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Journal of Medical Ethics 2000;26:242–248

Avoiding anomalous newborns: preemptive , treatment thresholds and the case of baby Messenger Michael L Gross The University of Haifa, Haifa,

Abstract In each case, no decision is taken until after the In its American context the case of baby Messenger, a baby is born. However, in the Israeli context, this preterm disconnected from life-support by his case takes an entirely diVerent turn. Israel’s father and allowed to die has generated debate about unrestrictive abortion policy may well permit the neonatal treatment protocols. Limited by the legal and option of a late-term abortion thereby obviating any ethical norms of the United States, this case did not impaired infant protocol. The situation is exacer- consider treatment protocols that might be available in bated because neonatal policy in Israel conforms other countries such as Denmark and Israel: threshold largely to the “wait until certainty” approach. In all protocols whereby certain classes of newborns are not instances, a closer look at the Messenger case illus- treated, and preemptive abortion allowing one to trates the conundrum of abortion and neonatal care choose late-term abortion rather than risk delivery. in a cross-national context. Each oVers a viable and ethically sound avenue for dealing with the economic and social expense of Saving baby Messenger anomalous newborns by aborting or not treating those Admitted for premature labour at twenty-five weeks most likely to burden the health care system. Objections gestation, Messenger was informed that her baby that these protocols are antithetical to American stood a 50-75% chance of mortality and a 20-40% bioethical principles are considered but rejected as each chance of severe cerebral haemorrhage and neuro- policy answers to economic justice, utility and respect logical damage should he survive. The consulting for autonomy. neonatalogist also indicated a significant possibility (Journal of Medical Ethics 2000;26:242–248) of respiratory complications. With these statistics in http://jme.bmj.com/ Keywords: Abortion; selective non-treatment of new- mind, the parents instructed the attending physi- borns; comparative bioethics; neonatal care; neonaticide cian not to undertake extraordinary eVorts to save the life of the newborn. The neonatalogist, in turn, instructed her assistant to intubate the baby only if Introduction he was “vigorous” and “active”. Although the baby The case of baby Messenger, a severely ill preterm weighed only 780 grams and was hypotonic and infant removed by his parents from ventilator sup- hypoxic these instructions were ignored, and the port and allowed to die, serves to illustrate baby was resuscitated, intubated and incubated.

treatment options when are threatened by The father, agonised that his instructions were not on September 28, 2021 by guest. Protected copyright. extremely premature birth. In most cases, alterna- followed, removed his son from life-support, allow- tive courses of action are defined within acceptable ing him to die in his parents’ arms.1 treatment protocols of impaired newborns. These This case, in which Messenger was charged with include a “statistical” approach whereby treatment manslaughter and acquitted, generated a great deal is withheld from infants defined as underweight of discussion regarding alternative avenues of neo- and/or immature, an “initiate and reevaluate” natal care, parental rights, and the responsibility of approach whereby aggressive treatment is begun the attending to honour parental requests and then reevaluated relative to the infant’s to terminate care. By and large, the ethical discus- progress and parents’ wishes, and a “treat until cer- sion is limited by the legal options available in the tainty” approach whereby each infant is treated United States where the case occurred, and is until death or discharge. restricted therefore to the relative merits of the Each of these approaches has attendant virtues “initiate and reevaluate” and “wait until certainty” and vices in the context of American neonatal care. protocols. Reviewing the Messenger case, most But the Messenger case can also be used to exam- commentators—considering both the infants’s best ine prevailing norms and policies of diVerent coun- interests and the need for implied or explicit tries. Policymakers in Denmark, a country that consent—emphasise the need to consider parental accepts the statistical approach, view the ethical interests while allowing parents greater say about dimension of this case diVerently from those in the the decision to terminate life-support.2–5 However, UK and the US where an “initiate and reevaluate” two additional options deserve further exploration. approach is accepted. Each of these treatment First, a statistical approach stipulating thresholds options remains, nevertheless, a neonatal protocol. below which young, immature infants would not be

