April 2, 2008
Volume IV, Issue ii
Neuroethics
PBJ Penn Bioethics Journal
Bo Peng
EDITOR IN CHIEF
Anand Bhagwat PUBLISHER
Claire Chang Markley Foreman Armin Gollogly Palak Kundu Ingrid Lindquist Kavita Vinekar MANAGING EDITORS
Michael Weintraub BUSINESS MANAGER
Shirley Ahn Markley Foreman Leila Glass Emily Knudsen-Strong Ali Nill Elizabeth Rubin Ingrid Lindquist ASSOCIATE PUBLISHERS
Shirley Ahn Anand Bhagwat Katryn Bowe Emily Knudsen-Strong Menghan Fu Leila Glass Bianca Gonzalez Benjamin Himes Betty Huang Lulu Liu Justin Masterman Jared Mendelsohn Rajini Murthy Ali Nill Tuua Ruutiainen Sasha Riser-Kositsky Liz Rubin Albert Ryou Daniel Santos Jules Shen Lee Vandivier Kristine Wong Michael Weintraub ASSOCIATE EDITORS
Jonathan Moreno, Ph.D. Connie Ulrich, Ph.D., RN FACULTY ADVISOR
Questions or Comments? Please direct all inquiries to the Editor in Chief at editors@bioethicsjournal.com
Contents
1 Letter from the editor Bo Peng 2 Bioethics in the news Markley Foreman, Leila Glass, Tuua Ruutiainen 4 Bioethical issues facing the next president Sasha Riser-Kositsky 6 Interview: Dr. Jesse Owens Armin Gollogly, Katryn Bowe, Sasha Riser-Kositsky, Lulu Liu
articles
9 Reading minds? Ethical implications of recent advances in neuroimaging Sheheryar Kabraji, Edmund Naylor, Daniel Wood
Runner Up
Discusses the current status of fMRI research and its implication as a prognostic tool.
12 The ethical considerations of nootropic drugs: memory boom or drug bust? Courtney Boeff
Neuroethics Writing Prize Winner
Examines the potential ethical dilemmas that result fromwidespread use of these drugs in memory enhancement.
fMRI lie-detection technology be admitted in courtrooms? 16 Should Janitza Montalvo-Ortiz Runner Up Analyzes the proposed use of fMRI technology as a form of lie-detection technology.
21 The ability of religiously affiliated hospitals to conscientiously object Michelle Elizabeth Allain
Addresses the issue of conscientious objection amongst religiouslyaffiliated hospitals in rural Ontario, Canada.
27 Extreme conditions triage Andrew Bradley
Examines the ethics of battlefield triage and the justifiability of extreme conditions triage.
differences: contraception and natural family planning 31 Distilling Steven Baumstark, James A. Brown, Craig J. Iffland Demonstrates how the Church’s teaching is consistent in supporting responsible birth.
36 Female genital cutting: a philosophic approach Gina Anne Vaz
Discusses the controversy on the practice of femail genital cutting and evaluates two opposing moral positions.
The Penn Bioethics Journal (PBJ) is the nation’s premier peer-reviewed undergraduate bioethics journal. Based at the University of Pennsylvania, the Journal is run completely by undergraduates with an editorial board that includes undergraduates from all four of Penn’s undergraduate schools. Each issue features one or more interviews with prominent professionals in fields related to the issue theme. Submissions are welcome from all undergraduates. The acceptance process is very competitive with submissions undergoing an initial review, a small-group review, and a final review by the full editorial board. For more information on submitting, please see our website: www.bioethicsjournal.com The deadline for PBJ Volume V Issue i will be September 25, 2008
The Neuroethics Society (NS) is an interdisciplinary group of scholars, scientists and clinicians who share an interest in the social, legal, ethical and policy implications of advances in neuroscience. The mission of the Neuroethics Society is to promote the development and responsible application of neuroscience through better understanding of its capabilities and its consequences. The Society holds an international membership and like the neuroethics field, is continually expanding. Students are highly encouraged to join the society. The NS is a powerful resource for students to connect to professionals around the globe in the field of neuroethics and related areas.
Neuroethics Prize in Writing
Neuroethics Society
In collaboration with PBJ, the Neuroethics Society is supporting a writing prize for this issue of the journal. Nominations were given by the PBJ editorial board, and the winner and runners up were selected by a committee of Neuroethics Society members.
Committee Members:
Tom Buller, Department of Philosophy, University of Alaska Daofen Chen, National Institute of Neurological Disease and Stroke Samia Hurst, Biomedical Ethics, Geneva University Medical School Heather Knapp, Department of Psychology, University of Washington Mike Kuhar, Yerkes Primate Center, Emory University Jim Olds, Department of Molecular Neuroscience, George Mason University Maartje Schermer, Ethics and Philosophy of Medicine, Erasmus Academic Medical Center Kevin Wilson, Department of Psychology, Gettysberg College For more information on the society and membership see the Neuroethics Society website: http://www.neuroethicssociety.org/
I proudly present to you the sixth publication (Volume IV, issue ii) of the Penn Bioethics Journal. For this issue we collaborated with the Neuroethics Society to bring our very own Neuroethics issue of the journal. The neuroethics field is vastly expanding with the evolution of new technologies that challenge our current paradigm for understanding the mind, as represented artistically by our cover image. As a testament to the widespread growth of this field, we present 3 neuroethics papers from the United States, Puerto Rico, and the United Kingdom. With support from the Neuroethics society, all 3 papers will receive writing prizes for their contributions to the field. These papers were graciously reviewed by a special committee of neuroethics members, whose names can be found under the Neuroethics Society section on the facing page. The committee rigorously examined the neuroethics submission and chose the winner: Courtney Boeff of the College of St. Catherine for her work entitled “The ethical considerations of nootropic drugs: memory boom or drug bust?” As you peruse our pages, you will find that we have undergone our own “extreme makeover,” with a fresh modern look to rival that of contemporary academic journals. Along with aesthetic changes, we’ve implemented several new sections including briefs on current bioethical news items and an editorial by Sasha Riser-Kositsky on issues facing the next president. The various improvements to the journal exemplify our mission to constantly push the boundaries of academia and provide a useful resource for undergraduates around the globe. I hope you enjoy the new design and outlook of the journal. We also proudly present an interview with Dr. Jesse Owens of the University of Alaska in Anchorage, an extraordinary researcher of neuroscience. He is currently an advisor for the Australian Spinal Cord Society in their research work with the National Stem Cell Center in Melbourne and discusses his life, research and views on stem cell research. Finally, I’d like to thank all of the editors and publishers of the PBJ board for making this issue possible. We broke through several hurdles this issue and could not have done so without the contributions of each member. As always, we spent endless meetings debating, reviewing, editing and evaluating the submissions for this issue. This journal belongs as much to the writers as to the editors. I’d like to congratulate and thank all the authors for their support of our journal; we could not do it without the ever-increasing number of submissions we receive for each issue. Special thanks to Martha Farah, without whom the Neuroethics Society Collaboration could not have come to fruition. I would also like to congratulate our outgoing advisor, Dr. Paul Wolpe on his new position as Director of Emory University’s Center for Ethics. We thank him for all the support he has given over the years and wish him the best of luck in the future. Lastly, big thanks to our publisher Anand Bhagwat for masterminding the redesign and for being patient with my many concerns.
- Bo Peng
Editor in Chief
Volume IV Issue ii
Bo Peng introduces you to Volume IV Issue ii of PBJ
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Letter from the Editor
Bioethics in Brief
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Blood test can be used to track bipolar disorder
New treatment can regulate sexuality in fruit flies
A new study has shown that a blood test could be used in the future to diagnose and track mental illnesses, such as bipolar disorder. Researchers identified 10 genes that can be used as biomarkers to track the severity of depression or mania in patients who have been diagnosed with bipolar disorder. These genes could also potentially be used to make the initial diagnosis of a mental illness. Currently, psychiatrists depend on a patient’s description of their symptoms and their own judgment to make diagnoses. This new genetic test would make diagnosis more accurate. According to Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania, genetic testing for mental illness is contentious because such tests could be used to screen for mental illness in the work place and in college admissions. - Tuua Ruutiainen
Neurobiologists at the University of Illinois at Chicago, led by David Featherstone, have discovered a treatment that can alter sexual behavior in fruit flies. Featherstone and his team discovered that the sexual orientation of the flies can be altered by way of a drug that changes how their sensory circuits respond to pheromones. The team previously discovered that a mutation in a gene they named “genderblind” or GB could lead male flies to court other males. Based on this previous discovery, the researchers used drugs and genetic alterations to change synapse strength in the flies. They were able to turn homosexuality on and off within hours. - Tuua Ruutiainen
Hacking of Medical Devices A study by researchers at the University of Washington says that a new kind of defibrillator which has been implanted in over 100,000 Americans is vulnerable to hacking and possible reprogramming. The implantable cardioverter defibrillator is located near the patient’s heart and relies on wireless transmissions. A person with fairly minimal equipment including a wireless radio and a PC can issue an intense 137 volt shock. Implantable medical devices (IMD), such as the defibrillator, save lives. At this point, it is not believed that IMDs are high risk targets for tampering, however the risk still exists. Future research is currently underway to attempt to mediate the tension between the effectiveness and the security of the device. - Leila Glass
Accusation of Speeding up Death for Transplant A transplant surgeon has been accused of ordering excessive drugs to be administered to a brain-damaged patient who was near death in order to harvest the organs. The defense argues that the patient may have required large dosages of medication and that he was going to die within minutes or hours. Harvesting organs is readily acceptable in the medical arena as a way to save and prolong the lives of patients who are transplant receivers. In most cases the patient who is donating the organs is either officially declared dead or goes through a process of living donation for organs that are not essential for life. There is a widespread worry that this case will lower life-saving transplant donations. This case centers on the issue of whether it is acceptable to hasten the planned termination of life sustaining treatment of a brain-damaged patient to save another life. The trial is currently taking place in San Francisco. - Leila Glass
News Briefs
INSTITUTE OF REPRODUCTION AND DEVELOPMENT
Murderer attends medical school in Sweden
In January, the Food and Drug Administration (FDA) removed a ban on the sale of cloned meat and declared the meat safe to eat, effectively allowing consumers to purchase cloned meat and milk at their local grocery store. As cloned animals tend to be costly, it is their offspring that will likely be used to produce dairy and meat products, with the clones themselves used for breeding. Supporters say that the FDA’s decision will allow for better quality meat and milk while keeping animals healthier and maintaining consistency across the market for animal products. However, the movement angered opponents of cloning and in particular consumers who believe that the science is unfounded and unethical. Despite the FDA decision, the U.S. government’s Agriculture Department continues to ask farmers to withhold cloned food products from public sale. Due to the length of time needed to clone animals, food products from cloned offspring will not reach grocery store shelves in large quantities for a number of years. - Markley Foreman
Karl Helge Hampus Svensson, a former Nazi sympathizer and convicted murderer, was recently expelled from medical school at the prestigious Karolinska Institute in Stockholm. Mr. Svensson was admitted to the medical school last summer with 180 other students. At the time, officials at the institute were not aware of the conviction because Swedish law prohibits public universities from asking applicants about their criminal record. In 2000, Mr. Svensson was given an 11-year sentence after having been convicted inin the hate murder of a trade union worker. He was paroled after serving 6 1⁄2 years. The Institute learned about Mr. Svensson’s identity through several anonymous tips last fall. Although, he was expelled on a technical issue (he apparently falsified his high school transcript) and not on the grounds of his crime, his case led Swedes to question whether a former murderer should be allowed to practice medicine. The Swedish licensing body said that it would not grant Mr. Svensson a medical license as a result of his criminal background. - Tuua Ruutiainen
