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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | Brenda McGivern University of Tasmania Faculty of Law |
| Issue: | Volume 2, Number 3 (December 1995) |
INTRODUCTION
Sir Victor Windeyer once commented that the law was "marching with medicine
but in the rear and limping a little."[1] As
biotechnology, particularly
genetic technology, has advanced even more rapidly in the two decades
since this observation was made,
care should be taken that the law is not
left behind completely.
It has been observed that rapid changes in social conditions and medical science
demand clear rules of law to govern the new fields
of advancement.[2] In
order to accomplish this goal it is suggested that "... the law must
build a framework that will recognise
the complex moral and ethical issues
surrounding research ..."[3] With this in mind, it is proposed to
examine bioethics and
the law as they apply to the issues of prenatal
diagnosis and abortion on genetic grounds.
Specifically, attention will focus on
the impact of genetic
technology in these areas.
The purpose of this paper is to determine the extent to which existing law and
legal policy is consistent with bioethical principles,
and the extent to
which it is adequately equipped to deal with emergent genetic technologies
and the prenatal issues they raise.[4]
It should be noted that the
parameters set by the topic of this paper require a comparative analysis
of bioethics and the law. It
therefore
falls outside the scope of this paper to undertake a detailed analysis of
feminist thought in the area of research.
However,
given the centrality of women to the issue of childbirth
and pregnancy, it is submitted that one is (bio)ethically compelled to
consider
the interests of women in these areas. Thus, whilst not comprehensive, nor intended to be
representative of all women's views, some
of the most common criticisms
and concerns encountered in feminist literature will be examined in the
course of discussion. This
will be done
particularly with respect to the maternal/foetal relationship, and in the
arguments against genetic testing based on
the eugenic fear. Similarly,
some of the most commonly expressed concerns regarding genetic testing
raised by the disabled community
will be addressed. In view of the technical nature of some aspects of this
paper, a glossary of medical terms is provided.
Discussion will begin, in Part 1, with an outline of some of the most important
current advances in genetic technology.
The Human
Genome Project represents one of the most ambitious and
influential projects in biotechnology, introducing with it a range of
technological
advances that will influence both the type and scope of
genetic knowledge. A brief outline
of this project's achievements and ultimate
goals will therefore be
undertaken to illustrate its importance to, and anticipated impact upon,
the genetic technology applied before
birth.
Since the law and legal policy will be examined in light of
bioethical thought, the first part will include an overview of
the core
bioethical principles which will facilitate analysis in subsequent
sections.
It is proposed to begin the subsequent analysis with an outline of the current
legal context in which the debated issues arise, followed
by an examination
of the bioethical and philosophical considerations those issues
entail. Each section will conclude with
an analysis
of whether the law and legal policy, in light of current
technology, are consist with bioethical principles, and their ability to
cope with the issues arising from genetic advances.
By way of conclusion, a summation of the arguments, and an outline of the submissions,
made in the paper will be given. Some
issues
requiring consideration which were raised by this research, but
which fell outside the scope of this paper, are suggested for future
research.
1. PART 1 1.1 GENETIC AND BIOETHICAL BACKGROUND
1.1.1 THE HUMAN GENOME PROJECT
In order to predict the effects that genetic technology will have upon pregnancy
management, it is necessary to consider the most
recent research undertaken
in the field of genetics. An
examination of this type should concentrate not only on the findings of
such research, but also upon the methods, technologies and resultant
testing and therapeutic capabilities it embraces. By far the
most recent, ongoing and
ambitious research being undertaken in the genetic arena is that involved
in the Human Genome Project (HGP),
which has been described as "a
coordinated effort to characterise the entire human genome."[5]
Technical advances made
in the 1970s and 1980s introduced the possibility
of a large human genetics research project. The impetus for the project took the
form of a "radical"
proposal that there should be a massive injection of funds to enable a
systematic and international
effort to analyse the human genome.[6] To
this end, international funding in the amount of an estimated $5 billion
has been allocated
for the 15-year duration of the programme.
Genetic research and testing are by no means new to the field of medicine. For
example, genetic screening was mandated in the 1970s
in some US states for
the hereditary disorder sickle cell anaemia in black children.[7] However,
the size and structure of the HGP
have required the formulation of
specific goals and the organisation of resources required to attain those
goals.[8] The magnitude
of the HGP has been described as "biology's equivalent
to putting a man on the moon"[9] and has therefore attracted vigorous
debate regarding its legal, ethical and economic implications. Thus,
whilst some issues are not unique to the HGP, "[w]hat the
... project
has done is to intensify the debate and bring it into the public domain."[10]
In order to appreciate these issues,
however, the project itself will need
to be examined. Genetic Background Every human has traits developed from a
combination of genetic
characters inherited from each parent. Human heredity is based upon genes passed on
in genetic material originating in equal proportions
from the parental
gametes. Each gene encodes
information specifying a single gene product.
These gene products, either singularly
(in so-called Mendelian
inheritance) or in combination with other gene products, determine a
specific inherited trait. These
genes
are arranged in linear sequences along chromosomes located in the
nucleus of each cell.[11] The human genome includes 23 pairs of
chromosomes in each non-reproductive cell in the form of DNA (the molecular
basis for the genetic code). Genes are
composed of unique
segments of genetic code (that is, a unique sequence of
nucleotides) along a given chromosome.
It is the individual assemblage of
our genes and the proteins
derived from them that make us unique.
Thus, if the location of each gene on our chromosomes is known,
and
its code can be determined, much information may be extracted about the
functioning and make-up of our bodies.[12] The difficulty
of the location
of specific genes is highlighted by the fact that: "[l]ess than 10%
of the human genome is estimated to contain
coding regions associated with
genes. An important part of the
Human Genome Project ... is the location of the 50,000-100,000 genes
buried within the human genome."[13] Despite this inherent difficulty,
technological advances associated with the HGP - including
automated
cloning equipment, techniques such as the polymerase chain reaction (PCR)
and rough computerised maps of regions of DNA[14]
- have enabled
extraordinary progress since the project's inception in 1991. Scientists
are currently locating human genes at a
rate of one or more per day and
over the past year have, amongst others, specified genes associated with
Huntington's disease, adrenoleukodystrophy
(a major form of ataxia)[15]
and, significantly, the first breast cancer gene.[16]
1.1.2 Goals for the HGP
A set of specific goals for the 15-year HGP had, by 1990, been formulated and
were presented to Congress in the USA.[17] These long
term objectives include
the mapping of all the 50,000-100,000 genes and the determination of the
complete sequence of the human genetic
code.
Further, more specific goals have been set for the first five years
of the project[18] to guide the shorter term progress
of the
initiative. Areas of goal-setting
include genetic mapping, physical mapping and DNA sequencing, informatics,
technology development
and ethical considerations. These areas are closely interrelated as may be illustrated
by the ultimate goal of the project, to produce
the ultimate physical map
by determining the entire DNA sequence of the human genome. This goal will only be realised if the
project
overcomes the concern of the scientific community namely, whether
the project is cost-effective in terms of the value of scientific
information
gained compared with the money and effort invested to obtain it[19]. Utilising today's best available equipment,
an
approximate 50,000-100,000 nucleotides can be sequenced annually at a
cost of around $1-2 per nucleotide.
This would result in an
unacceptable 30,000 work-years and at least
$3 billion to complete the task. In
order to improve cost and efficiency, two approaches
are being taken: the enhancement
of current sequencing techniques, and the formulation of novel strategies
for large-scale sequencing
projects.
The resultant technologies must be largely automated and capable of
high through-put.[20] It is worth noting that a significant
portion of the allocated
budget for the HGP has been dedicated to the goal of developing programmes
to address ethical, legal and
social considerations[21] arising from
medical advances resulting from the project.
Prenatal diagnosis represents one of the most
obvious and
contentious areas in which these advances will take effect. As the HGP
assists with earlier, more comprehensive and more
accurate diagnosis of
genetic diseases, it helps to increase the available management options,
including those of pregnancy termination
and the possibility of genetic
therapies. From a regulatory point
of view, the legal position should be examined in order to assess
the
availability of these management options under current Australian law. However,
the application of genetic testing to these
ends will also inevitably
involve considerations concerning the moral and ethical implications of
pregnancy management. Therefore,
the
core bioethical principles, which will facilitate discussion in subsequent
parts, are outlined below.
1.2 BIOETHICAL PRINCIPLES
Human development may be viewed in a number of ways, ranging from clinical approaches
(for instance biology and chemistry) to disciplines
incapable of
scientific analysis (such as theology and philosophy).[22] However, medicine
arguably falls somewhere between, being
concerned both with the systematic
study of the unique workings of the individual and the total context in
which that individual
lives.[23] As such, it is appropriate that medical
ethics be based not only on strong philosophical grounds, but that
physiological,
psychological and other relevant perspectives also be taken
into account. Developed from these
considerations (and first extrapolated
in the Hippocratic Oath) are six
fundamental principles which are central to any discussion regarding
ethical concerns in a medical
context.
These principles underlie bioethical decision making and strongly
influence the scope and practices in that body of ethical
guidance.[24]
Any detailed examination of these principles would involve extensive
discussion and is hence precluded by the constraints
of this study. However, a summarised table of these tenets
of medical ethics is produced to facilitate discussion of the ethical
issues arising in subsequent parts.
TABLE 1: Ethical Principles for Biomedical Practice[25]
Respect for persons: the duty to
respect the self determination and choices of autonomous persons, as well
as to protect persons
with diminished autonomy.
Beneficence: the obligation to secure
the well-being of persons by acting positively on their behalf and,
moreover, to maximise
the benefits that can be attained.
Nonmaleficence: the obligation to
minimise harm to persons and, wherever possible, to remove the causes of
harm altogether. This
is less of a positive
duty than beneficence; rather, it is an obligation to avoid doing harm.
Justice: the obligation to distribute
benefits and burdens fairly, to treat equals equally, and to give reasons
for differential
treatment based on widely accepted criteria for just ways
to distribute benefits and burdens.
Confidentiality: the obligation to keep
information gained in the course of medical practice confidential.
Veracity: the obligation to develop
trust through truth telling and to recognise the right of all people to
have access to information
pertaining to themselves. Of particular
significance in the current context are the concepts of beneficence and
nonmaleficence.
The former principle
requires the doctor to consider and recommend those therapeutic options
that provide the best balance between
benefit and harm. Closely interrelating to this principle
is its corollary, that of non-maleficence.
This obligation, requiring
that the doctor avoid doing harm, has
gained eminence in the history of ethics and especially in biomedical
ethics[26] and is often
considered to be the overriding of the two
principles. Respect for the principle of autonomy may involve some
conflict with those
of beneficence and non- maleficence. This principle, in the context of foetal
medicine, is based on an understanding and acceptance
that the maternal
patient has values and beliefs, and that she has the right to make
reproductive choices in accordance with those
values. The recognition of bodily integrity and self determination
are also essential tenets of autonomy.
The principle of proportionality, or the "utilitarian" principle,[27]
is also often included in examinations of medical
ethics. This standard refers to the duty, when
taking actions that involve risks of harm, to so balance risks and
benefits that
action s have the greatest chance to result in the least
harm and the most benefit to those involved.[28] Strongly related to this
concept is the theory of common good in medical ethics. This theory requires that medical
institutions give explicit consideration
to the relationship and possible
clash between social and individual values.[29] Accordingly, interests
other than those of the individuals
directly involved may validly be taken
into account in decision making.
The weight accorded to those external interests will, however,
seldom be determinative and will necessarily depend on the circumstances
of each case. The concept of justice embraces two dimensions:
horizontal
and vertical equity. The former refers
to the obligation to treat equals equally. The latter refers to the obligation
to treat unequals
unequally in proportion to their morally relevant inequalities.[30] A
thorough discussion of these principles and
their application has not been
attempted in this section. Rather, it
is intended to refer to, and apply, them in subsequent discussions
concerning the issues arising out of genetic technology prenatally.
2. PART 2 2.1 THE
CURRENT LEGAL CONTEXT
Since the stated purposes of this paper are to analyse the law for its consistency
with bioethical principles and its ability to
cope with genetic advances,
it is necessary to undertake an examination of current law. This will be done in the context of prenatal
care, focussing on the body of law applicable to the post-implantation
embryo/foetus.
2.1.1 Post-Implantation - The Legal Position
Existing law regarding the legal status of the foetus tends to revolve around
the issue of abortion, although legal attitudes towards
the unborn are
also reflected in child destruction and homicide law.