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Gross 243 resuscitated merits review. Often dismissed by capped child is not oVset by the likelihood that the American commentators as fundamentally anti- child may none the less lead a relatively normal life. thetical to American bioethics, this approach has While this seems a reasonable decision for parents been adopted by the Danish Council of Ethics. to make, it also means, by extension, that large Second, there is room to discuss late-term abortion numbers of healthy infants are sacrificed to avoid as a radically diVerent solution to the Messenger fewer numbers of handicapped infants. While 35 case. Given the high mortality rate and significant out of every 100 ELBW infants denied treatment possibility of impairment, would it not make sense would have been severely handicapped, the vast to allow parents the option of abortion, thereby majority would have been normal or only moder- preempting the need for any other neonatal policy? ately impaired. This outcome seems patently unjust unless tempered by other factors. Such a decision at Statistical non-treatment as a solution to the social level can only be justified if the attendant cost of neonatal care outweighs the lives of 65 rela- the Messenger case tively normal children (of every 100 denied In contrast to a strict statistical protocol that denies treatment). This occurs if the money could be put treatment to all members of a specific class of very to better use, ie saving more lives. The economic extremely low birthweight (ELBW) infants, The claim is pivotal. There is little interest in devoting Danish Council of Ethics endorses a modified resources either to lowering the 35% figure or to threshold protocol that combines a minimum saving increasingly younger infants: , a maturity criterion and respect for parental wishes.6 Under this protocol, infants “It seems reasonable to exercise reticence in the younger than 24 or 25 weeks will not be treatment of extremely preterm infants in order to aggressively treated. However, this threshold is benefit the slightly less premature, since the modified by two conditions. First, mature infants, prospects of better results increase with age and even those younger than 24 or 25 weeks may be fewer resources are consumed, allowing more to be revived if this can be accomplished using “low helped.”10 technology modalities” and minimal handling to 78 Given the high costs of neonatal care, economic induce respiration. considerations are diYcult to assail. Unlike an indi- Second, the threshold is further modified by vidual parent’s decision to withhold treatment from considerations of parental wishes. Viability is a an ELBW infant, comprehensive policy to do so function of the care a child can expect to receive must be anchored in considerations of economic from his parents, and is substantially impaired if the justice. This is a problem all systems parents are unable or unwilling to provide the grapple with as diVerent groups vie for scarce intensive care a preterm infant requires. As a result resources. Interestingly, the council has compart- the threshold and maturity criterion may be

mentalised the recipients of justice. The claims of http://jme.bmj.com/ overridden both by parents wishing to care for a ELBW newborns are not balanced against adults or child that fails to meet the criterion or by parents other children, but against other premature infants. requesting to withhold treatment from a newborn Under such a modified utilitarian plan one can that meets the threshold requirement. Under these presumably distribute resources equally between guidelines, baby Messenger need not have been morally relevant groups (such as the elderly, resuscitated. Even had the neonatalogist decided premature, or terminally ill) while cost-benefit cal- that the gestational threshold had been met, the culus can determine resource distribution within baby’s immediate condition following birth did not each group. This tempers the inherent defect of meet the maturity criterion. This, together with the utilitarian justice that may medically impoverish on September 28, 2021 by guest. Protected copyright. parents refusal of ventilator support, should deter certain groups in the interests of maximising over- resuscitation. There is no real dilemma. all utility. There are two distinct principles behind the council’s recommendations—the infant’s best in- terests and economic justice: One obvious objection “The basis for the [modified threshold] recommen- In this way, a threshold policy answers to the dation is that the panel considers the 35% demands of economic justice, the (modified) occurrence of severe handicaps in children born demands of utility and some measure of equality as after a term of 24-25 full weeks to be well. Parental discretion allays fears of heavyhanded high in relation to the number of surviving infants; paternalism while allowing determined parents to the panel also takes into account the comparison of care for infants below the threshold or withhold the expenditure incurred with the possible alterna- treatment from those above it. Considerations of tive applications for that amount.”9 maturity partially resolve the problem of outliers, as some potentially viable infants are treated regard- From this perspective sanctity of life is tempered by less of gestational age. the infant’s best interests and societal cost. On the So what’s wrong with a modified threshold one hand, a 35% risk of severe impairment is sim- policy? One obvious objection suggests that the ply one that no parent, physician or policy-maker is statistical approach denies patients reasonable prepared to inflict on a newborn. On the other, the prognostic certainty. By denying all infants resusci- possibility that the parents may bear the life-long tation the healthy are discarded with the handi- emotional and financial cost of raising a handi- capped. Would it not be more just and equally