Athletes Donʼt Improve with Human Growth Hormone Stanford University recently published a study in the Annals of Internal Medicine that the synthetic hormone shots that athletes use to increase muscle mass work along a mechanism of making the body retrain fluids. Human growth hormone (HGH) is legally prescribed to patients who have a malfunctioning pituitary gland to increase muscle mass. The additional muscle was not shown to increase strength, but rather can make the user more prone to injury. Human growth hormone use is at the center of many bioethical debates in the sports arena. Supplementing one’s hormones to increase strength is often viewed as ‘cheating’. This report, a metanalysis of 44 previous studies, questions the effectiveness of the human growth hormone. Currently, human growth hormone use is banned by Major League Baseball as of January 2005. Scientists have not developed an effective urine test for hormones. Further research is needed to understand the possible effects of human growth hormone. - Leila Glass
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Editorial
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Our next president faces pressing bioethical issues
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The main battle between the candidates this election season is the role of government in ensuring the health of America’s citizens. While they battle out the details of their respective health plans, medical advances promise to complicate American health care. An older issue, embryonic stem cell research has emerged as a sharp point of contention in the election. Taking a longer view, new opportunities in medicine and health insurance are being made possible with the increased availability of DNA tests. Embryonic stem cells are unique in that they have yet to differentiate into a specific type of cell. In the future scientists hope to craft these blank slate cells into new tissue and organs to replace damaged or disease ridden body parts. Scientists first extracted human embryonic stem cells in 1998, but immediately ran into intense opposition to their workthey took their stem cells from aborted fetuses or embryos left over from in vitro fertilization, destroying the embryos in the process (Godoy et al). In 2001, President Bush, citing ethical objects to the continued obliteration of embryos, withheld all federal stem cell research funding from all but the very few number of existing stem cell lines (Godoy et al). Since then, Bush has vetoed two bills which would largely lift the 2001 restrictions (Godoy et al). President Bush instead latched onto news in January 2006 that researchers obtained stem cells from amniotic fluid of pregnant women and that scientists in November 2007 developed a method of creating the equivalent of embryonic stem cells from run of the mill adult skin cells (Godoy et al) to argue for increased stem cell research which respected the integrity of embryos. While embryonic stem cell research has been funded by a number of state governments and is proceeding apace in many other countries, the development of treatments and therapies from stem cells still largely depends on availability of large U.S. federal research grants. The availability of grants in turn rests largely on the position of the next president of the United States. The new scientific discoveries call into question the need for embryonic research, leaving the candidates in a quandary. Do they pin their hopes on these new methods to acquire stem cells or do they back the more controversial, yet proven embryonic extraction methods? The presumptive Republican Party nominee, John McCain takes the gamble. He will support every stem cell research measure which leaves embryos untouched ( John McCain 2008). The two contenders for the Democratic nomination,
Sasha RiserKositsky PBJ Associate Editor
Hillary Clinton and Barack Obama, take a more measured view. Both supported the Stem Cell Research Enhancement Act of 2005 which would have permitted federal research funds for research on embryonic stem cells gathered from embryos leftover from fertility therapies (The Pew Forum). Obama’s official National Issue Flyer on stem cells states that he exclusively supports research on discarded embryos (Obama for America). No matter the outcome of the stem cell debate, in the next year or two who ever becomes president will have to face the health and insurance implications of DNA tests. Such tests now make it possible for individuals, doctors and insurance companies to know with a high degree of accuracy one’s probability of developing certain conditions, diseases and cancers. Harmon notes that many individuals worried about their genetic predispositions to certain conditions pay private firms thousands of dollars for the tests instead of going through their doctors in an effort to keep the information out of medical records accessible by their insurance companies. Some legislation is in the works however. The House last year overwhelming approved The Genetic Information Nondiscrimination Act, which would prevent insurance companies from denying coverage or raising fees based on genetic information. The Senate has yet to vote on the bill. Even if the legislation is passed however, nothing would prevent insurers from dropping those with genetic predispositions and simply listing some other reason. No matter the outcome of the elections, the next four years will see an increase in federal funding for stem cell research. The devil, as it always does, lies in the details. References 1. Godoy, Maria, and Palca, Joe, and Novey, Beth. 20 November, 2007. Key Moments in the Stem-Cell Debate. Retrieved 17 March, 2008, from http://www.npr.org/templates/story/story.php? storyId=5252449 2. Harmon, Amy. 24 Febrary, 2008. Insurance Fears Lead Many to Shun DNA Tests. Retrieved 22 March, 2008, from http://www.nytimes. com/2008/02/24/health/24dna.html? pagewanted=1&_r=4&sq=Genetic &st=nyt&scp=5 3. John McCain 2008. (2008). Human Dignity and the Sanctity of Life: Addressing the Moral Concerns of Advanced Technology. Retrieved 17 March, 2008, from http://www.johnmccain.com/Informing/Issues/ 95b18512-d5b6-456e-90a2-12028d71df58.htm 4. Obama for America. (2008). Barack Obama on Stem Cells. Retrieved 17 March, 2008, from http://www.minnesotansforobama.org/docs/natl_ issue_flyer_stem_cells.pdf 5. The Pew Forum on Religion & Public Life (2008). The Candidates on Stem Cell Research. Retrieved 17 March 2008, from http://pewforum. org/religion08/compare.php?Issue=Stem_Cell_Research
Penn Students Interested in becoming an Editor? Contact the journal at: editors@bioethicsjournal.com
Interview
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Dr. Jesse Owens
is an Associate Professor at the University of Alaska in Anchorage, where he teaches cell physiology to medical students and does laboratory research. His scientific training is in neuroscience with a focus on synaptic function during nervous system formation and injury repair. He directed the American Spinal Cord Societyʼs research lab in Fort Collins, Colorado and is currently an advisor for the Australian Spinal Cord Society in their research work with the National Stem Cell Center in Melbourne. Dr. Owens suffered a spinal cord injury 30 years ago, and he has invented numerous assistive devices for people with mobility impairments, especially concerning wilderness travel and general transportation in developing countries. One of his most successful inventions is the “Kilikart,” which he used to ascend Mt. Kilimanjaro in Africa and cross the Harding Ice field in Alaska. Additionally, he earned first place in the International Appropriate Technology Design Awards from the Rehabilitation Engineering & Assistive Technology Society of North America (RESNA) for the “Skeeter,” a low-cost wheelchair transporter constructed from bicycle parts, a custom-built frame, and an inexpensive engine.
What first attracted you to this field? When you were studying, did you think you would ultimately work in your current profession? When I was 25 years old, I went back to school. I was devastated by a paralyzing spinal cord injury at that time. Since everything in my life turned completely over, I decided I would take courses in an area that I like instead of only those that might make me employable. I have found that a number one consideration is – you have to love the area that you are in, or otherwise it becomes tedious. I always loved science especially biology, when I was a kid all subjects in science were exciting to me, from invertebrate biology to ecology, you name it. As an adult the two scientific arenas that attracted me most were immunology and neuroscience. Neuroscience was intellectually attractive, not just because I was neurally injured, but it’s a field where you can do a lot of quantitative instead of descriptive work. So after I got a degree in biology, I worked in a very good neurophysiology lab and found that it fit my aptitude very well. My mentor gave me a lot of freedom and we got a lot of work done. That work turned into a PhD, then a post-doc, and now I am an associate professor. My advice to students has been said before, but I will repeat it: follow your passion, not just what will pay you the most. Youʼre also involved in creating devices for the disabled. How did that career path fit into what you described? Well, it doesn’t always fit. It wouldn’t necessarily fit well for a basic scientist. But it fit well with me since I am in a Biomedical program. Before I was injured, I was very mechanically oriented. That quality works well in physiology as well as in the engineering of assistive devices. I have always loved the freedom of climbing around mountains, and after I got hurt, I could not do much of anything I valued just sitting in a wheelchair. If it is true that necessity is the mother of invention, then there was a lot of necessity with me. There really wasn’t much commercially available to allow people who are in wheelchairs to do more than sit around on flat surfaces, so I started building things for myself. But it be-
came apparent that some of these devices could help other people, especially those in poor countries. I have devised a number of things – the first was a mobile standing frame. I needed to be able to stand up and move around, but there was nothing available that was useful. There were a few devices that existed at the time, but it was clear that they were built by people who didn’t understand the problem, and you couldn’t do much in them other than stand up. By stand up what I am talking about is a way to brace your legs in a way to lock your knees and bear body weight, with pads to support and splint the legs. The rig I built was very useful for me, I got it patented, and it was on the market for a long time. The people who did the marketing kind of dropped the ball, so there’s not much going on with it right now. In the early nineties I had an unusual offer to try to climb Mount Kilimanjaro. I knew I couldn’t do it with anything that currently existed, so I engineered and used a device specifically for very rough terrain. I had to build help into the system – I had to make a device that able-bodied people could assist efficiently without hurting themselves. So I built a three-wheeled cart, low to the ground, that had a tow bar on it to keep the front wheel straight, and added other features as well. People could easily assist me – we could just go with a little bit of assistance. It was the most successful thing that I have developed that could help me on mountains, hiking trails, and in volcanic craters in Alaska. Others have used it to go down the side of the Grand Canyon and many other wheelchair inaccessible environments. It’s great to see someone else experience freedom to get in the woods. A lot of people who have spinal cord injuries were very outdoorsy – that’s the way they get a cord injury in the first place. In places like Cambodia, there is no social security. When people there get hurt, they have to depend on family and friends to help them live to simply survive. Basically, it’s your problem if you’re disabled in most of the world. Someone who was making a living prior to becoming disabled
Dr. Jesse Owens often has no choice but to beg, if they are even able to get to are often desperate, they will do whatever – even witchcraft a place to beg. There are lot of crippling diseases including – if it will give them relief or recovery, especially those with leprosy and polio in Cambodia – diseases that shouldn’t be high injury. I have been working to design a scientific treataround this day and age – and amputees from landmines. ment protocol for treating this problem. A question that One of the big problems is that while sometimes wheel- must constantly be evaluated is whether it is worth putting chairs donated to them, but in the rural areas, they still can’t someone through a severe treatment including surgery comgo anywhere. They are stuck. As a result the whole family pared to the potential benefit of the treatment. There is a edges into further poverty. A disability in the family can limit to what you suggest people go through. push the entire family over the edge. If a family member There are presently a few clinical trials going on for this gets badly disabled, then a working worker might have to kind of injury. Everyone in the business has his or her favorstay at home to take care of them. ite cell type to inject into the spinal cord – especially stem The margin for safety there is low to begin with, so in addi- cells: one investigator will like bone marrow cells, another tion to this multiple problems created by the disability, there an embryonic cell etc. It is clear that these cells alone do is no transportation for people not bring back a substanwho cannot walk. There are estial degree of recovery in sentially no buses or trains that Right now there are people flying to Mexico to get shark spinal cord injury. Neverare usable. A device that could be theless, various scientists cells injected into them, they go to China to get aborted very useful for this group of people around the world keep fetal olfactory cells injected into their spinal cord, in is a method of transportation that doing these cells-alone Russia, itʼs fetal neurons and in Portugal, autologous permits over-the-road travel and trials. All of the clinical olfactory mucosa, and the list goes on. still allows the user to have use of studies and laboratory their wheelchair at their destinastudies on animals indition. That is what I have been working on in Cambodia. I cate that