Early Induction of Labor: Legal and Ethical Considerations

We take “early induction” to mean the medically induced delivery of a child at any stage prior to his or her anticipated complete gestation period. See generally the following representative materials germane to this study, Williams Obstetrics 20th Edition (Stamford, CT: Appleton & Lange, 1997) Section V, “Abnormal Labor” and Section XI “Fetal Abnormalities: Inherited and Acquired Disorders”; Jarvis G.J. , Obstetrics and Gynaecology: A Critical Approach to the Clinical Problems (Oxford: Oxford University Press, 1994), Ch. 16 “Prenatal Diagnosis” and Ch. 19 “The Induction of Labour”; A. Boué, Fetal Medicine: Prenatal Diagnosis and Management (Oxford: Oxford University Press, 1995); A. Goldworth, W. Silverman, D. Stevenson & E. Young (eds.) Ethics and Perinatology (New York: Oxford University Press, 1995); P. McCullagh, The Foetus as Transplant Donor: Scientific, Social and Ethical Perspectives, (Chichester: John Wiley & Sons, 1987); id. Brain Dead, Brain Absent, Brain Donors: Human Subjects or Human Objects? (Chichester, John Wiley, 1993); B. Ashley, OP, Theologies of the Body: Humanist and Christian (Braintree, MA: The Pope John Center, 1985 & 1995); D.A. Shewmon, “Anencephaly: Selected Medical Aspects,” Hastings Center Report (October/November, 1988) 11–19; J.E. Smith, “Ethical Aspects of Tissue and Organ ‘Donation’ by Preborn and Anencephalic Infants” in Critical Issues in Contemporary Health Care (ed. R.E. Smith)(Braintree, MA: Pope John Center, 1989) 253–268.

On the subject of “authoritative teaching” generally, see the useful remarks of J.A. DiNoia, OP, in “Authority, Public Dissent and the Nature of Theological Thinking,” The Thomist 52 (April, 1988) 185–207. Fr. DiNoia is Executive Director of the United States National Conference of Catholic Bishops Committee on Doctrine.

Similar issues of potential criminality and civil liability arise in relation to the withdrawal of the nonburdensome or nonfutile provision of nutrition and hydration, that is, “comfort care”, from persons with a terminal illness or who are classed as ”permanently unconscious.”

Generally, see, for example, P. Doherty (ed.) Post-Abortion Syndrome: Its Wider Ramifications, (Dublin: Four Courts Press, 1995); Joanne Angelo E. , “Women and Health Care: A Catholic Perspective,” in The Splendor of Truth and Health Care (ed. Smith R.E. )(Braintree, MA: The Pope John Center, 1995) 127–145.

Cf. the following remarks from Veritatis Splendor (n.71)(emphasis in original): Human acts are moral acts because they express and determine the goodness or evil of the individual who performs them. [Summa Theologiae, I-II, q.1, a.3] They do not produce a change merely in the state of affairs outside of man but. to the extent that they are deliberate choices, they give moral definition to the very person who performs them, determining his profound spiritual traits. This was perceptively noted by St. Gregory of Nyssa: All things subject to change and to becoming never remain constant, but continually pass from one state to another, for better or worse… Now, human life is always subject to change; it needs to be born ever anew… But here birth does not come about by a foreign intervention, as is the case with bodily beings…;it is the result of a free choice. Thus, we are in a certain way our own parents, creating ourselves as we will, by our decisions. [Gregory of Nyssa, Life of Moses. II, 2–3, PG 44, 327–328.]

Catechism of the Catholic Church, pars. 2270–2275; Evangelium Vitae, nn. 58–63; Donum Vitae, I.1; Quaestio de abortu, nn. 12 & 20.

Evangelium Vitae AAS, Vol. LXXXVII, (2 May 1995), 401 at pp. 465, 467 & 472. Cf. Veritatus Splendor, n. 52: …. The negative precepts of the natural law are universally valid. They oblige each and every individual, always and in every circumstance. It is a matter of prohibitions which forbid a given action semper et pro semper, without exception, because the choice of this kind of behaviour is in no case compatible with the goodness of the will of the acting person, with his vocation to life with God and to communion with his neighbour. It is prohibited - to everyone and in every case - to violate these precepts. (emphasis in original)

“Moral Principles Concerning Infants With Anencephaly,” Statement of NCCB Committee on Doctrine, 20 September 1996: text in Origins Vol. 26 (10 October, 1996) 276.