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244 Avoiding anomalous newborns: preemptive abortion, treatment thresholds and the case of baby Messenger cost-eVective if all infants were resuscitated and approach does not really respect parental au- then evaluated with an eye towards terminating tonomy. But the force of this argument leans heav- treatment for those most severely aZicted? ily on a rarified American vision of autonomy that is As attractive as this argument is, it easily under- coming under increasing attack.11 In many ways, a mines other treatment protocols as well. A typical modified threshold policy maintains respect for American response might argue that failure to pro- autonomy, albeit a gentler autonomy, largely by vide resuscitation is draconian, casting a net that removing active decision making from the hands of denies a healthy life to viable infants as well. But the parents and relying on presumed consent. there is no way to ensure that healthy infants won’t Additionally, one might argue that the statistical die under any policy short of “treat until certainty”. approach ignores the “ability of ‘outliers’ to survive While resuscitation may oVer the possibility that or the willingness of some parents to cope with greater numbers of healthy infants survive, it tragic circumstances”.12 These are reasonable ultimately falls to the same argument levelled at objections but they do not accurately reflect a threshold protocols. Reevaluation and subsequent modified policy tempered by considerations of treatment decisions are based on probability figures maturity and parental discretion. Nor do they have no less than the decision to deny treatment at birth. much to do with individualism. The outcomes of high-grade haemorrhages, for Individualism (or more specifically, “individual- example, might be equally indeterminate as those ity”) is, to cite Mill, inextricably linked to develop- facing ELBW infants. Why not resuscitate and wait ment and is best achieved when human beings are to evaluate the outcomes? But how far down the allowed to achieve the necessary moral, intellectual road should one reevaluate, two weeks, two and practical development to become good months, two years? Is it then possible to discontinue citizens.13 The conditions necessary for continued treatment for a two- or three-year-old, while in the human development form the basis of the modern meantime creating a large pool of handicapped welfare state. Oddly enough, American individual- children? The argument based on relative prognos- ism denies its citizens basic health care, certainly tic certainty cannot work. It merely creates a one of the most necessary conditions for develop- slippery slope one might like to avoid. Resuscitation ment. Does a threshold policy of neonatal care with the intent to reevaluate and, if necessary, similarly deny one the conditions for development? discontinue treatment also blurs the distinction On a very basic level the answer is yes, if it denies between withholding and withdrawing treatment. life to potentially healthy newborns. But this argu- The oft-repeated claim that the two are ethically ment ultimately collapses into those already indistinguishable is not universally true. It certainly discussed and discarded. First, any treatment gives the Danish Council of Ethics pause for reflec- protocol that allows termination of life-support tion while a hard distinction between the two prior to absolute certainty will deny some the V su uses Israeli case law and practice. Certainly the chance of a normal life. Second, health care systems http://jme.bmj.com/ two are psychologically dissimilar. Parents asked to are designed not only to provide life for the greatest terminate life-support are not in the same position number but also quality of life for the greatest as those asked to acquiesce to withholding number. There is no reason to assume that thresh- treatment. A threshold policy turns on this old protocols curtail medical services so crucial for diVerence by making non-treatment the subject of personal development. On the contrary, a threshold presumed consent: unless parents choose otherwise policy enhances the availability of funds for other no treatment is provided. Parental autonomy is health care needs by eliminating an expense that aYrmed but only covertly, in a manner similar to benefits relatively few children. some European organ donation protocols. Ethi- Finally, one may object that threshold protocols on September 28, 2021 by guest. Protected copyright. cally, presumed consent avoids what the council return us to the ever-present slippery slope: if we terms the “autonomy trap”: the tendency to place refuse to treat a large class of newborns, what will too much responsibility on the shoulders of prohibit us from aborting late-term whose ill-prepared parents. Economically, this policy odds of survival are similar to those of baby avoids the costs of extensive resuscitation. Only the Messenger? What indeed? most motivated and informed parents are apt to come forward, whether it be on the basis of a deci- sion to care for a severely handicapped infant or to Preemptive abortion as a solution to the withhold treatment from an infant that might oth- erwise be treated. It is therefore not at all obvious Messenger case that an “initiate and reevaluate” protocol aVords Following US jurisprudence, American commenta- V tors often define abortion as the “expulsion of an similar cost-e ectiveness as a threshold policy or is 14 as ethically compelling. embryo or before it is viable”. This makes it diYcult to speak of “late-term” , for in the American sense these are not abortions at all, but Presumed consent acts of feticide. From this perspective it is therefore Finally it has been suggested that a threshold necessary to distinguish between abortion as the protocol smacks of sinister social planning that is termination of a pregnancy and abortion as the ter- antithetical to American individualism.5 But it is mination of a fetus. The former is a constitutionally not immediately clear how this policy negates indi- protected right in the US, while the latter is justified vidualism. One might argue that the threshold only under rare conditions of fetal best interest.15

