The concept of the fetus as a patient should not be understood in terms of the independent moral status of the fetus, i.e., some feature(s) of the fetus that, independently of other entities – including the pregnant woman, the physician, and the state – generates obligations of others to it. This is because all attempts to establish such independent moral status have ended in failure and continued to do so; there are irreconcilable differences among the philosophical and theological methods deployed over the centuries of debate about the independent moral status of the fetus.
A philosophically more sound and clinically more useful line of argument is that the moral status of the fetus depends on whether it can be reliably expected later to achieve the relatively unambiguous moral status of a child and, still later, the even more unambiguous moral status of a person.
The fetus is a patient when reliable links exist between it and its later achieving the moral status of a child and then a person. There are two such links pertaining, respectively, to the viable and to the pre-viable fetus.
The first link between a fetus and its later achieving moral status as a child, and then as a person, is viability, the ability of the fetus to exist ex utero with technological support as necessary. Viability thus requires levels of technological intervention necessary to support immature or impaired anatomy and physiology through delivery when childhood exists, and into the second year of life, the latest a time at which, it has been argued, personhood exists.
Viability is therefore not an intrinsic characteristic of the fetus, but a function of both biology and technology. In developed countries, fetal viability occurs approximately at the 24th week of gestational age, as determined by competent and reliable ultrasound dating. When the viable fetus and the pregnant woman are presented to the physician, the viable fetus is a patient.
The second link between a fetus and its later achieving moral status as a child and then as a person is the decision of the pregnant woman to continue a pre-viable pregnancy to viability and thus to term. This is because the only link between a pre-viable fetus and its later achieving moral status as a child and then as a person is the pregnant womanâ€™s autonomy, exercised in the decision not to terminate her pregnancy, because technological factors do not exist that can sustain the pre-viable fetus ex utero.
When the pregnant woman decides not to terminate her pregnancy, and when the pre-viable fetus and pregnant woman are presented to
the physician, the pre-viable fetus is a patient.
In summary, when the pregnant woman presents for medical care, the viable fetus is a patient. The pre-viable fetus is a patient as a function of the pregnant womanâ€™s decision to confer this status on the fetus and present herself for care. It cannot be emphasized too much that the existence of a fetal research project does not establish that the fetus is a patient, because, by definition, research interventions have not been established as clinically beneficial to the fetus.
A pregnant womanâ€™s decision to enroll in a clinical study of maternalefetal surgery therefore does not mean that the pre-viable fetus irrevocably has the status of being a patient, because before viability the pregnant woman can withdraw the status of being a patient from her fetus even after having earlier conferred that status on it.
When the fetus is a patient, the physician has beneficence-based obligations to protect its life and health.
These obligations must in all cases be considered along with beneficence-based and autonomy-based obligations to the pregnant woman. In other words, the fetus should not be considered as a separate patient. Ethical criteria to guide innovation in maternalefetal surgery must herefore take account of beneficence-based obligations to the fetal patient and beneficence-based and autonomy-based obligations to the pregnant woman.
Failure to consider all of these obligations results in an inadequate ethical framework to guide innovations in maternalefetal surgery.
Extract from – Frank A. Chervenak a,*, Laurence B. McCullough b -Ethics of maternalefetal surgery
Seminars in Fetal & Neonatal Medicine (2007) 12, 426-431
New York: Oxford University Press; 1994.
clinically comprehensive approach to peri-viability: gynaecological,
obstetric, perinatal, and neonatal dimensions.
J Obstet Gynaecol 2007;27:3e7.