- Email: [email protected]
Caesarean delivery: conflicting interests
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Caesarean delivery: conflicting interests
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Eduardo Osuna a,*, Maria Dolores Pérez Cárceles a, Maria Luisa Sánchez Ferrer b, Francisco Machado b
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Department of Legal and Forensic Medicine, University of Murcia, E-30100, Murcia, Spain; b Department of Obstetrics, University Hospital Virgen de la Arrixaca, E-30120, Murcia, Spain * Corresponding author.
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Eduardo Osuna, PhD, is head professor of the Department of Legal and Forensic Medicine at the University of Murcia (Spain). He has 30 years experience in the field of Medical Law and Forensic Medicine. He has written almost 170 articles and book chapters and has directed 34 PhD doctorates. Eduardo Osuna is founding member and Vice President of the Latin American Society of Health Law. His current areas of interest include the right to information, informed consent, confidentiality and the ethical and legal questions of the in-vitro embryo.
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E-mail address: [email protected] (E Osuna).
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Abstract Within the maternal–fetal relationship, interests may sometimes diverge. In this paper, a pregnant woman’s refusal to undergo a caesarean delivery, which was recommended both to save the life of the fetus and to minimize risks to her, is described. The legal aspects involved in the conflict between maternal autonomy and fetal well-being are analysed. The patient requested an abortion because of the poor condition of the fetus; however, according to Spanish legislation, the possibility of abortion was rejected as the pregnancy was in its 27th week. The woman still persisted in her refusal to accept a caesarian delivery. After the medical team sought guidance on the course to follow, the Duty Court authorized a caesarean delivery against the wishes of the patient. From a legal point of view, at stake were the freedom of the woman – expressed by the decision to reject a caesarean delivery – and the life of the unborn child. In clinical treatment, the interests of the fetus are generally aligned with those of the pregnant woman. When they are not, it is the pregnant woman’s autonomy that should be respected, and coercion should form no part of treatment, contrary to the decision of this court. © 2015 Published by Elsevier Ltd on behalf of Reproductive Healthcare Ltd.
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KEYWORDS: abortion, caesarean delivery, foetal risk management, informed refusal
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Introduction
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One of the pillars of healthcare provision is respect for the autonomy of the patient, and the process of obtaining informed consent is regarded as a manifestation of the legitimate exercise of an individual’s freedom (Osuna et al., 1998; Pérez-Cárceles et al., 2002). Agreement on a possible medical
intervention is one of the factors that the clinician has to bear in mind before proceeding with any treatment. Within the maternal–fetal relationship, maternal and fetal interests may sometimes diverge and make agreement difficult to obtain, i.e. when a pregnant woman refuses a diagnostic procedure, medical treatment or a surgical procedure intended to enhance or preserve fetal well-being (Deshpande and Oxford, 2012).
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http://dx.doi.org/10.1016/j.rbmo.2015.08.007 1472-6483/© 2015 Published by Elsevier Ltd on behalf of Reproductive Healthcare Ltd.
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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E Osuna et al.
In this paper, an unusual case of a mother’s refusal to undergo a medically indicated caesarean delivery to save the life of the fetus in the 27th week of pregnancy is described. Opinions in this case differed on whether the patient’s autonomy takes precedence, whether the woman’s informed refusal should be respected, or whether beneficence should overrule the mother’s refusal of surgery to protect the fetus. Such situations raise a number of questions about the balance of rights and obligations within the doctor–patient relationship. Various aspects of the case are analysed and an argument is made for the importance of respect for autonomy, contrary to a court decision that gave more importance to the rights of the fetus.