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Abortion in Israel, on the other hand, is broadly Absent any crucial diVerence between the fetuses defined as termination of pregnancy without regard and newborns any reluctance not to treat the two to gestational age or and, at later cases similarly is diYcult to understand. stages, inevitably includes fetal termination. Abor- Nevertheless, many nations, Denmark, the United tion at all stages of pregnancy is freely available for States and Great Britain for example, permit one to any of the following conditions: maternal age (<17 terminate life-support in the case of anomalous or >40 years of age), premarital pregnancy (or newborns but are reluctant to abort a fetus (in this pregnancy resulting from or ), danger to case the very same fetus) facing similar probabilities the mother’s physical or mental health and/or fetal of impairment. There is no room for the decision birth defects. Requests for abortion must be making process that emerges from most analyses of approved by a hospital committee. is the Messenger case: a carefully balanced considera- similar in Denmark while provisions in the UK tion of the baby’s best interests and deference to specify “severe” fetal anomalies. In spite of the flex- parents’ desires based on the interests and costs of ibility of the law, late-term (third trimester) those who must raise the child. abortions are generally avoided in the UK and Denmark. Israel, on the other hand, has one of the Subtle shift highest rates of late-term abortion in the world.16 The sources of this confusion are not clear. It may The purpose here is not to explore the merits of 16 reflect a misguided quest for reasonable prognostic late-term abortion policy (as discussed elsewhere ) certainty on the assumption that birth itself may but to reflect on the feasibility of preemptive abor- aVord some better prognostic perspective or it may tion: terminating a normal fetus similar to the Mes- reflect influential religious norms. On the latter sengers’ in order to avoid dealing with the view, fetal life is sacrosanct while selective possibility of a severely malformed newborn. The non-treatment of newborns is subsumed under the issue is brought in the Israeli context, not because general, permissible practice of withholding or preemptive abortion is practised, but because it has withdrawing medical treatment from any patient. been raised as an ethically problematic possibility Notice, however, how this reasoning produces a that might be allowed under current abortion regu- subtle shift in fetal/newborn status. Late-term lations. Moreover, neonatal treatment protocols in fetuses and preterm infants no longer enjoy similar Israel reflect the “treat until certainty” approach. In status. Instead, the former is elevated with respect the event of spontaneous delivery, any live, viable to the latter, giving fetuses greater protection than newborn would be treated aggressively. As a result, newborns. Similarly, the US Supreme Court preemptive abortion is the only way to avoid a mal- protects fetal life to a degree to which it does not formed newborn when faced with severely prema- protect the neonate. Without this move it is ture birth. Under this scenario a woman in impossible to justify any cogent opposition to a Messenger’s position would be allowed the option threshold policy or preemptive abortion in those http://jme.bmj.com/ of fetal termination when it was determined that cases of fetuses or newborns facing similar odds of she faced the probability of delivering an anoma- survival. lous infant. The immediate justification for a As it happens the case is somewhat easier to late-term abortion focuses on the high probability resolve in Israel. There, the status of the late-term of severe deformity facing the infant. The immedi- fetus and newborn are not identical, for legal and ate objection, on the other hand, focuses on the moral are only conferred at birth. Prior health of the fetus: in utero s/he is completely nor- to birth, the mother’s discretion is paramount. mal.