Regulation of abortion dates back to the non-legal prohibition against providing
a woman with the means of procuring an abortion
in the Hippocratic
Oath. Present day regulation reflects a
State interest in the matter with statutory provisions criminalising
abortion. Australian abortion laws
fall into three categories of jurisdiction:
common law jurisdictions,[31] Code jurisdictions[32]
and
"statutory reform" jurisdictions.[33] Between these different
types of jurisdiction, variation exists with each Australian
State or
Territory using different criteria to determine the legality of an
abortion.[34] For the sake of discussion therefore, it
is proposed to
concentrate primarily on the Code jurisdictions of Western Australia
("WA") and Queensland. The Criminal
Codes
in those States make it unlawful to attempt to procure an abortion or to
supply drugs or instruments to facilitate an abortion.[35]
The prohibition
in these sections must however be read in light of the case law concerning
abortion. In order for the abortion to
be unlawful, it must be shown that the procedure was not performed
"for the preservation of the mother's life" and was
not
reasonable having regard to the patient's state at the time and all other
circumstances of the case.[36] There is a noticeable
absence of case law
regarding these phrases in WA, however, limited judicial consideration has
been given to them in Queensland,
which has virtually identical Criminal
Code provisions to those in WA.
The phrase "the preservation of the mother's life"
was held in
the Queensland cases of K v T37 and Re Bayliss[38] to have the same meaning
as that given in Re Bourne[39] and expanded
in R v Davidson.[40] In Re
Bourne it was held that if a doctor reasonably found that pregnancy would
result in a woman becoming "a
physical or mental wreck" then this
may justify a finding that an abortion is performed for the purpose of
preserving the life
of the woman.[41] Liberalising the meaning of
"unlawful" even further, Menhennitt J in R v Davidson applied
the general
defence of necessity to abortion.
In deciding what is "necessary" and
"proportionate," serious danger to a woman's
physical or mental
health may be considered, and the abortion should not in the circumstances
be out of proportion to the danger
being averted. The case of R v Bayliss and Cullen[42]
confirmed the adoption of this approach in Code jurisdictions. It should
be noted that in the common
law jurisdiction of New South Wales, the case of R v Wald[43] adopted the R
v Davidson approach, then
expanded it by holding that it would be for the
jury to decide whether there existed in the case of each woman any
economic, social
or medical ground or reason which in their view could
constitute reasonable grounds upon which an accused could honestly and
reasonably
believe there would result a serious danger to her physical or
mental health.[44] This approach represents significant gains for
women's
reproductive rights by inserting economic and social factors into t he
necessary and proportionate tests adopted in R v Davidson.
R v Wald was applied in New South Wales
in K v Minister for Youth and Community Services[45] but has received no
comment in the Code
jurisdictions.
Whilst R v Davidson has been adopted in these latter jurisdictions,
the case law has been silent as to the adoption,
or the extent of
adoption, of the approach in R v Wald.
Despite the existence and legal consideration of abortion laws in Australia,
there remains in practice a significant gap between
the letter and the
practice of the law.[46] On the one hand, the effect of medical developments
tends to strengthen the status of
the foetus legally, with ever more
premature babies being able to be kept alive, therefore decreasing the age
of viability and hence
increasing the application of the term "a
child capable of being born alive" under child destruction law (which
overlaps
with the statutory prohibition of unlawful abortion).[47] On the
other hand it may be argued that, the availability of, and lack
of prosecution
for, abortion seriously undermines the legal position of the foetus[48]. It is notable that British and Australian
courts have consistently refused to recognise both foetal rights prior to
birth and the legal personality (or personhood) of a foetus.[49]
In the
Australian case of K v T[50] it was held that a foetus lacks such
independent legal personality and rights until it is born.
This approach has found approval in A-G
(ex rel Kerr) v T[51] and, most recently, the re has been a denial of any
right to protection
against abortion being vested in the foetus.[52]
Whilst in R v Wald it was argued that society has an interest in the
preservation
of the human species, and in particular the life and welfare
of its members,[53] the focus upon maternal rather than foetal health
in
the abortion cases cited, together with the reference in R v Wald to
socioeconomic factors, suggests that society's interest in
the foetus may
be subsumed to the interests of the mother.[54] This lack of legal rights
is also reflected in the law relating to
unlawful killing. Under
Australian law, a foetus in utero cannot be a victim of homicide, regardless
of its gestational age. It
is therefore
unprotected by the most serious offences designed to protect the sanctity
of human life.[55] As the previous discussion
illustrates, there is a
significant gap between the law regarding abortion as it stands and its
enforcement.
A number of reasons may account for this phenomenon, for instance, "[t]here
is a disparity between situations where according
to the law an abortion
would (or probably would) be lawful, and situations where such an abortion
is actually available to a woman...".
The situation is further explained by the unlikelihood of
successful prosecution under current law. The tests in R v Davidson and
R
v Wald cast a heavy burden of proof upon the prosecution.[56]
Non-enforcement of the criminal law regarding abortion is illustrated by the
fact that prosecutions for unlawful abortion effectively
ceased in Australia
in the early 1970s.[57] Although this and, where cases are brought, the
wide interpretation of the risk to maternal
health are thought to be
liberalising factors, the existence and inconsistency of abortion law is
still a significant factor in a
discussion of prenatal diagnosis and
pregnancy termination. This is so
because current and proposed laws concerning abortion can
have a profound
effect[58] on the decision to abort.
Issues affecting prenatal decision making are said to relate to the
timing
of the diagnosis, the nature of the genetic condition (type and
severity,) the religious and moral convictions of the mother (or
both
prospective parents) and societal pressures.[59] For a number of people,
their moral stance is greatly influenced by the law
(what is illegal is
taught to individuals to represent what is "wrong" morally). Further,
legal sanctions form an important
source of societal pressure and may be
seen to represent standards that are socially acceptable (this is not
surprising given the
democratic nature of our society where legislating is
the role of Parliament who in turn are elected by, and are technically the
representatives of, "the people").
Thus the decision to terminate a pregnancy following prenatal diagnosis
may, at least
obliquely, be influenced by the legality of abortion.
As outlined above, the focus in determining the lawfulness of abortion has been
upon maternal rather than foetal health.
However,
in the "statutory reform jurisdictions" of South
Australia and the Northern Territory, legislative reform has introduced
to
statutory exceptions to unlawful abortion a "foetal ground" to
abort.[60] As such, grounds to abort exist where there
is a risk to a
pregnant woman's physical or mental health[61] or where there is a
substantial risk that the child would be seriously
physically or mentally
handicapped if the child were born.[62] In all other states, abortion
remains criminally unlawful subject
to it being necessary to preserve the
mother's life or health. Although this provision,
especially when interpreted widely as in
R v Davidson and R v Wald, would
be likely to sanction abortion where severe genetic defects are diagnosed,
the law still remains
ambiguous and undefined in this area. As such, the
perception of abortion as a criminal act by most women is likely to make
the
already difficult decision to terminate a pregnancy after abnormal
genetic results, even more burdensome.
This then calls into question the ethics of a community, or a powerful part
thereof, taking a moral stance against abortion and,
accordingly, promulgating
binding laws to that effect. The issue
becomes whether abortion should remain under legislative control,
or be
left to private conscience (and, in the latter case, whether private
conscience should be limited under certain conditions).
As illustrated
above, abortion law in Australia is inconsistent, uncertain and
unenforced. It does not adequately
deal with medical
technology [and] ... [i]t does not address the social
and ethical problems posed by abortion.[63]
Abortion laws had their origin in the protection of maternal health. However,
as medical technology has progressed, protecting the
mother's life by
prohibiting abortion becomes nonsensical[64] (particularly in the first
trimester). The lack of reform in this
area has been explained by political cautiousness, given the electorally
sensitive nature of abortion.
Although politically expedient
to avoid the issue, such political
manoeuvring prevents the law from reflecting social attitudes, particularly
a s there is an overwhelming
consensus that abortion should be legal,
inter alia, in the case of birth defects.[65] In opposition to strict
legal regulation of
abortion, and in the interests of developing a flexibility
that would allow new evidence and new technical (and social) developments
to affect the communal ethos, it has been argued that: "[e]nforcement
of such matters legitimately belongs within the social
sanction of
specific groups or belief systems. The
community that enforces such belief systems in legal form arguably
disrupts its
own peace."[66]
Given the lack of enforcement of the law in this matter and the
"proper" place for decisions regarding abortion being in
the
ethical arena, it is appropriate to turn to an examination of the moral
and ethical considerations that will affect prenatal
management options.
3. PART 3 3.1
BIOETHICAL AND PHILOSOPHICAL CONSIDERATIONS
3.1.1 The Status Of The Post-Implantation Embryo/Foetus
The discussion in Part 2 on the legal status of the embryo/foetus revolved primarily
around the "foetal rights" debate,
particularly in the context of
abortion. Consideration of the status
of the embryo/foetus, however, goes beyond the issue of "rights"
and involves a number of ethical as well as legal considerations that
interact against a backdrop of evolving technologies and social
values. "One critical set of
values undergoing re-evaluation centers on the relationship between the
mother and the foetus."[67]
This has largely been due to rapid
advances in foetal medicine that allow the foetus to be seen, operated on
and even "created".
These advances are altering the societal
and scientific understanding and perception of the foetus. The emergent trend has increasingly
been to consider
the foetus as an individual separate from its mother. It is important therefore to evaluate the current status,
both bioethically and philosophically.
This part will begin with an outline of some of the broader philosophical approaches
to the conceptual treatment of the embryo/foetus.
These approaches range from the recognition and treatment of
post-conception ova as being "fully human,"[68] deserving
of the
same moral standing as a "life in being", to that of the unborn
being "subhuman"[69] with no moral status.
The bioethical principles outlined in Part 1
will then be considered in determining the most appropriate model. It will be argued
that an intermediate
approach is the most realistic model for bioethical decision-making, given
current medical knowledge and contemporary
social values.
As alluded to above, the interests of the foetus are inextricably linked to
those of the mother. Where these
interests conflict,
it is necessary to consider the ethical implications
of balancing the interests of the two parties. It is therefore useful to consider
the maternal/foetal relationship
from a philosophical viewpoint in order to establish a bioethical
framework for making such decisions.
The resultant model will necessarily rely heavily on the
conclusions reached regarding the moral standing of the foetus.
3.2 PHILOSOPHICAL MODELS OF THE STATUS OF THE FOETUS
3.2.1 The "Conservative"/"Fully Human" Approach
Considered to be the most extreme "anti-abortion" or
"pro-life" position, this
view holds that once fertilised,
a human ovum has the same moral standing
as any other human being. In the course
of the ethical debate surrounding embryonic and
foetal standing, the
"fully human" view has received its earliest support from
religious traditions.[70] However, although
significant in their own
right, and for the impact they have had on the development of contemporary
moral and ethical stances, religious
arguments will, for the present
purposes, be excluded from discussion.
The conservative approach is supported by two arguments: scientific/genetic
and social.[71] The scientific/genetic argument relies
on the fact that
the foetus is indisputably genetically human.
From the moment of conception, all genetic information is present
and all the physical characteristics for life are contained in that newly
developed code - no new genetic information is added during
the life of that individual.[72]
Thus fertilisation is said to mark the spatiotemporal beginning of a new
human being.[73] Hence,
"[a]n argument that the foetus is not human
life biologically does not hold water.
The chromosome count is correct, and a sufficient
number of other
criteria for both "life" and "human" are met to leave
no doubt as to this."[74] This approach
does not accept the
distinction between a newly formed embryo and a viable foetus. Unlike the
legal trend[75] of attaching ever
greater significance to the foetus as it
approaches viability, proponents of the conservative view argue that it is
a mistake to
confuse independence with separateness. Despite its
dependence on the mother, a non-viable foetus is still a separate entity,
with
its own genetic code and, Steinbock argues, its own moral worth.[76]
Whilst the scientific argument emphasises the significance of
the fact
that an embryo/foetus is genetically human, the second of the supporting
arguments for the conservative view attaches moral
weight to this humanity
from the time of conception. This
social perspective is founded on a number of considerations, the notion
of potentiality
being an important component. It is
this "potentiality" argument that will be addressed here.
It is
said that since the embryo/foetus is potentially, just like us, so we
cannot deny it any rights or other forms of protection that
we accord ourselves.[77]
The fact that a fertilised ovum is not yet "just like us", it is
said, is simply a temporal constraint
and it would therefore be morally
wrong to kill or otherwise prevent it reaching its potential. In its strongest form, this view
maintains that a potential human subject should be accorded the moral
standing of an actual human subject.[78] The standard objection
to the
potentiality argument is that it involves a logical mistake: that of
equating a "potential person" to an "actual
person"
and, on this basis, ascribing to the former the same rights as the latter. The logical position is that a potential
bearer of the characteristics to which the rights attach, should only
potentially bear those rights.