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Case history
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The Ethical Committee of the University Hospital Virgen de la Arrixaca approved the publication of this article on 22 January 2015. During gestation (27 + 1 week), a 29-year-old woman was referred to our hospital because of delayed fetal growth and severe haemodynamic alterations. Neither the mother’s medical history nor gynaecological-obstetric antecedents are of relevance. Echography confirmed severe fetal growth restriction and substantial haemodynamic alterations (Doppler type IV: the middle cerebral artery Doppler index decreases, resulting in preferential perfusion of the brain as a brain sparing effect). The estimated weight of the fetus was about 575 g. The patient was informed of the following therapeutic options: urgent extraction of the fetus by caesarean delivery after fetal lung maturation by the administration of corticoids or no treatment, allowing the pregnancy to run its course with a high probability of intrauterine fetal death. The patient initially opted for abortion in light of the grave fetal condition and poor possibility of survival. An amniocentesis was carried out, and the result showed a normal karyotype. Following the patient’s request for an abortion, in accordance with Spanish legislation, authorisation was requested from the clinical committee, a multidisciplinary body formed, as laid down by law (article 16.1 of Law 2/2010, on sexual and reproductive health and the voluntary interruption of pregnancy – Ley Orgánica 2/2010, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo), of three people: two specialists in gynaecology and obstetrics or experts in antenatal diagnosis and a paediatrician. This clinical committee rejected the abortion, considering that the conditions for a legal abortion were not met as no anomaly or grave illness incompatible with extrauterine life was evident. Moreover, the patient was not eligible to undergo such an interruption of pregnancy even in the supposed case of grave risk of fetal anomalies, as the statutory time limit of 22 weeks’ gestation had been exceeded (article 15.2). After receiving this information, the woman withdrew the request for an abortion but she also rejected a caesarean delivery, wanting the gestation to continue. The medical team accepted this decision, and the woman was discharged. Despite the diagnosis, the fetus remained alive. In week 32 of gestation, the patient was diagnosed with severe preeclampsia. The medical team explained to the patient the need to terminate the pregnancy, not only because of the risk to the fetus but to herself. The optimal way for the termination
would be by caesarean delivery, as medical induction of childbirth at 32 weeks is considered dangerous in a situation of severe intrauterine growth restriction with Doppler type IV and severe preeclampsia. The patient rejected this recommendation and said she wanted the pregnancy to be terminated by medical induction, which preference was documented in the record. This choice was rejected by the medical team, which continued to recommend urgent extraction because of the serious risk of both fetal and maternal death. The case was referred to the Hospital Ethics Committee, which supported the view of the medical team. In view of the patient’s persistence in rejecting a caesarean delivery, and the risk to both the health of the fetus and the mother, the head of the medical team referred the case to the Duty Judge, noting all the details of the situation. In reply, the court authorized the medical team to carry out a caesarean delivery against the wish of the patient “in the interest of protecting the life of the minor, in accordance with article 15 of the Spanish Constitution, which [would be] put at risk by the refusal of the patient to accept the medical intervention and because of the risk to the patient due to the symptoms of preeclampsia she presents”. The medical team informed the patient of the court’s decision and, after prolonged dialogue, the patient finally agreed to the caesarean delivery, so that she was not in the end treated against her will.