producing recovery from cord injury will require a submitted this design to an international design competi- combination of agents working in synergy with each other. tion and it won first place. The problem of lack of transport So I think it is unethical to suggest that people repeatedly is a general problem around the world. Unfortunately it is go through these mono-therapy trials because they do not generally ignored. I suspect that part of the reason for this is provide much recovery of function for the person. Usually because many of the disabled people are out of sight and do the only conclusion from these cell transplantation trials is not have political clout. Even aid agencies forget them. But that the cells are safe for the recipient. I believe that if you there are a huge number of people out there who need a lot are going to put a spinal cord injured patient through the of help with practical low-cost solutions to their problems. misery of surgery and long-term treatments, you need to be sure that you have something worth treating them with so Looking at your work in both kinds of fields, are there ethical questions that they really can derive a substantial recovery of function. you find in your work, with your different roles? With AIDS, especially if it is progressing, there is no status The work I have done in basic science, where I did elec- quo, and you could be causing harm by doing nothing. It is trophysiology on embryos, really didn’t require too much the same with spinal cord injuries, although it is not often ethical concern. Most of the work was done on embryos recognized. It is a progressive deterioration – problems dethat didn’t have a matured sensory system. In other work velop with kidney disease, bladder problems, blood clots, and with rats we did have to worry about pain and appropri- deadly pressure sores, depression – it’s a nasty business. At ate housing etc. Fortunately there are stringent regulations some point chronically injured people start going downhill about animal care and research that have been developed by while they wait. At least when it comes to clinical trials, that the National Institutes of Health. Most reputable labs ad- factor should be considered – that it may be harmful not to here to these. There is a lot of useful information that comes do anything. This has to be balanced against the problem of from animals, mostly rats. However, using animals bothers doing something that has little benefit. me a lot. I am not suggesting that we forego animal based When I first got hurt, I went through several surgeries, research, however rats and other animals have to pay a tre- but the last one was elective and it had a one-in-a-million mendous price for our problems and I do not feel easy with chance of helping me. I jumped at it because of the othit. I hope it is useful to extract the data from these experi- erwise finality of the loss of function. I was desperate. For ments. The rats undergo multiple painful operations – it has most people with a cord injury the quality of life drastically to be stressful and painful even with the best of care. I think diminishes, and often results in intractable pain, loss of selfthat it would be unhealthy if this aspect of research did not esteem, disruption of relationships, and depression. Under prick the conscious of any researcher. these circumstances, it is easy to understand why an indiIn the last seven or eight years I have been working pri- vidual with paralysis would eagerly pursue any option for marily on the problem of repair of spinal cord injury. There, treatment, even if it is risky and unproven. The fact is they you have very thorny ethical issues. One is how much risk are willing to take almost any risk, especially during the pedo you suggest someone takes for the possibility of regain- riod of time directly following their injury. ing some limited function? People with spinal cord injury Not to sound patriarchal about it, but a scientist or clini-
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cian needs to be careful about what they offer. Right now there are people flying to Mexico to get shark cells injected into them, they go to China to get aborted fetal olfactory cells injected into their spinal cord, in Russia, it’s fetal neurons and in Portugal, autologous olfactory mucosa, and the list goes on. This is understandable but a bad situation – especially if the science of the project is so poor that it is impossible to determine if the treatments have value. In many of the “trials” the science is indeed abysmal. These pseudotreatments have sprung up around the world for a very long time and will continue until a bona fide treatment has been developed. It continues to be very important to honestly advise patients about the cost to benefit ratio for these treatments, even if it means being labeled as a negative spirit. So the bottom line is that there is a balance that must be struck between being aggressive and timely in treatment regimens versus being overly conservative. Sometimes this can only be determined in retrospect, however. In Fort Collins, I worked to set up a lab to do translational research. We did not want to do basic science, there are many people doing that already. We wanted to take good results from other labs that had a beneficial effect on spinal cord injury to build a treatment. We setup parameters to stay within, like using things that had already been established as reasonably safe, and for the time being we ruled out the use genetically engineered cells. We’re not ready to stick genetically altered cells into people. We didn’t want to make anyone worse, and we wanted to create a treatment that could implemented in a reasonable amount of time instead of decades. In Australia, the major thrust of the effort is similar. We are working toward human trials right away for a condition called Cervical Myopia. This conditions results in a spinal cord injury in many elderly people. It can result in the bruising of the spinal cord in the neck area, because the spinal canal gets too narrow. It’s a slow debilitation spinal injury occurring over time. Speaking of stem cells, do you have an idea how long away a cure is? Globally, a lot of research in this area is going on around the world. There are two kinds of stem cells – one is adult and comes from your own body. They come from bone marrow or other tissues. These are talented cells that and can perform actions to assist healing all over the body. The other stem cell type is from embryos. The latter is usually what the layperson thinks about when the term stem cell is used. One of the big hang-ups for using embryonic stem cells – well, you know the ethical consideration of when life begins – that has slowed embryonic stem cell science down. I do not
have a good answer regarding the ethics of killing an embryo to extract stem cells. Another potentially significant problem is that if the embryo is from another person the cells may end up being rejected by the recipient’s immune system. This could be a big problem over time. There have been recent reports indicating that it will be possible to cloning your own stem cells, whereby you could essentially clone yourself, to make an identical twin. I suppose that dismantling your identical twin might bring even more ethically confusing issues regarding the use of embryonic stem cells. However, producing embryonic stem cells that genetically match a person’s own cells is likely to provide a much better option to prevent rejection of transplanted cells. The reason embryonic cells have so much potential is their ability to differentiate into any type of tissue, but that is what makes them dangerous also. It’s clear that embryonic stem cells can do amazing things that may be useful. It is also clear that they can cause cancer, or in some cases lethal tumors. For example, when you transplant them to liver, the cells may not always produce new liver cells, but instead cause an uncontrolled growth of other tissue such as hair or bone to grow in that region. This type of inappropriate growth is called a terratoma, and it’s not a favorable result from a therapeutic perspective. One thing that seems to be necessary to prevent the uncontrolled differentiation of embryonic stem cells is their need to be pre-directed down a specific pathway prior to transplantation. In recent years, research has shown that it is possible to direct these cells down a neural pathway and they will produce neurons, and likewise for other tissue. Although the other type of stem cells – the adult stem cell – has less publicity among the lay public, they are very much in the forefront of research efforts for use in restorative medical procedures. Adult stem cells will be especially valuable in treating heart disease. You can take these cells from your own body, trials in humans show, and you can inject them into the infracted area of the heart, where you have damage, and either those stem cells promote or they build new vasculature there. I imagine this could eventually surpass bypass surgery. We are close. I imagine in five years or so we may see more in-depth trials. This is an exciting time to be involved with stem cells. I believe that during the coming generation, instead of custodial care of failing organs or tissues, it will be possible to regenerate defective or failing tissue and organs. This is going to be interesting as the technology, religion and ethics slam into each other. - Interview conducted by Armin Gollogly, Katryn Bowe, Sasha Riser-Kositsky, Lulu Liu
Neuroethics Writing Prize Runner-Up
Reading minds? Ethical implications of recent advances in neuroimaging.
Sheheryar Kabraji*, Edmund Naylor*, Daniel Wood*
The use of functional magnetic resonance imaging (fMRI), especially in so-called ‘activation studies,’ which highlight those parts of the brain involved in a particular cognitive process, has led to great advances in understanding cognitive processes like emotion, memory-formation and the use of language. For neurologists caring for patients with disordered consciousness, fMRI could more sensitively identify those patients whose brain injury is not immutable. This would potentially avoid the withdrawal of treatment in those who may recover. In such cases, it is assumed that the increased signal in specific brain regions represents neural activity associated with a defined cognitive process. However, in its use as a diagnostic tool, fMRI is mired by the all-important question: what do activation studies really tell us? If a patient is discovered to be in a minimally conscious state rather than a vegetative one, how should that inform his or her medical care and affect the validity of decisions made on his or her behalf? This paper will examine the ethical implications of using neuroimaging as a tool to identify cognitive function in a clinical setting.
Diagnosis and prognosis using fMRI
Disorders of consciousness (DOC) represent a tremendous medical and ethical challenge to the neuroscientific community. The commonly recognised types of DOC include coma, the vegetative state, the minimally conscious state and the ‘locked-in’ syndrome. A coma is an eyes-closed state where the patient is unresponsive and cannot be roused.
Comas may evolve into a vegetative state of ‘wakeful unresponsiveness’ where autonomic brain function is preserved and non-purposeful behaviours like sleep and wake cycles, blinking and eye movements are commonly observed (Fins & Shapiro, 2007). The vegetative state may become permanent three months after anoxic injury, but permanence may not occur until twelve months following traumatic injury (Fins & Shapiro, 2007). Before entering a permanent vegetative state, a patient may evolve into the minimally conscious state (MCS). MCS is defined as “a condition of severely altered consciousness in which minimal but definite behavioural evidence of self or environmental awareness is demonstrated” (Giacino et al., 2002). This may include words, phrases and gestures reflective of intention, attention and memory. Patients are said to have emerged from MCS when their behaviour and responses to stimuli become consistent (Giacino et al., 2002). The possibility of further cognitive improvement makes the diagnosis of MCS ethically and clinically distinct from that of a vegetative state (Fins, 2006). However, distinguishing between a vegetative state and a minimally conscious state is not a straightforward task. The error rate for MCS being misdiagnosed as VS has been quoted as high as 3040% (Fins & Shapiro, 2007). Conventional methodology, such as those set out by the American Academy of Neurology, depends on verbal expression and motor response to stimuli, which in turn, also depends on a functioning motor nervous system (Perry, Churchill, & Kirshner, 2005). Neuroimaging offers a more precise method with which
* OXFORD MEDICAL SCHOOL. MERTON COLLEGE, MERTON STREET, OXFORD, OX1 4JD, UK. SHEHERYAR.KABRAJI@MEDSCHOOL.OX.AC.UK
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Introduction
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Functional magnetic resonance imaging (fMRI) promises to reveal much about the way we think. Recently it has been used to better understand disorders of consciousness. Neuroscientists have used fMRI to ʻread the mindʼ of a patient in a vegetative state, arguably revealing previously inconceivable cognition that drastically alters the patientʼs diagnosis and prognosis. Technical issues stand in the way of a wholesale acceptance of fMRI as a window into our minds as there is no consensus on whetʼher the ʻflashesʼ of signal seen during fMRI actually correspond to thoughts or consciousness as we understand it. Even if such indicators of consciousness are taken at face value, considerable ethical challenges remain. Can we take fMRI at face value that may indicate a patientʼs wishes to refuse life-saving treatment? As it currently exists, fMRI may form part of the deductive toolkit that medical specialists employ to better understand the workings of their patientsʼ mind. Attempts to use fMRI as a prognostic tool should await more detailed studies of its accuracy and predictive power.
