Right now The Supreme Court of Mississippi is pondering the case of Nina Buckhalter. Nina Buckhalter is addicted to drugs. At the 31st week in to her pregnancy, on March 14, 2009, she gave birth to a stillborn daughter, whom she named Haley Jade. At the time of pregnancy, Ms Buckhalter tested positive for methamphetamine. One likely scenario is that the continued drug use contributed to fetal demise. This prompted the state to prosecute Ms Buckhalter for manslaughter because she “did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence.”
Many news outlets picked up on coverage with titles like Mississippi Could Soon Jail Women for Stillbirths, Miscarriages or Mississippi considers prosecuting women for stillbirths and miscarriages. Obviously, with a title like that, people will be surprised and shocked. It is very disturbing to think that someone who has gone through the tragedy of a miscarriage will be subject to criminal investigation and perhaps prosecution. Readers might think of their own experiences or those of their friends and families in losing an eagerly anticipated child. You may shake your head in wonderment, or shake your fist in anger at the prosectors in Mississippi, but as noted in most news articles on the subject, there are important issues here related to many aspects our medico-legal system, in particular the continuing debate on abortion.
It’s important to remember that when a child dies unexpectedly or goes missing, the parents are often questioned by police and are often depicted in the media as someone of interest in investigation. This of course seems cruel and insensitive, given that much of the time, they are victims to a horrible crime. Unfortunately, sometimes they are the perpetrators. An important difference between the death of child and the death of a fetus is that we often are able to establish the much better chain of causality for the death or injury a child than a fetus. Often we don’t have a good understanding of what causes spontaneous abortion, we know from many observations study that there are many features that increase the risk of miscarriage, but often these are just risk factors, and although we might even have a good mechanistic model of why these risk factors might cause miscarriage (ie an idea in our mind about how they might cause death of a fetus), that doesn’t mean that presence of those risk factors actually caused death.
As an aside, I’m going to acknowledge that I’m going to use some terms interchangeably, but there are actually very specific guidelines about what constitutes early pregnancy vs miscarriage vs stillbirth. These terms relate to fetal age of development and our understanding of what constitutes likely viability of a fetus. Viability means that if the baby is born pre-term, it has a chance of survival to childhood and beyond. I am not an expert on obstetrics, but it is important to keep in mind that this an extremely complex area, and often the terminology is misleading or even controversial. For example, what the gestational age even means depends on who you are talking to, but as noted I’m going to forge ahead and just acknowledge that I’m glossing over a lot of technical detail.
The concept of fetal ‘viability’ is a very controversial one. The limits of how early a preterm baby can kept alive are always shifting as neonatal technology improves. I have seen some incredibly tiny infants in the Neonatal Intensive Care Unit. Preterm babies are often subject to serious disability in later life, but not always, some are just fine. Just like with miscarriage rate, these are often “associations”, and at the same time the quality of neonatal care is strongly “associated” with outcome. So what constitutes likely viability is a mix of the fetal environment (health of mother, chemical exposures), how early the baby was born, and how skilled the neonatologists are. Adam Wishart has produced a documentary for the BBC on the ethical and financial issues involved in the care of 23 week babies. He raises the question of whether it is “medicine at its most pioneering and brilliant, or is it science pushing the limits of nature too far”. Importantly, he notes that “it’s a subject that many of the medical team themselves find deeply uncomfortable”.
As a side note, Wishart also produced another documentary focussing on the high costs at the other end of life and the debate at the UK’s National Health Service about what treatments they will support:
The fact that there are so many serious potential outcomes (heart problems, serious developmental disability, blindness, etc.) associated with early prematurity, it’s important to remember that US law also recognizes Wrongful Life and Wrongful Birth suits. The basic idea is that if a healthcare provider does not sufficiently warn prospective parents of increased risks of disease (such as two parents with genetic risk factors) prior to conception or does not warn them about the presence of serious defects discovered in a fetus and/or does not give them the option of an abortion, that provider can be liable for significant damages. The idea in wrongful life is that the child sues the doctor (obviously the parents and lawyers bring the suit on behalf of the child) for letting the child come into existence at all with serious disability. This is rooted in a fundamental aspect of medical ethics that we were taught as medical students, the importance of patient autonomy, here reflected in the right for parents to be fully informed of the risks and problems to make decisions about the healthcare of their family. I should note that not all states allows such suits, and in some countries they are prohibited. According to Wikipedia: “In Germany, the Federal Constitutional Court declared wrongful life claims unconstitutional. The court reasoned that such a claim implies that the life of a disabled person is less valuable than that of a non-disabled one. Therefore, claiming damages for one’s life as such violates the human dignity principle codified in the first article of the German Basic Law.” I actually find that to be a particularly strong argument against such suits. Of course, this depends a bit on how the law is meant to be used. Are torts meant to act as a deterrent for action or inaction (in this case making sure doctors do more tests and put more time into informing patients), are they really meant to provide relief to someone injured by misconduct of another, or are they meant to represent the ethical ideals of society? If a physician fails to provide a good standard of care, such as informing parents about risks to a child, that seems to be more appropriately framed as a general piece of malpractice, but wrongful life seems unpalatable to me as a way to frame it.