Cf. the remarks in Donum Vitae, I.2, cited further in a discussion of prenatal diagnosis in the Charter for Health Care Workers issued by the Pontifical Council for Pastoral Assistance to Health Care Workers (1995): “Prenatal diagnosis is gravely contrary to the moral law when it contemplates the possibility, depending on the result, of provoking an abortion. A diagnosis revealing the existence of a deformity or a hereditary disease should not be equivalent to a death sentence.” Charter for Health Care Workers, para. 61. See further. Evangelium Vitae, n.14.

For a discussion of inappropriate terminology, see the remarks of Pope John Paul II in Evangelium Vitae, n. 58 where he notes the use of “ambiguous terminology”, such as ”interruption of pregnancy” in relation to abortion, and insists on calling “things by their proper names without yielding to convenient compromises or to the temptation of self-deception.”

The history of the law on abortion in England, which is directly relevant to the law on abortion in Australia - and many other common law jurisdictions - is set out in Keown J. , Abortion, Doctors and the Law. Some Aspects of the Legal Regulation of Abortion in England from 1803–1982 (Cambridge: Cambridge University Press, 1988). For a thorough-going philosophical analysis of abortion, see P. Lee, Abortion & Unborn Human Life, (Washington, D.C.: The Catholic University of America Press, 1996). More generally, see B. Ashley, OP and A. Moraczewski, OP, “Is the Biological Subject of Human Rights Present from Conception?” in The Fetal Tissue Issue: Medical and Ethical Aspects, (P. Cataldo and A. Moraczewski, eds.) (Braintree, MA: The Pope John Center, 1994) 33–59 and W.E. May, “The Sacredness of Life: An Overview of the Beginning,” The Linacre Quarterly 63 (February, 1996) 87–96.

“…the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” Convention on the Rights of the Child (1989), Preamble. See also Article 6 of the same Convention and similar provisions in the International Covenant on Civil and Political Rights (1966)(Article 6) and the Universal Declaration of Human Rights (1948).

See, for example, Secretary, Department of Health & Community Services v. JWB and SMB (1992) 175 CLR 218 and cases cited therein.

The notion of death being in someone's best interests has been shown to be philosophically incoherent by, among others, Hare R.M. Generally, see his Essays on Bioethics (Oxford: Clarendon Press, 1993). Of course, the description of someone being “better off dead” is found more usually in the debate over euthanasia. For example, see the instructive essays by Gilbert Meilaender, “Terra es animata: ‘On Having a Life’,” Hastings Center Report 23 (July-August, 1993) 25–32 & R. Destro, “Guaranteeing the ‘Quality’ of Life through Law: The Emerging Right to a ‘Good’ Life,” in Guaranteeing the Good Life: Medicine & the Return of Eugenics, (ed. R.J. Neuhaus) (Grand Rapids, MI: William B. Eerdmans Publishing Co., 1990) 229–266.

The intervention was in an appeal from the decision CES v. Superclinics Australia Pty Ltd (1995) 38 NSWLR 47, a case which has generated significant comment in medico-legal literature. See note 18, infra, and article forthcoming.

(1996) 40 NSWLR 245.

Fetal Welfare and the Law, (1995), p. 29.

The extent to which such an analysis may be affected by the NSW Court of Appeal decision in CES v. Superclinics Australia Pty Ltd. (1995) 38 NSWLR 47 (which dealt with damages for “wrongful birth” as a result of negligence in diagnosing pregnancy) is unclear, particularly given that the three judges in that case expressed different views on almost every aspect of it (see, e.g. Andrew Grubb, “Wrongful Birth and Legality of Abortion” [1996] 4 Medical Law Review 102–110; Lynda Crowley-Smith, “Therapeutic Abortions and the Emergence of Wrongful Birth Actions in Australia: A Serious Danger to Mental Health,” [1996] 3 Journal of Law and Medicine 359–370; Kerry Petersen, “Wrongful Conception and Birth,” [1996] 18 Sydney Law Review 503–522; Jane Swanton, “Damages for Wrongful Birth”, [1996] 4 Torts Law Journal 1). The High Court granted leave to appeal from that decision but the case was settled before the full hearing of the appeal was completed. A convenient discussion of wrongful life, wrongful conception and wrongful birth jurisprudence from the United Kingdom and the United States is provided by Ian Kennedy and Andrew Grubb, Medical Law: Text with Materials (second Edition) (London: Butterworths 1994) Ch. 13 “Actions by children and parents arising from occurrences before birth,” pp. 927–1006.