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Discussion
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In the situation under study, the interests of the pregnant woman were in conflict with what the medical team saw as the interests of the fetus. The medical team recommended a caesarean delivery to save the life of the fetus and to minimize risks to the mother. Initially, some of the members of the team saw the patient’s refusal as being equal to an abortion, as the intention of the mother was to secure the death of the fetus. After all, she originally asked for an abortion but was denied it as a matter of law. In Spain, article 15.c of the above mentioned Law 2/2010, establishes that pregnancy can be interrupted for medical reasons “when an extremely grave illness that is incurable at the time of diagnosis has been detected and confirmed by a clinical committee”. Then, this committee was consulted, but it rejected the possibility of an abortion as the pregnancy was in its 27th week. In Spain, a woman can be given an abortion upon request during the first 14 weeks of pregnancy, and up to 22 weeks if there is a grave risk to the pregnant woman or of serious fetal malformations, as accredited by a medical doctor. If fetal anomalies incompatible with life are identified, an abortion can be carried out up to the 24th week if authorized by a clinical committee. None of these conditions for a permissible abortion were present. In our case, the legal impossibility of carrying out an abortion convolutes what was a straightforward case of refusing treatment. The rejection of treatment by a fully aware and capable patient, who has been informed of the effects of any decision they make, forms part of their right to autonomy (Deshpande and Oxford, 2012; Osuna et al., 1998; Pérez-Cárceles et al., 2002; Thomasma, 1983). The European Court of Human Rights (2002) in Pretty v UK, application 2346/02 para 63, mentions: ‘. . . In the sphere of medical
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life . . .’ In our case, the medical team passed all the information to the Duty Judge for advice on how to proceed because any action could be interpreted as a refusal to offer help (fetus) or as coercion (patient). The court authorized a caesarean delivery in order to promote fetal and maternal well-being. The authors do not agree with the action of the medical team or with the decision of the court. First, there was no legal requirement to consult the court and second, in the authors’ opinion, simply communicating the case to the court would generate a lack of trust, upsetting the delicate clinical balance between patient and doctor. We consider that, in this case, as in any other concerning an adult fully aware of their decisions, a patient should not be forced to undertake treatment as this goes against the freedom of the person, the right to decide being at the very core of the principle of autonomy. Q2 Article 2 of Spanish Law 41/2002 (on the autonomy of the patient and right and obligations concerning clinical information and documentation) recognises respect for patient autonomy as a basic principle and the cornerstone in health care context. It mentions the obligation to obtain informed consent, to respect patient decision, and to recognise their right to refuse treatment, except in cases of risk to public health or when there is serious risk for the patient’s physical or psychological integrity and when it is impossible to obtain the patient’s authorisation. Although Spanish law is clear in this respect, the interpretation offered by judges varies, especially when dealing with minors. In the present case, we disagree with the content of the court order, which speaks of the interests of the “minor”, because minor children and the unborn are clearly different entities. Also, the court emphasises the interests of the fetus and orders that the pregnant woman be subject to medical intervention, in this case, a caesarean, arguing that the protection of the vulnerable fetus is more important than the pregnant woman’s autonomy. In light of this case, perhaps further reflection on how the law regards the nasciturus and whether it has any legal rights is merited here. The newborn is recognized to have the right to life, whereas the Spanish Constitutional Court does not consider the unborn to have the same right, considering it instead “a juridical entity in need of guardianship”. It adds that the State has the obligation to guarantee life, including that of the unborn (Raposo and Osuna, 2007). Indeed, several countries, Spain included, consider feticide or any action to cause the fetus deliberate harm as a criminal act. The refusal to accept a caesarean may be considered singular because the treatment is directed towards the mother, whose interests may diverge from those of the fetus. We agree with Dickens and Cook (2003) that fetuses should not be considered as patients in the strict sense of the word. It is impossible to treat a fetus without directly affecting the pregnant woman, and it is at this point that the conflict leaves the
