Trumping rights?

By Ezio Di Nucci.

Our team just finished another round of the ethics course at Copenhagen’s medical school, and we are now grading exams, which this semester included the following case study:

A 32-year-old woman is in early labor. Tests indicate fetal hypoxia, i.e., that the fetus lacks sufficient oxygen. Various attempts are made to improve the situation—positional changes, oxygen, an IV—but none succeed.  The obstetrician explains to the patient the nature of fetal hypoxia, and informs her that, if it persists, it can progress to acidosis and possible long-term neonatal organ failure. On this basis, the obstetrician recommends an immediate cesarean delivery. The patient, however, states that she strongly desires a natural birth, and declines the recommendation. The patient’s husband is concerned, but he has left the decision to his wife.

This case has generated quite a bit of discussion within our research group, which started by noticing – with surprise – that a few of our students suggested the patient’s husband should decide (reminding one of our local colleagues that when she was herself born in ‘70s Denmark with an emergency C-section, the doctor left the room to ask her mother’s husband for permission… times have changed; or have they?).

So let us start there. The description of the case makes no suggestion towards the idea that the patient might be incapacitated, so the obvious argument for guardianship or delegated decision-making does not apply. By the way, guardianship could be exercised by the husband but need not to be – apart from the fact that there is no mention of the husband being the prospective father either.

Any guardianship or proxy decision-making arrangements would have to be with the patient’s next of kin, who might neither be the unborn’s prospective father nor the patient’s partner but, say, a friend, parent or other relative. This is an important clarification because it stresses that even in cases where we might not be sure of the pregnant woman’s decision-making capacity (never miss a chance not to trust a woman’s word, right?), it is her interests that the system would have to guarantee through guardianship arrangements.

This also complicates the path towards a coercive medical intervention. The patient has been given medical advice and has been informed of the risks attached to refusing to follow medical advice, after which the patient has declined the emergency C-section. This seems to be the most natural interpretation of this case study. So the question, then, is whether the patient’s right to bodily autonomy, which in this case is exercised by refusing treatment, trumps any rights the unborn might have or, indeed, any duties medical professionals might have towards either the pregnant woman or the unborn.

One possible version of the case would be where the pregnant woman refuses the C-section and her partner – who is both her next of kin and the prospective co-parent – supports her refusing treatment (whether or not she is incapacitated would not matter here because if she is, the next of kin declines; if she is not, she declines herself). Here we might be tempted to argue for coercive medical intervention and for the physician to be the adult in the room but, again, there is no grounds for such a judgement in a consent-based healthcare system.

Before concluding that guardianship is not relevant to this case, we should compare it to refusal of life-saving blood transfusions for religious reasons. Many jurisdictions distinguish between adults and minors in these kinds of cases: adults might refuse on their own behalf but might not refuse on behalf of their dependents, so that in many jurisdictions healthcare professionals are either allowed or in fact even required to paternalistically disregard parental consent requirements when it comes to life-saving blood transfusions.

Could this model be applied to our case? The problem is that even if we equated the unborn with the minor (itself a controversial move); and then took the C-section to be life-saving like the blood transfusions in the other case (this latter comparison being less controversial if we interpret organ failure to be likely fatal, which seems fair – but obviously we can imagine more complex cases where the probability of death s less than 1); there would still be the following crucial difference: the pregnant woman in our case is not refusing treatment on behalf of her dependent, she is refusing treatment on her own body. So here again the more fitting comparison would have to be to the adult refusing her own blood transfusion rather than refusing her child’s blood transfusion.

What’s left is the question of whether medical professionals would have the right – or indeed a professional duty – to try to talk the pregnant woman out of declining treatment with the result that the unborn will die of organ failure. The question is not how far the power of persuasion goes – because we are confident that in most cases persuasion would not even be necessary. The relevant normative question is whether trying to convince a patient – especially if they are a pregnant woman – might itself be a form of epistemic injustice.

There seems no way, basically, to work around the hard question, which was always going to be whether the pregnant woman’s right to refuse treatment can trump either the unborn’s right to life or the physician’s duty of beneficence towards the unborn. And even though whether the emergency C-section happens at, say, week 25 as opposed to week 41 (intentionally picking uneven numbers, here, to mess with the Donald’s brain), the answer to the question of whether a woman’s bodily autonomy rights should trump the supposed right to life of an unborn child is the same one we are familiar with from the abortion debate: obviously.

Author: Ezio Di Nucci

Affiliation: University of Copenhagen

Competing interests: None declared

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