On the duty to advise and to provide information, see Rogers v. Whitaker (1992) 175 CLR 479 cf. Bolam v. Friern Hospital Management Committee [1965] 1 WLR & Sidaway v. Governors of Bethlem Royal Hospital [1985] AC 871. And also see references in note 34, infra.

In relation to breach of contract in the provision of medical services, see Devereux J. , Medical Law: Text, Cases and Materials, (Sydney: Cavendish Publishing,1997) Ch. 2; I. Kennedy and A. Grubb, Medical Law: Text with Materials, op cit. pp. 70–78.

See generally, Keown J. , Abortion, Doctors and the Law, op cit., chapters 1 and 2; id “The Scope of the Offence of Child Destruction” (1988) 104 Law Quarterly Review 120–142; Howard's Criminal Law (B. Fisse) (Fifth Edition) (Sydney, The Law Book Company, Limited, 1990) Chapter 2 D (vi) and Chapter 3 B (vii) and literature there cited; Law and Medical Ethics (J.K. Mason & R.A. McCall Smith) (Fourth Edition) (London: Butterworths, 1994) Chapters 5–7; Abortion Regimes (K.A. Petersen) (Aldershot: Dartmouth, 1993) and see references in notes 21 and 23 herein.

See Rhoden N. , “The New Neonatal Dilemma: Live Births from Late Abortions” (1984) 72 Georgetown Law Journal 1451–1509 and M. Eburn, “The Legal Status of a Living Abortus,” (1997) 4 Journal of Law and Medicine 373–378.

op cit, see note 8.

For a recent summary of views concerning the ethics of early induction, see O'Rourke K. , O.P., “Ethical Opinions in Regard to the Question of Early Delivery of Anencephalic Infants”, The Linacre Quarterly 63 (August, 1996) 55–59. Generally, see the conclusion of Ashley and O'Rourke in Health Care Ethics (4th Edition) (Washington, D.C.: Georgetown Press, 1997) p. 263: “…we believe the anencephalic infant should be allowed to go to term, be baptized, and be allowed to die…” The principles set out by Ashley and O'Rourke seem to us to be apposite for all situations involving the terminal condition of a child in utero which is not threatening to the life or health of his or her mother. Fr. Ford, in a recent piece (“Duty of Care for a Fetus with a Lethal Abnormality” Caroline Chisholm Centre for Health Ethics Bulletin [Winter. 1997] 11–12) comes to a different conclusion. In doing so, he does not consider a number of articles which are contrary to his conclusion, including that by Fr. O'Rourke. Further, although the title of his paper is presented in legal terms of “duty of care”. Fr. Ford does not address legal issues in his paper.

Evangelium Vitae, nn.14 and 15, AAS., Vol. LXXXVII, (2 May 1995) 401 at pp. 416 & 417.

See Tonti-Filippini N. , “The Status of Anencephalics,” The Australasian Catholic Record, Vol. LXIII (April, 1986) 169–78.

Generally, see Lord Goff's useful article, “The Mental Element in the Crime of Murder,” (1988) 104 Law Quarterly Review 30–59. See also the remarks of the Pontifical Council for Pastoral Assistance to Health Care Workers, Charter for Health Care Workers (1995) paras. 140–142 & see note 35 infra.

“Nutrition and Hydration: Moral and Pastoral Reflections” (2 April, 1992): text as in Catholic International 3 (1–14 July, 1992) 620–632 at 627 & 628.

Further comment on the question of futility, and more particularly undue burden, is provided in the informative paper of Dr. Goodwin in the proceedings of the 15th Workshop for Bishops in Dallas, Texas in 1996 entitled “Medical and Ethical Considerations Regarding Early Induction of Labor,” in The Gospel of Life and the Vision of Health Care (ed. Smith R. ) (Braintree, MA: The Pope John Center, 1996) 34–45. Dr. Goodwin comments: “If there is no substantive risk to the mother's health, then it is appropriate to the child in utero, no matter how malformed, to continue to the natural terminus of its existence.”, 620–632, at p. 42.

Cataldo P.J. , “The NCCB on Anencephaly” Ethics & Medics 22 (January 1997) 3–4.