Returning to the Mississippi case, the facts that we understand of the case are following: Ms. Buckhalter used drugs while pregnant. This drug use is probably a significant factor in the loss of the fetus at 31 weeks, something well within the green window of a chart of viability. If someone harms a fetus, how would we like the law to work?
For example, if there is a woman who is 36 weeks pregnant, and she is assaulted and beaten by an attacker and then loses the baby, many people may want the the legal system to operate in such a way that the mugger is prosecuted for committing a homicide instead of the much lesser crime of assault. Now suppose the pregnant woman were to be injured and miscarry because of negligence in some way (drunk driver); should someone should be held civilly or criminally accountable for negligent manslaughter? So what happens when the woman herself causes loss of the 36 week fetus through her own actions? Or what if the child is born severely developmentally disabled because of her actions? Where is the boundary of culpability/criminality? I chose 36 weeks, because a 36 week fetus, although pre-term, can typically be born free from serious problems (see the chart above); although at the same time, it could certainly be killed in utero through trauma or chemical exposure. Of course, immediately as you start going down this line of reasoning and moving down the gestational age chart, it becomes easy to suddenly to get to intentional abortion as murder. That is the path that many people in Mississippi would like this legal and ethical discussion to go, and that is also the reason that many people are vehemently opposed.
Termination of life is only one aspect, as we can also consider serious injury. If you think about a mother giving birth to a child with fetal alcohol syndrome, sadness at the tragedy of that happening is a natural response; a certain amount of moral disgust at the mother is also probably natural. Although we can view alcoholism as a disease, there is a general feeling that the mother is in a way culpable for the harm to the child. Perhaps she didn’t try to get treatment when she could have? I’m not saying that feeling is necessarily right or wrong, just that it is one that many people may have. What if there were people facilitating her alcohol drinking while pregnant or preventing her from getting treatment? How do we feel about them? Were they doing a criminal act? What if a mother continues to smoke while pregnant? Should smoking during pregnancy be a crime? Should her child later be able to sue her for health problems attributed to her smoking while pregnant?
This is not just a theoretical consideration, in Alabama two women were convicted of chemical endangerment of their children because of drug use, and their convictions were held up by Alabama’s Supreme Court. You can read the appellate court’s response here. Many people view these cases as part of an over-all plan to attack and erode abortion rights. Regardless of the intent of the cases, they do bring up serious unresolved issues of fetal and maternal rights.
As another aside, although I don’t know about the philosophies of the justices in Alabama and Mississippi, I will take Anton Scalia as the prototype of a conservative justice, ardently opposed to abortions, and pretty strongly in the camp of a strong sense of personhood for fetuses. He believe strongly in textualism for statutes, taking the law as it was written and not trying to interpret the meaning or intention behind the law, while he is an originalist with respect to the constitution; that means trying to apply the constitution in the manner in which he believes it was intended by its originators. While as I’ve just described them, they may seem a little bit at odds, they are actually very closely related schools of thought. The idea is that the law should be interpreted in the plain manner in which was written and which a “reasonable” person would interpret it to mean, but that we might modify that for a very old document like the constitution, where we try to interpret the original meaning of what was written at the time it was written. The key idea here is that the law is not about what it ought to say or was intended to say, it is about what it does say or at least what it did at the time of its writing. Why that is important here is that the statutes these cases in Mississippi and Alabama are based upon were definitely not intended to allow for prosecution of pregnant women and in both states there have been repeated attempts to introduce legislation to allow it, but which has repeatedly failed. However, the appeal cases in Alabama seem to have been decided based on a textualist framework: “although penal statutes are to be strictly construed, courts are not required to abandon common sense. Absent any indication to the contrary, the words must be given their ordinary and normal meaning.” The words in this sense mean the definition of child. I’m pretty sure that the common sense and normal interpretation of the world child in the statute would (at least for me) not include a fetus in that grouping, despite common usage of “unborn child”, or being “with child”. To put it in grad student terms, a “proposed dissertation” is not the same thing as “completed dissertation”.
