An ethically justified practical approach to offering, recommending, performing, and referring for induced abortion and feticide

Respecting the autonomy of pregnant women 

The ethical principle of respect for autonomy requires the physician to provide patients with clinical information that they need and then acknowledge and carry out the value-based preferences of the adult, competent patient unless there is compelling ethical justification for not doing so.15, 16 The pregnant patient brings to her medical care her own perspective on what is in her interest, and there is evidence that pregnant women can use clinical information to make scientifically sophisticated decisions.17 Because each pregnant patient's perspective on her interests is a function of her values and beliefs, it would be inappropriate for the physician to specify for her what her values should be.16

Respecting the fetus as a patient 

The ethical concept of the fetus as a patient is essential to obstetric clinical judgment and therefore to the informed consent process for induced abortion and feticide.16 Being a patient means that one is presented to the physician and there exist clinical interventions that are reliably expected to result in a greater balance of clinical benefits over harms.16 The ethical principle that directs physicians to seek such clinical outcomes is beneficence.15, 16

Because of the immaturity of the fetal central nervous system, the fetus lacks the capacity to generate a perspective on its interests. The ethical principle of respect for autonomy and the concept of autonomy-based rights therefore do not apply to the fetus. The ethical concept of the fetus as a patient does not require appeal to the discourse of fetal rights.18, 19 This is 1 of the concept's main advantages because it prevents ethical analysis of induced abortion and feticide in medical ethics from being paralyzed by divisive debates about a fetal right to life that have been going on for decades, indeed centuries, without any basis for resolution.16

Beneficence-based obligations to the fetus exist when the fetus is reliably expected later to achieve moral status as a child and person. The clinical application of the ethical concept of the fetus as a patient therefore depends on links that can be established between the fetus and its later achieving such moral status.16

The viable fetal patient 

One such link is viability, which should be understood in terms of both biological and technological factors.20 When a fetus is presented to the physician and when it is of sufficient maturity that, given the availability of biotechnological support, it can survive into the neonatal period and later achieve moral status, the fetus is a patient.

Biomedical and technological capacities are different in different parts of the world. As a consequence, there is no worldwide, uniform gestational age to define viability. In developed countries viability occurs at approximately 24 weeks of gestational age.20, 21

Some viable fetuses will be diagnosed to have severe anomalies. There is certainty or very high probability of a correct diagnosis and either certainty or a very high probability of death as an outcome of the anomaly diagnosed or certainty or a very high probability of severe irreversible deficit of cognitive developmental capacity as a result of the anomaly diagnosed.22, 23 When these 2 clinical criteria apply, the beneficence-based obligation to protect and promote the fetus' health-related interests has reached its limits. Induced abortion or feticide when these criteria have been met in rigorous clinical judgment does not violate beneficence-based obligations to the fetal patient.16, 22, 23

The previable fetal patient 

The only possible link between the previable fetus and later achieving moral status is the pregnant woman's autonomy. This is because no biomedical technology independent of the woman's body can sustain the life of the previable fetus. The previable fetus has no claim to the status of being a patient independently of the pregnant woman's autonomy. The link, therefore, between a previable fetus and the child and person it can later become can be established only by the pregnant woman's decision to confer the status of being a patient. 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, an important clinical implication of respecting the pregnant woman's autonomy.16

Respecting individual conscience 

Professional medical ethics, based on respecting the pregnant woman's autonomy and respecting the fetus as a patient, generates the ethical obligations that every physician has to pregnant and fetal patients. Physicians, however, also have individual consciences, which appeal to sources of morality other than professional medical ethics, such as personal experience, family upbringing, and religion.24, 25 In contrast to professional conscience, individual conscience is variable because of the striking heterogeneity of the sources of morality that form individual conscience.18

Professional conscience governs every physician's obligations to his or her patient. Individual conscience governs whether continuing to serve as the physician to a particular patient obligates that physician to act in such a way as to produce intolerable burdens on his or her individual moral convictions, values, and beliefs. Respecting the individual conscience of each individual physician means that some pregnant women cannot become or continue to be patients of a particular physician. Respecting the physician's individual conscience is an indispensable component of the responsible management of the abortion controversy in clinical practice.

After viability 

After viability, there is a beneficence-based prohibition against feticide of viable fetuses without severe anomalies because the beneficence-based obligation to protect the life and health of the fetal patient remains intact. As a consequence, the physician has beneficence-based obligations to protect the health and life of the viable fetal patient without severe anomalies.

It follows that it is ethically impermissible to offer feticide for viable fetuses without anomalies or with less-than-severe anomalies, such as Down syndrome or achondroplasia. Less-than-severe anomalies do not involve a high probability of death or a high probability of the absence or virtual absence of cognitive developmental capacity.22, 23 The pregnant woman has parallel beneficence-based obligations, which rules out an autonomy-based justification for offering induced abortion or feticide in a viable pregnancy with a less-then-severe anomaly.

When a viable fetus has a severe anomaly, offering feticide followed by termination of pregnancy is ethically appropriate. This is because the beneficence-based obligation to protect the life of fetus that has been diagnosed with a severe anomaly has reached its limits.22, 23 This means that there is an autonomy-based justification for offering feticide followed by termination of pregnancy in a viable pregnancy with a severe anomaly.