Nevertheless, will not allow capricious on September 28, 2021 by guest. Protected copyright. The justification for abortion unpacks to include abortion: the fetus must be malformed, even if the the same kind of probability calculations that eVects of the anomaly are diYcult to determine. inform a threshold or “initiate and reevaluate” pro- But in this case the fetus is not malformed. Is there tocol. If one accepts a 35% chance of severe then any ethical relevance to the fact that the fetus disability as a reasonable threshold to withhold in utero is normal, the proximate cause of his treatment, or the Messenger statistics as a reason- anomaly only his impending birth? This is not only able threshold to withdraw treatment, then why not an Israeli dilemma. The dilemma also arises in accept these same probabilities to justify a late-term those cultures which view the status of the late-term abortion? What is the diVerence between a fetus and the newborn as identical. Any diVerence late-term fetus and an early-term infant? If the in treatment between prenatal and neonatal baby answer is none then the two must be treated Messenger must reflect some fundamental diVer- equally. One will not arbitrarily abort fetuses with ence between the two. Can this be found in the dis- minor anomalies anymore than one will discon- tinction between an observed anomaly and an tinue treatment for minimally ill newborns nor will impending anomaly? one save either with major anomalies. Regardless of Although each anomaly is qualitatively distinct it the diYculties of defining minor or major anoma- is currently technologically impossible to separate lies, there is little doubt that the Messenger case the fetus’s condition in utero from those of his or represents a high probability of a severely handi- her imminent birth. Were this possible, alternative capped child. An anomaly that is grounds for with- justifications would have to be provided for holding life-support must also be grounds for terminating a late-term healthy fetus. One attempt aborting the same fetus. to do so, based on “our duty to avoid bringing

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246 Avoiding anomalous newborns: preemptive abortion, treatment thresholds and the case of baby Messenger unwanted children into a community that is not termination place the fetus in a diVerent category prepared to accommodate them” has met with from the newborn. To terminate similarly aZicted considerable resistance.17 18 Absent this technology, newborns by lethal injection is nothing short of the Messenger baby is absolutely certain to face the murder in most nations. While one could withhold odds cited by the consulting neonatalogist: an una- or withdraw treatment, any form of active euthana- voidable, impending anomaly is extensionally sia is prohibited. As a result of these considerations equivalent to an observed anomaly. it is apparent that the status of the late-term fetus is Decision making is now relatively straightfor- inferior to that of the preterm newborn. There are, ward. If fetal and newborn status is similar, the fac- tors informing the decision to abort are identical to therefore, cases that justify fetal termination by those informing termination of neonatal life- lethal injection. Would they extend to the Messen- support: right to life, quality of life and utility. On ger case? the one hand, fetal right to life and reasonable Once fetal personhood is discounted to allow for medical care are subject to the same considerations the use of lethal injection in cases of certain death of futility and/or low cost-benefit ratio as that of a or severe malformation accompanied by pain and newborn. In spite of and personhood, suVering, the door cracks open for other consid- we should permit preemptive abortion under the erations as well. While in each of these cases, death same conditions that we may discontinue life- or suVering is certain, the decision ultimately support. On the other hand, if withholding or with- reflects the parent’s assessment of the infant’s best drawing life-support can be justified by considera- interests. This occurs in innumerable other tions of the infant’s and/or family’s best interests, so instances as well, where one encounters a high must preemptive abortion. probability of certain death or intense suVering. If the newborn and fetal status are not similar Parents diagnosed with Tay-Sachs carrier status in one can still reason from intuitively sound cases of the days before fetal screening might legitimately observed fetal anomaly that justify late-term opt for late-term abortion. So might a parent abortion. Severe spina bifida or hydrocephalus are conditions with a high probability of poor out- facing the birth of a child with neural tube defects comes. A decision to abort such a fetus in the third whose probabilities of morbidity are no better than trimester reflects legitimate considerations of fetal those facing the Messengers. Assuming no and parental best interests.19 Absent any significant significant distinction between an observed and diVerence between the probable outcomes of these impending anomaly, there is no consistent way to observed anomalies and the threat posed by deny preemptive abortion to parents facing extremely premature birth, preemptive abortion is the Messenger dilemma unless one absolutely justified. prohibits the use of fatal fetal injection based on

the general prohibition of its use among persons, http://jme.bmj.com/ Active euthanasia while at the same time reasserting fetus/newborn parity.20 21 If the latent nature of the anomaly fails to repudi- ate preemptive abortion, perhaps the diVerence Preemptive abortion may, nevertheless, fly in the lies in the form of abortion. In Israel, live abortuses face of deeply held intuitions about the sanctity of are precluded as late-term abortion is accom- life and the natural repugnance associated with plished by intracardial injection of potassium chlo- lethal injection. Would it not be easier to allow ride. If the status of the fetus and the newborn are nature to take its course and simply allow spontaneous labour to culminate in delivery

