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Beginning of life
Infertility rights; law; Human Fertilisation and
Embryology Act 1990 Assisted reproduction/conception
ethics; access to treatment; reproductive choices*
Controlling fertility and pregnancy; autonomy; law; childbirth
* Note: genetic medicine affects reproductive choice
Beginning of life
Infertility no objective definition Illness/disease justifying medical intervention? moral objections to assisted reproduction human rights
Human Fertilisation and Embryology Act 1990 aim of ensuring techniques are safe and ethical www,hfea.gov,uk
overtaken by pace of scientific progress
Beginning of life
Human Fertilisation and Embryology Act 1990 Statutory authority – HFEA Prohibits certain activities Regulation of licensing:
infertility treatment storage of gametes and embryos research
Definition of ‘mother’ and ‘father’ Regulates disclosure of information and confidentiality Defence of ‘conscientious objection’ Criminal offences and enforcement Consent requirements Code of Practice
Beginning of life
Assisted reproduction/conception ethical issues societal issues rights and interests access to treatment reproductive choices
Surrogacy - Re C (a minor) [1985] FLR 846 IVF - Louise Brown 1978 AIH - R v Human Fertilisation and Embryology Authority, ex p
Blood [1997] 2 All ER 687
Beginning of life
moral issues right to reproduce? Interests of potential child Interests of potential parents Interests of state who should have access to assisted reproduction/conception technologies?
heterosexual couples? same sex couples? single people? surrogates? older women?
who should pay? the infertile couple/individual? NHS? is infertility a disease? if NHS pay for couples who are ‘medically infertile’ should NHS for everyone seeking
IVF?
Assisted reproduction/conception
Reproductive techniques include: Artificial insemination AIH/AID Gamete intrafallopian transfer GIFT In vitro fertilisation IVF Intracytoplasmic sperm injection ICIS
Regulation Human Fertilisation and Embryology Act 1990
Legal issues Right to reproduce?
Human Rights Act 1998 Art 12 R v Secretary of State for Home Department ex p Mellor [2001] 2
FCR 153 Access to infertility treatment
HFEA s 13(5) – ‘welfare’ of child provision Code of Practice 2004
Assisted reproduction/conception
Examples of moral/legal issues AIH/AID
Posthumous insemination R v Human Fertilisation and Embryology Authority, ex p Blood [1997] 2 All ER
687 – consent/best interests issues following delay in AIH after removal of sperm from dying husband and subsequent storage; also import/export
IVF Parenthood Leeds teaching Hospital NHS Trust v A [2003] 1 FLR 1091 – fatherhood consent
issues following error in AI Consent to storage of use of embryos Evans v Amicus Healthcare Ltd [2003] 4 All ER 903 – withdrawal of partners
consent following break-up of relationship Multiple pregnancies and reduction of multifetal pregnancy Preimplantation genetic diagnosis and tissue typing of embryos
sex and donor (saviour siblings) selection R (Josephine Quintavalle) v HFEA [2005] UKHL 28
Assisted reproduction/conception
Examples of moral/legal issues Access to infertility treatment
Challenge by way of judicial review: R v Ethical Committee St Mary’s Hospital ex p Harriott
[1998] 1 FLR 512 - mother’s status R v Sheffield HA ex p Seale [1996] 25 BMLR 1
NICE Feb 2004 www,nice,org.uk/cgo11
Assisted reproduction/conceptionExercise
Examples of moral/legal issues donor (saviour siblings) selection ethical aspects
Duty-based using as a means to an end harming child for benefit of others
Rights-based anyone’s rights violated?