3 maternal–fetal ambit and enters the maternal–clinical framework. Indeed, clinical relations run the risk of deterioration when doctors make themselves responsible for the health of the fetus without taking into consideration the opinions of the pregnant woman, who is their real patient, morally speaking. As presumably occurs with the rest of their patients, whether pregnant or not, the patient’s decisions must be respected. Other questions arise concerning the way in which the case was managed and the practical difficulties that could have occurred following the court order to intervene medically: would the medical team have had to anaesthetise the patient against her will? If a caesarean intervention had been carried out, would this have counted as moral damage to the patient, who had not given her consent for the same? The court that orders a caesarean without consent may also be responsible for the harm and, in the case of complications (inherent in caesarean interventions) and in the absence of negligence, the physicians would not be legally liable, whereas, of course, the court would not be legally liable anyway. But, intuitively, the court seems to bear moral responsibility here. The court is heavily involved when it imposes surgery; it assumes responsibility for rescuing the fetus and must therefore be responsible if the woman suffers harm, whether serious or not. In the end, the caesarean section was carried out with the patient’s consent and so it was not necessary to rely on the court order as the legal authorisation for it. In conclusion, the conflicts that may arise in gestation and the birthing process are of transcendental importance. The life of a fetus depends on the pregnant woman’s actions. From a legal point of view, at stake are the dignity of the future mother and her freedom – expressed in this case by the decision to reject a caesarean delivery – and the life of the unborn. The interests of the fetus are generally aligned with those of the pregnant woman. When they are not, it is the pregnant woman’s autonomy that should be respected (Lyng et al., 2005; Townsend, 2012), and the circumstance of pregnancy should not be used to limit a competent woman’s rights. Coercion should not form part of any treatment. On occasions, doctors invoke the rights of the fetus to deny or apply treatment to a pregnant woman without taking into consideration her free and informed consent – a reflection of the paternalism that still affects medical practice (Dickens and Cook, 2003). Neither does the solution lie in consulting the courts as a cover against possible litigation on the part of the patient. Any decision should only be reached through discussion based on a shared understanding of values and goals between the pregnant woman and the practitioner to avoid a potential litigious situation. In this respect, Shaw and Elger (2013) defend the use of persuasion, which should not necessarily be understood as a paternalistic practice but an essential component of modern medical practice. The courts should not be involved in such discussions and need to remain outside the delivery room.
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Acknowledgement
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The authors wish to thank the anonymous reviewers of this article for many helpful suggestions.
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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References
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Deshpande, N.A., Oxford, C.M., 2012. Management of pregnant patients who refuse medically indicated cesarean delivery. Rev. Obstet. Gynecol. 5, 144–150. Dickens, B.M., Cook, R.J., 2003. Ethical and legal approaches to ‘the fetal patient? Int. J. Gynaecol. Obstet. 83, 85–91. Ley 41/2002 de 14 de noviembre, básica reguladora de la autonomía del paciente y de derechos y obligaciones en material de información y documentación clínica. BOE n° 274 de 15 de noviembre de 2002. Ley Orgánica 2/2010, de 3 de marzo, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo. BOE n° 55 de 4 de marzo de 2010. Lyng, K., Syse, A., Børdahl, P.E., 2005. Can cesarean section be performed without the woman’s consent? Acta Obstet. Gynecol. Scand. 84, 39–42. Osuna, E., Pérez Cárceles, M.D., Esteban, M.A., Luna, A., 1998. The right to information for the terminally ill patients. J. Med. Ethics 24, 106–109. Pérez-Cárceles, M.D., Osuna, E., Luna, A., 2002. Informed consent of the minor. Implications of present day Spanish law. J. Med. Ethics 28, 326.
Raposo, V.L., Osuna, E., 2007. Embryo dignity: the status and juridical protection of the in vitro embryo. Med. Law 26, 737–746. Shaw, D., Elger, B., 2013. Evidence-based persuasion. an ethical imperative. JAMA 309, 1689–1690. The European Court of Human Rights, 2002. Pretty v UK App no 2346/ 02 ECtHR, April 29, 2002. Thomasma, D.C., 1983. Beyond medical paternalism and patient autonomy: a model of physician conscience for the physicianpatient relationship. Ann. Intern. Med. 98, 243–248. Townsend, S.F., 2012. Ethics for the pediatrician: obstetric conflict: when fetal and maternal interests are at odds. Pediatr. Rev. 33, 33–37.
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Declaration: The authors declare no conflicts of interest with respect to the authorship, publication of this article, or both.
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Received 7 May 2015; refereed 24 July 2015; accepted 12 August 2015.
