Conflict of Interest:

Primum non nocere. Anti-Nazi

My first response is: this is sickening.

My second response is: this is one long attempt, disguised in pseudo- learned language and academic words, to justify and rationalise the killing of infants. The language, and the reputation of the journals in which it is published, are meant to blind us to the sheer immorality of what they propose. But with however much academic pomp they propose their theory, even a child (or perhaps especially a child) can see that they are not wearing any clothes, and should be exposed as naked and ashamed.

Firstly, the authors propose that some human beings are more actual persons than other human beings. The pigs in Animal Farm used the phrase 'some animals are more equal than others' to justify the abuses and oppression of their rule over all other animals. [George Orwell, 1945.] Likewise, Giubilini and Minerva use the concept of 'person' to make the evil and morally repulsive act of infanticide sound right. Welcome Newspeak 2.0.

The argument that one person or people group is less human or worthy of respect than others, has been used to rationalise the worst evils in human history. The Romans argued that Barbarians could be oppressed, taxed and crucified, as opposed to Roman citizens. Abusers at Abu Ghraib prison walked their victims on a leash like dogs, degrading them to the status of animals or less. Blacks were argued to be less human than whites, so that they could be sold as chattel, used and abused. Hitler justified his "Endlosung" (final solution) to all of Germany's problems by defining Jews and any non-Arians as being less human than Arians. Is that the kind of society we want? Giubilini and Minerva merely substitute 'person' for 'human'. Otherwise the argument is similar. If we follow it, we will become a society more callous and evil than that of Nazi Germany. Killing our own newborns as if they were commodities. Treating babies as disposable objects to keep or discard as we like.

Secondly, they play word games. There is the game of handpicking their definitions to suit the purpose of supporting their proposal. For instance "We take 'person' to mean ..." and "our definition of the concept of harm ..." (italics mine). This is private opinion dressed up as academic argument. Also, the whole proposition is based on a clever game of circular definitions: a person is defined as one who can value harm or benefit, and harm is defined as the loss of aims and plans which only a person can value. Circular definitions prove as little as circular reasoning - nothing.

Thirdly, the authors' argument centres on the false assumption that the difference of a few days before or after birth makes so little difference that it is zero. But little is not the same as zero, as anyone with arsenic in their tea might appreciate. Africans are famous for claiming that anyone can eat an elephant 'one slice at a time'. Giubilini and Minerva must have asked themselves, 'How can we make infanticide look philosophically sophisticated?' Answer: 'One day at a time.'

If parents can change their mind about keeping their baby one week after his or her birth, why not a month or a year after birth? Or five years, when other diagnoses may have come to light, such as Duchenne's muscular dystrophy?

If one day makes no difference (even as momentous a day as that of a baby's birth), then each one of us readers is at risk of being killed at will, whatever our age. Indeed, the authors hint at this when they say, 'we do not put forward any claim about the moment at which after-birth abortion would no longer be permissible'. If birth makes no difference, then any limit is arbitrary, and someone will argue for 'just one day more' until the victim has received their 100th birthday card.

Fourthly, the authors consistently refer to the foetus and newborn eligible for abortion or killing by the pronoun 'she'. Though this most likely represents a poor attempt at inclusive language, it does not explicitly exclude covert support for selective abortion of female foetuses or infanticide of baby girls. This is reinforced by their statement that 'Indeed, however weak the interests of actual people can be, they will always trump the alleged interest of potential people to become actual ones, because this latter interest amounts to zero.' (italics mine). In plain English this means that the flimsiest interest of an older human has more value than the life of a newborn baby. That means that if parents have any interest whatsoever to want a boy but not a girl, they should be allowed kill their newborn baby girl and try again for a boy.

My third response is one of surprise. Ironically Giubilini and Minerva's reasoning serves the pro-life argument equally well. If killing a newborn baby is called post-birth abortion, then equally abortion could be called pre-birth killing. That is what the pro-life movement has argued all along. The pro-choice movement has always meticulously avoided words such as killing, insisting instead on euphemisms like 'termination' and even 'abortion treatment' as if abortion cures a disease [Website of the British Pregnancy Advisory Service, http://www.bpas.org/bpaswoman (accessed 30th March 2012)].