It is submitted that the defence offered by Steinbock,[79] that the argument
makes only a normative proposal (that potential persons
ought to have the
same rights as actual persons) does not wholly overcome this logical
objection. In the absence of a strong
moral
reason for this normative approach, the potentiality argument
remains flawed. Further, it has
been suggested that an early embryo
has no greater difference in potential
than that possessed by a sperm and egg when separate, but considered
jointly.[80] From a statistical
viewpoint, three ova placed in a test tube
containing sperm, but which have yet to be fertilised, have a greater
potential to produce
human life than one early embryo in a test tube.[81]
Taken to its logical conclusion, the "potential argument" would accord
greater moral worth to sperm and a number of unfertilised ova than to a
smaller number of early embryos.[82]
Given the criticisms outlined above, it is contended that the "potentiality"
argument provides strongest support, not for
the conservative view, but
for the more moderate stances which fall between the two extremes. On this basis, as the embryo develops
into a
foetus and increasingly acquires the characteristics of a person, so its
moral worth and incumbent rights attach. The continuity
of human life is
another argument raised in support of the conservative view (and may be
offered as a moral basis for the normative
ascription of rights to
fertilised ova under the potentiality approach). It is said that human life is an uninterrupted flow, with
new individual life appearing at conception.
The life at that point is argued to be every bit as human as its
parents, otherwise
human life would have a discontinuous break between
conception and birth.[83] The social voice of the conservative view,
reflecting
the continuum of life approach, is apparent in the following
declaration of Dr A. Liley, the so-called "father of modern
foetology":
"Not all of us will live to be old, but we were each once a foetus ... surely
if any of us counts for anything now, we counted
for something before we
were born."[84]
However, the mere fact that there is no genetic or physical discontinuity does
not seem to support the necessary conclusion that
there is no moral change
in the status accorded to the embryo and foetus. Further, this same continuity argument has also been used
to
detract from the view that conception marks the beginning of human life
and the attraction of moral worth.
An evolutionist may
view the beginning of human life as the accumulation
of chemicals which first produced life forms, a Theologian may ascribe its
beginning
to God, whilst the psychologist or philosopher could attribute
the origins of human life to the intent of a couple to procreate.[85]
Accordingly, it is argued that the only certainty in defining the
beginning of human life is the difficulty of how best to define
the
beginning. Like all life, human life is
a gradual and continuously evolving process. It begins when and where you want it to.
This depends on
your approach and perspective.[86]
Various other arguments have been levelled at this conservative approach, the
most prominent of which will be outlined in the course
of explaining the
alternative philosophical models examined below.
3.2.2 The "Personhood"/ "Subhuman" Approach
Predictably, the most strenuous objections to the "fully human"
approach are raised by proponents of the opposite view,
the so-called
"subhuman" argument.
This position is the most extreme "pro-choice" stance, expounding
the belief
that an unborn human l acks moral relevance. Under this model,
no woman should ever be forced to have a child against her will,
irrespective
of the condition or gestational age of the foetus. Joseph
Fletcher maintains that "no unwanted and unintended baby should ever
be born"[ 87].
In direct contradiction to the significance placed on genetic humanity by the
conservatives, supporters of the "personhood"
view espouse the irrelevance
of genetic make-up. These proponents,
like Mary Anne Warren,[88] argue that it is not genetic human
beings that
have any special moral status or right to life, but persons. Implicit in this view is the capacity
to become a moral
agent - to have not only moral rights, but moral
obligations to others.[89] It is the possession of certain characteristics
that
defines personhood: consciousness, self-consciousness, rationality
and language.[90] Since no foetus is self-conscious, this would
support
the treatment of the unborn as subhuman[91] - on this basis Warren
concludes it is not seriously wrong to kill a foetus or
embryo (and goes so
far as to say that abortion is "morally neutral", comparable to
having one's hair cut).[92] This latter
view of Warren's alludes to
another argument for the absence of moral worth in the embryo/foetus: that
the unborn (at least until
viability) is no more than an extension of the
mother's body.[93] Clearly, medical science would contradict such an
assertion in
that an embryo has, from the moment of conception, its own
sex and genetic blueprint. Whilst the gestational
embryo depends on the
mother's body, it remains a distinct entity
(medically speaking).
Returning to the central theme of the "personhood" theory, a primary objection
to the use of the "personhood"
criteria to ascribe moral worth is
that this approach would treat infants as well as the unborn as morally irrelevant. Since babies
do not differ significantly
from late term foetuses in terms of "person-making
characteristics"[94], and do not develop
self-consciousness within
about the first year and a half of life, infanticide in this view would
also be treated as "morally
neutral". Of course, the fact that a
conclusion is counter- intuitive does not prove the argument wrong.[95]
Indeed, Michael
Tooley argues that the objection to infanticide is not
based on rational principles, but rather on a non-rational taboo resulting
from the distressing effect to our sensibilities.[96] Given that bioethics
must operate in, and be contextually relevant to, the
communities it
serves, strong and widespread social opposition must be more persuasive
than it would be in pure philosophy.
However,
a philosophical objection to the "person view" is also
offered by Steinbock[97] who claims that Warren fails to explain
the moral
significance of the psychological and cognitive capacities that attract
the rights of "persons". In
the absence
of such explanation, the person view is seen to be as
arbitrary as the genetic-humanity criterion.[98] From the above
discussion,
it is contended that neither extreme view provides a
satisfactory approach to the determination of the ethical standing of an
embryo/foetus.
An examination and
evaluation of more moderate stances is therefore warranted.
3.2.3 The "Moderate" Views
The Interest View As we have seen, Steinbock criticises Warren's "personhood"
view on the basis that no moral significance
attaches to the stated
"personhood" criteria. In
response to this criticism, Steinbock therefore posits an alternative
theory, which states that all, and only, beings who have interests have
moral status.[99] This idea of interests hinges on the notion
of caring
about what is done to one:
"[i]t is this notion of mattering that is the key to moral status. ... Whatever reasons we may have for
preserving non-sentient
beings, these reasons do not refer to their own
interests. For without conscious awareness,
beings cannot have interests. Without
interests, they cannot have a welfare of their own."[100]
It is argued that without welfare, nothing can be done for that being's sake,
and hence, that it lacks moral standing or status.
In this way, Steinbock links the "personhood"
characteristic of sentience with that of interests and thus, moral
significance.
Steinbock is, however, mindful that the concept of interests
does not overcome an objection to the "person view", namely
that
foetuses and embryos are rendered morally irrelevant by this
reasoning. In response to this, she
calls on the concept of potentiality
to augment her interests argument.
3.2.4 Potentiality Revisited
The ability of the embryo/foetus to have interests raises both factual and conceptual
difficulties.[101] Since non-sentient creatures
are assumed incapable of
having interests, the factual concern is raised of when a conscious mental
state can be said to emerge in
human development. Precisely when foetuses
attain conscious awareness is controversial, although it is likely that
some sensations
begin to be experienced during the third trimester of
pregnancy. However, Steinbock argues
that this does not mean that earlier
life forms are morally neutral.
She says that as potential persons, embryos and foetuses have a symbolic value
that precludes using them in unnecessary experiments
or for purely commercial
activities. However, this symbolic value
is "less important than the actual interests of born human
beings in
life and health."[102] The appeal to potentiality under this view can
be seen to have both medical and ethical support.
First, it is medically evident that human development
is interconnected with physical development.[103]
Not all bodily organs and functions peculiar to humans are apparent at conception,
rather they develop gradually through the prenatal
period. Further, there
is a connection between psychological and physical development. As the central nervous system (CNS) develops
and the brain stem emerges, so too does the capacity for thought and
sentient experience. On this
basis, it may be argued that human
personhood develops along with the
human body.[104] Similarly, human personality develops over time through a
gradual process of
development.
Conception does not mark the beginning of self-identity. It is argued that one becomes a person
as personality develops
through relations with others and that prior to
this, we are only potentially or emergently human persons.[105] It seems
then that
Steinbock uses potentiality to justify the symbolic moral value
of the pre-sentient embryo/foetus.
Recognition is given to the fact
that parents and society may value
the developing child for its anticipated role in, and contribution to, its
family and society.
A foetus may
also have important symbolic value to those who see it as representing and
extending their own existence and/or relationships.
From an interest
perspective, this recognises, and gives moral weight to, the interests
that others may have in the welfare of the
unborn. A similar approach is found in the primary/secondary moral
worth theory.
3.2.5 Primary/Secondary Moral Worth
In expounding the concept of primary or secondary moral worth, Loewy[106] embraces
the notion of "interests" (as opposed
to "rights") in an examination
of foetal status. Arguing against the
"subhuman" position, Loewy
appeals to
biological evidence that satisfies both "human" and "life"
criteria to describe the embryo/foetus.
This, however,
he says is insufficient in itself to endow the
unborn with moral worth. Instead, he argues
that what we hold as having prima facie
rights against wanton destruction
are entities endowed with either primary worth (those of value now or in
the future again to themselves)
or of secondary or symbolic worth (those
of value to another in themselves or as representative of something held
to be of value).[107]
Loewy refutes the conservative argument on the basis
of potential, maintaining that a developing entity has the potential to
become
many things, which are unknowable.
Whilst the foetus undoubtedly has the potential for being of
primary moral worth (and this carries
more moral weight than does the lack
of that potential), a zygote also has the potential for being
spontaneously aborted, being malformed
or becoming a villain.[108]
Glover[109] supports this view by maintaining that under the
"potential" approach, what is
valued is not the embryo itself,
but the person it is expected to become.
Thus, whilst the potential for possible primary worth
is of some
significance, the question becomes the extent to which moral weight should
be accorded on this basis. Of more certain
and existent value at the
prenatal stage is the secondary worth of the human embryo/foetus which is
derived from its symbolic value
both to the family and to society. This latter notion provides a moral basis
for legal intervention in the area o f prenatal care.
However, the moral weight that this interest is accorded
should be balanced against other relevant interests in determining the
appropriate
role of the legal system in this respect.[110]
3.2.6 The "Social Persons" Perspective
A final "moderate view" is expressed by Engelhardt[111] who tackled
the problem of assigning moral significance to the
embryo/foetus by
developing the notion of "social persons". This phrase may be said to describe human beings
who are "treated
by society as persons even though they are not."[112]
An entity's moral standing is expressed in terms of the social sense of
its "personhood" by identifying the place of that being in a social
relationship with persons possessing full moral status.[113]
In the case
of the embryo/foetus, it may be treated as a family member and be accorded
moral standing in this respect.
Engelhardt sees considerable value in protecting anything that could reasonably
play the role person and thus strengthen the social
position of persons
generally.[114] According to this view, "social persons" have rights
but no duties, meaning that they
are not morally responsible agents, but
are accorded the respect associated with them.[115] The "moderate
views" outlined
above resemble each other in two important respects. First, they all recognise the notion of
developing moral status (with neither
a complete absence nor full
assignation of moral status accorded to the fertilised ovum). Hence, as an embryo develops, so its social
and symbolic significance is enhanced, together with its incumbent moral
standing.
Second, these views all consider the interests of others in determining the
status of the embryo/foetus. In each
case, the moral
significance attached to an entity may, to some degree, be
determined by that being's significance to other human beings possessed
of
moral standing. This second aspect
contemplates the importance of the maternal-foetal relationship as a
determinant of the "rights"
assigned to the implanted embryo.
On the basis of the ethical principles outlined in Part 1, it is contended that,
from a bioethical perspective, the "moderate
views" concerning the moral status of the
foetus are to be preferred. This is so
given the recognition those perspectives
give to the interests of others,
thereby embodying the principles of justice, respect for persons and the
notion of proportionality.
Further, these views acknowledge the biological development of an
embryo as an important consideration when assigning it moral status.
In this way, philosophical, physiological
and social perspectives are incorporated into the determination of the
bioethical standing
of the developing human. This is particularly important in light of the rate at which
genetic technology as i t applies to prenatal
care is advancing. The flexibility facilitated by a
"moderate" approach would allow new evidence and new
technological
developments to affect the communal ethos from which, after
all, such judgments emerge.[116]
3.3 THE MATERNAL/FOETAL RELATIONSHIP
Clearly the perceived status and physical well being of the foetus are inextricably
linked to those of its mother.[117] Rapid advances
in prenatal diagnosis
and therapy are joined with new reproductive-aiding technologies such as
in vitro fertilisation and more precise
genetic tests. Combined with the burgeoning knowledge of
foetal development and the causes of congenital illness, these
technologies
are altering our perception of the foetus and prevailing
values are being challenged by the new biology[118].
Overall[119] observes that the capacity to place the foetus "in full public
view" carries with it the ability to affect
our moral attitudes towards
the embryo/foetus. Genetic technologies
have enhanced our capacity to "create", observe, diagnose
and
treat the embryo/foetus as an individual entity. These technologies have the embryo/foetus as their focus and
objective,[120]
thereby encouraging the developing child to be viewed as a
patient (if secondary) in it s own right.
