Journal ofmedical ethics, 1990, 16, 61-65 J Med Ethics: first published as 10.1136/jme.16.2.61 on 1 June 1990. Downloaded from
Unfinished feticide
Robert P S Jansen Royal Prince Alfred Hospital, Sydney, Australia
Author's abstract Thwarted abortion A fetus may survive an intentional interference with its A fetus may survive an attempt at abortion (1) if intrauterine environment (1) ifgestational age is mistaken gestational age is mistakenly underestimated and and the procedure ofinduced abortion does not kill the procurement of the abortion does not itself kill the fetus, (2) ifa change ofheart takesplace afterabortifacient fetus, or (2) if, after abortifacient drugs are taken that drugs are taken and the abortion does notproceed, and (3) fail themselves to complete the abortion, a change of ifa high-multiple pregnancy is reduced to a singleton or a heart takes place that stops attempts to complete the twin pregnancy to improve the likelihood that the abortion by surgically evacuating the uterus. Neither remainingfetuses will reach viability. In each case, circumstance is novel, but both have so far been rare. through cause or coincidence, an abnormal baby may be In the second trimester, for example, neonatal born. The well-intentioned to a survival has been reported after the operation of fetal physician, responding extraction by hysterotomy (technically similar to
patient's medical orpsychological needs, risks a legal copyright. action in negligence or assault brought by a deformed caesarean section (5)) or when prostaglandins have surviving child. This hazard means that medical been used to stimulate uterine contractions and the termination ofpregnancy andselectivepregnancy reduction fetus is expelled vaginally (6). With hysterotomy the put thepractisingphysician atsubstantial risk in a way not dangers are just those of immaturity. With usually associated with induced abortion. prostaglandin-induced abortions, spasm of fetal and umbilical vessels occurs and fetuses that are born alive
are damaged beyond the consequences of their http://jme.bmj.com/ Two developments have taken place that can change immaturity. Injured neonates have thus occasionally the nature of ethical medical practice in the area of survived attempts at abortion in the second trimester, induced abortion. The first is the availability of either because the procedure has been discontinued (7) effective drugs for non-operative termination of or because the delivered infant has been mature pregnancy (1). The second is the procedure ofselective enough to live (5). embryocide or feticide, in which a multiple pregnancy Second trimester methods ofinducing abortion that is reduce to a singleton or twin pregnancy by an both kill the fetus and ensure its expulsion are ultrasonographically or fetoscopically directed available. Intra-amniotic injections of hypertonic on September 26, 2021 by guest. Protected operation aimed at destroying some but not all of the saline are usually feticidal before uterine contractions fetuses present (24). In these practices the well- are induced by the hypertonic solution and the fetus is intentioned physician faces hazards greater than those expelled (8); dilatation of the cervix followed by that attend ordinary induced or therapeutic abortion, surgical evacuation of the uterus as a two-step in which the pregnant uterus is reliably and completely procedure is considered to be the safest method of evacuated. terminating pregnancy in the second timester (6,9). I do not mean to influence the wider debate on the The fetus cannot survive such surgical evacuation of morality or immorality of induced abortion. Those the uterus, but there have been reports of women who oppose abortion on moral grounds may find changing their minds and not proceeding with support for their cause in the arguments that follow. evacuation of the uterus after the initial step, in which But there will also be those who, despite the hazardous the cervix is softened and dilated by insertion of consequences of these newly popular procedures, will hygroscopic tents (10). In these cases the cervix may still perceive a duty to help individual patients in not always be firm enough to retain the gestation to immediate and desperate trouble. term without the need for a supporting suture; the risk of chorioamnionitis and premature delivery may thus be increased although the fetus itselfwill not have been Key words injured directly. Medical induction of abortion is possible with the Feticide; abortion. administration ofthe drug mifepristone (RU-486), the 62 Unfinishedfeticide J Med Ethics: first published as 10.1136/jme.16.2.61 on 1 June 1990. Downloaded from
'abortion pill'. Mifepristone antagonises the action multiple pregnancy to survive when the alternative is of progesterone, the ovarian and placental hormone for all to die from premature birth. that is essential for the endocrine maintenance of Observers who on moral grounds reject the feticide pregnancy. Administration ofmifepristone by mouth, inherent in all induced abortion will straightaway usually together with drugs that promote uterine reject selective feticide. For others, the ethicalness of contractions, is followed in most pregnant women selective feticide will vary according to the clinical within a few days by bleeding from the uterus and then circumstances. The legality of cases of selective expulsion of the fetus (1). feticide, however, may depend not so much on clinical Unintentional survival of iatrogenically damaged circumstances as on statutes and case law. fetuses will more commonly follow failed attempts