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Eduardo Osuna a,*, Maria Dolores Pérez Cárceles a, Maria Luisa Sánchez Ferrer b, Francisco Machado b
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Department of Legal and Forensic Medicine, University of Murcia, E-30100, Murcia, Spain; b Department of Obstetrics, University Hospital Virgen de la Arrixaca, E-30120, Murcia, Spain * Corresponding author.
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Eduardo Osuna, PhD, is head professor of the Department of Legal and Forensic Medicine at the University of Murcia (Spain). He has 30 years experience in the field of Medical Law and Forensic Medicine. He has written almost 170 articles and book chapters and has directed 34 PhD doctorates. Eduardo Osuna is founding member and Vice President of the Latin American Society of Health Law. His current areas of interest include the right to information, informed consent, confidentiality and the ethical and legal questions of the in-vitro embryo.
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E-mail address: [email protected] (E Osuna).
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Abstract Within the maternal–fetal relationship, interests may sometimes diverge. In this paper, a pregnant woman’s refusal to undergo a caesarean delivery, which was recommended both to save the life of the fetus and to minimize risks to her, is described. The legal aspects involved in the conflict between maternal autonomy and fetal well-being are analysed. The patient requested an abortion because of the poor condition of the fetus; however, according to Spanish legislation, the possibility of abortion was rejected as the pregnancy was in its 27th week. The woman still persisted in her refusal to accept a caesarian delivery. After the medical team sought guidance on the course to follow, the Duty Court authorized a caesarean delivery against the wishes of the patient. From a legal point of view, at stake were the freedom of the woman – expressed by the decision to reject a caesarean delivery – and the life of the unborn child. In clinical treatment, the interests of the fetus are generally aligned with those of the pregnant woman. When they are not, it is the pregnant woman’s autonomy that should be respected, and coercion should form no part of treatment, contrary to the decision of this court. © 2015 Published by Elsevier Ltd on behalf of Reproductive Healthcare Ltd.
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KEYWORDS: abortion, caesarean delivery, foetal risk management, informed refusal
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Introduction
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One of the pillars of healthcare provision is respect for the autonomy of the patient, and the process of obtaining informed consent is regarded as a manifestation of the legitimate exercise of an individual’s freedom (Osuna et al., 1998; Pérez-Cárceles et al., 2002). Agreement on a possible medical
intervention is one of the factors that the clinician has to bear in mind before proceeding with any treatment. Within the maternal–fetal relationship, maternal and fetal interests may sometimes diverge and make agreement difficult to obtain, i.e. when a pregnant woman refuses a diagnostic procedure, medical treatment or a surgical procedure intended to enhance or preserve fetal well-being (Deshpande and Oxford, 2012).
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http://dx.doi.org/10.1016/j.rbmo.2015.08.007 1472-6483/© 2015 Published by Elsevier Ltd on behalf of Reproductive Healthcare Ltd.
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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E Osuna et al.
In this paper, an unusual case of a mother’s refusal to undergo a medically indicated caesarean delivery to save the life of the fetus in the 27th week of pregnancy is described. Opinions in this case differed on whether the patient’s autonomy takes precedence, whether the woman’s informed refusal should be respected, or whether beneficence should overrule the mother’s refusal of surgery to protect the fetus. Such situations raise a number of questions about the balance of rights and obligations within the doctor–patient relationship. Various aspects of the case are analysed and an argument is made for the importance of respect for autonomy, contrary to a court decision that gave more importance to the rights of the fetus.