Uitilitarian potential to maximise utility saving a life
Virtue-based parent’s loving motives
Assisted reproduction/conceptionother areas Surrogacy
ethical issues law
HEFA 1990 Parental Order s30
Adoption Act 1976 Surrogacy Arrangements Act 1985
prohibition of commercialisation future
See - M Brazier (Chairman) Surrogacy: Review for Health Ministers of Current Arrangements for Payment and Regulation (1998 Cm 4068)
Embryo research, stem cells and reproductive cloning R (Bruno Quintavalle) v Secretary of State for Health [2003] UKHL 13 Human Reproductive Cloning Act 2001
Controlling fertility and pregnancy
Sterilisation voluntary sterilisation
consent issues non-voluntary sterilisation
incompetent patients moral issues
rights to reproduce Re D [1976] 1 All ER 326 - court refused sterilisation of 11
year-old with Sotos syndrome – ‘sterilisation involved depravation of a basic human right’
Re B (a minor)(wardship: sterilisation) [1987] 2 All ER 206 -sterilisation authorised – ‘the right is only such when reproduction is the result of informed choice..’
best interests eugenics
Controlling fertility and pregnancy
Sterilisation non-voluntary sterilisation
incompetent patients best interests guiding principle justifying medical intervention in
case of incapacity (see Mental Capacity Act 2005) Practice Note: Medical and Welfare Decisions For Adults Who Lack
Capacity [2001] 2 FLR 158 courts permission required for non-consensual sterilisation permission granted only if in patients best interests
factors taken into account include: evidence that patient lacks capacity real need for operation consequences of pregnancy consideration of all possible medical options/lesser
measures
Controlling fertility and pregnancy
Sterilisation non-voluntary sterilisation
therapeutic vs non-therapeutic distinctions - ‘medical’ best interests vs ‘social’ best interests
case law: Re B (a minor)(wardship: sterilisation) [1987] 2 All ER 206 -
sterilisation authorised – welfare of patient Re F (mental patient sterilisation) [1990] 2 AC 1 (sub nom F v West
Berkshire Health Authority [1989] 2 All ER 545) – CA – basis for best interests test
Re LC (Medical treatment: sterilisation) [1997] 2 FLR 258 - - sterilisation refused – no real risk of pregnancy
Re S (Adult patient: sterilisation) [2000] 3 WLR 1288 – CA – IUD rather than hysterectomy – best interest synonymous with welfare – decided on more than medical grounds – ethical, social, moral and welfare considerations also weighed in balance - Butler-Sloss P
Controlling fertility and pregnancy
Contraception no legal definition of contraception
prevention of fertilisation covers pre-coital methods - barrier methods and
oral/long acting contraceptives post-fertilisation preimplantation
covers post-coital methods – IUD, ‘morning-after pill’ post-implantation
abortifacients mifespristone RU486 pregnancy prevented or terminated? N.B. termination must comply with Abortion Act 1967
Controlling fertility and pregnancy
Post-coital contraception R(Smeaton) v Secretary of State for Health [2002] EWHC
610 - Court rejected SPUC claim that sale of ‘morning after’ pill without prescription contravened 1861 OAP Act – term miscarriage to be read as an ordinary word in light of current scientific and medical knowledge
Contraception and minors Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3
All ER 402 Lord Fraser: doctor justified in in providing contraceptive advice
without parental consent (or even knowledge) provided certain conditions/requirements fulfilled
Pregnancy Civil and criminal liability aspects:
wrongful pregnancy/wrongful birth failed sterilisation/undiagnosed pregnancy – actions
in negligence damages issue:
‘mother’s claim’ – pain/suffering/loss or earnings ‘upkeep of child’ – more controversial
McFarlane v Tayside Health Board [2000] AC 59HL - ‘healthy child’ ‘no maintenance’ rule
Parkinson v St James and Seacroft University Hospital Trust [2001] EWCA Civ 530 – CA - where ‘significant disability’ maintenance claim upheld
Rees v Darlington Memorial Hospital NHS Trust [2004] AC 309 – disabled mother not child - HL upheld McFarlane but4/3 split re exceptional costs
Pregnancy Civil and criminal liability aspects: wrongful injury to foetus
does a mother’s owe a moral obligation to foetus? knowledge of what is ‘good for’ foetus? an obligation to follow all medical (and other) advice? moral obligation to lead a ‘healthy’ lifestyle?
does a mother’s owe a legal obligation to foetus? Re F (in utero) [1988] 2 All ER 193- until born (and separate
existence) foetus is not a legal person with exception (negligent driving) Congenital Disabilities
(Civil Liability) Act 1976 excludes claim by child against mother
preferred action to make child ward of court after birth why cannot mothers be sued for damage to foetus?