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to diagnose the different types of consciousness disorders. Recently, Owen and colleagues captured the imagination of the scientific press when fMRI studies detected conscious awareness in a patient presumed to be in a vegetative state (Owen et al., 2006). When asked to imagine herself playing tennis, the patient’s fMRI showed areas of cortical activity that matched those of healthy volunteers. Supplementary studies showed that this activity was related directly to the instruction and not just to the words used (Owen & Coleman, 2007). Stimulus-related cognitive activity may also indicate a favourable prognosis in patients with VS. Researchers in China have shown that in a cohort of patients with VS, those who exhibited associative temporal activation in response to their name improved to the MCS (Di et al., 2007). Together these findings suggest that patients clinically diagnosed with VS may retain conscious awareness detectable by fMRI and that such patients may clinically improve. The potential of neuroimaging to aid diagnosing DOC has left some bioethicists lamenting a further ‘muddying of the [ethical] waters’ (Fins, 2007). A patient in MCS rather than VS might be aware of his or her condition with his or her attendant physical and mental distress. Would we then have a fiduciary obligation to not only improve our provision of care but also make some attempt to determine whether the patient has the capacity and desire to decide his or her course of treatment (Fins & Shapiro, 2007)? Let us consider the hypothetical scenario of a patient presumed to be in a VS: Mr T. If an fMRI of Mr T.’s brain revealed areas of retained cognitive function in spite of absent behavioural responses, he may be on the verge of becoming minimally conscious (Fins, 2007). Given the possibility of further clinical improvement, we would be obliged to make every effort to improve his care and efforts at rehabilitation. However, Mr T. has never stated his wishes regarding treatment were he left in a minimally conscious state. As his wishes are indeterminate, we would be obliged to act in his best interests as determined by a suitable proxy. Now suppose that a recent study similar to that by Owen and colleagues (Owen et al., 2006) has revealed that when patients with MCS are asked to reply to questions with ‘yes or no’ answers, their fMRI results are identical to healthy volunteers. Is it ethical for investigators to deduce Mr T.’s views on maintaining or withdrawing life-sustaining treatment from his fMRI activation studies? Leaving aside significant methodological issues, the answer depends on the following conditions: 1) That Mr T.’s response to questions asked involves the same level of understanding as that of normal volunteers; 2) That such understanding also implies that Mr T. has the capacity to make decisions about his care, which must be judged to the same standards as in a conscious patient. Since Mr T.’s neuroimaging was identical to that of normal volunteers replying to a question, his understanding and, hence, his capacity to answer, is also arguably equivalent to theirs. Eventually, fMRI may serve as a means of communication in the way that neural signal translation offers the hope of speech to patients with a locked-in syn-
drome (Lee, 2007). If neuroimaging accurately identifies consciousness in patients with DOC, it may be possible to determine their capacity to choose or reject further treatment. Ultimately, this depends on our notion of the kind of consciousness experienced by those recovering from brain damage. There is still some way to go before fMRI studies are regarded as effective in clinical diagnosis (Fins & Shapiro, 2007) let alone as tools for communication by those with DOC. This is primarily due to a lack of consensus that fMRI results represent meaningful consciousness (Hirsch, 2005). While healthy subjects can confirm that as the fMRI records ‘hot spots’ of brain activity that they are consciously aware of imagining themselves playing tennis, it is impossible for us to know whether brain-damaged patients are similarly aware of this (Fins & Shapiro, 2007). For the rest of us, the best test has always been simply to ask (Owen & Coleman, 2007). While patients with DOC may be truly unconscious, it may also be that they have no way to reply to our questions. Neuroimaging would allow patients in MCS to finally make themselves ‘heard’. fMRI may also be able to restore a lost sense of personhood to those suffering from DOC. Fins has argued that those suffering from brain injury have been deprived of personhood, seemingly “marginalized...because people like us prize the life of the mind” (Fins, 2007). Unable to declare awareness and sentience, those with disorders of consciousness are excluded from the normal processes of care, investigation and reassessment that would accompany a long-term illness (Fins, 2006). Many remain incompletely diagnosed and in limbo, with signs of progress or deterioration ignored by all except loved ones. If disorders of consciousness are considered immutable it is no small part because we have decided that they should be. This in spite of growing scientific evidence and the protestations of family members that recovery is possible (Fins, 2006). The case of Terry Wallis provides a dramatic example. In 2003, Terry Wallis, a 39 year-old nursing home patient with a 19-year history of traumatic brain injury, began to speak (Schiff & Fins, 2003). It is thought that Mr Wallis entered an MCS before the persistent vegetative state had become permanent and had remained in the MCS for two decades. The observations of the Wallis family were dismissed and clinicians regarded the investigations as futile (Fins, 2006). If performed, fMRI studies may have provided an early indicator of Mr Wallis’ recovery, validated the observations of his family and helped physicians better manage their patient’s emerging medical and rehabilitation needs. While the case of Mr Wallis illustrates the need for better objective assessment of patients with disorders of consciousness, the routine use of fMRI as either a diagnostic or prognostic tool must await the results of appropriately powered longitudinal studies of patients with DOC (Fins & Shapiro, 2007). Without epidemiological data to better elucidate the course of recovery following brain injury, fMRI studies pointing to “a rich mental life” may be highly misleading (Fins & Shapiro, 2007). For example, a report from Perrin
Reading Minds
Neuroimaging has been used to detect consciousness in a patient suffering in a vegetative state. Yet attempts to lay plain the cognitive processes behind thoughts and consciousness are dogged by the uncertainty of what is truly being measured by fMRI. There are tremendous medical References 1. Di, H., Yu, S., Weng, X., Laureys, S., Yu, D., Li, J., et al. (2007). Cerebral response to patient’s own name in the vegetative and minimally conscious states. Neurology, 68(12), 895-899. 2. Fins, J. (2006). Affirming the right to care, preserving the right to die: disorders of consciousness and neuroethics after Schiavo. Palliat Support Care, 4(2), 169-178. 3. Fins, J. (2007). Border zones of consciousness: another immigration debate? Am J Bioeth, 7(1), 51-54; discussion W51-54. 4. Fins, J., & Shapiro, Z. (2007). Neuroimaging and neuroethics: clinical and policy considerations. Curr Opin Neurol, 20(6), 650-654. 5. Giacino, J., Ashwal, S., Childs, N., Cranford, R., Jennett, B., Katz, D., et al. (2002). The minimally conscious state: definition and diagnostic criteria. Neurology, 58(3), 349-353. 6. Hirsch, J. (2005). Functional neuroimaging during altered states of consciousness: how and what do we measure? Prog Brain Res, 150, 25-43. 7. Lee, Y. (2007). Scientists seek to help ‘locked-in’ man speak. Retrieved 11 February, 2007, from http://edition.cnn.com/2007/HEALTH/conditions/12/14/locked.in/index.html
Sheheryar Kabraji is a fifth year student at Oxford University Medical School studying medicine. Email: sheheryar.kabraji@medschool.ox.ac.uk Prof. Julian Savulescu is the faculty sponsor for this submission. He is the Uehiro Chair in Practical Ethics and Director for the Oxford Uehiro Centre for Practical Ethics. Address: Suite 8, Littlegate House, St. Ebbes Street, Oxford OX1 1PT Email: julian.savulescu@philosophy.ox.ac.uk 8. Owen, A., & Coleman, M. (2007). Functional MRI in disorders of consciousness: advantages and limitations. Curr Opin Neurol, 20(6), 632-637. 9. Owen, A., Coleman, M., Boly, M., Davis, M., Laureys, S., & Pickard, J. (2006). Detecting awareness in the vegetative state. Science, 313(5792), 1402. 10. Perrin, F., Schnakers, C., Schabus, M., Degueldre, C., Goldman, S., Brédart, S., et al. (2006). Brain response to one’s own name in vegetative state, minimally conscious state, and locked-in syndrome. Arch Neurol, 63(4), 562-569. 11. Perry, J., Churchill, L., & Kirshner, H. (2005). The Terri Schiavo case: legal, ethical, and medical perspectives. Ann Intern Med, 143(10), 744748. 12. Schiff, N., & Fins, J. (2003). Hope for “comatose” patients. Cerebrum, 5(4), 7-24.
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Conclusion
benefits to be gained from advances in neuroimaging. fMRI may make the diagnosis of disorders of consciousness more accurate, with important implications for prognosis and treatment of such disorders. However, neuroimaging will question our notions of consciousness without necessarily providing many answers. In order to prevent misdiagnoses, more investigation into the meaning of fMRI findings is needed. Only then we will really know if neuroimaging allows us to ‘read minds’.
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and others showed that the response of patients in VS to a spoken name do not necessarily distinguish MCS from VS (Perrin et al., 2006). If fMRI were used in the broader clinical community without appropriate clinical protocols, neuroimaging findings are likely to be misrepresented or misunderstood leading to false hope. In inexperienced hands, a diagnosis of VS may be based on a false negative fMRI result, arising from patient fatigue or misunderstanding, which is common even in healthy volunteers (Owen & Coleman, 2007). Until the parameters for interpreting neuroimaging results are better established, fMRI is likely to be restricted to use within a research setting.
Neuroethics Prize Winning Article
The ethical considerations of nootropic drugs: memory boom or drug bust?
Courtney Boeff*
Memory is an integral part of what defines individuals, and diseases such as Alzheimerʼs disease are capable of robbing individuals of their identity. Nootropic drugs have been developed to fight the effects of Alzheimerʼs disease, but they also provide the possibility to enhance the memory capability of ordinary people. While a person might be able to improve his or her memory by so called “brain enhancing” games such as SuDoku, BrainAgeTM, and crossword puzzles or by natural remedies such as ginkgo biloba. The use of these drugs in healthy individuals presents some potential ethical concerns, recently highlighted by the steroid scandals in professional sports. Issues associated with nootropes need to be addressed prior to their usage in non-disease applications. Applying the principles of liberty, harm, autonomy, paternalism and the natural law argument and considering the efficacy and the availability of these treatments, I examine the potential ethical dilemmas that result from widespread use of these drugs in memory enhancement.
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Introduction
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Just a few months ago, the Mitchell Report on steroid use in baseball was released by Congress. While the report confirmed what many baseball fans and others have suspected for years, it brought light to the extremes to which some of the world’s greatest players have gone in order to reach the “top of their game”. Steroid use, which can enhance a person’s ability to perform, is known to cause a variety of side effects, some of which can cause long-term harm. These substances have been banned from use in baseball and other sports because of their inherent long-term risks and the potential advantages those who take steroids may have over their non-using competitors. Another class of enhancement drug, nootropes, or “smart drugs” as they are often called, has been recently developed to slow down the memory loss of Alzheimer’s patients. As neuroscientists increase their knowledge of the brain, drugs developed to combat diseases may be attractive not only in counteracting the symptoms of the diseases, but also to individuals who do not suffer from the diseases. In addition to their use in Alzheimer’s patients, Nootropes have been demonstrated to improve memory of typical, healthy people (Rose, 2002). This type of application may make Nootropes as the next miracle drugs, or alternatively these drugs may become the next to be abused. Some potential new applications may include enhancing learning in adolescents, improving job performance of baby boomers and delaying early onset of brain related diseases in the elderly. Therefore, it becomes imperative that society looks at the ethical and social implications of using these drugs in
healthy individuals, and decides how to address the detrimental long-term effects that may occur. As a nation, a decision must be made about whether this is a path to follow, or if ethical concerns preclude usage of these drugs in ordinary people. Would allowing the use of Nootropes for scholars be akin to an athletes’ use of steroids, or are Nootropes acceptable for anyone to use?
Memory
There are two types of memory, declarative (remembering facts, like the capital of Minnesota) and procedural (remembering a skill or behavior, such as riding a bike). One of the most famous cases giving us insight into the way memory works is that of patient H.M. In this case, H.M. had severe and frequent seizures and the treatment the doctors applied to reduce the number of seizures he experienced was to remove his hippocampus and surrounding areas, including a large portion of the amygdaloid complex and entorhinal cortex, areas in the brain’s medial temporal lobe (Scoville & Milner, 1957). Although his seizures successfully decreasedafter surgery,) H.M was unable to form new declarative memories. On the other hand, his established memories remained intact and he was able to obtain and retain procedural memories. This case study implicates the hippocampus and the surrounding medial temporal lobe in the formation of new declarative memories, while established memories must be stored somewhere else. This type of memory loss is similar to that seen in the initial stages of Alzheimer’s disease. However, Alzheimer’s
* COLLEGE OF ST. CATHERINE. 1738 FORSSA WAY, EAGAN, MN 55122. CMBOEFF@STKATE.EDU.
Damage from Alzheimerʼs Disease
Patients who suffer from Alzheimer’s disease have damage throughout their brains, but mostly in the hippocampal areas of the medial temporal lobe, affecting primarily the cholinergic system and leading to depletion of acetylcholine levels in the brain (Mesulam & Moran, 1986). Acetylcholine is an excitatory neurotransmitter that transmits impulses across synapses. Acetylcholinesterase in the synapse normally degrades acetylcholine so that the nerve signal lasts only for a brief time and then it recycles the acetylcholine. People afflicted with Alzheimer’s disease have a decreased amount of acetylcholine available to carry messages, because the cells used to produce and use it are either damaged or destroyed. The relationship between functional loss of the cholinergic system and memory impairment has led to the development of the cholinesterase inhibitors, drugs that increase levels of acetylcholineby blocking its breakdown by acetylcholinesterase (Ibach & Haen, 2004). These drugs effectively prolong acetylcholine action in the synapse, and can help compensate for the loss of acetylcholine production by brain cells. In fact, cholinesterase inhibitors are known to improve the cognition and the ability to perform daily activities in patients with Alzheimer’s disease. However, even though the inhibitors have the ability to help decrease the symptoms of lower levels of acetylcholine, they cannot stop the destruction of nerve cells, so eventually they become ineffective as the disease progresses.
Treatments for Alzheimerʼs Disease
The cholinesterase inhibitors which have been developed include: donepezil (Aricept), galantamine (Razadyne), rivastigmine (Exelon) and tacrine (Cognex), These represent the only FDA approved pharmacological treatments for Alzheimer’s disease and therefore, are the standard treatments prescribed to patients (Melnikova, 2007). In clinical trials of these cholinesterase inhibitors, individuals with Alzheimer’s taking the medications performed better on tests of memory and thinking than those taking a placebo (Ibach & Haen, 2004). The degree of benefit was small (less than 25%), and more than half of the recipients showed no improvement at all. In terms of overall effect, most experts believe cholinesterase inhibitors may delay or slow the progression of symptoms in some individuals for about six months to a year. However, other patients may experience a more dramatic benefit or delayed symptom progression for a longer period of time. Research has also shown the importance of starting treatment early, in order to increase the long-term benefits.
If these cholinesterase inhibitors enhance memory in Alzheimer’s patients, as a variety of studies have suggested, perhaps they could enhance the memory of ordinary individuals as well. Davis et al. (1978) tested the effect of physostigmine on short and long-term memory functions. Physostigmine is a parasympathomimetic, specifically, a reversible cholinesterase inhibitor which effectively increases the concentration of acetylcholine at the sites of cholinergic transmission. In tests used to assess short- term memory, the digit span test and the memory span test, the drug had no quantifiable effect on the functioning of short-term memory. For testing long-term memory, the researchers used two verbal learning tasks. Thirty minutes before administration of the drug or a placebo, the subject was presented with two learning trials of 15 concrete nouns, at a rate of one word every two seconds. At the end of the study period, the subjects were asked to recall all 15 words, and before the second trial, they were reminded of all the words they could not recall in the first trial. Then, they were asked to recall all 15 words twice, first after 18 minutes and 80 minutes later, and were not reminded of the words they failed to recall between trials. Subjects were able to recall more words on days they were given the reversible cholinestersase inhibitor than on days when they were given the saline placebo (F= 9.98, p< 0.006), suggesting that this form of therapy may improve long-term memory in some situations. In 2002, researchers at Stanford University looked at the effects of donepezil treatments on “normal” individuals (Yesavage et al., 2002). The study tested the ability of nine licensed pilots to remember specific maneuvers while taking 5 mg doses of donepezil, compared to a second group of nine who took a placebo. Those who were given the donepezil treatment performed about the same on the first test as they did on final test. Thirty days later, however, those who were given a placebo treatment performed worse on the final test. Analysis found that the portions of the task most improved by the drug were the responses to an emergency simulation. From these studies, researchers have concluded that these drugs are able to improve attention and therefore, according to scientists, improve working memory as a result.