One motivation for this digression into legal philosophy is because of an amicus brief from the American Medical Association. An amicus brief is a document submitted by a third party to a court to provide additional information relevant to the case, particularly when the judgement of the court may have implications beyond just the case being heard, as in the Mississippi case which will establish some very broad precedent. The articles go into some depth on the possible implications of these convictions establishing a precedent, and the AMA and many medical groups are rightly concerned about the potential impact on other pregnant women. For example, one possible negative impact is that pregnant women who are using drugs may avoid medical care entirely, leading to more widespread and dire consequences. However, doing the right thing is not necessarily what the courts are about. Textualism means that the judge is working to figure out if and how the existing laws apply to the situation at hand, and after effects of how these precedents may extend into impacting future actions may be very much secondary. It is explicitly the job of the legislative branches of government to make the laws, and the judiciary has to work with that, even if those laws bring about unwanted consequences. I don’t mean to imply that textualist judges are unfeeling logical automata, working like strict grammarians with the law. As any human being, they want to do what’s right, but there can be different intellectual frameworks in which judges can operate. It’s not always about what we think the law ought to say or about getting the outcomes that are fair, equitable and just. It’s often more about what the law actually says and what is meant by the word child.
Fetal rights are a very complex area, ethically and legally. However, I am left to wonder if there are any scientific or technological solutions to these problems. What if we had an artificial uterus/womb? That sounds a bit crazy and the stuff of science fiction. It’s a mad scientist trope to have a fetus maturing in a jar. It suggests a great loss of individual human dignity, and suggests something like Aldous Huxley’s Bokanovsky process in Brave New World or the clone armies in Star Wars. Before I discuss wether this is even possible, let alone whether it is something we should do, let me look at the opposite of the innovation at the start of life, and instead focus on some innovations around ending life.
The M86 Pursuit Deterrent Munition is an amazing piece of engineering.
It’s basically a kind of anti-personnel mine that is thrown like a hand grenade. I couldn’t find a ton of information about the M86 or very many pictures, probably because mines are very controversial, particularly as the US is one of the few countries not part of the Ottawa Treaty banning mines. However, it is a really ingenious gadget. If you are a special forces operative and you want to discourage people following you, you throw one of these behind you, like a grenade; that is you pull the pin and throw it. 25 seconds after you let go (plenty of time for it to arc through the air after the hefty pitch it was given), it deploys seven trip wires, shooting them out as in the picture in multiple directions. The trip wires reach up to 6 meters. The mine waits a little bit more than a minute for the wires to all settle into place and then turns on. If any of the trip wires are disturbed in the next 4 (there is a 48 hour version of something similar), the mine will go off. One of the additional ingenious bits is that the mine’s main explosive components are contained a spherical element only partially filled with a liquid propellent. Once the mine has settled, the propellant settles to the bottom. That is what is first ignited when the mine goes off, causing it to jump up into the air (maybe a meeter high) before the main explosion goes off, shooting all the ~600 fragmentation elements out in an air burst; that’s what make this a bounding mine (something apparently invented by the Nazis). The spherical shell, partially full of propellant is one of the recent innovations here, as it means the mine will jump upwards no matter what orientation it originally fell in. The idea is that it will spread the damage out over a much wider area, about waist height with a primary intention of maiming people. Causing serious maiming injury is more desirable than killing in these circumstances, because it acts as a much stronger deterrent to pursuit, as the uninjured pursuers have to stop to assist those who are injured. However, obviously the fragmentation explosion can be quite lethal. After four (or 48) hours the mine explodes on its own, or if for some reason the mine does not explode, the battery will rapidly discharge and the mine will be inactivated. This last part is an important feature, as it means the mine will be much less dangerous months or years later, unlike many extant mine fields which continue to be extremely hazardous long after the original conflict, causing injuries to young children who might step trigger very old mines. We are certainly capable of great innovation when it comes to causing injury and death, but why are we so much more squeamish about innovation in reproduction and the start of life? Why does it seem so much more strange and weird? It seems somehow unnatural, whereas the thought that the US military has all kinds of fancy ways of harming other people doesn’t seem odd at all. It is sad to think of people injured in mine explosions, but not surprising that militaries invest in developing these technologies. To me, many of them seem absolutely ingenious, and I’ve described the M86 as one example. I also can certainly respect the idea that part of the innovation is that it was designed to limit the harm a more traditional mine might cause. It would be hard to say that it is unnatural for human beings to find clever ways to hurt on another, especially given the regularity with which they do so. Why this important, is that just because something seems natural or unnatural (or maybe if something seems weird or not) is not the same thing as it being good vs. bad. Humans trying to use weapons to hurt one another must certainly be natural given the regularity and consistency with which it is done, but it is not necessarily something we want going on very much. At the same time, having a fetus develop entirely in the mother’s womb may be the most natural thing, but maybe it isn’t what we always want. For example, we could imagine explanting a fetus from an alcoholic and drug addicted mother (like inducing a very early pre-term birth) and allowing it to develop in an incubator type device. Supposing we got very good at developing the incubator, it could be better for the long term health of the child, and isn’t that what we really want even if it may seem creepy? Gastrointestinal surgery to remove a piece of necrotic bowel can be very creepy, very disturbing to watch, but it is a technology we are pretty glad that we have, as it saves a lot of lives.