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Case history
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The Ethical Committee of the University Hospital Virgen de la Arrixaca approved the publication of this article on 22 January 2015. During gestation (27 + 1 week), a 29-year-old woman was referred to our hospital because of delayed fetal growth and severe haemodynamic alterations. Neither the mother’s medical history nor gynaecological-obstetric antecedents are of relevance. Echography confirmed severe fetal growth restriction and substantial haemodynamic alterations (Doppler type IV: the middle cerebral artery Doppler index decreases, resulting in preferential perfusion of the brain as a brain sparing effect). The estimated weight of the fetus was about 575 g. The patient was informed of the following therapeutic options: urgent extraction of the fetus by caesarean delivery after fetal lung maturation by the administration of corticoids or no treatment, allowing the pregnancy to run its course with a high probability of intrauterine fetal death. The patient initially opted for abortion in light of the grave fetal condition and poor possibility of survival. An amniocentesis was carried out, and the result showed a normal karyotype. Following the patient’s request for an abortion, in accordance with Spanish legislation, authorisation was requested from the clinical committee, a multidisciplinary body formed, as laid down by law (article 16.1 of Law 2/2010, on sexual and reproductive health and the voluntary interruption of pregnancy – Ley Orgánica 2/2010, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo), of three people: two specialists in gynaecology and obstetrics or experts in antenatal diagnosis and a paediatrician. This clinical committee rejected the abortion, considering that the conditions for a legal abortion were not met as no anomaly or grave illness incompatible with extrauterine life was evident. Moreover, the patient was not eligible to undergo such an interruption of pregnancy even in the supposed case of grave risk of fetal anomalies, as the statutory time limit of 22 weeks’ gestation had been exceeded (article 15.2). After receiving this information, the woman withdrew the request for an abortion but she also rejected a caesarean delivery, wanting the gestation to continue. The medical team accepted this decision, and the woman was discharged. Despite the diagnosis, the fetus remained alive. In week 32 of gestation, the patient was diagnosed with severe preeclampsia. The medical team explained to the patient the need to terminate the pregnancy, not only because of the risk to the fetus but to herself. The optimal way for the termination
would be by caesarean delivery, as medical induction of childbirth at 32 weeks is considered dangerous in a situation of severe intrauterine growth restriction with Doppler type IV and severe preeclampsia. The patient rejected this recommendation and said she wanted the pregnancy to be terminated by medical induction, which preference was documented in the record. This choice was rejected by the medical team, which continued to recommend urgent extraction because of the serious risk of both fetal and maternal death. The case was referred to the Hospital Ethics Committee, which supported the view of the medical team. In view of the patient’s persistence in rejecting a caesarean delivery, and the risk to both the health of the fetus and the mother, the head of the medical team referred the case to the Duty Judge, noting all the details of the situation. In reply, the court authorized the medical team to carry out a caesarean delivery against the wish of the patient “in the interest of protecting the life of the minor, in accordance with article 15 of the Spanish Constitution, which [would be] put at risk by the refusal of the patient to accept the medical intervention and because of the risk to the patient due to the symptoms of preeclampsia she presents”. The medical team informed the patient of the court’s decision and, after prolonged dialogue, the patient finally agreed to the caesarean delivery, so that she was not in the end treated against her will.
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Discussion
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In the situation under study, the interests of the pregnant woman were in conflict with what the medical team saw as the interests of the fetus. The medical team recommended a caesarean delivery to save the life of the fetus and to minimize risks to the mother. Initially, some of the members of the team saw the patient’s refusal as being equal to an abortion, as the intention of the mother was to secure the death of the fetus. After all, she originally asked for an abortion but was denied it as a matter of law. In Spain, article 15.c of the above mentioned Law 2/2010, establishes that pregnancy can be interrupted for medical reasons “when an extremely grave illness that is incurable at the time of diagnosis has been detected and confirmed by a clinical