at medical abortion. When induced abortion was a crime, EUGENIC SELECTIVE FETICIDE attempts to induce abortion with large doses of In 1978, Aberg et al described cardiac puncture and contraceptive steroids or oxytocics (drugs that exsanguination ofa fetus with Hurler's disease to avoid stimulate the uterus to contract) were often as aborting an unaffected twin (15). Since then, selective pharmacologically inappropriate as patients were feticide in the second trimester by ultrasound or desperate. In the 1970s, prostaglandin preparations fetoscopically directed procedures, or by hysterotomy, were administered in early pregnancy as intramuscular has avoided the birth of twins affected discordantly injections or intravaginal suppositories (11). Heavy with Trisomy 21 (8), Turner's syndrome (16), Tay- bleeding and incomplete abortion, as well as the Sachs's disease (17), haemophilia suspected on the possibility of the pregnancy continuing, often meant a grounds offetal sex (18), microcephaly (2), spina bifida need for curettage - which if used in the first place (2) and bicephaly (19). would have been the more certain procedure. Inadvertent damage to an otherwise normal Mifepristone's greater effectiveness as an surviving fetus during selective feticide for eugenic abortifacient drug in comparison with the mostly reasons can happen immediately during the feticidal abandoned first-trimester use of prostaglandins has operation or can occur afterwards, from the reintroduced the clinical promise of non-surgical development of a compromised intrauterine
abortion in early pregnancy (12). The ethical hazards environment. copyright. are not new (13), but the historical reality is that the A formed, unexpelled, dead fetus becomes a 'fetus hazards were not, in the past, properly taken into papyraceous', a fetus shrunken and parchment-like. account. The natural event is known to obstetricians. The The main hazard that any medical abortifacient faces surviving twin may have its growth retarded before results from the fact that, unlike properly performed delivery, in some cases reflecting the continued hostile surgical evacuation ofthe uterus, there is an interval of intrauterine environment that led to the demise of the time between administration of the abortifacient and survivor's fetal sibling (20). There is also the risk that http://jme.bmj.com/ occurrence of the abortion. During this time the thromboplastins released from the degenerating fetal abortion may be blocked by pharmacological and placental tissues will cause coagulopathy in the inadequacy, by a change in the wishes of the woman remaining fetus or precipitate premature labour. The having the abortion, or by both. result of feticidal operations in the second trimester Clinical use ofmifepristone therefore means that the (other than hysterotomy and sectioparva) is to produce fetus may survive, despite the intention, at the time of such a fetus papyraceous. the drug's administration, for abortion to follow. In another era, eugenic infanticide of the abnormal on September 26, 2021 by guest. Protected Survival of the fetus may mean the birth of an neonate was, or might again be, a safer option - safer, iatrogenically damaged child. at least, for the normal sibling. Should a medical practitioner risk performing SELECTIVE FETICIDE AS AN ALTERNATIVE TO abortions with mifepristone? NATURAL FETAL DEATH Selective feticide for non-eugenic indications may be Selective feticide indicated when there is a major collective threat to In most Western countries it can be lawful for a fetus to survival ofthe fetuses that can be lessened by reducing be aborted for eugenic and other elective reasons (14) the number of candidates. The twin-to-twin (albeit through the ostensible purpose of safeguarding transfusion syndrome is an example. High multiple the mental health of the pregnant woman). With these pregnancy can also constitute such an intrauterine induced abortions the uterus is emptied: the gestation hazard. is finished. Monozygotic (identical) twins often have In the procedure of selective feticide, one or more of connections between their vascular systems at the level several fetuses is killed in utero with the aim of of their shared placenta. Sometimes one vascular permitting pregnancy to continue: surviving fetuses system dominates the other through such connections, are intended to develop to viability and to be born. resulting in anaemia and growth retardation for the Such selective feticide (1) can prevent the birth of an donor, polycythaemia and cardiac failure for the abnormal twin fetus without also aborting its normal recipient. In extreme cases) only one cardiovascular fetal sibling, or (2) can allow some fetuses of a high- system develops, with acardia of the malformed twin. Robert P SJansen 63 J Med Ethics: first published as 10.1136/jme.16.2.61 on 1 June 1990. Downloaded from