Medical recognition of the
embryo/foetus as an entity separate from
the mother has led to some concern about the way this will impact upon the
mother. It is
therefore imperative
in any discussion concerning the status of the foetus to consider the
impact that this perceived moral status
will have upon the interests of
the mother. The models used to explain
the maternal/foetal relationship are closely related to those
addressing
the moral and philosophical standing of the foetus.[121] In a recent
report commissioned by the Australian Medical Association
(AMA),
Seymour[122] outlines three models of the maternal/foetal
relationship. The first model views the foetus
as part of the woman's
body, a view consistent with the "subhuman/personhood" approach to the foetus outlined in the
previous section. As a
framework
for legal policy, this model is inappropriate as it is inconsistent with
current medical knowledge. As this
paper seeks
to examine the law for its consistency and ability to deal
with current medical technology, it must reject the "body part"
approach to the foetus as being biologically inaccurate. The foetus, inclusive of its supportive placenta,
is not a biological part
of the mother.
It is both physiologically and genetically a distinct organism,
having its own physiological integrity, genetic code
etc.[123] At the
opposite end of the scale, the "separate entity" model relies on
the biological distinction between mother
and child in endowing the foetus
with full moral standing. This view, in accordance with the "fully
human" approach previously
discussed, views the pregnant woman and
foetus as two beings, each having a full complement of rights (despite
both being in a single
body).[124] It has thus been noted by Seymour that
the use of the language of rights is an unavoidable consequence of the
adoption
of the separate entities model[125].The adoption of a rights
discourse with respect to the maternal/foetal relationship has been
widely
criticised, most vociferously by feminist commentators.[126] The argument
against reference to foetal "rights"
in the context of the maternal/foetal relationship is that it simultaneously
generates conflict, devalues the woman, and subjects
her to control.[127]
Further, both the "separate entities" model and the "body part"
view may be criticised as
not reflecting women's perceptions of pregnancy. Specifically, some feminist theorists argue
that male and female conceptual frameworks
differ, the former ascribing to
notions of individualism and rights, whilst the latter relies on concepts
of connection.[128] A rights
discourse, which by its nature focuses on the potentially
conflicting rights of the mother and foetus, is therefore inconsistent
with the notions of connectedness and interdependence. Bennett observes
that the foetal rights debate can easily ignore the experiences
of women
and their centrality to the issues[129].
Thus,
"[t]o underline the importance of connectedness and interdependence is to underline
the importance of w omen's perceptions of
pregnancy"[130].
It is therefore argued that both of these "extreme" views should be rejected
on the grounds that they distort and over-simplify
the complex relationship
between mother and foetus. Further,
they pay insufficient attention to the views of women.[131] A final
criticism of the "separate entities" and "body part"
models is that they fail to differentiate between the relationship
that
the foetus has with the mother, and that which it has with other members
of society.
If one were to ascribe no rights to the foetus, then it would have no moral
(or subsequent legal) claim against third parties who
inflict harm on it
prenatally.[132] Since third parties have no compelling interest to morally
justify the infliction of "harm"
to the foetus (such as the threat to
their bodily integrity), it is submitted that such a distinction is ethically
indicated. Similarly,
ascription of
full rights to the foetus would not distinguish any act of the mother's
resulting in harm to the foetus from acts of
third parties,
notwithstanding her unique interests in respect of the pregnancy. It is submitted that the principles of
justice
and autonomy require that the mother be permitted to exercise far
greater control with respect to determining foetal welfare, given
her
necessary and compelling interest in the pregnancy.
Given the very geography of pregnancy, questions as to the status [and welfare]
of the foetus must follow, not precede, an examination
of the rights of
the woman within whose body and life the foetus exists.[133] Flowing from
the criticism of the above two models,
we see the basis for the third
model, described by Seymour as the "indivisibly linked" view. The key feature of this
model is
that it centres on the shared needs and interdependence of the mother and
foetus. "Connectedness, mutuality
and reciprocity"
therefore constitute the crucial tenets of the
model.[134] Seymour cites Ruddick and Wilcox's description of this model: Mother-and-child
is a complex, both bodily and morally:
just as we cannot easily say whether pregnancy involves two bodies
or only one (in a special
expanding state), just so we cannot easily say
whether pregnancy involves two sets of overlapping interests or only one
set (in a
special expanding state).
If we allow that there are two sets, then we must recognise that they
are mutually dependent to an unusual
degree.[135] The "indivisibly linked"
model is consistent with the "moderate" views of the status of the embryo/foetus
in that it allows for the recognition of the interests or needs of the
foetus, without these being absolute.
It also enables a flexible
approach to be adopted with respect to
the differing relationship the foetus has with its mother, as compared to
that which it has
with the rest of society. Shifting the focus away from rights and onto interests allows
a middle ground to be adopted, where the
connectedness of the mother to
the infant is recognised by the moral weight given to their respective
interests. The moral weight
of foetal
interests will differ when viewed in the context of parties other than the
mother. Such an approach is
consistent with
the principle of justice, particularly the principle of
vertical equity, which imposes an obligation to "treat unequals
unequally
in proportion to the morally relevant inequalities."[136]
It may be seen that a mother's special connection to her foetus, and
the
direct emotional and bodily impact which it has on her, constitute morally
relevant considerations. These
considerations justify
a moral and legal distinction to be drawn between
the maternal/foetal relationship and the relationship which a foetus has
with the
rest of society.
It is therefore submitted that, as a basis for legal policy, the "indivisibly
linked" model is the most appropriate, being
a more refined conceptual
and analytical tool than the two more extreme models. This moderate model allows for a legal policy reflective
of
the philosophical and bioethical principles concerning pregnancy and, in
addition, enables greater flexibility in coping with
the challenges that
advancing genetic technology will create concerning our values and
perceptions[137] in respect of the foetus
and its mother. Importantly, it transcends the contractarian
policy models which focus on rights and duties and which have been
criticised by feminist theorists as being particularly inappropriate in
respect of reproductive issues.[138]
4. PART 4 4.1 LAW
& LEGAL POLICY
It was concluded in the previous part that legal policy should reflect the more
moderate views concerning the embryo/foetus (both
in terms of its intrinsic
moral standing, and of its relationship with the mother). It now becomes necessary to examine the
law
in light of current medical technology to determine the adequacy with
which it deals with the issues raised by this technology, and
to analyse
its underlying policy for consistency with the bioethical models
suggested.
4.2 CURRENT TECHNOLOGY
Foetal medicine has been characterised by rapid development in recent years,
with a tendency to apply rapidly new technology and
to put the most recent
laboratory and diagnostic methods into medical practice.[139] In order to
appreciate the impact the HGP will
have upon prenatal diagnosis, one
should begin with a basic review of the current and prospective technologies
in this area.[140]
4.2.1 Noninvasive Screening Tests
The earliest and most traditional methods of prenatal diagnosis involved noninvasive
measures such as palpation and auscultation.
However, developments in radiology and the advent of ultrasound
technologies and particularly realtime sonography have greatly increased
our ability to detect foetal malformation, growth retardation and multiple
births noninvasively.[141] Radiography enables the foetus
to be studied
directly to detect any skeletal abnormalities, with amniography and
foetography enabling the detection of soft tissue
abnormalities.[142]
These methods however are only of proven value in later pregnancy, which
limits the management options resulting
from such diagnosis. Ultrasound facilitates the location of
the foetus and placenta and the detection of gross structural
abnormalities
in the foetus.[143] This process appears, after 25 years of
diagnostic use, to be safe and has enjoyed increasing popularity among
pregnant women, including those in low risk categories for foetal
abnormalities.[144] The diagnostic value of this procedure has
been in
rapid karyotyping, where amniocentesis is undertaken after suggestive
ultrasound findings. Thus ultrasound
may suggest the
possibility of genetic defects and indicate the use of
more invasive diagnostic measures to confirm this.
4.2.2 Isolation of Foetal Cells from Maternal Circulation
With the advent of PCR, this particular non-invasive prenatal testing technique
has significant diagnostic potential.
PCR technology
enables the generation of large amounts of genetic
material from initially minute quantities. It therefore has the potential to
increase the range and accuracy
of diagnoses made from isolated foetal cells.
The diagnostic potential of this method of testing
justifies the separate
consideration of it.
The test involves the isolation from maternal blood of foetal cells such as
trophoblasts which may cross the placenta into the mother's
circulation. Because all invasive procedures carry a
small but appreciable risk, this technique would be favoured. However, until
recently, foetal cells
could not be sufficiently isolated to be of use. Although recent
techniques have improved the accuracy of
the procedure, the specificity
and sensitivity of this new test need to be established before it can be
decided whether it provides
a truly diagnostic or screening test. Should the technique be approved however,
current results indicate that it could be applied
during the first
trimester.[145] Timing is significant because the earlier the diagnosis,
the broader the spectrum of management
options.[146] The least invasive
techniques are bioethically favoured as they involve the least
interference with the mother's bodily
integrity and the least risk to both
mother and foetus. It may therefore be
seen that as genetic technology improves to allow increasingly
accurate procedures,
so the number of prenatal care options requiring less interference with,
or risk to, the mother increases.
4.2.3 Invasive Techniques
It has been characteristic of the field of prenatal diagnosis that many alternative
techniques ... have been developed over the years
that offer a more
adequate selection, taking gestational age, speed and other factors into
account. This is beneficial, but the
safety of every new procedure has to be evaluated against the background
of the more established techniques.[147] The concerns about
safety are
particularly acute when considering invasive diagnostic procedures, which
include foetoscopy, amniocentesis and chorionic
villus sampling
(CVS).Foetoscopy is a method which may prove useful in the antenatal
diagnosis of congenital malformations.
It utilises
fibre optics to allow visualisation of the foetus;
however, the significant risks it involves indic ate that its use should
be limited
to high risk pregnant women who have already produced a baby
with severe congenital defects.[148] In terms of genetic testing, the
most
widely used invasive diagnostic procedure is that of amniocentesis. The
foetus is enveloped in a membranous sac called the
amnion which is filled
with amniotic fluid. This fluid,
similar in content to extracellular fluid, contains excreted foetal
enzymes,
amino acids and, importantly, foetal cells derived primarily from
the skin and amnion.[149] Using ultrasound guidance, amniotic fluid
can be
extracted easily after 14 weeks of pregnancy.[150] The advantages of the
procedure include its accessibility to patients in
many regions of the
world (because amniotic fluid can be mailed to specialised laboratories)
and a relatively low risk rate of foetal
loss (estimated to be 1% or less)
or maternal cell contamination.
The procedure was also found to potentially encourage women in
high
risk categories to have another pregnancy[151] by offering greater
pregnancy management options , and hence greater reproductive
choice, to
these women.
The major disadvantages of amniocentesis include the need to produce amniotic
fluid cell cultures and, importantly, the late results
in second trimester
pregnancy, when most centres would no longer terminate the pregnancy.[152]
Induced abortion at this late stage
involves not only considerable medical
risks, but also a severe emotional impact on the mother (particularly
after the experience
of quickening).[153] In response to the risks
associated with amniocentesis, the alternative invasive procedure of CVS
was introduced.
Given that this
procedure involves sampling from the larger chorionic cavity, CVS allows
for first trimester testing.
Although recent
trials have indicated that the number of repeat procedures
required was significantly higher, and that mosaicism is observed more
frequently in CVS,[154] the procedure does have distinct advantages. The significant factors in CVS's favour
include earlier and
more rapid diagnosis, more privacy in reproductive
decision making and earlier reassurance (or an earlier abortion if that is
indicated).[155]
The HGP's Impact on Prenatal Diagnosis It may be seen from the preceding discussion
that the confrontation of foetal maldevelopments
by parents and physicians
is not new, but because of the better technology, it is more frequent and
more precise.[156] The gene mapping
component of the HGP is the first step
in developing DNA probes that can be used in prenatal diagnosis. The project offers the possibility
that the
mapping and sequencing of disease genes will accelerate and that
diagnostic procedures will become ever cheaper, quicker
and more
sensitive. As a consequence, it
may become feasible to extend testing from high risk pregnancies to the population
at large,
and to offer prenatal testing for a whole spectrum of conditions.[157]
As the HGP assists the earlier, more comprehensive and more
accurate
diagnosis of genetic diseases, it helps to increase the available
management options, including that of pregnancy termination.
However, it
also involves technologies and raises issues that have not (or may not
have) been contemplated by the law. It
is therefore
incumbent on legislators and policy-makers to consider the
implications of the HGP not only for medical practice, but for the
regulation
thereof.
