Chapter 2

Contemporary

Ethical Dilemmas

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.

—Union Pac. Ry. Co. v. Botsford

Learning Objectives (1 of 2)

• Describe various historical events that have had an impact on the resolution of ethical dilemmas.

• Describe common ethical dilemmas and the various ethical issues that have in many instances divided many segments of the population. Topics include: – Abortion – Sterilization – Artificial insemination

Learning Objectives (2 of 2)

• Topics include: – Surrogacy – Organ donations – Research, experimentation, and clinical

trials – Human genetics – Stem cell research – AIDS

Ethical Dilemmas

• Ethical dilemmas arise in situations where a choice must be made between unpleasant alternatives.

• Occur when a choice involves giving up something good and suffering some bad. – Should I choose life knowing an unborn child

will be born with severe disabilities?

Noteworthy Historical Events (1 of 11)

58,000–68,000 BC: Neanderthal burial sites (evidence of belief in an afterlife)

1932–1972: Tuskegee Study of Syphilis

1933–1945: Holocaust

1946: Military Tribunal for War Crimes

1949: International Code of Medical Ethics

1954: Guidelines on Human Experimentation

First kidney transplant

Noteworthy Historical Events (2 of 11)

1960s: Cardiopulmonary resuscitation

1964: WHO guidelines for biomedical research

1968: Harvard Ad Hoc Committee on Brain Death

1970: Patient as a Person

1971: Kennedy Institute of Ethics established

1972: Informed consent (Canterbury v. Spence)

1973: Women’s right to abortion (Roe v. Wade)

Noteworthy Historical Events (4 of 11)

1974: National Research Act

1975: First successful cloning of frogs

1976: Substitute judgment (Karen Ann Quinlan)

First living will legislation enacted

1978: Commission for the Study of Ethical

Problems in Medicine

Noteworthy Historical Events (5 of 11)

1980: Hemlock Society formed to advocate for physician-assisted dying.

1983: First durable power of attorney legislation

Compassion and Choices

1987: Unethical experiments on children

Noteworthy Historical Events (6 of 11)

1990: Patient Self-Determination Act Cruzan could have feeding tube removed Kevorkian assists terminally ill patients in

suicide Timothy Quill and prescription for death

Derek Humphry’s book Final Exit Radiation experiments on unknowing

human subjects

Noteworthy Historical Events (7 of 11)

1993: Patient’s wishes honored 1994: Oregon’s Death with Dignity Act

Michigan makes physician-assisted suicide illegal

1996: HIPAA

Cloning of Dolly

Fourteenth Amendment and the terminally ill

Noteworthy Historical Events (8 of 11)

1997: Physician-assisted suicide

Kevorkian charged with murder

Supreme Ct. rules states may enact

assisted suicide laws 1998: Oregon voters reaffirm Death with Dignity

Act Kevorkian administers lethal injection

Michigan voters ban physician-assisted suicide

Noteworthy Historical Events (9 of 11)

1999: Kevorkian convicted of second-degree murder Oregon has 23 assisted-suicide deaths

2000: Seven myths about end-of life care 2001: President’s Council on Bioethics created

Oregon Assisted Suicided Act challenged District Court judge upholds Oregon Death

with Dignity Act Oregon assisted suicides: 129 since 1991

Noteworthy Historical Events (10 of 11)

2002: Attorney General appeals District Ct. ruling

2003: Human gnome system fully sequence

Oregon assisted suicide cases: 42

2004: Death with Dignity Act upheld

2005: Hospital allowed to remove life support

2006: Court upholds Death with Dignity Act

Court blocks Bush attempt to punish doctors

Morning after pill

Noteworthy Historical Events (11 of 11)

2009: Right to know end-of-life options

2010: California legislation to build organ registry

2013: Info and referral service for kidney donors

2018: Seven states have death with dignity acts

One state death with dignity by court order

Abortion

The termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo before it is viable.

Abortion: Ethical and Legal Issues (1 of 6)

• Rights of the woman – Autonomy

• Rights of the fetus • Rights of the spouse • Rights of the state

– Protecting life

Abortion: Ethical and Legal Issues (2 of 6)

• When does life begin? • Who decides? • Who protects the unborn fetus? • What are the rights of the child or woman who

has been raped? • What are the rights of the spouse?