Further, the authors claim that 'killing a newborn could be ethically permissible in all the circumstances where abortion would be.' The exact same reasoning can be used to argue that aborting a six week old embryo or a 16-week old foetus could be ethically wrong in all the circumstances where killing an infant or adult child is wrong. Surely the direction in which the argument moves cannot make a substantial difference; whether it moves forward in time from foetus to newborn, or backward in time from child to newborn and foetus.

Giubilini and Minerva have given us much to consider. They have created a perfect ethical storm without saying much new. I remember reading their fellow Melbourne professor Peter Singer's work nearly thirty years ago and encountering exactly the same arguments. [Kuhse H, Singer P. Should the Baby live? The Problem of Handicapped Infants. Oxford: Oxford University Press, 1985.] The title 'Why should the baby live?' points clearly to Singer's 'Should the baby live?'. The authors' only innovation is to widen the allowable reasons for infanticide from 'severe abnormalities' (Singer); via diagnoses which come to light at some point after birth; to 'the same reasons which justify abortion' (Giubilini and Minerva). They even claim that any interest of any actual person (read: adult, older child or even those animals they regard as persons!!), however weak, is always of greater value than that of any newborn baby, since the interest of the latter is zero. In plain English that means infanticide on demand for the flimsiest of reasons. An adult dog has more rights than a human newborn since the latter has none.

But what does their argument really show? That post-birth killing is acceptable, or that pre-birth abortion is killing? That society is ageist, protecting human babies after birth but allowing them to be killed before birth? That baby P.'s abusers were not wrong to kill him but only wrong to cause him pain and suffering in the process? That human capacity for rationalising evil is endless? That ethicists can supply reasons to justify any evil they wish to justify? That philosophy is like a knife that can either kill or heal, depending on the decisions of the person who manipulates it? That digging up old controversial ideas is the best way to improve one's citation metrics and revive a flagging academic career?

Most of all, I believe, their argument shows that philosophical ingenuity cannot make values for us human beings to live by, any more than political spin can weave clothes for an emperor. The emperor will have to find an honest tailor, and we human beings need to look elsewhere for a reliable foundation for ethics.

Conflict of Interest:

None declared

Establishing Personhood A recent publication of modern philosophical thought by two ethicists from Melbourne, Australia, both with ties to Oxford University, Dr. Alberto Guibilini and Dr. Francesca Minerva's "Afterbirth Abortion: Why Should the Baby Live?" published February 23, 2012 in the Journal of Medical Ethics, takes Descartes founding principle of modern philosophical thought: "I think, therefore I am," to its logical conclusion. The authors rationally demonstrate their premise: since it is thinking that defines a human being's existence, a human being that does not think is not a "person" and in that lack, does not exist. Therefore, they argue, if the philosophical term "personhood" is not conferred to a fetus, why would it be conferred to an infant after it is born? Of course, based on their premise, they are right. Intellectually and biologically an infant and a fetus are basically the same. So the authors use the same philosophical argument that an infant is as worthless as a fetus and the value of an infant's life should be determined by the same parameters as that of the fetus' life: whether it is wanted or not. Guibilini and Minerva's paper opens a Pandora's Box that segues Western society to freely confer or remove "personhood" and ergo the legal protections from any human being whose thinking may be compromised: dementia patients, the mentally ill, stroke victims, PTSD, brain injuries, autistic persons and those under 25 years of age whose pre-frontal cortex is not yet mature. Realizing that the argument further injects a "value" judgement that becomes the very definition of human life, should cause all thoughtful persons to remember that scientific theories underpinned laws leading to horrors in human history: the Laws of Human Slavery and Chattel; Hitler's Operation T-4; the Lebensborn Experiment; the Nuremberg Laws; based on the American Jim Crow Laws; and those based on the Statutes of Kilkenny. The obvious problem with Guibilini and Minerva's argument is that the premise is flawed. To accept as a philosophical truth Descartes "I think, therefore I am," defies logic. To fix the failed logic in the premise and force it to work, philosophers assigned value to function (think) and separated potential function from actual function. What wasn't done was to focus on the agent that compels the verb "think" to action--"I". Man is not merely function, but force as well. There is no effect without a cause. "It is not thought that determines existence, but existence, 'esse,' that determines thought" -- St. Thomas Aquinas. Thinking is merely one process in the state of being. The part does not equal the whole. Rather, the whole is greater than the sum of its parts. No one can have any function without first existing. If a philosophical principle can be doubted prima facie intellectually, linguistically and logically, then it is not a universal truth applicable to reality. If it were, then replacing think with any other intransitive verb should not make the sentence less true, but it does: I throw, therefore I am; I eat, therefore I am; I lie, therefore I am--all are functions of a human's nature, not the definition of it. Modern philosophy failed to question the validity of its premise. Our duty is to ask why ? If we don't, as history attests, once a society freely agrees to the definition of a dehumanizing "value" for one segment of the population for the "greater good," slowly but surely the definition of those that qualify expands.