Termination of pregnancy
Moral issues include: autonomy, rights and interests when does life begin? whose life is more important?
doctrine of double effect advances in technology
medical; diagnostic status of embryo and foetus?
full; limited; proportional personhood
uncontroversial - ‘normal’ adult human beings controversial - infants, children, incompetent adults controversial - foetuses
Legal aspects
Legal protection of the foetus includes: Criminal law
provided born alive, criminal offence to harm foetus in utero as result of criminal act committed against mother
Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 HL ruled on pregnant woman stabbed – premature birth – manslaughter
deliberate non-treatment of living abortus could amount to murder/manslaughter
Abortion Act 1967 limits late abortion legally relevant stages re foetal development
pre-implantation implantation to 24 weeks post 24 weeks to birth
Legal aspects (cont)
Offences Against Persons Act 1861 s58 attempt to procure miscarriage s59 supply of drugs or other instruments
Infant Life (Preservation) Act 1929 covers foetus during childbirth s1(2) presumption 28 week foetus capable of being
born alive Human Fertilisation and Embryology Act 1990
Civil law Congenital Disabilities (Civil Liability) Act 1976 – able to
sue for certain pre-birth injuries
Legal aspects (cont)
Law places autonomy of woman above interests of foetus Re MB (adult: medical treatment) [1997] 2 FCR 541– CA -
pregnant, competent woman has right to refuse all treatment St George’s Healthcare NHS Trust v S [1999] Fam 26 CA –
upheld Re MB – “ while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment.” A woman’s right to reject treatment exists “ even if her own life or that of the unborn child depends on it.” and even if her decision is considered “morally repugnant.” Judge LJ
End of life death obligation to prolong life
ethical concepts sanctity of life quality of life
end of life distinctions futile vs useful care
best interests do not resuscitate orders
acts vs omissions killing vs letting die withdrawing treatment vs withholding treatment
foreseeing vs intending doctrine of double effect Intentions
euthanasia assisted suicide
End of life
Definition of Death no formal definition at statute
heart/breathing stop? intensive treatment to maintain vital function
medical profession – brainstem death common law definition
Re A [1992] 2 Med LR 303 Airedale NHS Trust v Bland [1993] AC 879
Sanctity of Life
roots in Judeo-Christain beliefs inherent value of life life requires no justification quality and quantity of life irrelevant differing versions:
vitalism –human life of absolute value life a basic but not an absolute good
Quality of Life
subject to many interpretations opposite end of spectrum from the principle of
the sanctity of life life not intrinsically of value involves a value judgment emphasis on type of life being lived focuses on an individual’s capacity or
potential to live a ‘normal life’
Legal aspects
Sanctity of Life Human Rights Act 1998 Art 2 repeatedly confirmed in courts ? absolute principle prohibits active steps to terminate life but does not require every
patient to be resuscitated or maintained indefinitely on life support
Quality of Life can it very be in a patient’s best interests that his/her life should not
be continued? Airedale NHS Trust v Bland [1993] AC 879
Duty regarding dying/incurably ill act in patient’s best interests
prevent/retard deterioration of condition relieve pain and suffering
Legal aspects
Medical futility treatment that offers no benefit to patient cases involving:
profoundly handicapped babies patients in permanent/persistent vegetative state PVS
or near PVS patients very severely impaired although sensate
Re C (A minor) (Wardship: Medical Treatment) [1989] 2 All ER 782 severely handicapped16 week premature baby progress ‘hopeless’ Court asked whether life sustaining treatment should be given should it
be required to keep C alive Court declared that it was in C’s best interests to withhold such treatment
on basis that “the life that the treatment would prolong would be so cruel as to be intolerable”
Withdrawing treatment
withdrawing Treatment Re G [1995] 3 Med L Rev 80
best interests test Re D (Adult: Medical Treatment) [1998] 1 FLR 411
substituted judgement test it may be lawful to ‘withdraw’ treatment in a hopeless case Legal ‘withdrawal of treatment’ includes:
ceasing a treatment (removing a feeding tube) not administering a treatment (not resuscitating)
Airedale NHS Trust v Bland [1993] UK
British Medical Association Guidelines on withdrawing treatment (1999)
