time. The gynecologist is therefore justified in basing clinical decision-making primarily on beneficence. By contrast, when the ability of the patient to participate in the informed consent process is not low, as in a speaker of a foreign language or the existence of a legally valid advance directive, then clinical judgment is justifiably autonomy-based. This is because the ability of the patient to participate in the informed consent process is presumed in the absence of compelling reasons to the contrary.

As a rule, the result of the informed consent process should be implemented. When the patient refuses to accept any of the alternatives supported in beneficence-based clinical judgment, the physician is ethically and legally obligated to engage in what is known as “informed refusal.” This legal and ethical obligation arises from the 1980 case of Truman v. Thomas from California.9, 19 Dr Thomas had delivered several of Mrs Truman’s babies and, on the delivery of her last child, had recommended that she have a Pap smear. She refused to have this test until she could pay for it and did not accept Dr Thomas’s offer to perform it without charge. Mrs Truman next presented to Dr Thomas with advanced cervical cancer, from which she died. In the malpractice action brought by her survivors, Dr Thomas stated that, although they were of clinical concern to him in the management of Mrs Truman, he did not tell Mrs Truman of the risks of having detectable presymptomatic changes in her cervix indicative of cervical cancer, or that he was concerned that she could die from such disease. The California Supreme Court ruled that, because risks were of clinical salience to Dr Thomas – they were the motivation for his offering the Pap smear – he should have informed Mrs Thomas about these risks so that her refusal would be informed. This case changed practice and introduced the concept of informed refusal into medical law and ethics.

The ethical and legal obligation of the physician in the matter of informed refusal is very clear and not difficult to fulfill. In all cases, without exception, the patient should be clearly informed about the medical risks that she is taking in her refusal. The risks to be disclosed are those that are salient in clinical judgment: if they are important to the physician, that is, motivating the offering or recommending of the diagnostic test or therapy, they are salient. This discussion, especially the risks of refusal, should be thoroughly documented in the patient’s chart. The patient does not have to sign this chart entry. It is the physician’s strict legal obligation to make sure that the disclosure of risk and documentation of that disclosure are comprehensive and detailed. This is all that the law requires. Preventive ethics requires that this disclosure be followed by a recommendation that the patient reconsider her refusal. This preventive-ethics approach avoids the need to abandon the patient, keeps lines of communication open, and sends a powerful signal of concern by the physician to the patient about the medical folly of her refusal.

Patients sometimes demand inappropriate management.20 We suggest the following preventive ethics strategy in response:21

  1. Is the intervention reliably expected to have its intended, usual anatomic or physiological effect? If in reliable, especially evidence-based, beneficence-based clinical judgment it is not expected to do so, then the physician should not offer it. There is no obligation to offer or to perform medical interventions that are futile in this strict sense, such as providing a feeding tube for a patient with cancer cachexia. This is known as anatomic or physiologic futility.
  2. Is the intervention reliably expected to have its usually intended anatomic or physiologic effect but the patient is reliably expected not to survive the current admission and not to recover the ability to interact with the environment before death occurs? If this is the patient’s prognosis even with intervention, then the physician should not offer it and should recommend against it and explain that intervention in such circumstances will only prolong the patient’s dying process and not benefit the patient by restoring interactive capacity before death occurs. This is known as imminent-demise futility.
  3. Is the intervention reliably expected to have some minimal clinical benefit, defined as maintaining some minimal level of ability to interact with the environment and thus grow and develop as a human being? Is the patient in a persistent or permanent vegetative state? If, in reliable beneficence-based clinical judgment, it is not expected to do so, then the physician should not offer the intervention and recommend against it. We suggest this approach to respect patients or surrogate decision-makers who are vitalists, i.e. who value the preservation of life at any cost. The physician should explain that preserving life at all costs (which is known as vitalism) is not a value in medical ethics and never has been. Moreover, the intervention in question, whether it is initiated or continued, will just sustain a false hope of recovery. This is known as clinical or overall futility.
  4. If the patient or the patient’s surrogate persists in the demand, then the physician should consult with colleagues and then the Ethics Committee, which should have a clear policy on response to demands by patients or their surrogates for futile intervention. 