Conflict of Interest:

None declared

Dear Editor

In the Journal of Medical Ethics, Joffe et al. recently published an article titled:
What do patients value in their hospital care? An empirical perspective on autonomy centred bioethic [1]
This empirical study evaluates whether patients’ willingness to recommend their hospital to others is more strongly associated with their belief that they were treated with respect and dignity than with their belief that they had adequate say in their treatment.[see note 1] Joffe et al. go on to suggest that confirmation of these empirical hypotheses would constitute a prescription for elevating the principle of respect for persons to the level that the principle of respect for autonomy currently enjoys in our model of the ideal patient-physician relationship ([1] p.104). In other words, they suggest that by some means empirical findings could influence our ranking of the normative principles. Earlier in the article, they make an even stronger claim about the influence of empirical data on our acceptance of normative principles. They suggest that if it were demonstrated empirically that some patients prefer to delegate medical decisions to health care professionals a serious challenge would be levied against the normative assumptions underlying the principle of respect for autonomy, at least under the mandatory autonomy view, which holds patients not only have a right but also an obligation to act autonomously ([1] p.103). In light of many recent empirical studies challenging the centrality of patient autonomy and shared decision-making in bioethical theory, I think it is instructive to evaluate the means by which empirical findings, like those offered in Joffe et al., strengthen or weaken our arguments for ethical principles. In particular, I will be interested in how Joffe et al. propose their data lead them to the normative conclusions they reach.

In the last paragraph of their essay, Joffe et al. write, “we do not recommend that patients’ perspectives should unilaterally determine ethical frameworks. We do, however, believe that data such as those presented here can contribute to the search for reflective equilibrium in bioethics”([1] p.107). The term “reflective equilibrium,” as the authors note, was introduced by John Rawls. At least in its first instance, it refers to a way of constructing a moral theory by balancing one’s considered moral judgments against one’s moral principles, until one’s judgments and principles form a consistent set—that is, a moral theory (Rawls [2], p.288). Joffe et al.’s idea seems to be that by surveying patients’ perspectives they will be able to capture one side of this equilibrium, considered moral judgments or moral principles (they do not specify which), and in so doing contribute to the desired end: a consistent ethical framework to govern medical encounters, built (at least in part) from the principles and moral judgments of the patient community. Whatever the merits of this goal, however, Joffe et al. fail to capture either the considered moral judgments or the moral principles of those they survey and so fail to contribute to the moral theory they seek to construct.

Rawls defines considered moral judgments as those judgments in which our moral capacities, which he considers analogous to our linguistic capacities, are “most likely to be displayed without distortion”--e.g. those offered without hesitation, given without strong emotions like fear, and made in the absence of conflicting interests (Rawls [3] p.47). The distinction between considered judgments and judgments generally is important. When constructing a moral theory for a particular community—for instance, the patient community—we want to use only those judgments that reflect the respondents’ real moral sensibilities, and not those stemming from superficial prejudices or their mood on the day they happen to respond. This raises two important questions, however, for researchers, like Joffe et al., using the reflective equilibrium: (1) precisely how considered do considered judgments have to be if they are to count, and, more practically, (2) how can a researcher know whether he or she is collecting them (i.e. what survey method, if any, is appropriate for the task)? While it is difficult to give a positive answer to these questions (and I will not attempt to do so here), some survey methods, such as the mailed questionnaires Joffe et al. use, seem particularly inadequate. Rawls suggests certain external conditions favor the formation of considered judgments: “the person making the [considered moral] judgment is presumed…to have the ability, the opportunity and the desire to reach a correct decision (or at least, not the desire not to)”(Rawls [3], p.48). Very likely, however, many of Joffe et al.’s respondents lacked the necessary ability, opportunity, or desire to reflect on their moral judgments when responding to the questionnaire they received in the mail. Furthermore, even if a number of patients did offer legitimate considered judgments, there is no way to distinguish these from those made by respondents’ who lacked the requisite ability or desire. While the size of Joffe et al.’s study is of value for its ability to more accurately reflect a population’s response to its survey questions, because of the practical limitations that come with its size, the study falls short of capturing patients’ considered moral judgments.