similar, isn’t this similar to the lethal injection of a on September 28, 2021 by guest. Protected copyright. newborn? Condemning the latter also condemns thereby avoiding the intentional killing of a fetus, the former. One cannot abort baby Messenger whatever its status? This might be true were spon- because it moves us unjustifiably close to active taneous delivery the only decision to be taken by euthanasia. parents or . The fact remains, however, To work through this objection it is important to that soon after delivery one must still decide to understand why one might want to terminate a withhold, terminate or continue some form of fetus. Considerations of a mother’s health may not treatment. As suggested above, these options can be be a relevant factor, for this usually only justifies equally problematic. If, as in the Israeli case, termination of pregnancy. Fetal death is a separate personhood is attained only at a child’s birth then act that must be justified in its own right. Most anything less than aggressive treatment may be as often, justification for fetal termination is anchored in fetal best interests. This can occur in two cases. repugnant as lethal injection. Moreover, it must be First, fetal termination is justifiable when the fetus remembered that a conservative “initiate and is aZicted with a disease, such as Tay-Sachs, from reevaluate” management strategy confers no better which it will certainly die. Second, it is justified vantage point from which to predict a patient’s out- when a fetus suVers from an aZiction, such as come; prognostic certainty remains equally elusive Lesch Nynan syndrome, that makes life worse than at any stage in the treatment of malformed death. Because these anomalies can often be children. Finally, preemptive abortion and thresh- diagnosed in the second trimester, late-term old protocols largely allay the anguish of bearing abortion is relatively rare. Nevertheless, it is impor- and raising a severely impaired child. These tant to notice how these justifications for fetal considerations should not be discounted.

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Concluding comments Danish guidelines and possibly aborted under cur- When examined in an international, cross-cultural rent Israeli regulations. Although neonatalogists context, bioethical dilemmas yield alternative continue to argue that “medical resources allocated policy directions that are not always apparent in to non-survivors remain low”,24 this misses the their original context. There is no easy way to face point that threshold protocols and preemptive the possibility of anomalous newborns, but might abortion are driven by the material and emotional not the alternatives analyzed here, preemptive costs associated with raising the surviving anoma- abortion and threshold protocols, provide feasible lous newborn. policy options as bioethics evolves in those Policy decisions ultimately come down to ethics countries discussed above? and economics. In spite of the possibility of In Denmark, thresholds are largely justified by improved neonatal technology the Danish council the economic imperative to ration scarce medical prefers not to invest in this direction, leaving resources and the ethical imperative to alleviate resources to serve a greater number of citizens. parental distress while safeguarding parental au- , on the other hand, may be willing to wait tonomy through presumed consent. For the time for advanced technology to ensure greater fertility being the two go hand in hand, but one can easily rates and alleviate the distress caused by aborting a imagine a situation where some technological normal late-term fetus. The American dilemma advance would allow one to guarantee the health of is more pronounced. They have no special interest a premature infant, thereby alleviating emotional in population growth, nor are they oblivious to costs but exacerbating economic expense. At this rising heath care costs. While they should be point it appears that budgetary considerations are prime candidates for threshold protocols or paramount: preemptive abortion, both options are largely proscribed by state and federal law. Nevertheless, “... the [threshold] approach has the strength of not one of ethic’s prime functions is to counsel the stimulating endeavors to become increasingly law and if the arguments supporting each of these better at saving increasingly young fetuses ... . It is two policies are persuasive then there are good thus instrumental—indirectly, at least—in main- reasons for placing these issues on the public taining a level of skepticism about techno-crazed agenda. fantasies of engineering ‘the artificial womb’.”10 In spite of this admonition, there is some evidence Michael L Gross, PhD, is Senior Lecturer in the to suggest that Danish physicians may be moving Department of Political Science,The University of away from a modified threshold approach towards Haifa, Haifa, Israel. an “initiate and reevaluate” strategy for managing ELBW infants.22 While this trend remains to be References and notes http://jme.bmj.com/ confirmed Norup suggests that it may partially be 1 Paris JJ. Parental right to determine whether to use aggressive explained by some of the factors whose importance treatment for an early gestational age infant: the Messenger the Council of Ethics, ironically, sought to dispel: case. and Law 1997;16:679-85. 2 Clark FI. Making sense of state vs Messenger. 1996; increased survival rates of ever smaller infants and 97,4:579-83. a blurring of the distinction between withdrawing 3 Messenger G. No Sense making sense of state vs Messenger. and withholding treatment, thereby making it Pediatrics 1997;99,2:306. 4 Harrison H. Commentary: the Messenger case. Journal of Peri- increasing palatable to begin and later withdraw natalogy 1996;16,4:299-301. treatment. 5 Paris JJ, Schreiber MD. Parental discretion in refusal of In Israel on the other hand, preemptive abortion treatment for newborns: a real but limited right. Clinics in Peri- natalogy 1996;23,3:573-81. on September 28, 2021 by guest. Protected copyright. would most likely be only a stopgap measure. Given 6 Danish Council of Ethics. Debate outline: extreme prematurity, the current bioethical climate in Israel where fertil- ethical aspects. Copenhagen: Eurolingua, 1995: 28-9. ity and aggressive treatment are both overriding 7 See reference 6:19-21. 8 Jakobson T, Gronvall J, Petersen S, Andersen GE. “Minitouch” norms, Israelis would probably opt for any treatment of very-low-birthweight infants. Acta Paediatrica measure, including an artificial womb, that would 1993;82,3:934-8. let parents avoid a late-term abortion while insuring 9 See reference 6: 28. 10 See reference 6: 36. a normal newborn. Preemptive abortion is not a 11 Gross ML. Autonomy and paternalism in communitarian budgetary imperative but a treatment option to society: patient rights in Israel. Hastings Center Report relieve parents of the anguish of dealing with an 1999;29,4:13-20. 12 See reference 5: 577. anomalous newborn. If other measures are avail- 13 Mill JS. On . In: Collini S, ed. On liberty and other able, so much the better. Nevertheless, the Danish writings. Cambridge: Cambridge University Press, 1989: ch 3: Council of Ethics raises an issue that cannot be 56. 14 The American heritage Stedman’s medical dictionary. Boston: ignored: when is enough enough insofar as neona- Houghten MiZin, 1995:3. tal care is concerned? 15 Mahowald MB. Concepts of abortion and their relevance to the Recent research has not produced unequivocal . Southern Journal of Philosophy. 1982; Summer: answers. Some suggest, for example, that resuscita- 195-207. 16 Gross ML. After feticide: coping with late-term abortion in tion followed by evaluation postpones median time Israel, Western Europe and the United States. Cambridge Quar- to death by only two days.23 However, resuscitation terly of Healthcare Ethics 1999;8,4:449-62. also saved 20% of the 23- and 24-week-old 17 Callahan J. Ensuring a stillborn: the ethics of fetal lethal injec- tion in late abortion. Journal of Clinical Ethics 1995;6,3:254–63. newborns in this particular sample, newborns that 18 Fletcher JC. On learning from mistakes. Journal of Clinical Eth- most likely would not have been resuscitated under ics 1995;6,3:264-70.