Both fetuses usually die if the condition is severe. The assisted conception procedures and thus to avoid this diagnosis can be made before fetal death by ultrasound. indication for feticide (29-31). The Lancet, for In one reported case of twin-to-twin transfusion the example, has warned that if 'there is a trend towards condition was treated by selective feticide at 25 weeks' the use offetal reduction this way, it is likely that some gestation; the dependent twin's myocardium was dis- form of regulation or legislation will be imposed to rupted with an ultrasound-guided needle; the normal contain the practice' (30). fetal sibling was born at 37 weeks (21). In a recent case SELECTIVE FETICIDE AND THE LAW an acardiac, acephalic twin was removed at 22 weeks by The present legal position of selective feticide is not hysterotomy; the sibling was born at 33 weeks (22). clear. In common law countries such as the United For these particular feticidal procedures there is no Kingdom (32), Canada (33) and Australia, purposeful alternative treatment for the dominant twin's injury ofa fetus is a criminal act, except when induced otherwise mortal cardiac failure. Other selectively abortion is justified on the grounds that the alternative feticidal procedures, however, are on less firm ethical ofcontinuing the pregnancy will endanger the physical and legal ground. or mental health ofthe mother. It could be argued that High multiple pregnancies can result from multiple without evacuation of the uterus, without termination ovulations induced with exogenous gonadotrophins, of the pregnancy as a whole, selective feticide falls often in association with in vitro fertilisation or gamete outside the scope ofthis legal justification. The matter intrafallopian transfer procedures, at which, has not been tested in the courts ofthese countries. In respectively, multiple embryos or multiple oocytes one editorial from the United States (31), legal aspects have been transferred to the reproductive tract. There of selective reduction were considered to be are many reports that describe selective reduction of uncomplicated, because the procedure represents a high multiple pregnancies through feticide, resulting variation offirst-trimester termination ofpregnancy. It in more manageable twin or triplet pregnancies does seem unlikely that the criminal law would be (3,4,23-28). The justification for selective feticide in invoked to prevent selective feticide, given society's such situations is one of salvage: without it, it is acceptance of induced abortion. The civil law, argued, the quadruplet, quintuplet or higher-multiple however, is a different matter. pregnancies would probably lead to the death from A procedure aimed at feticide, includingcopyright. immaturity of all the fetuses. conventional induced abortion, is an intentional tort. Embryocidal or feticidal operations for the In essence, the practitioner of abortion is protected reduction of high multiple pregnancy in the first from the law of tort because the fetus does not survive trimester are technically simpler than those used in the the procedure and does not have legal standing as a second trimester for eugenic reasons and for the plaintiff to bring suit. This protection is lost if the complications of monozygotic twin-to-twin vascular injured fetus survives and is born. The injured person http://jme.bmj.com/ connections. Ultrasound is used to visualise the can then bring an action in negligence or in assault fetuses. Early techniques involved selective aspiration within whatever period of limitation applies for the ofgestational sacs, either through the cervix or through jurisdiction concerned. In most countries this period the abdominal wall (4); complete abortion not starts with the attainment of legal majority. uncommonly followed and this operation is obsolete. Should a medical practitioner risk performing Nowadays a needle is passed into the beating fetal selective feticide? heart, so that the fetus is exsanguinated or a lethal substance such as air, potassium chloride or calcium Physicians in danger on September 26, 2021 by guest. Protected gluconate is injected into the fetal circulation. The Medical abortion and selective feticide expose the residue of the resorbing sac or sacs probably (but not physician to legal liability in similar ways. Fetal injury certainly) causes little disturbance of the intrauterine sustained in an unsuccessful attempt at abortion - a environment. Complete abortion with the loss ofall the thwarted abortion - may constitute assault. Similarly, fetuses can still follow. On the other hand there is an injury sustained before birth as a result of sometimes a need to repeat the procedure, and then, as interference with- a person's twin fetus, whether with medical abortion, a delay is introduced between normal or abnormal, may constitute negligence. In initiation and accomplishment of the feticidal each case a fetus has been disturbed by an iatrogenic procedure during which the mother's attitude to the action and has survived to make an issue of that damaged fetus may change. disturbance. Selective feticide for salvaging iatrogenic high Most obstetricians are familiar with the horrors that multiple pregnancies is a complex matter medically, nature can link with reproduction. When a neonatal psychologically and ethically (29-31). Although there abnormality is caused by a medical procedure during is a shortage of reports on the eventual physical pregnancy then the horror is worse. outcome for the remaining fetuses and on the mental Does this mean that selective reduction in the outcome for the mother, the practice offetal reduction management ofmultiple pregnancy is an unsustainable is now widespread (30). Leader writers in medical operation? The fact that selective feticide is carried out journals agree, however, that urgent steps must be regularly in some centres shows that there is a demand taken to avoid high multiple pregnancies arising from for it. It has been suggested by one leader writer that 64 Unfinishedfeticide J Med Ethics: first published as 10.1136/jme.16.2.61 on 1 June 1990. Downloaded from there should be room for selective feticide as an option production, and then award it to another laboratory. when circumstances are desperate (31), particularly The health ministry