Any empirical approach, like Joffe et al.’s, using reflective equilibrium faces a second challenge: why do we want peoples’ considered moral judgments to influence our ethical theories in the first place? In his influential critique of reflective equilibrium, DW Haslett writes, “given the wide differences between people’s considered moral judgments, and given that these differences are, as we know, largely just a reflection of differences in upbringing, culture, religion, and so on, it would appear that, far from having a reason for giving people’s considered moral judgments initial credibility, we have instead a reason for initial skepticism”.[4] If moral judgments are liable to reflect superficial prejudices, one could argue, considered moral judgments are liable to reflect deep-seated ones. Surely this prejudice is something ethicists would like to overcome, not codify. While I do no think this challenge is insurmountable, [see note 2] it does demand that researchers justify the inclusion of considered judgments in ethical theory before using the method of reflective equilibrium. Joffe et al. have failed to do this.

Joffe et al.’s study is susceptible to a second line of critique. Even if the study’s use of mailed surveys is appropriate, the study fails to capture either patients’ considered judgments or principles, because, put simply, it doesn’t ask for considered judgments or principles. Instead, it asks patients whether providers respected their person or respected their autonomy, and then tests patients’ responses to these questions against whether they report being satisfied with their care. If a provider’s acting with respect for persons is a better predictor of patient satisfaction than her acting with respect for autonomy, Joffe et al. conclude that the principle of respect for persons should be assigned as much importance ethically speaking as the principle of respect for autonomy. As should be clear, this conclusion does not follow from Rawls’s conception of how one constructs a moral theory. In a Rawlsian view .[see note 3] , a moral theory requires knowing which principles patients hold, not whether those principles are associated with patient satisfaction. Joffe et al. seem to be operating with an underlying utilitarian assumption to the effect that what we ought to do ethically speaking is whatever will lead to the greatest patient satisfaction. Though there may be reasons for accepting this utilitarian assumption (which Joffe et al. do not provide), certainly there are others for rejecting it. For instance, though patient satisfaction may give a hospital a very good reason to change a policy, we probably do not want to say this reason is a good ethical reason. It is just good business sense. This is an especially important point given the principles that Joffe et al. evaluate. Respect for autonomy and respect for persons are traditionally viewed deontologically--that is it terms of duties or rights, which are valued for their own sake rather than the consequences (e.g. patient satisfaction) that they produce. In any case, these utility considerations take us far from patients’ actual moral views, the very things Joffe et al., by invoking Rawls’s reflective equilibrium, propose to capture.

Lastly, there is a question of their instrument’s validity. As I have been arguing, Joffe et al. claim to assess whether patients are treated according to the principles of respect for autonomy and respect for persons. Yet, their single item assessing respect for autonomy - the question, "do you feel you had your say?" - does not do the principle justice. The principle of autonomy not only requires that the health care provider ask the patient for his opinion, but also that she act on the patient’s opinion. Their instruments are similarly inadequate for the principle of respect for persons, which, they suggest, includes "autonomy, fidelity, veracity, avoiding killing, and justice" as well as "respect for the body, respect for family, respect for community, respect for culture, respect for the moral value (dignity of the individual), and respect for the personal narrative"(104). How are we to know whether patients had all or any of these in mind when they answered the question, “did you feel like you were treated with respect and dignity while you were in the hospital?” Joffe et al. acknowledge that these ethical concepts are a bit unwieldy for a survey of manageable length. However, these practical considerations should be used not only to excuse the study but also to question its ability to clarify the ethical concepts it claims to assess. They should prod us to ask, regardless of the survey’s scale and the limitations its size produces, does this survey really address what we mean by the principles of respect for autonomy and respect for persons?