Potential Ethical Concerns
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If these drugs really provide the benefits that are suggested of them and the current known short-term side effects are tolerated, the ethical question becomes whether ordinary people should be allowed to use these drugs? In order to think about the ethical concerns associated with the enhancement of memory, we must look to John Stuart Mill’s liberty principle and its relation to the harm principle, as well as the principles of autonomy and paternalism, the natural law argument and the drug’s availability (Munson, 2004, p. 105-8, 124, 766; Rapaport, 1978). For example, a 43 year-old woman who is a mother and a career woman has read about Nootropic drugs and their effects on people with Alzheimer’s disease as well as people without the disease. In spite of the lack of knowledge about
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patients eventually lose their procedural memories as well, making them unable to perform simple daily tasks. The loss of the ability to remember what has already been completed in a day, or what one needs to accomplish, even how to cook a meal, results in a person who is dependent on others and has lost unique characteristics that once defined them as an individual.
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Nootropic Drugs
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their long-term side effects, she has decided that the drugs are something she would like to try. The question at hand is whether she should be free to take them herself and also be allowed to give them to her eight year-old son who is in elementary school. The liberty principle, according to John Stuart Mill’s “On Liberty” (Rapaport, 1978) asserts an individual’s right to not have others interfere with his or her choices when that choice does not harm or interfere with another autonomous person. Most would agree that if something an individual did,or an action he or she took had a direct negative effect on another individual, that individual should face some sort of moral, or even legal, censure. In the case of steroids mentioned earlier, one potential serious side effect referred to as “Roid Rage” can cause people to directly harm others (Pope, Kourt & Hudson, 2000). This risk of direct harm to other people means that, a law could be created to prevent people from legally using the drugs in certain situations based on the liberty principle. In the case of Nootropic drugs, there has not been any direct evidence found -- so far -- that suggests people on these drugs can or will develop a a drug induced desire to harm other people. Until there is evidence suggesting that this is possible, the liberty principle in conjunction with the harm principle cannot stop society from preventing these drugs from becoming available for ordinary people. Similarly, the principle of autonomy asserts that competent adults can be recognized as self-determining individuals (Munson, 2004, p.105). In order to act autonomously, one must act according to his or her own will, based on his or her own choices. Unless a person is perceived as being incapable of making a rational decision, as in the case of a person who is on a drug, which impairs his or her judgment, or in the case of a child, it is commonly accepted that he or she should be allowed to act autonomously for his or her own best interest. Each individual is allowed to act in this autonomous manner, until his or her actions interfere with the actions of others. Others are also responsible to recognize people as autonomous agents and treat them as such. Again, based on current research there is no reason a person should be prevented from acting autonomously when taking these memory-enhancing drugs, because there is no evidence suggesting his or her judgment is impaired during use. However, one concern that arises once a person has chosen to take these drugs is whether his or her choice remains autonomous, or does the decision become one of explicit or implicit coercion? In the Yessavage et al. (2002) study cited above, pilots were given a memory enhancing treatment and were shown to have the greatest improvement and benefit in the simulated emergency situation. The improved performance while taking the memory enhancing therapy could mean that in order to be considered for a position flying a plane, a person must take these medications as a part of his or her daily routine, and perhaps would be given an increase in pay as a result (or would lose his or her job if he or she did not comply). Could the employer be sued if an accident occurred and the employee was not taking this drug? This sort
of scenario puts the autonomy of the decision in question. There is also a question of implicit coercion. As stated in Anjan Chatterjee’s essay “The Promise and Predicament of Cosmetic Neurology,” allowing the use of these memory enhancers may lead us to “the Red Queen Principle” (p. 307). This principle, derived from the book Alice in Wonderland, points out that in some situations, in order to stay afloat in one place, one must continuously tread water. Perhaps these enhancements, if allowed in society, would need to be used at every possible opportunity, just for someone to stay in place, not get ahead but in order to keep up. We have seen similar situations with athletes and steroids, the American work week, and the craze of students running from activity to activity, event to event. Some people are willing to do whatever is possible to give them a slight advantage. Unfortunately, for some this might become the only means of staying afloat, assuming it is possible for everyone to gain access to the drug (another issue in itself, which is addressed later in this section). Paternalism is another key ethical principle that must be considered when thinking about the implementation of Nootropic drugs as memory enhancers for ordinary individuals (Munson, 2004, p. 106-8). This ethical principle involves an individual, deciding on the basis of his or her own principles or values, that he or she knows what is in the best interest of another individual. This person then proceeds to act in such a way that deprives the other individual of a genuine and effective choice. This act is justified by the claim that the individual who did not get to act autonomously is better off or protected from harm as a result of this action. In its simplest form, paternalism could be stated as ‘father knows best’ (Munson, 2004, p.106). While no one would argue that an adult may not decide something for their own (non-autonomous) child, it is the case that in a society which values autonomy and liberty for adult individuals one would argue that even if these drugs were found to harm individuals, or have far-reaching, long-term side effects, no one could justifiably tell individuals not to take nootropic drugs. Unless research in the next few years shows negative side effects of these treatments, there is no paternalistic justification for preventing autonomous people from deciding for themselves and determining whether their children should take these potentially life-changing treatments. The final ethical argument that should be addressed is the natural law argument. According to this argument, an individual may morally choose those pharmacological/medical/surgical interventions that restore natural functions in his or her bodies (Munson, 2004, p. 766). According to this sort of argument, Nootropic drugs, taken to improve the memory skills that humans typically possess would not be seen as morally permissible. On the other hand, in the case of Alzheimer’s patients, these drugs are permissible, because they are an attempt to restore the naturally present memory. Finally, the availability of many drugs today is limited only to those who are fortunate enough to be able to afford them (Steinman, Sands & Covinsky, 2001, p. 793). As in the case of steroids, often it is only wealthy athletes and rap perform-
Nootropic Drugs
Is it possible that cholinesterase inhibitors could become the new steroids for the next generation of college students? As was shown in the study of pilots by Yesavage and colleagues (2002), the donepezil treatment used on “normal” people significantly improved their memory between study and test time. Ethically speaking, especially in a society which values liberty and autonomy above all else, the use of these drugs cannot be precluded. Aside from the Natural Law Argument, the other ethical considerations outlined above, fail to give ethical merit in preventing these drugs References 1. Chatterjee, A. (2007). The promise and predicament of cosmetic neurology. In W. Glannon (Ed.), Defining right and wrong in brain science (pp. 302-311). New York, New York: Dana Press. 2. Davis, K. L., Mohs, R. C., Tinklenberg, J. R., Pfefferbaum, A., Hollister, L. E., & Kopell, B. S. (1978). Physostigmine: Improvement of long-term memory processes in normal humans. Science, 201, 272-274. 3. Ibach, B., & Haen, E. (2004). Acetylcholinesterase inhibition in Alzheimer’s disease. Current Pharmaceutical Design, 10, 231-251. 4. Melnikova, I. (2007). Therapies for alzheimer’s disease. Nature Reviews, 6, 341-342. 5. Mesulam, M. M., & Moran, M. A. (1986). Cholinesterases within neurofibrillary tangles related to age and Alzheimer’s disease. Annals of Neurology, 22, 223-228. 6. Munson, R. (2004). Foundations of bioethics: Ethical theories, moral principles, and medical decisions. Intervention and reflection: Basic issues in medical ethics (7th ed., pp. 766). California: Thomson Wadsworth. 7. Munson, R. (2004). Physicians, patients and Others: Autonomy, truth telling, and confidentiality. Intervention and reflection: Basic issues in medical ethics (7th ed., pp. 100-135). California: Thomson Wadsworth.
Courtney Boeff is a senior at the College of St. Catherine and majoring in Biology. Email: cmboeff@stkate.edu Dr. Cynthia Norton is the faculty sponsor for this submission. She is a Professor in the Department of Biology at the College of St. Catherine. Address: Mail #4186, 2004 Randolph Ave., St. Paul, MN 55105 Email: cgnorton@stkate.edu
8. Pope, H. G., Kourt, E. M., & Hudson, J. I. (2000). Effects of super physiologic doses of testosterone on mood and aggression in normal men: A randomized controlled trial. Arch. Gen. Psychiat, 57, 133-140. 9. Rapaport, E. (Ed.). (1978). John stuart mill on liberty. Indianapolis, Indiana: Hackett Publishing Company. 10. Rose, S. P. R. (2002). ‘Smart drugs’: Do they work/ are they ethical? will they be legal? Nature Reviews, 3, 975-976-979. 11. Scoville, W. B., & Milner, B. (1957). Loss of recent memory after bilateral hippocampal lesions. J Neurol Neurosurg Psychiatry, 20, 11-21. 12. Steinman, M. A., Sands, L. P., & Covinsky, K. E. (2001). Self- restriction of medications due to cost in seniors without prescription coverage. J Gen Intern Med, 16, 793-799. 13. Yesavage, J. A., Mumenthealer, M. S., Taylor, J. L., Friedman, L., O’Hara, R., Sheikh, J., et al. (2002). Donepezil and flight simulator performance; effects on retention of complex skills. Neurology, 59, 123124-125.
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Conclusion
from becoming common on supermarket shelves or a typical fortified ingredient in bread. Ultimately, if these drugs are available, just like steroids, some people may choose to take them. However, the long term effects of exposure to this class of drugs must be better understood prior to its usage in non-disease applications. Otherwise, the memory networks that define individuals and enable people to remember good and bad experiences will be at risk. This potential risk is not only to specific individuals but also to the interactions between people within society.
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ers who are able to afford them and reap their benefits and consequences. If the nootropic drugs are as effective as the studies have shown, it is important that everyone has equal access to them. Perhaps it is even more important that those who are economically or socially disadvantaged are given access to it simply so they can stay caught up, as the Red Queen puts it.
Neuroethics Writing Prize Runner-Up
Should fMRI lie-detection technology be admitted in courtrooms?
Janitza MontalvoOrtiz*
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Lying can be a complex, situation-dependant activity, with a variety of degrees and levels of falsehood (Wolpe, 2005).” Recently, functional magnetic resonance (fMRI) technology has been proposed as a new and prominent lie-detector device in the courtrooms. However, due to its uncertain reliability, accuracy and relevance in the law court and the societyʼs skepticism to “mind reading” devices, its admissibility and applications in a real world scenario has been questioned, as happened with polygraph techniques in the past. Moreover, there are also some other issues such as the inappropriate use due to the premature adoption, the misapplication through the misunderstanding of the results, and the invasion of privacy. This paper intends to assess some of the arguments that raise many ethical, civil and social concerns about the unregulated incorporation of the fMRI technology as a lie-detector device that can threatened the credibility of the science in our society.
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The major focus of courtrooms has historically been to determine the truth from a lie. Jurors must detect falsehoods, subsequently making a judgment as to which suspect, or witness, tells the truth. Technology, like polygraph machines, has developed to more systematically determine the truth from a lie. In modern society, newly preoccupied with internal security and foreign threats, the attraction for more developed lie detection devices demands special attention. Individuals in the scientific community recently proposed “new functional magnetic resonance imaging (fMRI)” a new and prominent lie-detection technology (Moreno, 2003). However, its uncertain reliability, accuracy, and relevance in the court of law in addition the society’s skepticism to “mind reading” devices constitute evident and fundamental obstacles to its admissibility. Evidently, these two components, the technology’s inherent worth, and the conceptual questions involved, comprise some of the moral arguments against the use of this technology for lie-detection in the courtrooms or for general use. But, how does fMRI technology really work in our brains? How, allegedly, does this technology reads our minds and detect lies? A traditional magnetic resonance imaging device (MRI) is a large machine that can produce a detailed picture of the activity of person’s brain. It is composed primarily of a powerful magnet that aligns the orientation of the hydrogen atoms, or nuclear spins of protons in the brain. Then, the machine sends out a short impulse of radiofrequency energy that disrupts the atoms orientation. Finally, as the atoms realign and return to equilibrium, they each give off small amounts of energy and the MRI machine can map the location of each energy burst. * UNIVERSITY OF PUERTO RICO. JM84@DUKE.EDU.