BENEFICENCE-BASED AND AUTONOMY-BASED OBSTETRIC JUDGMENT AND PRACTICE

The ethical principles of beneficence and respect for autonomy play a more complex role in obstetric judgment and practice than they do in gynecologic judgment and practice. There are obviously beneficence-based and autonomy-based obligations to the pregnant patient: the physician’s perspective on the pregnant woman’s health-related interests provides the basis for the physician’s beneficence-based obligations to her, whereas her own perspective on those interests provides the basis for the physician’s autonomy-based obligations to her. 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. Hence, the language of fetal rights has no meaning and therefore no application to the fetus in obstetric clinical judgment and practice despite its popularity in public and political discourse in the United States and other countries. Obviously, the physician 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.4


The ethical concept of the fetus as a patient

The ethical concept of the fetus as a patient is essential to obstetric clinical judgment and practice. Developments in fetal diagnosis and management strategies to optimize fetal outcome have become widely accepted, encouraging the development of this concept. 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. However, there can be uncertainty about when the fetus is a patient. One approach to resolving this uncertainty would be to argue that the fetus is or is not a patient in virtue of personhood, or some other form of independent moral status. We now show that this approach fails to resolve the uncertainty, and we therefore defend an alternative approach that does resolve the uncertainty.


The independent moral status of the fetus

One prominent approach for establishing whether the fetus is a patient has involved attempts to show whether the fetus has independent moral status. 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 or any other factor, generate and therefore ground ethical 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. It should come as no surprise that there is considerable variation among ethical arguments about when the fetus acquires independent moral status. Some take the view that the fetus has independent moral status from the moment of conception or implantation. Others believe that independent moral status is acquired in degrees, thus resulting in “graded” moral status. Still others hold, at least by implication, that the fetus never has independent moral status so long as it is in utero.22, 23

Despite 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. This is an unsurprising outcome because, 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. For closure ever to be possible, debates about such a final authority within and between theological and philosophical traditions would have to be resolved in a way satisfactory to all, an inconceivable intellectual and cultural event. It follows that the independent moral status of the fetus has no stable or clinically applicable meaning. The ethical concept of the fetus as a patient should therefore not be based on contentious claims about independent moral status. We abandon these futile attempts to understand the ethical concept of the fetus as a patient in terms of independent moral status of the fetus, and turn to an alternative approach that makes it possible to identify ethically distinct senses of the fetus as a patient and their clinical implications for directive and nondirective counseling.


The dependent moral status of the fetus

Our account of the ethical concept of the fetus as a patient begins with the recognition that being a patient does not require that one possess independent moral status. Rather, being a patient means that one can benefit from the applications of the clinical skills of the physician. Put more precisely, a human being without independent moral status is properly regarded as a patient when two conditions are met: that a human being (1) is presented to the physician, 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.24 This is the sense in which the ethical concept of the fetus as a patient should be understood, what we call 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 independent moral status as a child and person.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 benefits over harms 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 to 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 both biologic stage of development and biomedical and technological capacities. The latter 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, we believe, viability presently occurs at approximately 24 weeks of gestational age.25, 26

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.

It is very important to appreciate in obstetric clinical judgment and practice that the strength of directive counseling for fetal benefit varies according to the presence and severity of anomalies. As a rule, the more severe the fetal anomaly, the less directive counseling should be for fetal benefit. In particular, when lethal anomalies such as anencephaly can be diagnosed with certainty, there are no beneficence-based obligations to provide aggressive management. Such fetuses are dying patients, and the counseling, therefore, should be nondirective in recommending between nonaggressive management and termination of pregnancy, but directive in recommending against aggressive management for the sake of maternal benefit.27 By contrast, third-trimester abortion for Down syndrome, or achondroplasia, is not ethically justifiable, because the future child with high probability will have the capacity to grow and develop as a human being.28, 29

Directive counseling for fetal benefit in cases of extreme prematurity of viable fetuses is appropriate. In particular, this is the case for what we term "justifiable fetuses," those with a gestational age of 24–26 weeks, for which there are significant rates of survival but high rates of mortality and morbidity. These rates of morbidity and mortality can be increased by nonaggressive obstetric management, whereas aggressive obstetric management may favorably influence outcome. Thus, it appears that there are substantial beneficence-based obligations to just-viable fetuses to provide aggressive obstetric management. This is all the more the case in pregnancies beyond 26 weeks of gestational age. Therefore, directive counseling for fetal benefit is justified in all cases of extreme prematurity of viable fetuses, considered by itself. Of course, such directive counseling is appropriate only when it is based on documented efficacy of aggressive obstetric management for each fetal indication. For example, such efficacy has not been demonstrated for routine cesarean delivery to manage extreme prematurity.