Before viability: beneficence-based justifications 

There are 2 beneficence-based justifications for offering induced abortion or feticide before viability. The first is based on reliable clinical judgment that continued pregnancy poses a threat to the health or life of the pregnant woman. Preexisting conditions such as severe cardiac disease or some forms of cancer can pose such threats.26 When the best available evidence supports the clinical judgment that continued pregnancy poses a risk to the pregnant woman's health or life, she should be informed about this matter and offered the alternative of induced abortion.

It is important to appreciate that this beneficence-based justification will evolve over time as new evidence accumulates about the risks of pregnancy to women from preexisting conditions or the complications of pregnancy. Some women, because of moral convictions about the general moral status of the fetus, will refuse this offer. They should be informed that their refusal increases the risk that their health could be severely compromised and that they could die. The final decision to remain pregnant or to elect induced abortion is determined by the pregnant woman's autonomy and should be respected by the physician.

The second beneficence-based justification for offering feticide before viability is based on reliable clinical judgment that continued pregnancy poses a threat to the life or health of coexistent fetuses, such as is the case in higher-order pregnancies and twin pregnancies in which the continued existence of the anomalous fetus that is causing hydramnios poses a threat to the health or life of the other fetus.

Current evidence supports the clinical judgment that these risks can be reduced by selective feticide.10 When the best available evidence supports the clinical judgment that continued multifetal, previable pregnancy poses a risk to the other fetus' or fetuses' health or life, the pregnant woman should be informed about this matter and offered the alternative of selective feticide. Some women, because of moral convictions about the general moral status of the fetus, will refuse this offer. They should be informed that their refusal increases the risk that the pregnancy will end before viability without any surviving fetuses or end prematurely after viability with increased risk of infant mortality and morbidity. The final decision to remain pregnant, to elect induced abortion, or to elect selective feticide is determined by the pregnant woman's autonomy and should be respected by the physician.

Before viability: autonomy-based justifications 

When the best available evidence supports the clinical judgment that continued previable pregnancy does not pose an increased risk to the health or life of the pregnant woman or fetuses, the justification for offering induced abortion or feticide in specific circumstances is autonomy-based. The justification for not routinely offering induced abortion or feticide is not based in beneficence-based obligations to the fetus. The justification is based in the beneficence-based obligation to the pregnant woman to prevent the unnecessary psychosocial harm that could result from such routine offers.

There are 4 specific clinical circumstances in which induced abortion should be offered on the basis of respect for the pregnant woman's autonomy. First, some pregnant women will express an interest in an induced abortion. Second, other pregnant women will directly and sometimes indirectly express concern about remaining pregnant or will be concerned about multiple birth and will prefer for economic or other personal reasons to have a singleton pregnancy. Third, a previable pregnancy will be diagnosed with an anomaly. Fourth, a complication occurs that threatens the successful continuation of a previable pregnancy, such as preterm premature rupture of membranes. Physicians should respond to these 4 groups by discussing the option of induced abortion or feticide and explaining time limitations.

In response to the offer of induced abortion, physicians should expect pregnant women to sort themselves into 3 subgroups.27 Some will want to continue the pregnancy because they decide to accept whatever child results. Some will not want to remain pregnant and will elect induced abortion. Some will be uncertain about whether to continue the pregnancy.

Respecting the autonomy of pregnant women means that physicians should respect this self-sorting by limiting their role to providing information that these women can use to resolve their uncertainty. Attempting to bias a woman's decision assumes, falsely, that physicians have the professional competence to decide for a woman with a previable pregnancy that she should or should not remain pregnant.

Nondirective counseling should guide physicians in discussing induced abortion with women with previable pregnancies who remain uncertain. Physicians should refrain from making, suggesting, or implying a recommendation about continuation or termination of a previable pregnancy. Directive counseling toward continuation of a previable pregnancy based upon alleged benefit to the pregnant woman of providing information about fetal development or showing images of fetal development, to prevent remorse or regret, lacks an evidence base. Such directive counseling is an ethically impermissible distortion of the physician's professional role in the informed consent process.16

All women should be informed that their decision about termination is time limited, given the availability of induced abortion. In addition, to respect autonomy, the physician should provide frank, evidence-based information about maternal or fetal conditions, even if it is emotionally distressing. Physicians need to make the time available for the sometimes extensive and iterative discussions required to disclose the medical facts and assist the woman to assimilate those medical facts into her decision-making process.

Pregnant women who elect induced abortion or feticide should be assured that ethical and legal obligations of confidentiality will be fulfilled: Others will be informed about the patient's decision only with her explicit permission or, in the case of minors, as required by law.4 In rare circumstances, should she elect absolute confidentiality, her husband or partner should not be informed.

Individual conscience does not justifiably place limits on the ethics of offering induced abortion or feticide when the aforementioned ethical justifications apply. There are 2 reasons that this is the case. The first is that every physician's obligation to provide appropriate information in the informed consent process is a matter of professional, not individual, conscience. Second, one cannot predict how women will sort themselves in response to offering induced abortion or feticide.

Subsequent decisions are a function solely of the pregnant woman's autonomy. It is therefore a mistake to think that offering induced abortion or feticide makes the physician somehow responsible for the informed, autonomous decisions of a pregnant patient that may not be consistent with the physician's individual conscience.28