Artificial Hydration & Nutrition
methods of administration ethical Issues
is this procedure ordinary or extraordinary? oral nutrition never to be withdrawn requesting life-prolonging treatment
R (Burke) v GMC [2004] EWHC 1879; [2005] EWCH 1003 challenged legality of withdrawal of artificial nutrition and hydration court held – common law imposes duty on those who care for
incapacitated patient to provide artificial nutrition/hydration as long as it prolongs life and is in accordance with patient’s express wishes
refusing life-prolonging treatment Re B (adult refusal of medical treatment) [2002] 2 All ER 449 –
adult with capacity entitled to refuse all life prolonging medical treatment
Legal decisions concerning Sanctity of Life and Quality of Life Best interests test applied:
Re B (A minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 - operation in patient’s best interests – court applies the ‘demonstrably awful’ test
Re C (A minor) (Wardship: Medical Treatment) [1989] 2 All ER 782 - best interests not to prolong life – active treatment withdrawn where necessary
Quality of life as means of determining best interests: Re J (A minor) (Wardship: Medical Treatment) [1990] 3 All ER 930 -
quality of life principle applied Medical profession not required to carry out treatment
against their clinical judgement: Re J (A minor) (Wardship: Medical Treatment) [1993] 4 All ER 614
– not always in patient’s best interests for aggressive therapy to be pursued
Legal decisions concerning Sanctity of Life and Quality of Life (cont) Application of parental views:
Re C (A Baby) (1996) 2 FLR 43 – clinical factors determinative not parents’ views
Re C (A Minor) (Medical treatment) [1998] 1 FLR 384 – parents adopted sanctity of life approach but court applied best interests principle
Re T (A Minor)(Wardship:Medical Treatment) [1997] 1 All ER 906 – quality of life with or without operation considered - confirmed that sanctity of life is not an absolute principle
Treatment using force not in patient’s best interests: Re D (Medical Treatment: Consent) [1998] 2 FLR 22 – best
interests not to receive burdensome treatment
Legal decisions concerning Sanctity of Life and Quality of Life (cont) Best interest test reaffirmed:
Airedale NHS Trust v Bland [1993] AC 879 - sanctity of life principle not absolute - but forbids the taking of active measures to shorten life of a terminally ill patient
A NHS Trust v D [2000] 2 FLR 677 - best interests test only criterion
Re A (Children)(Conjoined twins: surgical separation) [2001] Fam 147
best interest overrides parental wishes erodes line between acts and omissions
Euthanasia
Active Euthanasia e.g., administering a fatal dose of potassium to a terminally ill cancer
patient Passive Euthanasia
e.g. withholding of treatment - failing to revive a patient who has signed a DNR order
e.g cessation of treatment - turning off a respirator Voluntary
killing or letting die a competent person who has expressed a desire for this
Non-voluntary killing or letting die when the patient is unable to express such a desire
Assisted Suicide not actually euthanasia, as 'patient' ultimately kills him/herself BUT thin between the two can, however, become very thin
Euthanasia Passive Active (assisted) Active(unassisted)
Voluntarycompetent patient chooses; informed decision
may be legal in some circumstances(competent patient’s wishes, etc.)
unlawful homicide (murder or manslaughter); or may be equivalent to suicide (assisted suicide)
equivalent to suicide
Non-voluntaryincompetent, e.g. unconscious, patient unable to make an expressed wish
may be legal in some circumstances(e.g with court permission)
equivalent to murder not possible
Involuntarywithout a request or without (or against) competent patient’s consent
not lawful (but may be legal in specific circumstances where futile treatment is not offered: DNR; etc.)
equivalent to murder
not possible
The Principle of Double EffectThomas Aquinas it is morally permissible to perform an act that results
in both good and bad effects if all of the following conditions are met: the act must be good in itself, or at least morally
neutral only the good effect is intended the good effect must not be obtained by means of the
bad effect the bad effect must not be intended, only permitted there must be a proportionately grave reason for
permitting the bad effect there must be no other way to achieve the good
Legal recognition of doctrine of double effect R v Bodkin Adams (1957)
GP acquitted of murder by administration of increasing doses of opiates to elderly patients.