Any directive counseling for fetal benefit must occur in the context of balancing beneficence-based obligations to the fetus against beneficence-based and autonomy-based obligations to the pregnant woman. Any 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 viable fetus or child later. A unique feature of obstetric ethics is that the pregnant woman’s autonomy influences whether, in a particular case, the viable fetus ought to be regarded as presented to the physician.

Obviously, any strategy for directive counseling for fetal benefit that takes account of obligations to the pregnant woman must be open to 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.30

The previable fetal patient

The only possible link between the previable fetus and the child it can become is the pregnant woman’s autonomy. This is because technological factors cannot result in the previable fetus becoming a child. The link, therefore, between a fetus and the child it can become when the fetus is previable can be established only by the pregnant woman’s decision to confer the status of being a patient on her previable fetus. The previable fetus, therefore, has no claim to the status of being a patient independently of the pregnant woman’s autonomy. The pregnant woman is free to withhold, confer, or, having once conferred, withdraw the status of being a patient on or from her previable fetus according to her own values and beliefs. The previable fetus is presented to the physician as a function of the pregnant woman’s autonomy.4

Counseling the pregnant woman regarding the management of her pregnancy when the fetus is previable should be nondirective in terms of continuing the pregnancy or having an abortion if she refuses to confer the status of being a patient on her fetus. If she does confer such status in a settled way, at that point beneficence-based obligations to her fetus come into existence, and directive counseling for fetal benefit becomes appropriate for these previable fetuses. Just as for viable fetuses, such counseling must take account of the presence and severity of fetal anomalies, extreme prematurity, and obligations owed to the pregnant woman.

For pregnancies in which the woman is uncertain about whether to confer such status, the authors propose that the fetus be provisionally regarded as a patient. This justifies directive counseling against behavior that can harm a fetus in significant and irreversible ways, e.g. substance abuse, especially alcohol, until the woman settles on whether to confer the status of being a patient on the fetus.

In particular, nondirective counseling is appropriate in cases of what we term near-viable fetuses, that is, those that are 22–23 weeks of gestational age, for which there are anecdotal reports of survival.25, 26, 31 In our view, aggressive obstetric and neonatal management should be regarded as clinical investigation (i.e., a form of medical experimentation), not a standard of care. There is no obligation on the part of a pregnant woman to confer the status of being a patient on a near-viable fetus, because the efficacy of aggressive obstetric and neonatal management has yet to be proven.26

The in vitro embryo as a patient

A subset of previable fetuses as patients concerns the in vitro embryo. It might seem that the in vitro embryo is a patient because such an embryo is presented to the physician. However, for beneficence-based obligations to a human being to exist, medical interventions must be reliably expected to be efficacious.

Recall that, in terms of beneficence, whether the fetus is a patient depends on links that can be established between the fetus and its eventual independent moral status. Therefore, the reasonableness of medical interventions on the in vitro embryo depends on whether that embryo later becomes viable. Otherwise, no benefit of such intervention can meaningfully be said to result. An in vitro embryo, therefore, becomes viable only when it survives in vitro cell division, transfer, implantation, and subsequent gestation to such a time that it becomes viable. The process of achieving viability occurs only in vivo and is therefore entirely dependent on the woman’s decision regarding the status of the fetus(es) as a patient, should assisted conception successfully result in the gestation of the previable fetus(es). Whether an in vitro embryo will become a viable fetus, and whether medical intervention on such an embryo will benefit the fetus, are both functions of the pregnant woman’s autonomous decision to withhold, confer, or, having once conferred, withdraw the moral status of being a patient on the previable fetus(es) that might result from assisted conception.