Molecular genetic techniques are widely used to analyse DNA in prenatal diagnosis,
allowing early diagnosis from undifferentiated
tissues (such as trophoblasts
which may become available via foetal cell isolation from maternal
blood). As the project continues,
an
ever-increasing number of conditions may be tested for in this way,
thereby replacing considerably more invasive techniques (for
example,
foetoscopy and foetal liver or muscle biopsy by CVS).[158] Further,
technical advances such as PCR have made possible the
earliest form of
prenatal genetic testing, namely, pre-implantation diagnosis from a trophoblast
before embryo transplant. This
technique is available where in vitro
fertilisation (IVF) is undertaken and may represent a significantly
beneficial option for those
requiring IVF and for those opposed to
terminations of pregnancy (even in the first trimester) but who would
undergo assisted reproduction.[159]
Various professional, political, and
policy stances can influence the degree to which the introduction of more
genetic markers [and
technologies] into normal prenatal care is accepted,
or indeed, encouraged. The
question is, then, Will such [technologies] actually
improve the quality
of prenatal care, and at what cost?[160] This paper aims to address a
number of the issues arising from the information
and technologies
emerging from the HGP from a bioethical and legal viewpoint. This is done
to highlight policy considerations that
should underpin the legal review
made necessary by the HGP and advances in genetic technology generally.
4.3 PRENATAL GENETIC TESTING:- Ethics and Policy
In the course of foetal prenatal diagnosis, cells from a foetus are screened
as early as possible in pregnancy and, if found to carry
a deleterious
gene, parents are often given the option to terminate. Dianne Nicol[161] points out that the
"application of
such procedures will inevitably feed into the ongoing
debate over the ethics of abortion". Many objections have been raised
against the practice of prenatal genetic testing, a number of which are
addressed below. The Hippocratic Oath,
as one of the earliest
records of the value placed on potential human
life, included a pledge given by doctors not to give a woman the means to procure
an abortion. It has been argued that
this "sanctity of (potential) life" approach forms "the
nucleus of all medical
ethics"[162] and on this basis, is put forward
as a reason to prohibit abortion today. There are, however, convincing
reasons
why this approach should no longer be adhered to. Moral and ethical standards are necessarily
a reflection of societal standards
and conditions. The fact that it appears that the status
of the foetus was placed so highly as to subordinate the autonomy and self
determination of the mother some 400 years before the birth of Christ in
ancient Greece, does not make a convincing case for the
same status to be
accorded to the foetus in a modern day context. Rather, the interests of the mother must play a vital role,
thereby
reflecting the status of women in present day society.
Now these women, the daughters of Eve, scarcely had any rights until the 20th
century. The emancipation of women and
the rise of
feminism gave primacy to the woman's choice...It has now
become legal and ethical to terminate pregnancies, often under conditions
that are very loosely defined.[163] However, it is important at this stage
of the discussion that recognition be given to the fundamental
distinction
between the ethics of pregnancy termination following prenatal diagnosis
and those of abortion for unrelated reasons.
This distinction rests largely on the fact that
"[m]ost pregnancies that proceed as far as prenatal diagnosis are wanted, even
if not originally planned or intended, by the
time the procedure is performed. Abortion of a wanted pregnancy differs in a
psychological and ... moral quality from abortion of
an unwanted
pregnancy."[164]
Further, "[u]nlike pregnancies aborted for "social" reasons, the
abortion for genetic indications generally occurs
later in the pregnancy,
often after recognition of foetal movement, and requires a physically more demanding
procedure."[165]
Thus it is submitted that the moral and ethical dilemmas
raised by the topic o f pregnancy termination should be viewed in the
context
of the special considerations involved in prenatal diagnosis. The
following discussion will therefore examine the ethics relevant
to, and
arguments concerning, antenatal genetic testing itself. It will also explore inevitable moral
and ethical conundrums involved
in abortion on genetic grounds.
4.3.1 Arguments Against Prenatal Testing
Of interest is the observation that the choices made based on prenatal diagnosis
are not so much new in character as they are in
timing. Wertz and Fletcher[166] point out that
historically, parents have always made choices (often negative) about
non-heal thy
children. For centuries, disabled
newborns were exposed or left to die, the Catholic Church having made no
effort to eradicate this
custom.
However, the advent of modern medicine, legal and hospital
regulations and perinatologists'[167] quest to save life has
precluded
such practices. This is so even where
the extent of medical technology available cannot cure, or even
effectively alleviate,
the infant's ailment. Hence it is observed that
"[f]or most parents, choices are now limited to the preconceptional or prebirth
period. Having foreclosed choices that
once
existed postnatally, medicine now offers new choices
prenatally."[168]
Prenatal diagnosis is now one of the most frequently used procedures in prenatal
care[169] and, as it becomes more common and more
effective, the significant
ethical dimensions involved need to be addressed. The detection of any defect, particularly of genetic
origin,
is of considerable consequence for the affected individual. However, it should be recognised that
it may also be equally
consequential for society and for all who deal with
that person (particularly family) throughout life.[170] Ethical debate
surrounding
prenatal diagnosis, has seen a number of criticisms levelled
at the practice, the earliest opposition arising from religious
traditions.
However, as has previously
been explained, religious objections will, for the present purposes, be excluded
from discussion. Of
the more contemporary
arguments against prenatal diagnosis, some significant objections of the
previously "hidden voices"
of the feminist and disabled
communities will be addressed. Firstly however, two fairly common
philosophical arguments against genetic
testing will be evaluated.
4.3.2 Aborting Beethoven
The first and most common philosophical objection is raised by the possibility
of denying the birth of potential genius on the basis
of a genetic
defect. The hypothetical is put that a
pregnant woman is tested and found to be carrying a foetus inflicted with
inherited
syphilis who will, in all probability, develop an associated
meningeal deafness. On the basis
of this diagnosis, the question of
whether to recommend an abortion to the
mother is put and, if answered in the affirmative, the response given is
that "You have
just aborted Ludwig Van Beethoven."[171] With
respect to this argument, Harris[172] points out that aborting Beethoven
can only
seem a good thing to do if we, or the world, or his family, or
perhaps even Beethoven himself would have been better off without
him. And since this seems an unlikely
possibility we seem to be forced to the conclusion that Beethoven should
not have been aborted
and so neither should other foetuses in related
circumstances.
Whilst superficially appealing, the argument falls down on a number of bases. One proponent of the approach, George
Steiner used
it to argue that "what in many cases is a hideous
disease, a handicap can also be profoundly creative. Without the kind of
[meningeal] deafness
which comes from inherited syphilis ... you and I would be sitting here
without Ludwig Van Beethoven."[173]
Most striking about Steiner's
reasoning is that he fails to account for the effect of
"nurture", as opposed to "nature".
It may certainly be argued that despite
disability, or perhaps even because of the upbringing arising out of their
handicaps, people
have not been precluded from leading creative and
productive lives. This is however fundamentally
different from asserting that
it is the same genetic defect giving rise to
a disability that also determines a person's creativity or genius. It certainly cannot
be asserted that all
genius is solely or even principally drawn from that part of the community
suffering from genetic disorders.
Further, a decision to abort a foetus is
not necessarily consistent with a view that the world would be better off
without that individual.
As
outlined in the previous part, an argument from potentiality can be made
in favour of a foetus,[174] but this potential refers
only to the
potential for human life. Nothing more
can be assumed from this stance.
In all cases what we are aborting is an actual foetus and the rights or wrongs
of that are determined by a consideration of the moral
status of the
foetus. The foetus we abort will never
become anything, and it is nothing but a foetus at the time it is
aborted.
It is as senseless to bemoan
its loss as the loss of a Beethoven as it is to celebrate its loss as the
pre-emption of a Hitler.[175]
Another ground upon which the argument
falters is that of selfish biases. The
argument seems to assume that because artistic culture
or society as a
whole is better off with these individuals' contributions, we are morally
justified in requiring their birth.
Here,
the principles of nonmaleficence/beneficence, autonomy and
the theory of common good come into play.
Whilst social interests may
certainly be taken into account,
proportionality dictates that the good to society must be so convincing
that it outweighs the risk
of harm to individuals directly involved. Where the parents are inclined towards abortion
base d on considerations not only of the
potential child's quality of
life, but also upon their own,[176] the ethical weight of potential
benefit to society would be scant
in light of the uncertainty of the
child's ability to contribute, let alone the value of any contribution. This final point raises
the last glaring
weakness of the "Beethoven"
approach: that it neglects to distinguish between the types and
severity
of genetic disorders. Quality
of life considerations are unavoidably tied to decisions made on the basis
of information regarding
these sorts of disorders. Certainly, deafness may not warrant abortion and
in fact clinical studies indicate a marked disinclination
to abort for such
mild abnormalities.[177] However, where diagnoses reveal severe disorders,
particularly mental ones, the potential
for valuable societal contribution
(or even interaction) is substantially lessened. Thus, at least to the extent that it applies
to severe
genetic defects, prenatal diagnosis should not be excluded on the basis of
this argument.
4.3.3 Advantageous Disadvantages
This philosophical argument is closely related to the preceding one. Germaine
Greer offered the opinion that there may be a positive
side to pain and
suffering which would justify our declining to eradicate it when given the
chance. Her argument follows that if
a
trait is totally maladaptive, then it would not survive. Thus, if a trait has survived, there
must be a positive reason for it
which we have just never found. Greer
believes that humankind should have the advantage of the disadvantages of
particular people.[178]
Even assuming that this reasoning holds true, at
what cost should we wait to discover the benefits society might reap from
genetic
disorders? Again, the principle
of nonmaleficence seems to contra-indicate this approach in the face of
severely debilitating, painful
and incurable disorders. Like the previous argument, this
approach also fails to differentiate between the various types of genetic
defects. Further, Greer seems to base
her reasoning on the evolutionary theory of natural selection. On this foundation she rests
her
assumption that the continued existence of a genetic trait indicates its
(at least partially) positive nature.
However, evolution
of a species, particularly more advanced species
such as humans, takes place not over decades, but over huge periods of
time. Even
a completely maladaptive
trait would takes hundreds of years to disappear from the human genetic
pool. Even accepting that there
may,
from an evolutionary viewpoint, be positive aspects to a trait, this does
not always translate into a positive aspect for the
particular species
involved. Nature has in-built
mechanisms to limit the numeracy and longevity of a species. It may be that very
severe deformities
are an expression of this restriction since, certainly in the absence of
modern medicine, most of the inflicted
individuals would die. From a purely evolutionary stance, this is
in fact a positive aspect since it prevents the over population
of an
environment. Abortion then does not alter this particular
"positive" aspect; rather, it achieves the same result
whilst
preventing the unnecessary suffering of the child and its family. The principle of nonmaleficence would
strongly sup port
this option in the case of terminal conditions being
prenatally diagnosed. Harris[179] opines that, before adopting Greer's
stance,
one would need to be very confident firstly that there is indeed a
positive side to the specific disorder in question, secondly that
such a
positive side is sufficiently important to justify the human suffering
required to preserve it, and finally that such positive
effects could not
be, or are unlikely to be, achievable by other means.
In the absence of such confidence I hope that no sane, let alone moral, being
would think it worth preserving disability and disease
on the off-chance
that some good might come of it at some unspecified and unpredictable
point in the future.[180] The Eugenic Fear
(Some perspectives from
Feminist and Disabled Theorists) It has been argued that current
bioethical constructs fail to take into
account the views and opinions of
those groups of society who are most directly associated with prenatal
diagnosis and decisions
regarding pregnancy termination on the basis of
genetic abnormality: women and the disabled community. It is said that
"[i]n sum, it appears that ethical and theological, as well as economic arguments
have been treated as legitimate and important
contributions to the debate,
and the views of certain participants ...
have been taken seriously, but that critiques based on feminist
perspectives have been treated as marginal."[181]
Similarly, Newell[182] argues that scientific and ethical discourse has yet
to recognise adequately the social construction of disability.
Newell further postulates that prenatal
diagnosis and pregnancy termination is inherently a technology of
oppression and control
which serves to devalue the lives of those
identified as having disabilities.[183] This latter argument is strikingly
similar to
those espoused by many feminist critics of genetic testing, who
argue that these technologies serve to increase the scope of control
exercised over pregnant women's lives and bodies.[184] In essence, the
major (but certainly not the only) criticism commonly levelled
by these
groups at the practice of prenatal diagnosis and genetic manipulation is
that its effect is eugenic. Kaplan[185]
cites
as the most frequently given reason for antenatal testing, that of preventing
or ameliorating medical or disabling conditions that
are genetically
based. Feminist criticism has included
the objection that this perceived diagnostic goal contradicts policies for
the empowerment of people with disabilities with the selective abortion of
foetuses with disabilities. These
theorists warn that
social constructs that influence people's choices
(such as to eliminate those with lives "not worth living") may
constitute
a eugenic programme.[186] In answer to those who opine that a
eugenics programme reminiscent of the Nazi era would not occur in this
day
and age, the example of China is offered.