Abortion: Ethical and Legal Issues (3 of 6)

• Should the principles of autonomy and right to self-determination prevail?

• Should an abortion be considered murder? – Is preventing a birth that might have otherwise

occurred a form of killing? • What are the religious implications?

Abortion: Ethical and Legal Issues (4 of 6)

• Is an abortion for mere convenience morally wrong?

• Should a child or woman who has been raped have a right to abortion?

• What role should education play in the woman’s decision to undergo an abortion?

Abortion: Ethical and Legal Issues (5 of 6)

• What alternatives should the woman be educated about (e.g., the choice of adoption) before undergoing an abortion?

• At what age should the decision to abort be that of the mother?

• Should the feelings of guilt that may accompany an abortion and how those feelings may haunt the mother through the years be explained?

Abortion: Ethical and Legal Issues (6 of 6)

• Should the feelings that might occur after giving birth be explained to the victim of a rape (e.g., anger and resentment)?

• When does control over one’s body begin, and when does it end?

Abortion

U.S. Supreme Court Decisions

Woman’s Right to Privacy Roe v. Wade (1973)

• Right to abortion • Recognition of state role in protecting the unborn

– First trimester: Abortion decision between woman and physician.

– Second trimester: State may reasonably regulate abortion procedure.

– Third trimester: State may prohibit all abortions except those deemed necessary to protect maternal life or health.

Abortion Restrictions Struck Down

• Abortion committee review • Abortion counseling • Undue burden rule

Abortion: Funding Issues

– Denial of financial assistance for elective abortions.

– Funding not required for therapeutic abortions.

– Funding bans unconstitutional in California. – Funding discrimination prohibited in Arizona. – Refusal to fund abortion counseling not

unconstitutional.

Abortion: Spousal Consent

• Interest insufficient – Poe v. Gerstein (1975) – Florida’s Therapeutic Abortion Act – Husband’s consent not necessary for abortion

• Husband’s required consent unconstitutional – Doe v. Zimmerman (1975) – Written consent of husband for abortion not

necessary

Abortion: Parental Consent

• Competent persons under 18 years • Incompetent persons • Parental notification permitted • Emancipated minor • Parental notification not required

Abortion: Informed Consent

• The Fifth U.S. Circuit Court of Appeals determined that a Texas law requiring a pregnant mother to undergo an ultrasound prior abortion is constitutional. Although a pregnant woman cannot be compelled to view the ultrasound image, the physician is required to describe what the image shows.

States May Protect Fetus Colautti v. Franklin (1979)

• States may seek to protect a fetus that a physician has determined could survive outside the womb.

Abortion Rights Narrowed: Webster v. Reproductive Health Services (1989)

• Missouri statute upheld: – Public employees and public facilities may not

be used in performing or assisting in abortions unnecessary to save the mother's life.

– Physicians should conduct viability tests before performing an abortion.

Partial Birth Abortion: Women’s Med. Prof. Corp. v. Voinovich (1998)

• Court denied certiorari for first partial birth case to reach federal appellate courts.

• 6th Circuit Court of Appeals held statute banning any use of D&X procedure unconstitutionally vague.

Partial Birth Abortion Ban Struck Down:

Stenberg v. Carhart (2000)

• Supreme Court struck down Nebraska ban on "partial birth abortion.”

• Supreme Court found it an unconstitutional violation of Roe v. Wade.

Partial Birth Abortion Ban Unconstitutional

• National Abortion Fed’n v. Gonzages – Partial-Birth Abortion Ban Act was found

unconstitutional because it lacked any exception to preserve the health of the mother, where such exception was constitutionally required.

Texas Restrictions on Women’s Rights Violated U.S. Constitution

• Supreme Court reviewed Texas Ambulatory Surgery Center requirements and found two provisions violated the Constitution: – A physician must have admitting privileges at

a hospital that is located no further than 30 miles from where the abortion is performed.

– Minimum standards for an abortion facility must be equivalent to the minimum standards adopted under for ambulatory surgical centers.