It is therefore appropriate to regard the in vitro embryo as a previable fetus rather than as a viable fetus. As a consequence, any in vitro embryo(s) should be regarded as a patient only when the woman into whose reproductive tract the embryo(s) will be transferred confers that status. Thus, counseling about preimplantation diagnosis should be nondirective. Preimplantation diagnostic counseling should be nondirective because the woman may elect not to implant abnormal embryos. These embryos are not patients, and so there is no basis for directive counseling. Information should be presented the about prognosis for a successful pregnancy, and the possibility of confronting a decision about selective reduction, depending on the number of embryos transferred. Counseling about how many in vitro embryos should be transferred should be rigorously evidence-based.32

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 the greatest good is. 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.33

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.34 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 health-care policy in the United States. This lack of a conceptually-coherent policy is a long-standing feature of American health care. In particular, the United States has yet to create a universal right to health care, 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 and gynecology is coming under increasingly powerful economic constraints, e.g. managed-care and resource-management strategies imposed by hospital managers, used by both private and public payers and by health-care 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 obstetrician-gynecologists that seriously threaten the virtues that define the fiduciary character of medicine as a profession.35

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.4

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.35, 36

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, deliberately impose an economic conflict of interest on the physician.37 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.38 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 and gynecology. 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.39 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.9

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 and gynecology 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, health-care 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.40

DeGrazia and Beauchamp have identified and critically assessed five basic appeals.41 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.6 When these principles are "specified," i.e. clarified in their relationship to clinical reality, they provide compelling action guides, as will be explained in subsequent chapters. 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 health-care organizations.1

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.42

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.43 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 and gynecology, 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,43 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 and gynecology 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 and gynecology 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. 

CONCLUSION

In this chapter, we provide an ethical framework for both gynecologic and obstetric clinical judgment and practice. Implementing this framework on a daily basis is essential to creating and sustaining the physician–patient relationship in obstetrics and gynecology. 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 and gynecology.

REFERENCES

1

American College of Obstetricians and Gynecologists. Ethics in Obstetrics and Gynecology. 2nd edn. Washington, DC: American College of Obstetricians and Gynecologists, 2004.

 

2

Association of Professors of Gynecology and Obstetrics. Exploring Medical-legal Issues in Obstetrics and Gynecology. Washington, DC: APGO Medical Education Foundation, 1994.

 

3

FIGO Committee for the Study of Ethical Aspects of Human Reproduction. Recommendations of Ethical Issues in Obstetrics and Gynecology. London: International Federation of Gynecology and Obstetrics, 1997.

 

4

McCullough LB, Chervenak FA. Ethics in Obstetrics and Gynecology. New York, NY: Oxford University Press, 1994.

 

5

Engelhardt HT Jr. The Foundations of Bioethics, 2nd edn. New York, NY: Oxford University Press, 1995.

 

6

Beauchamp TL, Childress JF. Principles of Biomedical Ethics, 5th edn. New York, NY: Oxford University Press, 2001.

 

7

Chervenak FA, McCullough LB. An ethically justified algorithm for offering, recommending, and performing cesarean delivery and its application in managed care practice. Obstet Gynecol. 1996; 87: 302-305.

 

8

Hippocrates. Oath of Hippocrates. In: Temkin O, Temkin CL, eds. Ancient Medicine: Selected Papers of Ludwig Edelstein. Baltimore, MD: Johns Hopkins University Press, 1976:6.

 

9

McCullough LB, Coverdale JH, Chervenak FA. Argument-based medical ethics: a formal tool for critically appraising the normative medical ethics literature. Am J Obstset Gynecol. 2004; 191:1097-102.

 

10

Faden RR, Beauchamp TL. A History and Theory of Informed Consent. New York, NY: Oxford University Press, 1986.

 

11

Brody H, Bonham VL, Jr. Gag rules and trade secrets in managed care contracts: ethical and legal concerns. Arch Intern Med.1997; 157:2037-43.

 

12

Wear S. Informed Consent: Patient Autonomy and Clinician Beneficence within Health Care, 2nd edn. Washington, DC: Georgetown University Press, 1998.

 

13

Schloendorff v. The Society of The New York Hospital, 211 N.Y. 125, 126, 105 N.E. 92, 93 (1914).

 

14

Lynn J, Teno JM. Death and dying: euthanasia and sustaining life: III. advance directives. In: Reich WT, ed. Encyclopedia of Bioethics, 2nd edn. New York, NY: Macmillan, 1995:572-7.

 

15

In re Quinlan355 A.2d 647 (1976), cert. denied sub nom.

 

16

Meisel L. The Right to Die, 2nd edn. New York, NY: John Wiley & Sons, 1995.

 

17

SUPPORT Investigators. A controlled trial to improve care for seriously ill hospitalized patients. JAMA. 1995; 274:1591-8.

 

18

Braun UK, Beyth RJ, Ford ME, McCullough LB. The burdens of end-of-life decision making: voices of female African-American, Caucasian, and Hispanic surrogates. J Gen Intern Med. 2008; 23:267-74.