In December 1993, the Chinese government announced a programme of
abortions, forced
sterilisation and marriage bans to "avoid new
births of inferior quality and heighten the standards" of the
country.[187]
Feminists have further argued that women may be placed under
social pressure to have prenatal diagnosis in a technologic culture
in
which it is felt to be an "imperative" to undergo prenatal
testing, simply because it exists[188] (this is particularly
so as testing
develops and becomes more routinely used in prenatal care). Moreover, it is argued that given the social construct
of disability and the economic burdens that our institutional structure
allows to fall on the carer of a disabled child, many women
may find the
choice of raising a handicapped child so unattractive that it appears
tantamount to there being no choice at all regarding
abortion. Since
these individual "choices" have social consequences, they are therefore
said to be eugenic.[189] Additionally,
the disabled sector has argued that
although the majority approach in bioethical and scientific literature
accepts disability as
a given, based on dominant socially constructed information. It is upon this basis that a decision may be made
to abort.[190] These
theorists argue that the better approach is to treat
disability as a social construct[191] and to seek management options which
reflect
this view. The underlying concern from the disabled perspective is
the belief that, implicit in the practice of abortion based on
genetic
characteristics, is the message that it is better not to exist than to
have a disability.[192] Whilst something may be said
for the social policy
points raised in this context, an examination of genetic testing as a
prenatal care procedure does not support
the view that it is eugenic in
effect. Of all abortions performed in
Australia, only an estimated 1% occur after prenatal diagnosis.[193]
Further,
in 95% of pregnancies at increased risk for foetal abnormalities, testing
offers reassurance of foetal health.[194] An additional
observation has
been made that an intention to pursue testing does not necessarily
correlate with an intention to terminate in the
event of an
abnormality.[195] It may therefore be seen that these datainvalidate the
notion of prenatal diagnosis as a "seek
and destroy mission" and
support the [position] that such testing provides information to patients
... which they view as profoundly
valuable and which they very much want
to have.[196] It appears, therefore, that the bioethical notions of
autonomy and veracity would strongly
support the practice of antenatal
testing. Moving away from responses to eugenic concerns on an empirical
basis, trends in genetic
counselling a lso strongly contra-indicate
prenatal diagnosis being used as a eugenic practice. As the HGP reveals more information
about
our genetic code, and as the availability and precision of testing for various disorders
increases, genetic counselling has
been t he focus of increasing attention. Addressing this issue, the Council for
Science and Society have said that it must be made
clear that the aim of
testing is not a eugenic one, but rather to enhance the range of choice
and quality of life for individuals
and families.[197] Most, if not all,
genetic counselling strives to be non-directive, helping individuals
understand their options
and the present state of medical technology so
that they can make informed decisions regarding pregnancy management.[198]
The current
approach is reflected by the following discourse on genetic
counselling:
"Patients should be told of the advantages and disadvantages and the various
options. ... Termination of pregnancy is one possible
outcome and must be
discussed, but it should not be made a condition of having a test ... and
neither should women be pressurised
into having a termination if the
foetus is found to be affected. The
delivery and birth of an affected child after prenatal testing
is not a
failure at all; indeed it is a triumph, because here is a child that is,
after all, wanted despite its abnormality."[199]
According to this view, prenatal testing is designed to facilitate informed
reproductive decision making and to offer the widest
possible scope of
management options to patients. A more
rational approach to making difficult choices is possible, with the
opportunity
to adequately prepare and to provide appropriate medical
measures where an affected foetus is kept. Wertz and Fletcher[200] opine
that not only the non-directiveness,
but also the individual family focus of contemporary genetic coun selling
p laces the practice
outside the definition of eugenics. It has been
argued that there is no other field of medicine in which the need for
accuracy is
so high, because the consequences of a test may result in
pregnancy termination."[201] Where results are ambiguous, decision
making becomes even more difficult. The
question of "what is too high a risk to take" is a very personal
one, based on
social, family, emotional and moral considerations.[202] In
terms of bioethics, there may, in such situations be s ome beneficence
based obligations to the foetus, but those to the mother and to family, as
well as the autonomy based obligations to the mother,
could be stronger
and they might well favour termination of pregnancy.[203] Thus it seems
that, at the level of actual decision-making,
the choice to abort
following abnormal diagnostic results is based on factors other than those
intended to improve the gene pool,
hence taking the practice outside the
meaning of eugenics. Finally, it has
been said that to argu e for the inevitability of eugenic
regimes of allowing
the discovery and use of genetic information, is to rely too heavily on
the slippery slope argument.[204] Holtug
argues that both logical and
empirical arguments fail to support the slippery slope vi ew that eugenic
abuses will necessarily occur
from the application of genetic technologies.[205]
However, in rejecting the slippery slope argument, Holtug is careful to
note that
this should not suggest a carte blanche approach towards gene
therapy (or, it is submitted, towards genetic testing).
There are dangers lurking if we are not careful. In order to avoid such dangers, it is necessary to decide on
reasonable moral limits
for the kind of society we want.[206] It is this
last point concerning moral limits for society upon which Hughes[207]
centres his
response to the eugenic fear. He argues that nothing a
democratic society does to forbid itself of genetic technology will have
any impact on future or contemporary fascist regimes. Rather,
"... the way to stop fascist uses of genetics is to prevent the rise of fascism,
not to restrict the emergence of genetic technology."[208]
It is contended that this view seems correct.
It is not the genetic technology that is inherently objectionable,
from a eugenic
point of view, but rather its application for the purposes
of eugenic practices. These practices
may be carried out in the absence
of genetic technology, and it is the
social constructs which enable this to occur that must be addressed. Applications of genetic
technology may
include the positive elements of increasing the range of obstetric and
perinatal options for women and families faced
with the issue of genetic
disease. Respect for maternal
autonomy and the obligation to avoid harm strongly support these applications
of the emerging biotechnology and provide a rationale for continued
research such as that conducted by the HGP.
Educative responses
and regulatory policies should be concerned
with eliminating eugenic practi ces and it is in this process that the
previously "hidden
voices" of feminist theorists and minority
views (including those of the disabled community) should be heard.
4.3.4 The Ethics of Economic Considerations
Closely linked to the issue of eugenics is the concern over placing either too
much or too little importance on the economic aspects
of prenatal diagnosis
and abortion. On the one hand, it has
been argued that there is a social interest in limiting avoid able health
care expenses.[209] Ethically, arguments from this perspective find support
in the utilitarian principle of seeking a result that
will yield the
greatest good or welfare for the greatest number of people.[210] Figures
used to support this include the observation
that the costs involved in
diagnosing one handicapped foetus are estimated to be less than one
twelfth of the cost of maintaining
a resulting disabled child in a public
institution for ten years,[211] and that the Australian community spends
$2.5 billion each
year on caring for people with genetic diseases.[212] However,
these figures do not take important intangible costs and benefits
into account.[213]
Arguments have been made that in the interests of benefiting society, or
avoiding harm to others, affected foetuses
should be aborted. On the
other hand, strong criticism of this approach may be made by the argument
that the harm, or risk of harm,
involved in some interventions may be of
such a nature that those interventions may be absolutely unacceptable no
matter how much
benefit they promise.[214] The better approach seems to
fall somewhere in between these two extremes.
Economic evaluation claims
neutrality with respect to ethical
issues.[215] Other ethical and moral considerations must be taken into
account and value attached
to economic factors based on the personal
belief structure of the patient.
This approach should place significant emphasis on respect
for autonomy
and self determination. From an
institutional, as opposed to a patient point of view, economic
considerations should
only be determinative in the unlikely event that all
other ethical criteria are equally balanced. Bioethics recognise the
importance
of the common good approach, but a doctor's duty lies first
with the individual patient. As such,
the economic societal interest
should be subsumed to the patient's interests,
all other things being equal.
Having examined the ethical aspects of prenatal testing, it is submitted that
the law in respect of embryo biopsy in WA, and of pregnancy
termination in
Australia, is inadequate to deal with the issues raised by current and
emergent genetic technologies. This is
particularly
so with respect to the inconsistency between the law in the
books and the law as it is practiced concerning abortion. Current laws
prohibiting abortion reflect
a policy that is inconsistent with the law as it is applied. The body of case law concerning
abortion
has developed in a piecemeal fashion, yielding judgments that
seem increasingly willing to extend the scope of the law beyond its
intended
boundaries. Such inconsistencies in the
law and its application are unacceptable frm a policy point of view. It
was concluded
by Seymour in his report to the AMA that
"[t]here is no place for legal intervention designed to impose controls on the
behaviour of a pregnant woman when this behaviour
is potentially harmful
to the foetus. ... At best, the invocation of the law is ineffective and
at worst counter-productive."[216]
Whilst bioethical principles indicate that it is morally incumbent on a woman
to consider the interests of the foetus in making choices
concerning prenatal
care, this is very different from imposing a legal restriction upon her
reproductive choices or from enforcing
legally sanctioned interference
with her bodily integrity. It is
submitted that the law as it stands does not adequately reflect
the
importance of maternal autonomy, nor does it recognise the unique
relationship between mother and foetus (in contrast to the
morally
different relationship between the foetus and the rest of society). It is therefore submitted that legislative
reform is
essential in this area, so as to accord adequate recognition to
the interests of women in making reproductive choices, and to achieve
consistency
between the letter of the law and its application. It is suggested that bioethical principles should guide the
development
of legal policy in the reform process.
5. CONCLUSION:
5.1 SUMMATION AND SUBMISSIONS
This paper has examined genetic technology, bioethics and the law in respect
of prenatal care, involving the related issues of prenatal
diagnosis and
pregnancy termination for genetic indications. These issues raise, quite
literally, matters of life and death.
It has been seen that the law in these areas is wholly inappropriate and fundamentally
underdeveloped in Australia.
Significant
differences exist between the letter of the law and its
practical application. To leave the situation
in these areas as it stands
is clearly bad legal policy. It has been postulated that the options
are either to enforce the law as it stands, or to make appropriate
legislative reforms. Bioethics and
medical practice would seem to favour the latter option. Current law
regarding abortion is not
adequately equipped to deal with the emergent
issues arising out of advances in genetic technology. It has been left to courts to
apply the
law in an ad hoc manner (at least on the few occasions, given the lack of
prosecutorial action, that it has been given
any judicial consideration). From a policy point of view, this situation
is undesirable as it renders the law arbitrary and uncertain.
Although absolute certainty cannot
realistically be achieved, legislators should seek to maximise certainty
within the pragmatic
limits required to achieve the flexibility needed for
the law to deal with the variety of situations arising
reproductively. Further,
it is
submitted that an undue burden is being placed on the judiciary, who are
supposed to apply legal policy and not to develop
it in the absence of
legislative or political consideration. The "sanctity of life"
doctrine reflected in these areas of
law has been shown to be
inappropriate, particularly given the advances made in prognostic
capabilities by genetic technology.
However,
given the contentious and politically volatile nature of
the topics involved, legislative reform has been avoided by politicians,
despite the clear and articulated[217] need for review. It is submitted that, in the face of significant
contextual change, maintaining
a legislative status quo is as value-laden
as re form. Lack of legislative review
is not morally neutral; it involves a positive
decision not to change
despite an alteration in the medical and social context in which the law
operates. It is therefore unacceptable
that policy-makers remain
intransigent in the face of the critical changes that have taken place
(both with respect to medical technology
and to the status and recognition
accorded to women) over recent decades.
It is imperative that the law in respect of pregnancy
termination
be reviewed/reformed so as to reflect a consistent, socially acceptable,
and ethically supportable legal policy. Regarding
the reform process
itself, it is vital that the views of women be recognised in accordance
with their peculiar interest in, and centrality
to, the issues of
pregnancy and childbirth. Any resulting
policy should be reflective of these interests.
It is also critical that the reform process should involve public debate, expert
advice and ethical consideration in order to produce
a regulatory framework
that will adequately deal with the medical and social issues it covers. A
number of issues have arisen in
the course of this research which, given
the constraints of the paper, have not been addressed, but which require
further consideration.
These include:
the human rights issues arising in respect of genetic technology as it is
applied in obstetric and perinatal care;[218]
a comprehensive critical
analysis of feminist theory as it applies to these areas;[219] and the
regulation of the application of
genetic technologies emerging from the
HGP on an international basis. This paper has sought to highlight areas of inconsistency
between
bioethics and current Australian law/legal policy, and to indicate
where the law is inadequate to deal with the new issues arising
out of
advances in genetic technology prenatally.