committee”. Then, this committee was consulted, but it rejected the possibility of an abortion as the pregnancy was in its 27th week. In Spain, a woman can be given an abortion upon request during the first 14 weeks of pregnancy, and up to 22 weeks if there is a grave risk to the pregnant woman or of serious fetal malformations, as accredited by a medical doctor. If fetal anomalies incompatible with life are identified, an abortion can be carried out up to the 24th week if authorized by a clinical committee. None of these conditions for a permissible abortion were present. In our case, the legal impossibility of carrying out an abortion convolutes what was a straightforward case of refusing treatment. The rejection of treatment by a fully aware and capable patient, who has been informed of the effects of any decision they make, forms part of their right to autonomy (Deshpande and Oxford, 2012; Osuna et al., 1998; Pérez-Cárceles et al., 2002; Thomasma, 1983). The European Court of Human Rights (2002) in Pretty v UK, application 2346/02 para 63, mentions: ‘. . . In the sphere of medical
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention. As recognised in domestic case-law, a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life . . .’ In our case, the medical team passed all the information to the Duty Judge for advice on how to proceed because any action could be interpreted as a refusal to offer help (fetus) or as coercion (patient). The court authorized a caesarean delivery in order to promote fetal and maternal well-being. The authors do not agree with the action of the medical team or with the decision of the court. First, there was no legal requirement to consult the court and second, in the authors’ opinion, simply communicating the case to the court would generate a lack of trust, upsetting the delicate clinical balance between patient and doctor. We consider that, in this case, as in any other concerning an adult fully aware of their decisions, a patient should not be forced to undertake treatment as this goes against the freedom of the person, the right to decide being at the very core of the principle of autonomy. Q2 Article 2 of Spanish Law 41/2002 (on the autonomy of the patient and right and obligations concerning clinical information and documentation) recognises respect for patient autonomy as a basic principle and the cornerstone in health care context. It mentions the obligation to obtain informed consent, to respect patient decision, and to recognise their right to refuse treatment, except in cases of risk to public health or when there is serious risk for the patient’s physical or psychological integrity and when it is impossible to obtain the patient’s authorisation. Although Spanish law is clear in this respect, the interpretation offered by judges varies, especially when dealing with minors. In the present case, we disagree with the content of the court order, which speaks of the interests of the “minor”, because minor children and the unborn are clearly different entities. Also, the court emphasises the interests of the fetus and orders that the pregnant woman be subject to medical intervention, in this case, a caesarean, arguing that the protection of the vulnerable fetus is more important than the pregnant woman’s autonomy. In light of this case, perhaps further reflection on how the law regards the nasciturus and whether it has any legal rights is merited here. The newborn is recognized to have the right to life, whereas the Spanish Constitutional Court does not consider the unborn to have the same right, considering it instead “a juridical entity in need of guardianship”. It adds that the State has the obligation to guarantee life, including that of the unborn (Raposo and Osuna, 2007). Indeed, several countries, Spain included, consider feticide or any action to cause the fetus deliberate harm as a criminal act. The refusal to accept a caesarean may be considered singular because the treatment is directed towards the mother, whose interests may diverge from those of the fetus. We agree with Dickens and Cook (2003) that fetuses should not be considered as patients in the strict sense of the word. It is impossible to treat a fetus without directly affecting the pregnant woman, and it is at this point that the conflict leaves the