State Abortion Statutes: South Carolina

• 24-hour waiting period not burdensome. • Abortions after 20 weeks prohibited.

– Exception if the mother’s life is in jeopardy. – No exceptions for rape or incest. – Physicians who perform illegal abortions can

face a $10,000 fine and up to 3 years in prison.

Abortion: Law and Morality

• The obligation of society is to define the liberties of all and not to mandate one’s own moral code.

• The courthouse is not the proper forum to address abortion issues that have no legal foundation.

• Conflicting beliefs. • Matters of philosophy, ethics, theology.

Sterilization

• Sterilization: Termination of the ability to produce offspring. – Elective: Voluntary sterilization. – Therapeutic: Performed to preserve life or

health. – Eugenic: Involuntary sterilization.

• Described in statutes • Mentally deficient • Feeble-minded

Negligent Sterilization

The improper performance of sterilization can result in lawsuits based on such theories as wrongful birth, wrongful life, and wrongful conception.

W r o n g f u l

B i r t h

A claim that but for a breach of duty by the defendant(s) (e.g., improper sterilization), the child would not have been born.

Wrongful Life

Wrongful life claims are initiated by the parent(s) or child based on harm suffered as a result of being born.

Wrongful Conception

• A claim by parents of unexpected child based on allegation that conception resulted from a – Negligent sterilization procedure – Defective contraceptive device

Artificial Insemination (1 of 2)

• Injection of seminal fluid into a woman to induce pregnancy.

• Homologous artificial insemination – Semen of spouse used to impregnate

• Heterologous artificial insemination – Semen from donor other than husband

Artificial Insemination (2 of 2)

• Consent • Confidentiality

Surrogacy

• Method of reproduction whereby a woman agrees to give birth to a child for another party.

• Surrogate may be – Child’s genetic mother – Gestational carrier

Surrogacy: Ethical and Legal Issues

• Legal right to enter a surrogacy contract • Parental rights of the commissioning couple • Long-term effects of surrogacy contracts • Psychological impact on child

Organ Donations (1 of 2)

• Federal regulations require: – Protocols regarding an organization’s organ

procurement responsibilities – Specific notification duties – Requirements informing families of potential

donors – Sensitivity in dealing with families – Educating hospital staff on organ donation – Timely donation and transplantation

Organ Donations (2 of 2)

• Uniform Anatomical Gift Act adopted in 50 states.

• Provisions for making available, acceptance, and use of anatomic gifts.

• Who lives? Who dies? Who decides? • Failure to obtain consent. • Altruism vs. sale of organs.

Research, Experimentation, and Clinical Trials (1 of 2)

• Ethical principles – Respect for person – Beneficence

• Hippocratic Oath: Physicians act to benefit patients

– Justice – Autonomy

Research, Experimentation, and Clinical Trials (2 of 2)

• Right to try experimental drugs • Office of Research Integrity • Food and Drug Administration • Institutional review board • Informed consent • Experimental subject’s Bill of Rights • Patient responsibilities • The Cures Act

Justice

• Each person to be treated equally. • How should each person be treated?

– According to need? – According to value to society (societal

contribution)? – According to merit?

Nuremberg Code and Declaration of Helsinki

• International code of ethics that governs human research.

• Result of Nazi medical atrocities. • Requires human subjects be fully informed.

Federal Regulations

• The federal government controls experiments involving: – Drugs – Medical devices – Medical procedures

Conducting Clinical Trials

• Organization must provide for: – Education in ethical decision-making – Nurse participation in ethical decision-making – Ongoing monitoring of approved protocols

Institutional Review Board

• Federal regulations require a hospital-based institutional review board (IRB).

• IRB functions: – Review proposed research studies. – Approve protocols for research. – Conduct research oversight.

Informed Consent (1 of 2)

• Organization must: – Disclose risks, benefits, and treatment

alternatives. – Determine competency of patient consent. – Obtain written consent from patient.

Informed Consent (2 of 2)

• Organization must: – Disclose treatment costs. – Educate staff on

• Potential side effects of treatments. • Implementation of protocols. • Monitoring of protocols.

