Conscientious Non-Referral

By Samuel Reis-Dennis and Abram Brummett.

The year is 1950. A married couple living in the United States bring their 12-year-old daughter to a paediatric surgeon with a concern: their daughter has been masturbating. Despite the paediatrician’s explanation that such behaviour is not abnormal or unhealthy, the parents request that the surgeon perform a clitoridectomy. The surgeon knows that the procedure would be harmful to the patient, causing scarring and a loss of sexual sensation, and that it could lead to complications. More than that, he believes that the surgery would violate her moral right to a kind of sexual self-determination. He informs the parents that he believes that clitoridectomies to prevent masturbation are immoral, and that he will not perform them. The parents, undeterred by his refusal, ask for a referral to a willing provider. Does the surgeon have an obligation to provide one?

Bioethicists who endorse the standard “compromise” view of conscientious objection would say that he does. According to the compromise view, clinicians may refuse to provide legal and professionally accepted care, but only if they refer their patients (or surrogates acting on behalf of their patients) to willing providers. In 1950, clitoridectomy was both legal and professionally accepted in the United States. Therefore, the surgeon must refer.

We believe that this conclusion is mistaken. By referring, the doctor would be compromising his own integrity and facilitating the violation and harming of the child patient. Refusing to use his knowledge and expertise to ensure that the procedure could be completed would not only be permissible, but admirable.

Our paper is an explanation and defense of this rejection of the referral requirement. We suggest that the widespread sense that providers are morally obligated to refer depends on substantive moral judgments that the medical interventions in question are ethically permissible. The intuition that referral is morally required does not persist when the assumption that professional and legal standards are legitimate is undermined.

In short, we argue that the doctor in our example may permissibly refuse to refer because clitoridectomy to prevent masturbation is wrong. To be clear, we do not claim that providers may refuse to refer if they believe a procedure to be unethical. (Presumably, nearly all objecting providers believe this about the procedures they object to.) Rather, we argue that no one is morally obligated to facilitate genuine wrongdoing.

But what is “genuine wrongdoing?” Consideration of the clitoridectomy example shows that the moral propriety of a medical procedure cannot be settled by appealing to the prevailing legal and professional standards of the time. Rather, the ethics of medical interventions depend on their statuses as injustices, harms, expressions of disrespect, violations of legitimate professional ideals, and so on. Clitoridectomy to prevent masturbation, for example, is violation of the child patient’s rights, and this would be true even if most people—and the medical profession—supported it.

Another lesson of this brief historical reflection is that our own standards may continue to permit, and even encourage, unethical conduct. In the paper, we consider “normalizing” surgery on infants born with intersex traits, a procedure that is still legally and professionally sanctioned despite having been deemed a violation of human rights by the United Nations and Human Rights Watch. We make the case that such surgeries are wrong and that providers have no moral obligation to perform or facilitate them.

The fact that our thesis forces us to make and defend substantive arguments about which medical procedures are right and wrong is nothing to be embarrassed about. Indeed, this is the task of ethics. It is an ongoing collective responsibility we must face. We may hear the question “Who’s to say what is right and wrong?” But to assume that this sceptical challenge cannot be answered amounts to an abandonment of the ethical project.

Insofar as we attempt to adjudicate the ethics of referral independently of the morality of specific medical procedures, we fail to meet our responsibilities as ethicists to articulate good reasons for our moral claims, sharpen our ethical vision, and help others do the same. The fact that acceptance of our thesis would force us to face the challenge of distinguishing between morally defensible and indefensible medical practices is a virtue.

 

Paper title: Are Conscientious Objectors Morally Obligated to Refer

Authors:: Samuel Reis-Dennis and Abram Brummett

Affiliations:

Samuel Reis-Dennis: Alden March Bioethics Institute, Albany Medical College

Abram Brummett: Department of Foundational Medical Studies, Oakland University William Beaumont School of Medicine

Competing interests: None

 

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