Conscience and the Moral Status of the Fetus

Last month, political commentators called attention to an article published two years ago in the Journal of Medical Ethics arguing that infanticide—or “after-birth abortion”—is ethical. The authors, Alberto Giubilini and Francesca Minerva, argue that “fetuses and newborns do not have the same moral status as actual persons.”

This natural extension of the logic of abortion from the womb to just beyond it should force abortion proponents in the medical profession to confront a dilemma. The ethics committee of the American Congress of Obstetricians and Gynecologists (ACOG) has, for several years, been trying to maintain two competing principles: first, that doctors and mothers have a moral obligation to promote the well-being of the fetus; and second, that doctors, regardless of what they claim their conscience dictates, are obliged to perform or refer for abortions if doing so promotes the mother’s “conception of well-being.”

Competing Claims

In “The Limits of Conscientious Refusal in Reproductive Medicine,” an opinion published in 2007 and reaffirmed in 2013, the ethics committee states that conscience “is only a prima facie value, which means that it can and should be overridden in the interest of other moral obligations that outweigh it in a given circumstance.” Those other moral obligations include the patient’s autonomy and sense of well-being. But suggesting that a conscientious refusal is unethical for these reasons presupposes that the action being refused is an ethical one.

The ACOG makes no explicit statement about the moral status or personhood of the fetus, yet its ethics committee clearly believes that access to reproductive services such as abortion is a good thing. In committee opinion 369, for instance, the committee advocates the widespread availability of “multifetal pregnancy reduction,” which is a euphemism for abortion in the case of pregnancies involving more than one fetus. The committee is much more emphatic in opinion 424, on “Abortion Access and Training,” where it states that the ACOG supports the “availability of safe, legal, and accessible abortion services.”

Perhaps this is not surprising. But presenting abortion as an ethical procedure does involve making the presumption that the fetus is not a person, whether or not the ethics committee wishes to admit it.

The position implied in these opinions is this: the fetus is not a person; there is consequently no obligation to protect its life; and, therefore, should a patient desire an abortion, performing an abortion is ethical.

And yet comments in other committee opinions appear to contradict this position. In its opinion on “At-Risk Drinking and Illicit Drug Use: Ethical Issues in Obstetric and Gynecologic Practice,” the committee asserts that “a pregnant woman has a moral obligation to avoid use of both illicit drugs and alcohol in order to safeguard the welfare of her fetus.” In committee opinion 397, on surrogate motherhood, the committee declares, “The obstetrician’s professional obligation is to support the well-being of the pregnant woman and her fetus.” And in committee opinion 501, on prenatal diagnosis and fetal intervention, the committee states: “The overarching goal of fetal interventions is clear: to improve the health of children by intervening before birth to correct or treat prenatally diagnosed abnormalities. This stems from a beneficence-based obligation to the fetus.”

A Moral Obligation to the Fetus?

What is the nature of this moral obligation to promote the well-being of the fetus? Why do the physician and the pregnant woman have this obligation? Most people will agree that there exists an obligation to promote the well-being of other persons, but this cannot be what the ethics committee means, given that the committee clearly does not believe the fetus to be a person.

Further, if there is such an ethical obligation, would it not make elective abortion unethical? If the obstetrician has a “beneficence-based obligation” to promote the well-being of the fetus, why does this obligation never enter the moral equation in the committee’s examination of physicians’ refusals to, among other things, terminate the life of the fetus?

If the moral obligation to promote the well-being of the fetus derives from the fact that the fetus is a person, then why does the committee believe that the killing of fetal persons is licit? If the fetus is not a person, then why is there an obligation to promote its well-being? This supposed obligation makes the committee’s acceptance of abortion problematic, and makes the committee’s ethics incoherent.

The Question of Fetal Personhood

Perhaps what the committee would like to say is that the physician and the pregnant woman have a moral obligation to the person that the fetus will become—assuming that it is not to be aborted beforehand—and not to the fetus as such. Amending their position in this way might allow the committee to avoid the problems noted above. If the moral obligation is to the future person and not to the fetus itself, then the ACOG can state, on the one hand, that the elective termination of fetal life is licit, and, on the other hand, that if the fetus is not to be terminated, then the physician and pregnant woman have a moral obligation to the future person (that the fetus will become) to promote the well-being of the fetus now. This is a problematic stance—in large part because it necessarily erodes that initial moral obligation to promote the fetus’s well-being—but at least it is more coherent than their current one.

Yet amending its position in this way would require that the ACOG explicitly deny that the fetus is a person. This would not allow it to maintain the pretense of neutrality. Further, it would entail making reference to a particular conception of personhood that excludes the fetus, such as the one offered by Giubilini and Minerva, the authors of the article in favor of after-birth abortion.

This conception of personhood, however, excludes not only the fetus but also infants, leading to the conclusion that infanticide is as ethical as abortion. Is the ACOG willing to admit this in order to make its ethic coherent? If not, then the committee will need to offer a conception of personhood that excludes the fetus, yet somehow includes newborns. In either case, it could no longer pretend to remain neutral on abortion.

On the other hand, the ethics committee could strive to become truly abortion-neutral, although this would leave it with little left to say. This is because any effort to provide a coherent ethic that addresses particular topics in obstetrics requires saying something explicit about the personhood of the fetus, since most of the ethical issues that arise in the field have some bearing on the matter.

To become neutral, the ACOG’s ethics committee would need to retreat to such a distance that it could make few specific assertions about ethics in obstetrics. It would have to restrict itself to elucidating guidelines that would protect the consciences of all concerned parties, including patients and physicians who may have differing views about the moral status of the fetus, and consequently about the ethics of procedures like abortion.

But this is unlikely. Given its statements about the limits of conscience—and the disregard for conscience that those statements reveal—the committee seems to have no interest in stripping the scope of its powers of ethical pontification.