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Avoiding Anomalous Newborns: Preemptive Abortion, Treatment Thresholds and the Case of Baby Messenger Michael L Gross the University of Haifa, Haifa, Israel

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Avoiding Anomalous Newborns: Preemptive Abortion, Treatment Thresholds and the Case of Baby Messenger Michael L Gross the University of Haifa, Haifa, Israel J Med Ethics: first published as 10.1136/jme.26.4.242 on 1 August 2000. Downloaded from Journal of Medical Ethics 2000;26:242–248 Avoiding anomalous newborns: preemptive abortion, treatment thresholds and the case of baby Messenger Michael L Gross The University of Haifa, Haifa, Israel 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 infant 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 infants 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 physician 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 www.jmedethics.com J Med Ethics: first published as 10.1136/jme.26.4.242 on 1 August 2000. Downloaded from 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: gestational age, 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 public health 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
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