Human Genetics

• The study of inheritance as it occurs in human beings. It includes: – Stem cell research – Clinical genetics

• Genetic disease markers – Molecular genetics

Genetic Information Nondiscrimination Act (1 of 2)

• Law prohibits discrimination on basis of genetic information with respect to the availability of health insurance and employment.

• Prohibits group health plans and insurers from denying coverage to a healthy individual based on genetic predisposition to develop a specific disease.

Genetic Information Nondiscrimination Act (2 of 2)

• Prohibits employers from using genetic information when making hiring, firing, job placement, or promotion decisions.

Genetic Markers

• A genetic marker is a gene or DNA sequence that has a known location on a chromosome and can be associated with a particular gene or trait.

• Genetic markers can identify certain diseases.

Stem Cell Research

• Use of embryonic stem cells to create organs and various body tissues.

• Highly controversial issue generally involving religious beliefs.

• Fears as to how far scientists might go in their attempts to create.

AIDS

• Deadliest epidemic in human history. • First case appeared in literature in 1981. • More than 21 million people have died from

AIDS. • Is caused by human immunodeficiency virus

(HIV). • HIV is highly contagious bloodborne virus. • Destroys body’s capacity to ward off bacteria.

Spread of AIDS

• Body fluids – Vaginal secretions – Semen – Breast milk

• Blood transfusions • AIDS and Healthcare workers

Confidentiality: Disclosure of Physician’s HIV Status

A physician cut his hand with a scalpel while he was assisting another physician. Because of the uncertainty that blood had been transferred from Doe’s hand wound to the patient through an open surgical incision, he agreed to have a blood test for HIV. His blood tested positive for HIV and he withdrew himself from participation in further surgical procedures.

• Discuss the ethical and legal issues.

Confidentiality: Ethical Issues

• Physician’s right to privacy versus patient’s right to know.

• Utilitarianism – Advocates the greatest good for the greatest

number • Conscientiousness

– A person who has moral integrity and a strict regard for doing the right thing

Confidentiality: Legal Decision

Failure to notify the patients at risk could result in the spread of the HIV virus to other noninfected individuals through sexual contact and through exposure to other body fluids. Doe’s name was not revealed to the patients, only the fact that a resident physician who participated in their care had tested HIV-positive. “No principle is more deeply embedded in the law than that expressed in the maxim Salus populi suprema lex . . . (the welfare of the people is the supreme law).”

AIDS Education

• Provide educational materials for patients and staff. – CDC

• Universal protocols. • Strictly adhere to handwashing protocols. • Safely handle all body fluids.

– Adhere to OSHA requirements.

Review Questions (1 of 5)

1. Discuss under what circumstances ethical dilemmas arise.

2. Discuss the controversy over the Supreme Court decision in Roe v. Wade.

3. What ethical principles surround the abortion issue? Discuss these principles.

4. Do you agree that individual states should be able to impose reasonable restrictions or waiting periods on women seeking abortions? Who should determine what is reasonable?

5. Should a married woman be allowed to abort without her husband’s consent?

6. Discuss the arguments for and against partial birth abortions.

7. Why is the medical issue of abortion an example of legislating morality?

8. What is artificial insemination? What questions should be asked when considering artificial insemination?

Review Questions (2 of 5)

9. Discuss the importance of organ donations.

10.Describe the ethical considerations that should be addressed before conducting research on human subjects.

11.Why is it important that written consent be obtained from each patient who participates in a clinical trial?

12.What is sterilization, as discussed in this chapter? Do you agree that eugenic sterilization should be allowed? Explain your answer.

Review Questions (3 of 5)

13.Describe the distinctions among wrongful birth, wrongful life, and wrongful conception.

14.Discuss the moral dilemmas of these concepts.

15.Describe the controversy over surrogacy.

16.Discuss why there is controversy over genetic markers and stem cell research.

17.What is AIDS, and how is it spread?

Review Questions (4 of 5)

18.Discuss the controversy that can occur when considering a patient’s right to know whether a caregiver has AIDS and the caregiver’s right to privacy and confidentiality.

Review Questions (5 of 5)