3 maternal–fetal ambit and enters the maternal–clinical framework. Indeed, clinical relations run the risk of deterioration when doctors make themselves responsible for the health of the fetus without taking into consideration the opinions of the pregnant woman, who is their real patient, morally speaking. As presumably occurs with the rest of their patients, whether pregnant or not, the patient’s decisions must be respected. Other questions arise concerning the way in which the case was managed and the practical difficulties that could have occurred following the court order to intervene medically: would the medical team have had to anaesthetise the patient against her will? If a caesarean intervention had been carried out, would this have counted as moral damage to the patient, who had not given her consent for the same? The court that orders a caesarean without consent may also be responsible for the harm and, in the case of complications (inherent in caesarean interventions) and in the absence of negligence, the physicians would not be legally liable, whereas, of course, the court would not be legally liable anyway. But, intuitively, the court seems to bear moral responsibility here. The court is heavily involved when it imposes surgery; it assumes responsibility for rescuing the fetus and must therefore be responsible if the woman suffers harm, whether serious or not. In the end, the caesarean section was carried out with the patient’s consent and so it was not necessary to rely on the court order as the legal authorisation for it. In conclusion, the conflicts that may arise in gestation and the birthing process are of transcendental importance. The life of a fetus depends on the pregnant woman’s actions. From a legal point of view, at stake are the dignity of the future mother and her freedom – expressed in this case by the decision to reject a caesarean delivery – and the life of the unborn. The interests of the fetus are generally aligned with those of the pregnant woman. When they are not, it is the pregnant woman’s autonomy that should be respected (Lyng et al., 2005; Townsend, 2012), and the circumstance of pregnancy should not be used to limit a competent woman’s rights. Coercion should not form part of any treatment. On occasions, doctors invoke the rights of the fetus to deny or apply treatment to a pregnant woman without taking into consideration her free and informed consent – a reflection of the paternalism that still affects medical practice (Dickens and Cook, 2003). Neither does the solution lie in consulting the courts as a cover against possible litigation on the part of the patient. Any decision should only be reached through discussion based on a shared understanding of values and goals between the pregnant woman and the practitioner to avoid a potential litigious situation. In this respect, Shaw and Elger (2013) defend the use of persuasion, which should not necessarily be understood as a paternalistic practice but an essential component of modern medical practice. The courts should not be involved in such discussions and need to remain outside the delivery room.
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Acknowledgement
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The authors wish to thank the anonymous reviewers of this article for many helpful suggestions.
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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E Osuna et al.
References
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Deshpande, N.A., Oxford, C.M., 2012. Management of pregnant patients who refuse medically indicated cesarean delivery. Rev. Obstet. Gynecol. 5, 144–150. Dickens, B.M., Cook, R.J., 2003. Ethical and legal approaches to ‘the fetal patient? Int. J. Gynaecol. Obstet. 83, 85–91. Ley 41/2002 de 14 de noviembre, básica reguladora de la autonomía del paciente y de derechos y obligaciones en material de información y documentación clínica. BOE n° 274 de 15 de noviembre de 2002. Ley Orgánica 2/2010, de 3 de marzo, de salud sexual y reproductiva y de la interrupción voluntaria del embarazo. BOE n° 55 de 4 de marzo de 2010. Lyng, K., Syse, A., Børdahl, P.E., 2005. Can cesarean section be performed without the woman’s consent? Acta Obstet. Gynecol. Scand. 84, 39–42. Osuna, E., Pérez Cárceles, M.D., Esteban, M.A., Luna, A., 1998. The right to information for the terminally ill patients. J. Med. Ethics 24, 106–109. Pérez-Cárceles, M.D., Osuna, E., Luna, A., 2002. Informed consent of the minor. Implications of present day Spanish law. J. Med. Ethics 28, 326.
Raposo, V.L., Osuna, E., 2007. Embryo dignity: the status and juridical protection of the in vitro embryo. Med. Law 26, 737–746. Shaw, D., Elger, B., 2013. Evidence-based persuasion. an ethical imperative. JAMA 309, 1689–1690. The European Court of Human Rights, 2002. Pretty v UK App no 2346/ 02 ECtHR, April 29, 2002. Thomasma, D.C., 1983. Beyond medical paternalism and patient autonomy: a model of physician conscience for the physicianpatient relationship. Ann. Intern. Med. 98, 243–248. Townsend, S.F., 2012. Ethics for the pediatrician: obstetric conflict: when fetal and maternal interests are at odds. Pediatr. Rev. 33, 33–37.
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Declaration: The authors declare no conflicts of interest with respect to the authorship, publication of this article, or both.
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Received 7 May 2015; refereed 24 July 2015; accepted 12 August 2015.
Please cite this article in press as: Eduardo Osuna, Maria Dolores Pérez Cárceles, Maria Luisa Sánchez Ferrer, Francisco Machado, Caesarean delivery: conflicting interests, Reproductive BioMedicine Online, doi: 10.1016/j.rbmo.2015.08.007
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