However, further attention needs to be given to the appropriate
role of law in
society and to the appropriate regulatory mechanisms to
achieve reform in these areas.
GLOSSARY
Amniography: Radiography of the
amniotic sac after the injection of an opaque, water-soluble solution into
the sac.
Ataxia: Inability to coordinate the
muscles in voluntary movement.
Auscultation: Listening to the sounds
made by the various body structures as a diagnostic method.
Blastocyst: The inner cell mass and a
thin trophoblast layer enclosing the early stage of an embryo.
Blastomere: One of the cells into which
the egg divides after its fertilization.
Diploid: Containing twice the normal
gametic number of chromosomes, one member of each chromosome pair derived
from the father and
one from the mother; thee normal chromosome complement
(46) of somatic cells in man.
Down's Syndrome: mongolism; a syndrome
of mental retardation associated with a variable constellation of
abnormalities caused by
representation of at least a critical portion of
chromosome 21 three times instead of twice in some or all cells.
Embryo Biopsy: The process of removing
tissue from a living embryo for diagnostic examination.
Fetography: Radiography of the fetus in
utero.
Gene Therapy: Treatment of genetic
disease by way of gentic manipulation.
Genome: A complete set of chromosomes
derived from one parent, the haploid number of a gamete. The total gene complement of a set
of chromosomes
found in higher life forms, or the functionally similar but simpler linear
arrangements found in bacteria and viruses.
Haploid: The number of chromosomes in
sperm or ova (23 in man); which is half the number in somatic (diploid)
cells.
Karyotyping: Chromosome analysis.
Mendelian Inheritance: The theory of
inheritance originally outlined by Austrian biologist, Gregor Mendel. He suggested that, in
sexually reproducing
species, all characteristics are inherited through indivisible "factors"
(now identified with genes)
con tibuted by each parent to its offspring. The term now tends to refer to the
inheritance of conditions/characteristics determined
by a single gene.
Mesectoderm: That part of the
mesenchyme derived from ectoderm, especially from the nerual crest in the
cephalic region in very
young embryos.
Mesenchyme: A primordial embryonic
tissue consisting of mesenchymal cells, usually stellate in form,
supported in a ground substance.
Mosaicism: Juxtaposition in an organism
of genetically different tissues, resulting from somatic mutation (gene
mosaicism), an anomally
of chromosome division resulting in two or more
types of cells containing different numbers of chromosomes (chromosome
mosaicism).
Nucleotides: Organic compound
consisting of a purine or a pyridimine base linked to a sugar and a phosphate
group. DNA is made
up of long chains of nucleotides.
Perinatologist: A specialist in the
care of the mother and foetus during pregnancy, labour and the first 7
days after delivery,
especially when the mother and/or foetus are ill or
at risk of becoming ill.
Polymerase Chain Reaction: The chain
reaction caused by an enzyme catalyzing a polymerization, as of
nucleotides to polynucleotides.
Polymerization: A reaction in which a
molecular weight product is produced by successive additions to, or
condensations of, a simpler
compound.
(Realtime) Sonography: Location,
measurement, or delineation of deep structures by measuring the reflection
or transmission of high
frequency or ultrasonic waves.
Syngamy: Conjugation of gametes in
fertilization. The alignment on the mitotic
spindle of the chromosomes derived from the pronuclei
of the sperm and
ovum respectively. This term therefore
refers to a post-fertilisation stage where the resultant cell has both
sets
of genetic information (paternal and maternal) but where the
chromosomes have not yet combined to form the unique/individual genetic
code of the zygote.
Trophoblast: The mesectodermal cell
layer covering the blastocyst which erodes the uterine mucosa and through
which the embryo receives
nourishment from the mother; it contributes to
the formation of the placenta.
Zygote: The diploid cell resulting from
union of a sperm and an ovum. Ovum after fertilisation but before it
undergoes cleavage
to begin embryonic development. Also, the individual that develops from a fertilized
ovum.
NOTES
[1] Windeyer J in Mt Isa Mines v Pusey (1971) 45 ALJR 88 at 92.
[2] Australian Law Reform Commission (1977) Human Tissue Transplants, Paper
7.
[3] Marusy K & Swain MS (1989) "A Question of Property Rights in the
Human Body" in Ottawa Law Review 21(2) 1989: 351
at 378. Although this comment was made in
respect of research involving human tissue, it is equally applicable to
research concerning
human genetic material which constitutes the builing
blocks of all human tissue.
[4] Related issues, such as genetic therapies/mainpulation, foetal surgery and
assisted reproduction, have not been closely examined.
[5] Rossiter
BJ & Caskey CT (1993) "The Human Genome Project" in Clinical Obstetrics
and Gynecology 36 (3) September
1993: 466
[6] Council for Science and Society (1989) "The Human Genome - Any Questions?"
in Medico-Legal Journal 59 (1) 1989: 41.
[7] Nicol D (1993) "Mapping the Human Body" in Alternative Law
Journal 18(5) October 1993: 240.
[8] The structure of the project involves human genome projects being undertaken
in a number of different countries - with USA leading
the initiative -
which together form an international network in which the Human Genome and
the United Nations Educational, Scientific
and Cultural Organisations play
key organisational roles. Rossiter
& Caskey (1993) supra.
[9] Council for Science & Society (1989) supra.
[10] Nicol (1993) supra, at 240.
[11] Annas GJ & Coyne B (1975) "'Fitness' for Birth and Reproduction: Legal
Implications of Genetic Screening" in
Family Law Quarterly 9 (3) Fall
1975: 463; Spence AP & Mason EB
(1987) Human Anatomy and Physiology (3rd Ed) Benjamin/Cummings,
California: 864
[12] Nicol (1993) supra.
[13] Rossiter & Caskey (1993) supra, at 470.
[14] Rossiter & Caskey (1993) supra; and Elmer-Dewitt P (1994) "The Genetic
Revolution," Time January 17, 1994: 20.
[15] Elmer-Dewitt P (1994) supra, at 22.
[16] Anon. (1993) "Zeroing In on a Breast Cancer Susceptibility
Gene" in Science (259)
January 1993: 622
[17] See Rossiter & Caskey (1993), supra, at 467.
[18] See Rossiter & Caskey (1993), supra, at 468.
[19] Council for Science & Society (1989) supra.
[20] Rossiter & Caskey (1993) supra, at 471-2.
[21] In the USA, 3-5% of the budget has been pledged to research these issues. In Council for Science & Society (1989)
supra,
at 46.
[22] Wood C & Westmore A (1984?) "The Significance of the Early Human Embryo
- A Broad Perspective" at 3.
[23] Ibid.
[24] Fletcher JC & Anderson WF (1992) "Germ-Line Therapy: A New Stage
of Debate" in Law, Medicine & Health Care
20 (1-2) 1992: 26.
[25] Sources: Fletcher & Anderson
(1992) op cit; Kennedy & Grubb (1989) Medical Law: Text and Materials. See also Gillon
R (1995) "Medical Ethics:
Four Principles Plus Attention to Scope" in 14(3) Monash Bioethics
Review (July 1995): 23; and
Macklin R (1990) "Ethics and Human Reproduction
- International Perspectives" in Social Problems 37(1) February 1990:
38.
[26] Fletcher & Anderson (1992) op cit at 30.
[27] See Macklin (1990) supra; and Moreland & Geisler (1990) supra.
[28] Ibid.
[29] Kennedy & Grubb (1989) op cit.
[30] Gillon R (1995) "Medical Ethics: Four Principles Plus Attention to Scope"
in 14(3) Monash Bioethics Review (July 1995):
23 at 25.
[31] Victoria, New South Wales and the Australian Capital Territory. See Cica N (1991) "The
Inadequacies of Australian Abortion
Law" in Australian Journal of
Family Law 5 (1) March 1991: 37 at 38.
[32] Queensland, Western Australia and Tasmania. Id at 40.
[33] South Australia and Northern Territory.
Id at 41.
[34] Cica (1991) supra.
[35] ss 199, 200, 201 Criminal Code (WA); s224, 225, 226 Criminal Code (Qld).
[36] s259 Criminal Code (WA); s282 Criminal Code (Qld).
[37] [1983] 1 Qd R 396 at 398.
[38] Supreme Court of Queensland (unrep. No 376 of 1985) per McPherson J.
[39] [1938] 3 All ER 615.
[40] [1969] VicRp 85; [1969] VR 667.
[41] Supra, at 619, per MacNaughten J.
[42] (1986) Qld Lawyer Reps 8 at 45.
[43] (1972) 3 DCR 25, per Levine J.
[44] Ibid at 29, emphasis added.
[45] [1982] NSWLR 311.
[46] Cica N (1991) "The Inadequacies of Australian Abortion Law" in Australian
Journal of Family Law 5 (1) March 1991:
37 at 47-49.
[47] Id at 43-45.
[48] Prosectutions for unlawful abortion effectively ceased in Australia in
the early 1970s (which explains the under-development
of case law in the
area). This has meant that abortion is
available virtually on demand, with a number of "free standing"
abortion clinics established and operating in a number of metropolitan
areas. See Cica N (1991) supra, at 47-48.
[49] Anon (1989) "Abortion - The judiciary and the Legislature" in Reform
(56) October 1989: 200.
[50] (1983) 1 Qd R 396.
[51] (1983) 1 Qd R 404 at 406-7.
[52] F v F (1989) 13 Fam LR 189.
[53] Supra, at 28.
[54] Cica N (1991), supra, at 59.
[55] Id at 56.
[56] Id at 47-8.
[57] Ibid.
[58] Alta Charo R (1993) "Legal and Regulatory Issues Surrounding Carrier Testing"
in Clinical Obstetrics and Gynecology
36 (3) September 1993: 569 at 584.
[59[ Pryde et al (1993) supra, at 503.
[60] Cica N (1991) supra, at 41-2.
[61] s 82a(1)(a)(i) Criminal Law Consolidation Act 1935 (SA), amended in 1969
to include s 82a.
[62] Id, s 82a(1)(a)(ii).
[63] Cica N (1991), supra, at 66.
[64] See Loewy MD (1989) Textbook of Medical Ethics Plenum Publishing Co,
New York at 157-159.
[65] Surveys indicate that between 81-90% of Australians hold this view. Cica
N (1991) supra, at 67.
[66] Loewy (1989) supra, at 166.
[67] Blank RH (1993) "Maternal-Fetal Relationship: The Courts and Social Policy"
in The Journal of Legal Medicine 14: 73
at 73.
[68] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues
of Our Time, at 25.
[69] Ibid.
[70] This support continues most notably in the Judeo-Christian tradition by
the Catholic Church. In his 11th
encyclical, Evangelium
Vitae (The Gospel of Life), Pope John Paul II
recently enunciated his most solemn condemnation yet of the taking of life
by abortion
& euthanasia; on embryonic experimentation and on
contraception. See The West Australian (31
March 1995, p19); (1 April 1995,
p19).
[71] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues
of Our Time at 34; and Steinbock B (1992) Life Before
Birth: The Moral and Legal Status of Embryos
and Fetuses at 46.
[72] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues
of Our Time at 34.
[73] Steinbock B (1992) Life Before Birth: The Moral and Legal Status of Embryos
and Fetuses at 46
[74] Loewy (1989) supra, at 161.
[75] Particularly in the American landmark abortion decision of Roe v Wade.
[76] Steinbock B (1992) Life Before Birth: The Moral and Legal Status of Embryos
and Fetuses at 47.
[77] Buckle S (1988) "Arguing from Potential" Bioethics 2:3 (July
1988) at 227.
[78] Steinbock B (1992) Life Before Birth: The Moral and Legal Status of Embryos
and Fetuses at 59.
[79] Ibid.
[80] Singer & Wells (1984) cited in Walters WAW (1984) "Personhood and
the Human Embryo" at 12.
[81 The former having about a 30% chance of resulting in a baby, the latter
having only a 10% likelihood. In Wood C
& Westmore
A (1984?) "The Significance of the Early Human Embryo
- A Broad Perspective" at 28.
[82] Ibid.
[83] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues
of Our Time at 36.
[84] Liley AW (1972) "The Foetus in Control of His Environment" in
Hilgers TW & Horan DJ (ed) Abortion and Social Justice;
Sheed &
Ward, New York at 35-6.
[85] Wood C & Westmore A (1984?) "The Significance of the Early Human Embryo
- A Broad Perspective" at 25.
[86] Id at 26.
[87] Quoted in Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral
Issues of Our Time at 26.
[88] Warren MA (1973) "On the Moral and Legal Status of Abortion" in The Monist
57 (1973).
[89] Walters WAW (1984) "Personhood and the Human Embryo" at 6.
[90] Steinbock B (1992) Life Before Birth: The Moral and Legal Status of Embryos
and Fetuses at 51-2.