Does the thought of an artificial womb seem horrible and mad? What would it mean? I was struggling with the ethical implications of what this technology could mean until I found a very nice discussion on the Practical Ethics blog. The author frames it slightly differently, suppose that on some other planet, the species was more like birds or platypuses, and babies came from eggs. Would it be ethical to develop a technology to allow females of the species to incubate the offspring inside their bodies instead of within the eggs. A compelling case develops that it would be substantially unethical to do so. Putting the fetus inside the female is an inherently sexist thing to do. It shifts what can be shared responsibility for care of an egg onto one person and inflicts an additional physiological toll. A woman’s body needs to be substantially altered to support a growing fetus, leading to substantial discomfort and pain. The process of birth is also a very dangerous one, often endangering the mother’s life, and is still a substantial cause of morbidity and mortality in women despite our best medical advances. As noted, it puts the fetus itself as much increased risk of injury if the mother is unable or unwilling to avoid dangerous exposures, or if the pregnancy is at high risk due to maternal age, weight, hypertension, diabetes, some anatomical variation of the uterus, or many other reasons.
What would potentially be gained by putting the fetus into the female instead of leaving it in the egg to develop? The mother and baby might be able to share a special bond due to their time together with tied physiologies. However, it is not entirely sure what that means. Babies are born recognizing their mother’s voices, presumably because of hearing it in the womb, but there is no reason that both parents can’t bond in some way with the hypothetical egg, speaking to it equally and spending time with it. That also implies that babies can’t form special bonds with new parents, and there is every indication that adopted babies can form special bonds with their adopted parents. Certainly, young goslings rapidly imprint on hatching, even with a member of another species.
If a technology is developed that allows fetuses to develop outside of the uterus does that that somehow steal something special away from women? Although I acknowledge that many people would feel this way, I think intellectually that this is a terrible argument. It is saying that women aren’t inherently special as individuals and it has close ties to thousands of years of (often agrarian) societies viewing women as essentially instruments for producing male heirs. Throughout recorded history, women have often been severely restricted due to pregnancies or the possibility/fear of pregnancy. It might be possible to effectively level the reproductive, lifestyle, and career playing field, both across genders and for women who aren’t able to currently have children.
One important criticism that I think has a lot of validity is that externalization of pregnancy would make it seem like much more of a commodified process and babies would be considered more “made” instead of born, causing objectification and devaluation of personhood. Out of all possibilities that I can think of, this is the worst potential aspect.
It is even technologically feasible? There isn’t a whole lot of research in this area, probably because the natural reaction is a bit of squeamishness, but there is some work in that direction. Researchers in Australia have grown shark pups in an artificial womb like setup, although this substantially simpler than mammals as sharks don’t have placentas. Hung-Ching Liu of Cornell has developed artificial uterine linings, and can successfully have mouse embryos implant into the artificial lining and begin to develop. Researchers in Japan led by Yoshinori Kuwabara have successfully incubated goats in plastic tanks filled with amniotic fluid for several weeks. It is very hard to say that something is impossible when it just seems very complicated or difficult and doesn’t violate any core physical principles; such predictions are often rapidly debunked (whether is that no human will fly, no machine would be chess champion or no machine could be Jeopardy champion), so I would say it is certainly possible. The New Atlantis has an excellent article outlining some of the ethical and technical issues involved. There is a more concise article here on the same subject that outlines what might be involved.
So the thought of fetuses (human or animal) growing in jars is still a very creepy one, but I think it is desirable avenue of research and development precisely because of what it could mean, including things we haven’t even considered or conceived yet. Developing a technology doesn’t mean it needs to be widely used (hopefully that will continue to be the case with nuclear bombs and biological weapons); however, developing a technology means we at least have the capability to do more than we could do before, particularly in the way we care for animals. I haven’t even discussed how it could be used to rescue endangered species, but hopefully thinking about it could fire your imagination. It could potentially lead to many more advances than our continued research into innovative ways to harm one another.
In an effort to lighten the mood, I will write about something else that comes in jars and is much more pleasant to look at. Pickles! I just finished another jar of Patak’s delicious mixed pickle relish, so I’m heading down to Sunnyvale to pick up some more. If you need a snack in a hurry, heating up some frozen naan in the (toaster) oven and then eating it with some pickles is a very pleasant and quick snack. It’s also not even that unhealthy.
I got some excellent Japanese pickled mustard greens the last time I was at Nijiya. Maybe I will write a blog post about them next time.
Your thoughts and comments are very appreciated, and are a strong incentive to continue blogging.