Thus, “a MRI is a method of visualizing anatomical details in living things by means of magnetic charges” (Moreno, 2006). This technology is widely used for clinical purposes, such as neurosurgery procedures and diagnosis of psychiatry and neurological diseases, including trauma, dementia, mood disorders, stroke, cancer, seizures, impact of drug abuse, among others. An fMRI scan uses the same technology to obtain images of brain, but also “takes advantage of the fact that when nerve cells are activated, their impulses metabolize oxygen in the blood that surrounds the cells” (Moreno, 2006). The machine records the difference between oxygenated and non-oxygenated blood cells due to their magnetic charges, so more active neurons can be distinguished from less active ones in specific brain regions. (Moreno, 2006; Kittay, 2007; Happel, 2005). This method is called “functional” because the subject is involved in a cognitive process, such as answering a question or looking at an image (Moreno, 2006; Kittay, 2007). This designed stimulus is required to obtain the relative difference in brain activity between an experimental (designed stimulus) and a control (baseline) task, as illustrated in Figure 1 (Illes & Racine, 2005). The result is a colorful map of the brain that is thought to show a correlation between activated neural system and mental activity. “Although local blood flow in the brain is related to neural activity, the relationship remains incompletely understood (Wolpe et al., 2005).” Some of the clinical applications of fMRI include surgical intervention, diagnoses, treatment and follow-up for epilepsy, stroke rehabilitation, cerebrovascular diseases, learning disabilities (Moreno, 2006), mental illness in adults, tumors, pediatric pathology such as attention hyperactivity disorder (Illes & Racine, 2005), and psychiatric syndromes such as schizo-
Q: Do you have this card (computer shown the 2 of hearts)? A: No (subject telling the truth). Q: Do you have this card (computer shown the 5 of clubs)? A: No (subject lying and deceiving experimenter). Q: Is this card the 10 of spades (computer shown the 10 of spades)? A: No (subject lying, but not deceiving experimenter). (Gazzaniga, 2006)
As shown in the example, participants were instructed to attempt to fool the experimenter (computer) by responding “no” to all questions asked by the computer, even though this was a falsely or truthfully response. The subjects were
In West Africa, suspects were traditionally made to pass a bird’s egg from one to another. He who broke the egg was assumed to be the most nervous and hence the liar. Similarly, in ancient China the suspect was required to hold a handful of rice in his mouth while the prosecutor made his accusation. Under the assumption that anxiety reduces salivation, the suspect was found guilty if the rice remained dry at the end of the speech. (Ambler, 2007)
Surprisingly, polygraph devices are based on similar principles. Its origins relies in the 19th century, where the Italian criminologist Lombroso was the first to attempt lie detection by measuring changes in blood volume during interro-
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phrenia, Alzheimer and Huntington’s disease (Glannon, 2006). However, the controversy emerges when the studies are directed to explain, manipulate, and predict cognitive behaviors. Thus far, this kind of research focused on racism, violent or criminal behavior, moral decisions, levels of self-esteem, intelligence, liberals or conservative ideals, antisocial behavior, cooperation or competition, and of course, truth verification and lie detection (Illes & Racine, 2005). It is commonly believed that “fMRI technology can take pictures of a person’s brain at the very moment the person is engaged in a task, showing which brain regions are at work while he or she Figure 1. Experimental (“B” state) images (when the subject is exposed to a stimulus) are is answering a question or telling a story” subtracted from control (“A” state) images (when the stimulus is not shown) to achieve regional (Kittay, 2007). Additionally, a group activation maps with fMRI. of scientists from Stanford University found that “recent fMRI studies dempromised a modest reward ($20) if they succeeded. Generonstrate the possibility of obtaining measurements of biologially, Langleben concluded that “it took more mental energy cal correlates of complex human processes such as existential to lie than to tell the truth” (Illes & Racine, 2005). thought and decision-making, moral and non-moral social It is important to know that deception is defined as the judgment, love and altruism, personality, and human compe“intentional concealment, distortion, or fabrication of intition” (Illes & Bird, 2006). However, other experts suggested formation for the purpose of gaining an advantage or leadthat neuroimaging, as referring to fMRI technology, is a powing another into an erroneous conclusion” (Happel, 2005). erful tool, but it remains only as a tool, and using the inforThere are several studies from the last five years, showing mation that it may provide in the legal system and in the real the ability to distinguished deceptive and truthful responsworld would be invariably complicated (Annas, 2007), entirely es from fMRI spatial images, as the one described above. unregulated (Greely, 2007), and totally unrealistic (Ambler, However, the scientific community is still embroiled in the 2007; Wolpe et al., 2007). controversy over which specific brain regions are involved Recent studies done by Daniel Langleben and his colin deception behavior as well as to the correct design and leagues in the Department of Psychiatry at the University interpretation that should be used. Moreover, these studies, of Pennsylvania attempted to demonstrate and validate the based on deception behavior, “have limitations in that they use of fMRI as a lie detector device. The subjects, 18 young do not accurately model real-world lie-telling scenarios” and healthy volunteers, performed a Guilty Knowledge Test (Martin, 2005). (GKT) that served as a model of deception, a means of the “Lying can be a complex, situation-dependant activity, measurement of the stress and nervousness that comes from with a variety of degrees and levels of falsehood (Wolpe, lying, by implementing a modified version of the polygraph 2005).” It is assumed to “cause anxiety, which activates auGKT paradigm. They were told to steal a playing card (for tomatic physiological responses such as increased heart rate, example, 5 of clubs) and then were placed in an fMRI scanbreathing, sweating, and blood pressure” (Ambler, 2007). ner while undergoing interrogation by a computer. The proThese attempts on considering anxiety reactions as a predictocol of the interrogation could be: tor of lying were also developed in the past.
Volume IV Issue ii
fMRI in Courtrooms
Volume IV Issue ii
Article
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gation of a suspect. In the early 20th century Benussi investigated the relationship between a variety of physiological factors and lying. It was not until 1921 when John Larson developed the modern polygraph. The polygraph measures physiological response to deception- intentional misleading from the truth- reflected by reactions associated with anxiety. “It is expected that those signs of nervousness correlate with the speaker’s knowledge that what he is saying is false (Greely, 2004).” Operators of the polygraph claim to be able to detect when an individual is lying with an accuracy of 85-90% (Ambler, 2007; Happel, 2005). However, “because the exam is based on the subject’s stress levels, the examiner’s behavior may affect the results” (Kittay, 2007). Furthermore, polygraph testing in civil and judicial settings is subject to ongoing concerns about accuracy of measurement, reliability of the questioning paradigm used, and the relevance of the test to the field situations in which it is used. Almost since its introduction, the polygraph and similar technologies were the subjects of controversy in the court room, as their admissibility or exclusion in legal proceedings and Supreme Court decisions were called into question. Other modern technologies that also attempt to detect lies include the use of near-infrared brain scans that focus on activity in a specific brain region, thermal imaging, which looks for increased heart emission around the eyes, computer programs that intend to recognize deception from facial expressions; and “brain fingerprinting” that is the use of the electroencephalograph (EEG) to look for a particular brain wave pattern, P300 wave. The accuracy and reliability of each study was tested and analyzed because of their potential of “shooting in the dark”. The admissibility of scientific information into the courtrooms is governed by specific “rules of evidence”. “The rules of evidence determine what information can be “admitted” (made available for the judge or jury to consider in their decision making), under what conditions, and for what purposes (Garland, 2004).” These rules or approaches for the admissibility are based on two famous and controversial cases: the Frye v. United States case, in which the testimony of polygraph pioneer William Marsten was excluded and Daubert v. Merrell Dow Pharmaceuticals. In his report, called Neuroscience and the Law: Crosscutting Legal Issues, Garland exposed and described the four criteria, based on Daubert case, for the proper evaluation of the admissibility or exclusion of scientific-based evidence in the law court. 1. Falsifiability: Can the theory or technique be (and has it been) tested? Drawing in the theories of Karl Popper, the Court pointed out that scientific theories and methods must be falsifiable. 2. Peer review: Has the theory or technique been subjected to peer review and publication? The Court was sensitive to the fact that some theories are too new or of too limited interest to be published, but it also held that publication and peer review were relevant considerations in assessing validity. 3. Error rate: What is the known or potential error rate of the methodology or technique? 4. General acceptance: A Frye-like test that considers the degree of acceptance within a relevant scientific community. (2004)
These Daubert rules are applied to any case in which a scientific method is submitted as evidence, where the jury has to decide whether or not this evidence should be admitted as a reliable and accurate tool for exculpatory defense or incriminating proof of guilt in the courtroom. “Daubert analysis can be more and less permissive: it is more permissive because it does not require general acceptance if the scientific foundation for the evidence is strong; but, in the other hand, it will not admit even generally accepted evidence unless the foundation is strong (Morse, 2004).” However, Daubert analysis leaves open many questions that must be resolved either generally or in specific cases, such as what counts as a science, or what error rate is acceptable for what purpose. More recently, “in United States v. Scheffer, American courts have generally, but not universally, rejected the polygraph evidence” (Greely, 2004). New Mexico is one of the only states that adopted a general rule admitting polygraph evidence. However, it admits the evidence under the a condition that it might be admitted only on a case-by-case basis, analyzing it under the Daubert test for scientific evidence. In the 1998 case of U.S. vs. Sheffer, Scheffer, an enlisted man in the Air Force, wanted to introduce the results of a polygraph examination at his court-martial for illegal drug use. “The results showed that Scheffer denied illegal drug use during the same period that urine test detected the presence of methamphetamine (523 U.S. 303, 1998).” Military Rule of Evidence 707, promulgated by President George H. W. Bush in 1991, provides that “notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking a polygraph examination, shall not be admitted into evidence” (Greely, 2004). The Rule 707 was classified as constitutional on three grounds: continued question about the reliability of polygraph evidence, the need to preserve the jury’s core function of making credibility determinations in criminal trials, and the avoidance of collateral litigation that is related to the right to privacy for personal information not relevant to the case. Currently, individuals cannot be forced to undergo polygraph testing. However, lie-detector tests are used by the federal government for forensic investigations and personnel security matters (Happel, 2005, p.671). Moreover, it is currently used for civil purposes, such as screening employees or applicants to sensitive positions. On the other hand, “in the United Kingdom, polygraph evidence is not used in court cases, nor is its use reported by the police” (Ambler, 2007). Is the polygraph’s history in the courtrooms a prediction for the future of fMRI lie-detection technology? In order to assess this question, we must establish the distinction and similarities between these two lie-detection devices. According to Leo Kittay, a J.D. candidate at Brooklyn Law School, many of the various differences between fMRI technology and the polygraph should cause the fMRI exam to fare better under a proper Daubert and Province of the Jury analysis than the polygraph because the fMRI test (1) mea-
fMRI in Courtrooms
The possible invasion of that intimate method of privacy raises a host of hard questions. Should it be allowed at all? If so, for what purposes and by whom? By the intelligence community to search for terrorists? By the military to field intelligence? By the police to look for burglars? By the government to identify illegal immigrants? By teachers who want to know if the dog really did eat the homework? And for each allowed use and user, should procedural protections be required, such as truly voluntary consent or a judicial warrant? Good science could well be used here for bad ends. (2007)
There are also some others issues surrounding fMRI testing, including its possible exploitation. Two rival companies, No Lie MRI and Cephos are taking advantage of the proposed but, at the same time, practically unrealistic applications of the fMRI as a lie-detector device in the law court. More specifically, “...No Lie MRI, charges $30 per minute of scanning, which may take an hour to complete, in addition to fees for legal assistance and analysis. (Ambler, 2007)”. The commercialization of a product that has not been scientifically and entirely proven raises the need of the regulation of the prospective uses and interpretation of its results in the community. Thus, neuro-ethicists and bio-ethicists are needed in order to assess this enormous responsibility that may threaten the credibility of science in society. All of these issues are the results of the attempt to prematurely incorporate a technology that is currently in its
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court. The basis of this permissibility factor relies on the degree of reliability and validity that the evidence demonstrates. “If a piece of evidence appeared to be weak under any factor, a judge could justify exclusion (Kittay, 2007)”. Since validity of the polygraph varies significantly depending on the questioning method and the quality and purpose of the study, this lie-detection device has been stigmatized as a “junk science”. This is due to the inaccurate techniques employed, susceptibility to examiner error, and doubts regarding a link between physiology and deception. The fMRI lie-detection devices may have a similar story in the future. Even though the accuracy of this method is about 85% to 90%, it means that there is also a 15% to 10% of error rate and false positives. Evidently, due to the high percent of false positives, this method can constantly produce erroneous results in which innocent people may be found guilty, criminals could be exonerated, and testimonies misunderstood. Consequently, this new technological device, that is totally unrealistic in a real-world scenario, can be a very harmful tool in the hands of a judge or any expert in the courtrooms as happened with the polygraph in the past. The uncontrolled emergence and development of the fMRI lie-detection technology in our real world raises many social, ethical, and civil concerns. “The potential of neuroscience to invade our privacy ... may produce both the strongest reaction against its use and substantial regulation (Morse, 2004)”. Henry T. Greely, a very prominent lawyer and law professor at Stanford University, exposed an interesting and appropriate reflection about the fMRI lie-detection device and its possible future implications in our society.