With any empirical study in bioethics, there is a gap between the empirical hypothesizes the study confirms and the normative conclusions its authors would like to draw from it. In their article Joffe et al. hoped to bridge this gap by invoking Rawls’s notion of the reflective equilibrium. As I have explored, however, Joffe et al.’s study does not contribute to either side of the reflective equilibrium they imply, and, thus, they fail to demonstrate how their findings challenge the centrality of autonomy and shared decision-making in bioethics.

Joffe et al.’s failures are instructive, however, in so far as they suggest how we might better bridge research and theory. The use of the reflective equilibrium in empirical research has promise, provided researchers are clear about:
(1) how to define considered moral judgments and/or principles,
(2) how their methodology capture these judgments and/or principles reliably,
(3) how the inclusion of considered moral judgments strengthens rather than weakens bioethical theory, and
(4) how their instruments are valid for the judgments or principles they mean to assess.

In addition, empirical research can contribute to bioethics by questioning the assumptions implicit or explicit in our normative views. Joffe et al. try to do just this when they argue that patients’ desire to delegate decision-making challenges the mandatory autonomy view, in the introduction of their paper ([1] p.103). However, if empirical findings are to defeat a particular normative principle, the assumption those findings challenge must be logically necessary for our holding that principle. For instance, without showing patients’ desiring autonomy is necessary for our holding the mandatory autonomy view, the studies that Joffe et al. cite, even if valid, can be interpreted variously as devaluing the mandatory autonomy view or as recommending that we better educate patients on the value of autonomy. This normative question cannot be settled empirically.

Empirical researchers have the potential to contribute substantially to bioethics, but their work needs the kind of philosophical and empirical rigor that comes from truly interdisciplinary collaboration and must be informed by a careful reflection on the proper relationship between descriptive and normative ethics (Sulmasy and Sugarman).[4] Joffe et al. take us part of the way down that path. An exciting research itinerary lies ahead.

References

(1) Joffe S, Manocchia M, Weeks J C, Cleary P D. What do patients value in their hospital care? An empirical perspective on autonomy centred bioethics. J Med Ethics 2003; 29:103-108.

(2) Rawls J. The independence of moral theory. In: Freeman S, editor. Collected papers / John Rawls. Cambridge, MA: Harvard University Press, 1999. p.286-302.

(3) Rawls J. A theory of justice. Cambridge, MA: Harvard University Press, 1971.

(4) Haslett DW. What is wrong with reflective equilibria? The Philosophical Quarterly 1987; 36(148):305-311.

(5) Sulmasy DP, Sugarman J. “The many methods of medical ethics (or, thirteen ways of looking at a blackbird).” In: Sugarman J, Sulmasy DP, editors. Methods in Medical Ethics. Washington, D.C.: Georgetown University Press, 2001.

(6) Delden JJM, Thiel GJMW. Reflective equilibrium as a normative-empirical model in bioethics. In: Burg W, Willligenburg T, editors. Reflective equilibrium: essays in honour of Robert Heeger. Dodrecht: Kluwer Academic Publishers, 1998. p. 251-259.

(7) Rawls J. Political liberalism. New York: Columbia University Press, 1993.

Notes

Note 1:
Joffe et al. also evaluate whether patients’ reporting they had confidence and trust in their health care providers significantly predicted whether they would recommend their hospital to others. For simplicity’s sake, I only address Joffe et al.’s treatment of the respect for persons and the respect for autonomy principles in this response.

Note 2:
See, for instance, Delden and Theil,[6] in which the authors convincingly argue that a reflective equilibrium-like methodology may be valuable for capturing the norms of health care providers and that knowledge of these norms may guide individual providers.

Note 3:
I say “a Rawlsian view” rather than “Rawls’s view” because in his Theory of Justice Rawls advocates balancing a single person’s considered moral judgments (e.g. Rawls’s or his reader’s) with a single person’s moral principles (Rawls [3]p.50). Although he later gestures towards reflective equilibrium a an exercise that involves the considered moral judgments of others (Rawls [7], p.8), it is probably safest to say “Rawslian.”