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248 Avoiding anomalous newborns: preemptive abortion, treatment thresholds and the case of baby Messenger

19 Abortion of late term fetuses with a high probability of severe example, supports using fetal injection in second trimester anomaly is not without controversy. However, resistance is he is reluctant to support third trimester abortions. highest in those nations that grant fetal/newborn parity. See Callahan, however, is less restrained. reference 16. 22 Norup M.Treatment of extremely premature infants: a survey 20 Isada NB, Pryde PG, Johnson MP, Hallak M, Blessed WB, of attititudes among Danish Physicians. Acta Paediatrica 1998; Evans MI. Fetal intracardiac potassium chloride injection to 87:896-902. avoid the hopeless resuscitation of an abnormal abortus: I clini- cal issues. and Gynecology 1992;80:296-9. 23 Doron MW, Veness-Meehan KA, Margolis LH, Holoman EM, 21 See references 17 and 18 and also Fletcher JC, Isada NB, Pryde Stiles AD. Delivery room resuscitation decisions for extremely PG, Johnson MP, Evans MI. Fetal intracardiac potassium chlo- premature infants. Pediatrics 1998;102:574–82. ride injection to avoid the hopeless resuscitation of an 24 Meadow W, Reimshisel T, Lantos J. Birth weight-specific mor- abnormal abortus: II ethical issues. Obstetrics and Gynecology tality for extremely low birth weight infants vanishes by four 1992;80:310-13. These discussions address fetal injection in days: epidemiology and ethics in the neonatal intensive care late, second trimester pregnancies. While Fletcher, for unit. Pediatrics 1996;97:636–43.

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