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sures that which is more closely associated with deception, (2) promises increased accuracy, and (3) more computerized standards than the polygraph. Nevertheless, its admissibility on the courtrooms is threatened by the lack of confidence of the society and the judges in this science-fictional technology that can classified it as a “junk science”. Testing has shows that the results of a polygraph test can be altered by the impact that the examiner can generate on the subject. The examiner’s tone of voice, intonation, attitude, physical posture, and eye contact can directly affect the results of the test. Moreover, because the results are interpreted and analyzed by the examiner, he or she can be influenced by subjective impressions. On the other hand, fMRI lie-detection results are interpreted by computer software, where the computer serves as a mediator and examiner during the interrogation. Thus, Kittay argues that the fMRI is less susceptible to “confirmation bias” or mistakes. However, different researchers use different kinds of computer software and levels of accuracy not uniform across the span of different software and experimentation. This differentiation can significantly alter the results of the fMRI test. Furthermore, there are several factors that attempt to the validity and practical use of this technique in a scenario outside the laboratory. Given the power of the magnetic field of the fMRI scanner, people who have metal inside their bodies (including pacemarkers, artificial joints, metal fragments following accidents, among others) cannot be tested. Also, for safety purposes, pregnant women and claustrophobics cannot be tested. “Similarly, if the individual being tested is a psychotic, deluded or pathological liar, then the models developed in studies using ‘normal’ participants may not be applicable (Ambler,2007).” Cephos, a company that is commercializing this device, has limited its study population to people who are between the ages of eighteen and fifty, “fairly well educated”, non-medicated, and not current users of illegal drugs” (Kittay, 2007). Additionally, the laboratory subjects are exposed to an artificial and fabricated kind of stress in a design situation. Thus, they are not under the kind of stress that is characteristic of one who is falsely accused or a guilty individual knowingly trying to avoid significant penal consequences. It is commonly believed that the polygraph can be easily fooled by controlling the physical responses to anxiety. The “fMRI lie-detectors are allegedly impossible to fool, as it is not possible to learn to control blood flow in the brain as areas become activated by a task such as lying” (Ambler, 2007). However, some experiments have revealed that “healthy subjects could be taught relatively quickly to self-regulate their responsive brain oxygen level changes in certain areas of the brain” (Kittay, 2007). Thus, these results indicate that regional brain activation may be trainable. If so, one could control specific brain region activations associated with deception during an fMRI lie-detection scan, manipulating the results. The concept of general acceptance, one of the most important factors of the Daubert analysis, can be the clue of the admission process of scientific-based evidence in the law
Article early stages. Thus, the proposed applications of fMRI liedetection devices to the real-world scenario, specifically in courtrooms, are exaggerated, appearing totally unrealistic and utopist with serial legal and social implications. Definitely, “neuroscience has less to offer law courts than might have originally been thought” (Ambler, 2007).
Janitza Montalvo-Ortiz is a junior at the University of Puerto Rico and majoring in Biology. Email: jm84@duke.edu
References
10. Illes, J. & Racine, E. (2005). Imaging or imagining? A neuroethics challenge informed by genetics. The American Journal of Bioethics, 5(2), 5-18. 11. Kittay, L. (2007). Admissibility of fMRI lie detection: The cultural bias against “mind reading” devices. Brooklyn Law Review, 72(4), 1351-1399. Retrieved October, 16, 2007, from Ebsco Host Research database. 12. Martin, P. & Ashcroft, R. (2005, September 26-29). Neuroscience, ethics and society: a review of the field. Keynote address presented at Welcome Trust Biomedical Ethics Summer School – St. Anne’s College, Oxford. 13. Moreno, J. D. (2006). Mind wars: Brain research and national defense. New York/Washington, D.C.: Dana Press. 14. Moreno, J. (2003). Neuroethics: an agenda for neuroscience and society. Nature Reviews Neuroscience, 4(2), 149-153. 15. Morse, S. J. (2004). New neuroscience, old problems. In B. Garland (Ed.), Neuroscience and the law: brain, mind, and the scales of justice (pp. 157-200). New York/Washington, D.C.: Dana Press. 16. Tancredi, L. R. (2004). Neuroscience developments and the law. In B. Garland (Ed.), Neuroscience and the law: brain, mind, and the scales of justice (pp. 71-113). New York/Washington, D.C.: Dana Press. 17. Wolpe, P. R., Foster, K. R. & Langleben, D. D. (2005). Emerging neurotechnologies for lie-detection: promises and perils. The American Journal of Bioethics, 5(2), 39-49. Retrieved October, 16, 2007, from Ebsco Host Research database.
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1. Ambler, M. (2007). Neuroscience and law: blind justice or blind faith? The Triple Helix: UCL p.10-11. 2. Annas, G. J. (2007). Foreword: Imagining a new era of neuroimaging, neuroethics, and neurolaw. American Journal of Law & Medicine, 33, 163-170. Retrieved October, 16, 2007, from Ebsco Host Research database. 3. Garland, B. (2004). Neuroscience and the law: A report. In B. Garland (Ed.), Neuroscience and the law: brain, mind, and the scales of justice (pp. 3-44). New York/Washington, D.C.: Dana Press. 4. Gazzaniga, M. S. (2005). The ethical brain: The science of our moral dilemmas. New York/London/Toronto/Sydney: Harper Collins Publishers. 5. Glannon, W. (2006). Neuroethics. Bioethics, 20(1), 37-52. Retrieved October, 16, 2007, from Ebsco Host Research database. 6. Greely, H. T. (2007). Knowing sin: Making sure good science doesn’t go bad. In C. A. Read (Ed.), Cerebrum 2007: Emerging ideas in brain sciences (pp. 85-94). New York/Washington D.C.: Dana Press. 7. Greely, H. T. (2004). Prediction, litigation, privacy, and property: some possible legal and social implications of advances in neuroscience. In B. Garland (Ed.), Neuroscience and the law: brain, mind, and the scales of justice (pp. 114-156). New York/Washington, D.C.: Dana Press. 8. Happel, M. D. (2005). Neuroscience and the detection of deception. Review of Policy Research, 22(5), 667-685. Retrieved October, 16, 2007, from Ebsco Host Research database. 9. Illes, J. & Bird, S. J. (2006). Neuroethics: a modern context for ethics in neuroscience. Trends in Neuroscience, 29(9), 511-517.
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Dr. Carmen Maldonado-Vlaar is the faculty sponsor for this submission. She is a Professor in the Department of Biology at the University of Puerto Rico. Address: University of Puerto Rico, Rio Piedras JGD Room 221 Email: cmalvlar@caribe.net
Article
The ability of religiously affiliated hospitals to conscientiously object
Michelle Allain*
tion of Canada [CHAC], 2007). At face value, a merger of a secular hospital and a religious institution may not seem to be a major issue, but a closer examination reveals faith based hospitals can pose a serious threat to certain health care services. This is because religious philosophy is allowed to justify refusal of counselling and/or the performance of procedures viewed to be contrary to the established teachings of the Church (Berke Fogel and Rivera, 2003). Thus, the scope of services offered at religiously-affiliated hospitals, as opposed to secular hospitals, is directed by the doctrine and principles of that religion, not by medical guidelines or the needs of the Community it serves. In the case of Catholic hospitals, prohibited interventions include: abortions, reversible contraception, sterilization such as vasectomies, and tubal ligations for birth control purposes; infertility treatments such as artificial insemination and in vitro fertilization; AIDS and STI harm reduction counseling, and emergency contraception even in the case of rape (CHAC, 1991). The proposed amalgamation in Midland, Ontario would see each of these essential reproductive services lost immediately. While the community’s public health unit does address reproductive health issues, it does so only between the hours of 9am-5pm on weekdays (Gandhi, 2007). Further to this point, it should be noted that these services are being jeopardized simply because of monetary reasons (Gandhi, 2007). In order for secular services to prevail, Huronia would have had to purchase the land on which Penetanguishene General is built, a price tag of approximately 6 million dol-
* UNIVERSITY OF WESTERN ONTARIO. 155 BROUGHDALE AVENUE, LONDON, ONTARIO, CANADA N6A 2K6. MALLAIN@UWO.CA.
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Much debate has been given recently pertaining to the function of faith directed organizations in publicly funded services (Campbell, 2004). If it is accepted that Religion and state are to be considered separate entities whose roles are fundamentally detached, then the question begs to be asked, what position do religious organizations have in state administered programs? This delicate balance between church, state and the healthcare system was recently severely threatened in the Georgian Bay town of Midland, Ontario, Canada. The once peaceful community of 1,600 was unwillingly thrust into the lime light, when the services to which they were entitled and had become accustomed, were blatantly threatened. Following a year of closed door discussions, the secular Huronia General Hospital and the Roman Catholic Penetanguishene General Hospital not five kilometers away, voted on June 15, 2007 to merge (Gandhi, 2007). What was troubling to both physicians and community members regarding this merger, however, was they proposed to do so as a Catholic organization. It is an established fact that in some Canadian provinces including Ontario, the education sector operates within a framework of both Public and Separate School Boards (Campbell, 2004). Many people fail to comprehend however, that this dual system is also alive and well within the context of healthcare, as a large number of our health institutions are religiously affiliated as well. The largest is the Catholic Health Association of Canada (CHAC) which currently funds a total of ninety-six hospitals and long term care facilities in seven provinces (Catholic Health Associa-
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This article addresses the issue of conscientious objection amongst religiously-affiliated hospitals in rural Ontario, Canada. It is argued that when religious organizations endeavor to provide publicly funded healthcare services in rural areas, they must forgo any entitlement to deny services to which they may conscientiously object unless reasonable and timely access to those services is made available to the community through other facilities. Failure to do so creates an unacceptable barrier to access and it is therefore in direct violation of the Canada Health Act. It is further argued that mergers between secular and religiously-affiliated hospitals in areas where the newly formed corporation would be religiously governed and occupy sole provider status should be prevented, as this represents an infringement on personal autonomy and access entitlement. Should a merger be necessary, it must occur in a fashion that maintains or increases access to secular services rather than diminishing them.
Article lars (Gandhi, 2007). In becoming a Catholic corporation, most of Huronia’s debt would be absorbed and it would also be eligible for additional funding by the CHAC. The ability of religious hospitals to arbitrarily establish standards of health care service delivery through the justification of conscientious objection is a cause for concern, especially in rural areas. When religious organizations endeavor to provide health facilities as a public service, and have reassured governmental agencies that their hospitals will fulfill this function, they forgo their entitlement to deny services to which they may conscientiously object unless reasonable and timely access to those services is made available to the community through other facilities. Furthermore, if a hospital undertakes the role of the public’s sole source of health services, as is most often the case in rural communities, and refuses to make available legally authorized standards of care, it risks committing both ethical violations and legal noncompliance under the Canada Health Act.