 

19

Truman v. Thomas 611 P.2d 902 (Cal. 1980).

 

20

Brett A, McCullough LB. When patients request specific interventions: defining the limits of the physician’s obligations. N Engl J Med. 1986; 315:1347-51.

 

21

Rabeneck L, McCullough LB, Wray NP. Ethically justified, clinical comprehensive guidelines for percutaneous endoscopic gastrostomy tube placement. Lancet. 1997; 349:496-8.

 

22

Callahan S, Callahan D, eds. Abortion: Understanding Differences. New York, NY: Plenum Press, 1984.

 

23

Annas GJ. Protecting the liberty of pregnant patient. N Engl J Med.1988; 316:1213-14.

 

24

Chervenak FA, McCullough LB. Ethics in obstetrics and gynecology: an overview. Euro J Obstet Gynecol Reprod Med. 1997; 75:91-4.

 

25

Chervenak FA, McCullough LB. The limits of viability. J Perinat Med.1997; 25:418-20.

 

26

Chervenak FA, McCullough LB, Levene MI. An ethically justified clinically comprehensive approach to peri-viability: gynaecological, obstetric, perinatal, and neonatal dimensions. J Obstet Gynaecol. 2007; 27:3-7.

 

27

Chervenak FA, McCullough LB. An ethically justified, clinically comprehensive management strategy for third-trimester pregnancies complicated by fetal anomalies. Obstet Gynecol. 1990; 75:311-16.

 

28

Chervenak FA, McCullough LB, Campbell S. Is third trimester abortion justified? Br J Obstet Gynaecol. 1995; 102:434-5.

 

29

Chervenak FA, McCullough LB, Campbell S. Third trimester abortion: Is compassion enough? Br J Obstet Gynaecol. 1999; 106:293-6.

 

30

Chervenak FA, McCullough LB. Clinical guides to preventing ethical conflicts between pregnant women and their physicians. Am J Obstet Gynecol. 1990; 162:303-7.

 

31

Lucey JF, Rowan CA, Shiono P, Wilkinson AR, et al. Fetal infants: the fate of 4172 infants with birth weights of 401 to 500 grams – the Vermont Oxford Network experience (1996-2000). Pediatrics. 2004; 113:1559-66.

 

32

Chervenak FA, McCullough LB, Rosenwaks Z. Ethical considerations in newer reproductive technologies. Semin Perinatol. 2003; 27:427-34.

 

33

Sterba JF. Justice. In: Reich WT, ed. Encyclopedia of Bioethics, 2nd edn. New York, NY: Macmillan, 1995:1308-15.

 

34

Chervenak FA, McCullough LB. Professionalism and justice in the leadership of academic medical centers. Acad Med. 2002; 77:45-7.

 

35

Chervenak FA, McCullough LB, Chez R. Responding to the ethical challenges posed by the business tools of managed care in the practice of obstetrics and gynecology. Am J Obstet Gynecol. 1996; 175:524-527.

 

36

Council on Ethical and Judicial Affairs of the American Medical Association. Ethical issues in managed care. JAMA. 1995; 273:330-335.

 

37

Spece RG, Shimm DS, Buchanan AE, eds. Conflicts of Interest in Clinical Practice and Research. New York, NY: Oxford University Press; 1996.

 

38

Chervenak FA, McCullough LB. Physicians and hospital managers as co-fiduciaries of patients: rhetoric or reality. J Health Manag. 2003; 48:173-9.

 

39

Skupski DW, Chervenak FA, McCullough LB, Horowitz S. Cesarean delivery for intrapartum fetal heart rate abnormalities: incorporating survey data into clinical judgment. Obstet Gynecol. 1996; 88:60-4.

 

40

Brody BA. Life and Death Decision Making. New York: Oxford University Press, 1988.

 

41

DeGrazia D, Beauchamp TL. Philosophy. In Sugarman J, Sulmasy DP, eds. Methods in Medical Ethics. Washington, DC: Georgetown University Press, 2001:31-46.

 

42

Sulmasy DP, Sugarman J. The many methods of medical ethics (or thirteen ways of looking at a blackbird). In Sugarman J, Sulmasy DP, eds. Methods in Medical Ethics. Washington, DC: Georgetown University Press, 2001:3-18.

 

43

Owen R. Reader bias. JAMA 1982; 247:2533-4.

 
Back to Top