1 December 1994; text in Origins Vol. 24 (15 December 1994) 449–462.

“The NCCB on Anencephaly,” op cit. at p. 4.

Jarvis G.J. , Obstetrics and Gynaecology, op cit 446. He cites in support, J.M. Green, “Prenatal Screening and Diagnosis: Some Psychological and Social Problems,” (1990) 97 British Journal of Obstetrics and Gynaecology 1074–76.

Raphael B. , “Grieving over the Loss of a Baby,” (1986) 144 Medical Journal of Australia 281–82; P. McCullagh, Brain Dead, Brain Absent, Brain Donors, op cit, Chapter 5 “Brain Absence: Use of the Anencephalic Infant in Transplantation”, especially at 160–163 and notes thereto.

Two matters should be noted. First, there is, of course, a distinction between the administration of analgesia and the administration of anesthesia and the amnesiac effect of some anesthetic agents. The relevance of the distinction, which is beyond the purview of this article, is discussed in the studies listed in note 36, infra. Secondly, the usual methods of induction would be dilation and evacuation or administration of prostaglandin(s). In the former case, death will ensue immediately; in the second, death will follow, usually from hypoxia, and/or the force of the contractions in the course of labor. Generally, see Williams Obstetrics, op cit, pp. 301 ff. and pp. 595 ff. These methods of induction would be prima facie evidence of an intention to kill the fetus, as opposed to the medically-indicated induction of labor, an unintended consequence of which is the death of the child.

Generally of fetal sentience, see McCullagh P. , “Foetal Sentience” Hospital Update (January, 1996) 5–6 and P. McCullagh and J. McLean, Fetal Sentience, a paper published by the (UK) All-Party Parliamentary Pro-Life Group (undated); P. McCullagh, “Fetal Sentience and Fetal Surgery” in Recent Advances in Anaesthesia & Analgesia 20 (eds. A.P. Adams & J.N. Cashman) (in press).

274 US 200 at p. 207 (1927). Australian cases are tending in the same direction in recent years: see Jennifer Ford, “Sterilisation of Young Women with an Intellectual Disability: A Comparison between the Family Court of Australia and the Guardianship Board of New South Wales,” (1996) 10 Australian Journal of Family Law 236–262 & Nick O'Neill, “Sterilisation of Children with Intellectual Disabilities,” (1996) 2 Australian Journal of Human Rights 262–277. (Mr. O'Neill is President of the Guardianship Court of New South Wales.)

North Carolina Association for Retarded Children v. State of North Carolina 420 F. Supp. 451 (1976).

McLean S. , “The Right to Reproduce,” in Human Rights: From Rhetoric to Reality, ( Campbell T. , Goldberg D. , McLean S. , Mullen T. , eds.) (Oxford: Blackwells, 1986) 99–122 at p. 112.

We note the conclusion of Kevin O'Rourke, OP to the same effect in relation to anencephaly: Because intervention in the pregnancy of an anencephalic infant results in a direct killing of an innocent human being, the only suitable, ethical opinion seems to be to allow the pregnancy to go to term, baptizing the infant and allowing parents to hold the infant as it is allowed to die…. This seems to be the only conclusion in accord with traditional Catholic teaching. “Ethical Opinions in Regard to the Question of Early Delivery of Anencephalic Infants”, op cit, 58. See also the remarks of pediatric surgeon, Professor Emmanuel Sapin of St. Vincent de Paul Hospital, Paris, in a paper to the Tenth International Conference organized by the Pontifical Council for Pastoral Assistance to Health Care Workers, Vade et Tu Fac Similiter: From Hippocrates to the Good Samaritan (Rome: 23–25 November, 1995): The lack of an ability to treat a detectable anomaly before the birth of a child inevitably leads to the proposal to abort. In the case of a chromosome anomaly, as for example with the trisomy 21 syndrome, we are dealing with nothing less than the conscious selection of individuals, and this amounts to eugenics. In the case of an inherited illness such as mucoviscidosis or myopathy this is part of the philosophy of euthanasia, and more particularly of prenatal euthanasia. “The Horizons of Fetal Medicine and its Ethical Consequences,” Dolentium Hominum 31 (1996) 155–158 at 158.

We do not consider the situation where the pregnancy has reached term but labor has not commenced. This scenario is outside the formal terms of the article.