Devlin, J (judge) introduced double effect doctrine:
if the first purpose of medicine, the restoration of health, could no longer be achieved, there was still much for the doctor to do, and he was entitled to do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life”
Legal recognition of doctrine of double effect (cont) Airedale NHS Trust v Bland [1993] AC 879
Lord Goff “.[It is] the established rule that a doctor may, when caring for a patient, who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life …Such decisions may properly be made as part of the care of the living patient, in his best interest; and, on this basis, the treatment will be lawful”.
Legal recognition of doctrine of double effect - problems contrary to traditional notions of criminal law
intention and causation Airedale NHS Trust v Bland [1993] AC 879
concern expressed about dubious demarcation between primary (direct) and secondary (oblique) intention
Criminal Law Aspects‘Active Euthanasia’ deliberate termination of life
R v Bodkin Adams (1957) – acquitted of murder Devlin, J : “ No doctor,nor any man, no more in the
case of a dying man than a healthy, has the right to cut the thread of life”
R v Carr (1986) – acquitted of murder Mars Jones, J – “a patient is entitled to every hour that
God has given him however seriously ill he might be” R v Cox (1992) – convicted of attempted murder R v Moor (1999) – acquitted of murder
Criminal Law Aspects‘Active Euthanasia’ mercy killing - unlawful
Airedale NHS Trust v Bland [1993] AC 879
Lord Mustill: “… that ‘mercy killing’ by active means is murder … has never, so far as I know, been doubted. The fact that the doctor’s motives are kindly will, for some, although not for all, transform the moral quality of his act, but this makes no difference in law. It is the intent to kill or cause grievous bodily harm which constitutes the mens rea of murder.”
Criminal Law Aspects‘Passive Euthanasia’ omissions are not criminal
R v Arthur (1981) – criminal case –– unwanted newborn baby with Down’s Syndrome – prescribed dihydrocodeine and ‘Nursing care only’ – no attempts to revive when developed broncho-pneumonia
doctor acquitted of attempted murder Court drew distinction between acts and omissions Court decided ‘procedure’ was one which could be
supported by a responsible body of medical opinion (Bolam test)
Criminal Law Aspects‘Passive Euthanasia’ (cont) withdrawing treatment not criminal
‣ Airedale NHS Trust v Bland [1993] AC 879 – incompetent adult – PVS (permanent vegetative state)
Best interests test and Bolam test of professional standards Lawful in ‘hopeless’ cases Withdrawal of treatment includes:
withholding/not commencing treatment (e.g. not resuscitating)
ceasing treatment (e.g. removing a feeding tube)
‣ BMA guidelines
Criminal Law Aspects‘Passive Euthanasia’ (cont) withholding treatment not criminal
‣ Do not resucitate orders (DNRs)- based on concept of medical futility- Involves quality of life decisions- form of withholding treatment:
resuscitation – medical treatment (incompetent patients – treatment on basis of best interests; competent patient – consent required and able to refuse)
Re R (Adult: Medical Treatment) (1996)
treatment likely to be unsuccessful and burdensome - withholding resuscitation and medication would be in patient’s best interests and so lawful
‣ BMA/RCN/UK Resuscitation Council Guidelines (2001)
Criminal Law Aspects ‘Passive Euthanasia’ (cont) punishable omissions
Airedale NHS Trust v Bland [1993] AC 879Law Lords rejected the view that liability attaches only to acts but never to omissions – could be liability for an omission if a prior duty to act existed and was breached “a person may be criminally liable for the consequences of an omission if he stands in such a relation to the victim that he is under a duty to act. Where the result is death the offence will usually be manslaughter, but if the necessary intent is proved it will be murder” Lord Mustill
Criminal Law AspectsCompetent patient competent adult able to refuse any treatment permissible to withdraw life-support and allow
terminally ill patient to die at patient’s request provided patient is legally competent
positive act to actively terminate a terminally ill patient’s life NOT permissible whether patient is competent or incompetent
Criminal Law Aspects
Advance directives or living wills declaration by competent adult concerning medical