[91] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues
of Our Time at 27.
[92] In Steinbock B (1992) Life Before Birth: The Moral and Legal Status of
Embryos and Fetuses at 52.
[93] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues
of Our Time at 28.
[94] Steinbock B (1992) Life Before Birth: The Moral and Legal Status of Embryos
and Fetuses at 52.
[95] Id at 53.
[96] Ibid, citing Tooley M (1983) Abortion and Infanticide; Clarendon press, Oxford.
[97] Id at 53-4.
[98] Ibid.
[99] Steinbock B (1992) Life Before Birth: The Moral and Legal Status of Embryos
and Fetuses , Chapter 1.
[100] Id at 5.
[101] Id at 40.
[102] Id at 40-1; see also Chapters
5-6.
[103] Moreland JP & Geisler NL (1990) The Life and Death Debate: Moral Issues of Our Time at 31.
[104] Ibid.
[105] Ibid.
[106] Loewy MD (1989) Textbook of Medical Ethics, Chapter 11.
[107] Id at 162.
[108] Id at 163
[109] Glover (1982) cited in Walters WAW (1984) "Personhood and the Human Embryo"
at 14.
[110] This issue will be dealt with more fully in Part 4 of this paper.
[111] Engelhardt (1982) cited in Walters WAW (1984) "Personhood and the Human
Embryo" at 13.
[112] Id at 13.
[113] Id at 14.
[114] Ibid.
[115] Ibid.
[116] Loewy MD (1989) Textbook of Medical Ethics, at 165.
[117] See Blank RH (1993) "Maternal-Fetal Relationship: The Courts and Social
Policy" in The Journal of Legal Medicine
14:73.
[118] Id at 73.
[119] Overall C (1986)b "Pluck a Fetus from its Womb: Attitudes Toward the Embryo/Fetus"
in University of Western Ontario
Law Review (24) 1986: 1.
[120] Blank (1993) supra, at 193.
[121] It should be noted that discussion here will necessarily exclude the pre-implantation
embryo.
[122] Seymour J (1995) Fetal Welfare and the Law: Report of Inquiry Commissioned
by the AMA; Ch 4 Theoretical
Considerations at
46-57.
[123] Kluge (1988) cited in Seymour (1995) supra, at 48.
[124] Seymour (1995) supra, at 50.
[125] Ibid.
[126] See for example: Bennett B (1991) "Pregnant Women and the Duty to Rescue:
A Feminist Response to the Fetal Rights Debate"
in Law in Context 9
(1) 1991: 70; Overall C (1986)b "Pluck a Fetus from its Womb: Attitudes
Toward the Embryo/Fetus" in
University of Western Ontario Law Review
(24) 1986: 1; and Seymour J (1995) Fetal
Welfare and the Law: Report of Inquiry Commissioned
by the AMA; Ch 4 Theoretical Considerations at
50-55. It should, however, be
recognised that feminist thought is widely divergent,
so that no single
view can be entirely representative.
As alluded to in the Introduction, it is impossible, within the
constraints
of this paper, to canvass the full range of femminist
views. Rather, cited examples of
feminist responses to the issues raised illustrate
some of the more
commonly expressed views.
[127] Seymour (1995) supra, at 52.
[128] Gilligan (1982) and West (1988) cited in Bennett (1991) supra, at 86.
[129] Bennett (1991) supra, at 87.
[130] Seymour (1995) supra, at 53.
[131] Id at 49 & 54; and Bennett
(1991) supra, at 87.
[132] Seymour (1995) supra, at 46.
[133] Gallagher J (1989) "The Fetus as Patient" cited in Seymour
(1995) supra, at 47.
[134] Seymour (1995) supra, at 55.
[135] Ibid.
[136] Gillon (1995) supra, at 25, emphasis added.
[137] See Blank RH (1993) "Maternal-Fetal Relationship: The Courts and Social
Policy" in The Journal of Legal Medicine
14:73 and Overall, C. (1986)b
"Pluck a Fetus from its Womb: Attitudes Toward the Embryo/Fetus" in
University of Western
Ontario Law Review (24) 1986: 1
[138] See Diprose R (1994) The Bodies of Women: Ethics, Embodiment and Sexual
Difference, Routledge, London.
[139] Holzgreve W, Nippert I, Gaenshirt-Ahlert D, Schloo R & Miny P (1993) "Immediate
and Long-Term Applications of Technology"
in Clinical Obstetrics and
Gynecology 36 (3) September 1993: 476 and Rodeck CH (1992) "Ethical
Dilemmas in Fetal Medicine"
in Medico-Legal Journal 60(3): 188.
[140] An outline of the most common techniques is produced in Table 3, Appendix. Source: Pryde PG, Drugan A, Johnson MP,
Isada NB
& Evans MI (1993) "Prenatal Diagnosis: Choices Women
Make About Pursuing Testing and Acting on Abnormal Results" in
Clinical
Obstetrics and Gynecology 36(3) September 1993: 497 at 500.
[141] Holgreve et al (1993) supra.
[142] Annas GJ & Coyne B (1975) supra, at 470.
[143] Ibid.
[144] Holgreve et al (1993) supra.
[145] Id at 480.
[146] Pembrey ME (1992) "Prenatal Diagnosis - Hopes and Fears" in Medico-Legal
Journal 62 (1) 1992: 7 at 14.
[147] Holgreve et al (1993) supra, at 480.
[148] Annas GJ & Coyne B (1975) supra, at 470.
[149] Ibid.
[150] Because the amniotic sac is small in relation to the chorionic cavity
in the first trimenter, the withdrawal of sufficient
fluid for cell culture
in amniocentesis is contra-indicated.
See Holgreve et al (1993) supra, at 480-1.
[151] Ibid.
[152] If results are only able to be obtained late in the pregnancy, when many
health care centres refuse termination, the management
options and choices
of women with affected foetuses are limited.
[153] Ibid.
[154] Id at 481-2.
[155] Pryde et al (1993), supra.
[156] Holgreve et al (1993) supra, at 476.
[157] Council for Science & Society (1989) supra, at 42.
[158] Holgreve et al (1993) supra, at 482.
[159] Id at 483.
[160] Nolan K (1992) "First Fruits: Genetic Screening" in Special Supplement,
Hastings Center Report, July/August 1992:
S2 at S2.
[161] Nicol (1993) supra, at 240.
[162] Dalgety JD & Pryor M (1986) "Law and the Biological Revolution: Changes
in attitude, behaviour, medical standards
and technology" in New Zealand
Law Journal January 1986: 25 at 26.
[163] Rodeck CH (1992) "Ethical Dilemmas in Fetal Medicine" in Medico-Legal
Journal 60(3): 188 at 193.
[164] Wertz DC & Fletcher JC (1993) "Feminist Criticism of Prenatal Diagnosis:
A Response" in Clinical Obstetrics and
Gynecology 36(3) September
1993: 541 at 552.
[165] Hassed SJ, Miller CH, Pope SK, Murphy P, Quirk G and Cunniff C (1993)
"Perinatal Lethal Conditions: The Effect of Diagnosis
on Decision Making"
in Obstetrics and Gynecology 82(1) 1993: 37.
[166] Wertz & Fletcher (1993) supra.
[167] However, Kuhse, Singer & Singer's research has indicated that doctors
do not necessarily support the "sanctity-of-life"
doctrine and that
many have made decisions not to treat genetically defective neonates. See
Kuhse H, Singer P & Singer C (1983)
"The Treatment of Newborn Infants with
Major Handicaps in The Medical Journal of Australia Vol 17 (1983): 274.
[168] Ibid at 545-6.
[169] Id at 547.
[170] Harris J (1991) "Ethical Aspects of Prenatal Diagnosis" in
Drife JO & Donnai (Eds) (1991) Antenatal Diagnosis
of Fetal Abnormalities;
Springer-Verlag, London.
[171] A similar scenario may be conjured up using Muscular Dystrophy (or, as
is believed to be the more likely ailment, pyknodystosis)
and Toulouse Lautrec.
[172] Id at 283.
[173] Steiner G on BBC TV, The Heart of the Matter (on genetic engineering)
22 October 1989. See Harris (1991)
supra.
[174] Loewy (1989) supra.
[175] Harris (1991) supra, at 283.
[176] Wertz & Fletcher (1993) supra, at 554.
[177] Pryde et al (1993), supra.
[178] Greer G on BBC TV, The Heart of the Matter (on genetic engineering)
22 October 1989. See Harris (1991)
supra.
[179] Harris (1991) supra.
[180] Id at 285.
[181] Gaze B (1992) "Controlling Medical Science: Reproductive Technology, Infertility
and the Position of Women" in Law
in Context 10(2) 1992: 29.
[182] Newell C (1992) "Some Ethical Issues Associated with Genetic Engineering
for People with Disabilities" in Australian
Disability Review 2 -
1992: 72-86; and Newell C (1994) "A Critique of the Construction of
Prenatal Diagnosis and Disability"
presented to "Ethical Issues
in Prenatal Diagnosis and the Termination of Pregnancy" a Conference
of Monash University
(30 August, 1994).
[183] Newell (1994) supra, at 2.
[184] See for example Gallagher (1985) and Karpin(1992) cited in Seymour (1995)
supra, at 52.
[185] Kaplan D (1993) "Prenatal Screening and Its Impact on Persons with Disabilities"
in Clinical Obstetrics and Gynecology
36 (3) September 1993: 605.
[186] Wertz & Fletcher (1993) supra.
[187] Elmer-Dewitt (1994) supra.
[188] Wertz & Fletcher (1993) supra.
[189] Ibid.
[190 Newell C (1994) supra.
[191] See Newell C (1994) supra; and Kaplan (1993) supra.
[192] Kaplan (1993) supra, at 610.
[193] Wertz & Fletcher (1993) supra, at 552
[194] Hassed et al (1993) supra.
[195] Pryde et al (1993), supra.
[196] Id at 499.
[197] Council for Science and Society (1989) supra, at 45.
[198] Wertz & Fletcher (1993) supra.
[199] Rodeck (1992) supra, at 191.
[200] Wertz & Fletcher (1993) supra, at 549.
[201] Rodeck (1992) supra, at 193.
[202] Wertz & Fletcher (1993) supra.
[203] Rodeck (1992) supra, at 194.
[204] Holtug N (1993) "Human Gene Therapy: Down the Slippery
Slope?" in Bioethics 7(5)
1993: 402.
[205] Ibid. Whilst a full review of
Holtug's resoning is not possible within the constraints of this paper,
the reader is referred
to his article.
[206] Id at 419.
[207] Hughes J (1994) "Embracing Change with All Four Arms: A post- Humanist
Defense of Genetic Engineering" on Internet
<jhughes@medicine.bsd.uchicago.edu>
[208] Id at 7.
[209] Smith GP (1984) "Eugenics and Family Planning: Exploring the Yin and Yang"
in University of Tasmania Law Review 8
(1) 1984:4
[210] Macklin R (1990) "Ethics and Human Reproduction - International Perspectives"
in Social Problems 37(1) February 1990:
38 at 40.
[211] Smith (1984) supra, at 18.
[212] Skene L (1989) "Genetic Disorders and Embryo Testing" in Legal Service
Bulletin 14(3) June 1989: 106.
[213] Henderson JB (1991) "Economic Aspects of Prenatal Diagnosis" in Drife
JO & Donnai (Eds) (1991) Antenatal Diagnosis
of Fetal Abnormalities;
Springer-Verlag, London.
[214] Somerville MA (1983) "Joinder of Issue at the Frontiers of Biomedicine:
A Review Essay on 'Genetics, Ethics and the Law'"
in University of
NSW Law Journal 6(1) 1983: 102 at 104.
[215] Henderson JB (1991) supra, at 271.
[216] Seymour J (1995) Fetal Welfare and the Law: Report of Inquiry Commissioned
by the AMA at "Summary and Recommendations"
xiv.
[217] See Cica N (1991) "The Inadequacies of Australian Abortion
Law" in Australian Journal of
Family Law 5(1) March 1991:
37.
[218] See for example Brody EB (1993) Biomedical Technology and Human Rights;
UNESCO, Paris and Dartmouth, England.
[219] For some discussion, see Overall C (1986)a "Reproductive Ethics: Feminist
and Non-Feminist Approaches" in Canadian
Journal of Women and the Law
1(2) 1986: 271; and Holmes HB &
Purdy LM (1992) Feminist Perspectives in Medical Ethics, Bloomington,
Indiana University Press. Sources:
Hensyl W (ed) Webster's New World/ Steadman's Concise Medical Dictionary,
Prentice Hall, New
York (1987); and Lafferty P & Rowe J (eds) The
Hutchinson Dictionary of Science, Helicon, Oxford (1993).
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