also stipulated that women who when the alternative is total fetal death. The threat of take mifepristone must sign an agreement to undergo total fetal death is most obvious in cases ofsevere twin- surgical abortion ifthe fetus is not expelled after taking to-twin transfusion syndrome and in cases of the drug (36) - presumably to shift the responsibility quintuplets and higher multiple pregnancies. Twin for an injured surviving neonate to its mother. fetuses discordant for a major abnormality may in The net result is that a series of extraordinary practice, however, be in the same predicament: government actions may have gone some way to experience has shown, for example, that before protecting not just the manufacturers ofmifepristone, selective feticide became available in Greece complete but also the physicians in France who use it. uterine evacuation was usually chosen by women who had twin fetuses discordant for thalassaemia major Conclusion (34). Many in society regard abortion as a hard-won freedom The alternative courses of action or inaction for for women. Society is unlikely to relinquish abortion. couples who are considering selective feticide are It therefore makes little sense to rule out methods that therefore tragic. But for the physician the distinction simplify abortion, especially those that render between 'help' and 'doing no harm' becomes blurred operation unnecessary. It also makes little sense to rule when therapeutic interventions are powerful. There is out selective feticide, at least when the alternative is danger in a doctor deliberately risking the resentment that no fetuses survive. of, or the litigation brought by, a surviving child who But it is doubtful that the governments of many attributes a deformity to an iatrogenic act. countries will deal quickly with the professional Can a physician be protected from charges ofassault hazards that follow unfinished feticide. In the or negligence when feticide is incomplete, well meantime there is little protection in civil law for the intentioned though the act may have been with respect physician who interferes with a pregnancy that to the patient? Two busy days in France in 1988 subsequently continues to term, if by cause or brought this question into better focus. coincidence a real or imagined birth abnormality occurs in a neonate that has survived a procedure that Government action in France was intended to harm it or its intrauterine sibling. copyright. In September 1988 the French Ministry ofHealth gave Until such protection is agreed on, physicians will approval for mifepristone to be made available at face the fewest hazards ifabortions are short, sharp and selected abortion clinics for medical termination of complete. pregnancy (35). The several provisions attached to the drug's use included restriction to the first 49 of Robert PS Jansen, MD (Syd), FRACP, FRACOG is days http://jme.bmj.com/ pregnancy, approval only in association with the Visiting Gynaecologist and Director ofFertility Services, administration of prostaglandins to aid uterine Royal Prince Alfred Hospital, Camperdown, Sydney evacuation, and respect for the usual (for France) 2050, Australia and Medical Director of Sydney IVF, eight-day thinking period between a woman's request Macquarie Street, Sydney 2000, Australia. for termination of pregnancy and performance of the abortion. References On October 26, however, the manufacturers of (1) Couzinet B, Le Strat N, Ulmann A, Baulieu E E, mifepristone, Roussel-Uclaf Laboratories, reportedly Schaison G. Termination of early pregnancy by the on September 26, 2021 by guest. Protected did not proceed with marketing because of what they progesterone antagonist RU 38-486 (mifepristone). described as the 'emotional reaction of a sector of New Englandjournal ofmedicine 1986; 315:1565-1570. public opinion' (36). Considerations for future liability (2) Rodeck C H, Mibashan R S, Abramowicz J, Campbell under civil law may also have been important to S. Selective feticide ofthe affected twin by fetoscopic air Roussel-Uclaf, because already in France a embolism. Prenatal diagnosis 1982; 2:189-194. (3) Kanhai H H H, Van Rijssel E J C, Meerman R J, midtrimester defect (severe oligohydramnios at 18 Bennebroek Gravenhorst J. Selective termination in weeks' gestation) has been suspected to be attributable quintuplet pregnancy during first trimester [letter]. to mifepristone in a woman who had not proceeded Lancet 1988; 1:1447. with abortion after she had taken mifepristone in early (4) Berkowitz R L, Lynch L, Chitkara U, Wilkins I A, pregnancy (35,37). By October 28, apparently under Mehalek K E, Alvarez E. Selective reduction of pressure from the French Health Minister, multifetal pregnancies in the first trimester. New mifepristone was available again. Englandjournal ofmedicine 1988; 318:1043-1047. The pressure exerted on Rousell-Uclaf Laboratories (5) Stroh G, Hinman A R. Reported live births following by the French Government seems to have been induced abortion: two and one-half years' experience in upstate New York. American journal of obstetrics and extraordinary. The health minister was reported to gynaecology 1976; 126:83-90. have pronounced mifepristone essential for public (6) Cates W Jr, Grimes D A, Schulz K F, Ory H W, Tyler health and to have warned Rousell-Uclaf that, under a C W Jr. World Health Organization studies of 1968 law, the industry ministry had the power to seize prostaglandins versus saline as abortifacients. A the patent for the drug if the company did not resume reappraisal. 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