treatment in the event of future incompetence and the occurrence of medical conditions
decision must have been made when the patient was demonstrably competent acting voluntarily, and the decision must cover the prevailing
circumstances when treatment contemplated no statutory authority
Criminal Law AspectsIncompetent patient withholding/withdrawing treatment - ‘passive,
non-voluntary euthanasia’ ‘best interests’ principle sanctity of life principle not absolute forbids taking of active steps to shorten life of
a terminally ill patient does not justify compelling the keeping alive
of terminally ill patient where it would merely prolong suffering
Criminal Law AspectsAssisting terminally ill Key principles:
medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death, but medical treatment may not be given intended to bring about death
doctrine of double effect subject to judicial authority it is permissible to cease to take
active steps to keep a patient in a permanent vegetative state alive
distinction between positive acts causing (and intending) death and the negative act of withdrawing or withholding treatment which artificially prolongs life (and by doing so will inevitably and intentionally result in death).
Bland (1993) and more recently confirmed by Pretty (2002)
House of LordsReport of Select Committee on Medical Ethics 1994
‘right to refuse treatment is far removed from the right to request assistance in dying’ – 236
‘recommend no change in the law to permit euthanasia’ – 237 'We concluded that it was virtually impossible to ensure that all
acts of euthanasia were truly voluntary and that any liberalisation of the law in the United Kingdom could not be abused. We were also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death.' Lord Walton, the committee chairman, in a speech to the House of Lords on 9 May 1994
Parliamentary Bills
Medical Treatment (Prevention of Euthanasia) Bill 2000 Clause 1: It shall be unlawful for any person responsible for the
care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient.
Patient (Assisted Dying) Bill (Bill No.37) A Bill to enable a competent adult who is suffering unbearably
as a result of a terminal or a serious and progressive physical illness to receive medical help to die at his own considered and persistent request; and to make provision for a person suffering from such a condition to receive pain relief medication.
Assisted Suicide
AS - provide someone with the means to commit suicide – PAS ‘physician’ assisted suicide
s2 Suicide Act 1962 a person who aids, abets, counsels or procures the suicide of another, or
an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years
Offences Against the Person s23 Offences against the Person Act 1861 An offence to “unlawfully administer to or cause to be administered to or
taken by any other person any poison or other destructive or noxious thing, so as to thereby endanger the life of such a person..”
R v Larkin [1943] KB 174 where the act which a person is engaged in performing is unlawful, then,
if it is at the same time a dangerous act… and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter.
Consent is never a defence to murder or manslaughter
Criminal Law: Summary
Active euthanasia (mercy killing) illegal – homicide
Assisting suicide illegal
Passive euthanasia not necessarily illegal
Intending relief of distress, but foreseeing death normally legal
Withdrawing/withholding treatment legally equivalent – passive, not active treatment
Competent patient refusing life-saving treatment not suicide, lawful
Criminal Law: Summary
competent adult patient can refuse treatment, even if life-sustaining
illegal to actively bring about someone’s death either with or without that person’s consent
competent patient cannot request an act to be taken to end his/her life (i.e. no right to die/assisted suicide) - Pretty v UK [2002] 2 FLR 45
artificial feeding/hydration is medical treatment an omission to act (withholding/withdrawing treatment) permissible when not in a duty to treat where it is not in the patient’s best interests (e.g. futile or unduly burdensome) patient’s best interests to continue treatment court permission normally required to withdraw treatment from PVS patient under the doctrine of double effect acceptable if unwanted side-effect of giving pain relieving drugs is shortening of patient’s life - Airedale NHS Trust v Bland [1993] AC 879