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The evaluation of Conscientious objection
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Conscientious objection, according to Childress (1985), is a refusal to comply with a request based on personal moral or religiously inspired moral reasons. In theory, therefore, any member of society could object on the basis of conscience to performing actions to which he or she was morally or religiously opposed. While the limits of conscientious objection have been debated for quite some time, a proper understanding of both the scope and the limits of this ethical foundation is imperative to the understanding of its proper application. The American Pharmacists Association is of the opinion that professionals have the right to exercise conscientious refusal, if they themselves feel that complying with the wishes of the patient contradicts their moral or religious integrity (Card, 2007). The understanding of providers as persons with their own ethical values is thus integral to this right. It must be recognized however, that the application of this right is not equivalent to having ‘carte blanche,’ as the right to object is limited and must never pose a significant risk to patient health. Agreement with regards to these limitations and to whom they apply is varied and ranges from total inclusion (Card, 2007) to absolute exclusion (Savalescu, 2006). The fact remains though that conscientious objection should neither endanger the well being of the patient nor pose a serious threat to access. For these reasons, whereas health care professionals are entitled to conscientious objection, hospitals, who are sole providers in their region--that is, those that offer the only source of primary care within their catchment area-- should not be privy to this right. The imposition of burden on others must be critically evaluated when assessing the validity of conscientious objector status. Naturally, as the level of burden on the person who does not share the objector’s belief increases, the merit of refusal decreases (American Civil Liberties Union [ACLU], 2002). In the case of medical practitioners, the burden imposed on patients should be balanced with the potential harm experienced by the health care professional. The right
of religious conscience is a human right (Dickens and Cook, 2000). So too, is the right to personal security and health. Health, as defined by the World Health Organization, is a state of “complete physical, mental and social well-being and not merely the absence of disease or infirmity” (World Health Organization, 1946, p.100). Seeing as contradicting one’s personal moral values could cause serious psychological harm and emotional distress, not allowing professionals to conscientiously object could result in serious health consequences. Dilemmas of ethical morality take on increased importance when the values which are being challenged have been adopted out of personal reflection and aid in defining the self concept. In this situation, because the burden on the provider and his or her personal identity could be severely compromised, a case for the justification of conscientious objection can be made. The same holds true for rural professionals. Although there is an additional element of burden placed on the patient, provided that the principles of full and informed consent are maintained along with the assurance of timely and efficient access, the burden can theoretically be justified. Hospitals, conversely, are not entitled to this same privilege of service refusal on the basis of conscience. While Corporations may benefit from a legal personality in the context of the law, they do not enjoy the same spiritual legitimacy as do humans (Dickens and Cook, 2000). Therefore, the ability to object on the basis of conscience is not available to institutions, as they are not privy to the same entitlements under human rights laws (Dickens and Cook, 2000). Hospitals, as corporations should be detached from the doctor=patient decision making process. Since they are not directly involved in the provision of care, the potential harm towards conscience is diluted. While certain scholars may argue that being an accessory to morally objectionable practices is equally offensive, in reality the further removed one becomes from the level of decision making, the less grounds one has to refuse on the basis of conscience, as the burden of harm is drastically reduced. When hospitals conscientiously object, they do so on the basis of religious doctrine set out and passed down by their funding organization (Berke Fogel and Rivera, 2003). Doctors are therefore mandated to follow ethical guidelines dictated and imposed by the funding organization’s religious beliefs. These guiding principles may not accurately represent the values of those who are both employed by or frequent the hospital. This policy represents an imposition of beliefs from the top down rather than a personal conscious decision made as a result of individual introspection. The conscience of an individual bears a significantly higher moral weight and, as such, is more defensible than objection based on institutional policy which may not comply with the views of those who must subsequently enforce it. By virtue of conscientiously objecting to standard medical practices that violate religious doctrine, faith-affiliated hospitals impose their moral standards on the general public, as well as those who work for them. In urban cities this is not a major concern, as people do have a choice. In rural areas however, where the hospital quite often becomes the sole
Religiously Affiliated Hospitals not, therefore, limit services and thus become, as previously stated, the moral compass of a region. This is not their raison d’être. They are in place to provide medical care; not a lesson in morality. Access to health care is one of the five fundamental pillars of the Canada Health Act. It states: “In order to satisfy the criterion respecting accessibility...the province must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons” (Canada Health Act, c.6 s.12). While access is not a guarantee to health, the provision of adequate and reasonable services within an area greatly increases the likelihood of positive outcomes (Bindman, Keane, Lurie, 1990). Conscientious objection by religiously-affiliated hospitals in rural areas not only curtails access but creates a significant barrier to it. Mergers and affiliations with religious hospitals present serious obstacles to health care options in rural areas. Consequently, female and male health services have become marginalized and fragmented with the potential for serious health consequences. As previously stated, the scope of service availability at religious affiliated hospitals is determined by the dictates of that religion, not by medical guidelines or needs of the community it serves. These religious directives often come into direct conflict with medical guidelines, as they are not based on scientifically sanctioned services or health outcomes, but instead religious beliefs regarding the moral implications of treatment. In rural communities, where a religious hospital is the sole service provider, the barrier to access becomes so great that essential services are effectively denied. A case in point is the removal of tubal ligations from the services provided by St. Elizabeth’s Hospital in Humboldt, Saskatchewan. This procedure was found to be contrary to the Catholic Health Care Ethics Guide and, as such, would no longer be offered (Yaworski, 2007). This decision poses a severe risk to female reproductive health, as the American College of Obstetricians and Gynecologists (ACOG) recommends the best time for tubal ligation is immediately following delivery (Berke Fogel and Rivera, 2003). Religious beliefs prohibiting sterilization for birth control purposes may subject a woman to an unnecessary procedure at a different facility. This increases the risk of infection, recovery time, cost to the health care system, personal inconveniences and the risk of additional pregnancies until the procedure can be completed (Berke Fogel and Rivera, 2003). The threat of AIDS and sexually transmitted infections is also an area of consideration. Studies consistently show that harm reduction and education are the most effective measures in controlling the spread of these infections (Richardson et. all, 2004). Nevertheless, Catholic hospitals refuse to provide counseling in this area, as they believe a safe sex approach compromises human sexuality and contradicts their teachings (CHAC, 1991). This is of little comfort to the homosexual community or the
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Access to Health Care
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provider of health care, the choice is taken away from the patient, thus diminishing his or her autonomy. The hospital is now acting as the moral compass of the community and, as such, exercising a monopoly over a public service. Interpreting its moral conscience to be that of the entire service area is not acceptable and, according to Alta Charo (2005), constitutes an abuse of trust. No longer is one individual acting on his or her personal beliefs but now anyone, regardless of his or her views, is subject to these restrictions. Corporations do not have feelings, nor do they have a conscience per se (Dickens and Cook, 2000). At best, they have a collective conscience determined by the sum of the moral and ethical beliefs of their employees. Since laws exist which prohibit discriminatory hiring practices, such as those based on ethical beliefs, employee values will likely differ a great deal and a unified collective conscience will remain unlikely. Once again, rural communities suffer most, as the autonomy of both patient and provider are compromised. Doctors are considered independent contractors of the Province of Ontario. As such, they have the right, within reason, to refrain from treating a patient on ethical grounds. If a doctor informs a patient in advance of his/her ethical objection to a medical procedure, the patient then has the opportunity to go elsewhere for services. In this way, doctors are able to change their terms of reference while still keeping within the spirit of their profession. Physicians are also funded on a per service basis and, therefore, are not paid for services they neglect to provide. Hospitals, on the other hand, are considered to be the providers of publicly administered programs (Dickens and Cook, 2000). They fall under a more general purview in which they must meet the standards of public care. In an urban area there are a number of facilities that will meet these standards. In a rural area, however, when a hospital is the sole provider, its responsibility to uphold standard services becomes more important than any objection it can make on conscience. It has a legal responsibility to provide complete and unbiased services. Failure to do so violates international human rights laws (Dickens and Cook, 2000). When an organization enters the public domain, it must play by public rules. In Canada, hospitals are publicly funded and, therefore, must reflect the needs of the community at large. Even when a hospital is administered by a religious organization, public funds are allotted. Simply stated then, when a service is purchased with the tax payer’s dollar, it is no longer the sole interests of the institution that should be promoted, but rather the needs and values of the public it serves. According to the American Civil Liberties Union (2002), churches, temples, mosques and any other religious institutions are privately run and governed and, thus, may be shielded from laws that would require them to contradict their beliefs. Those who seek the assistance of these institutions do so of their own free will. Hospitals, on the other hand, are public pursuits and even when governed by religious organizations, they must step outside their religious insulation to serve public demands. As Canadian hospitals are publicly funded and administered, religious institutions are not able to choose those whom they serve. They can-
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Article
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person infected with a sexually transmitted infection. Physical symptoms will be treated but further counselling regarding the proper use of prophylactics or harm reduction techniques are ignored. This approach endangers the health of patients and poses a significant risk to the community at large. By neglecting the needs of individuals on the grounds of conscience, hospitals are, by extension, neglecting the needs of the entire community. In the case of abortion and emergency contraception access is further denied. The Catholic faith believes that life begins from the moment of conception (CHAC, 1991). Any termination of an embryo or fetus is in direct violation of the Church’s moral and ethical standards. This belief poses an access barrier in rural settings where a faith-based hospital denies women comprehensive services. These principles remain, even in the case of rape where psychological distress is further increased. Emergency contraception and abortion are time-sensitive (Card, 2007). Impeding access can seriously affect both the physical and mental health of the patient and should not be tolerated on the grounds of conscience when hospitals are sole providers. Often reproductive debates concentrate solely on females.This is a false representation of the issue, as faith based institutions also limit the reproductive rights of men through the denial of vasectomies (CHAC, 1991). As in the case of AIDS and sexually transmitted infections, the community stands to lose when religious hospitals object to a variety of accepted medical treatments on the grounds of their moral beliefs. These religious beliefs often do not reflect the majority of the population served. This is ethically unacceptable and poses legal challenges. Defining access to healthcare is contingent upon several variables. What may constitute easy access for one person can present considerable challenges for another. At times, inequalities can exist by virtue of their implications. Socio-economically disadvantaged patients often experience larger barriers to access than those of higher socio-economic standing. Rural areas are characterized by a higher demographic of low income earners (Pong, 2007). While the restriction of services affects everyone, low income women and those who are poorly educated, are particularly vulnerable (Rodgers and Downie, 2006). Many of these people work at lower paying jobs that do not typically carry high security. The luxury of sick days is often not an option and it remains difficult to take time from work to seek medical services elsewhere. If they do, they experience the double burden of pay loss while concurrently absorbing the financial hardships of travel outside the region. Access to transportation can be an issue especially when reliance on public transit is the only option. Other costs may include: overnight accommodations, meals, and possible child or elder care. A further concern is the potential threat to patient confidentiality. When the situation involves leaving the region, more people are implicated. This is especially true for teenagers who are in crisis. The circle of trust has now automatically expanded despite the wishes of the patient. For those who fear severe repercussions from family and friends, this can be traumatic. While the structure is in place, the institution is deliberately thwarting the efforts of the patient to access those services to which they are entitled. Cer-
tainly this does not present an environment of healthy access, let alone equal access for those in rural communities. When a population who does not have the means is automatically precluded from equal health care, this violates accessibility standards. Service should be provided regardless of religious affiliation or moral standing on the part of the hospital. The concept of a two tiered system can be advanced when religious hospitals limit the availability of health care services in areas where they occupy sole provider status. It is alarming, needless to say, that religious hospitals can preferentially support the views of one segment of the population simply because they have the resources. This violates the public’s right to comprehensive and unbiased healthcare. In rural areas, the views of the hospital may not represent those held by the majority of the population. Here we see how the outlook of the minority may easily be imposed on the majority. A religious organization’s strong financial capabilities simply should not allow it the exclusive right to project its value system into the public realm of healthcare. Finally, as a result of religious opposition, not only are medical professionals being limited in their capacity to offer comprehensive health services, but the hospital infrastructure has been limited as well. Quite often resources such as space and equipment to perform objectionable services are available but not utilized. This is especially true when secular and non secular hospitals merge. These facilities were built and are supported by public funds. Therefore, public access should be assured whenever possible. In further considering the principles of equal access, the rural area which has secular services enjoys more rights than the community which has only a non-secular provider. This is a form of discrimination, as the public does not decide which hospital will be the provider for their community. As citizens, we expect and have been assured through the Canada Health Act, that within reason, equal access will be maintained. Controlling the purse strings of a hospital does not constitute solid enough grounds for the limitation of this access.
Concluding statements
In the struggle to uphold fair and equal rights in a pervasively secular society, due consideration must be given to the impact faith-based hospitals have in rural settings. Accessing health care services in this environment is challenging at best. When the limitations imposed by religiously governed organizations are added, this challenge quickly becomes a barrier in which fair and equal services are lost. While the historical contributions of religious entities should not go unnoticed, the world in which they operate has changed. As Canada moves towards an increasingly mosaic composition, the values represented in its society will only continue to diversify. Public services should reflect this shift in demographics. Under the Canada Health Act, governments have a legal responsibility to ensure equal and nonbiased access throughout their province. When a religious organization seeks to provide healthcare as a public service in a rural environment and, as such, has assured governmental agencies that they will fulfill this function, they must forgo their entitlement to conscientiously object. Not doing so creates an unacceptable barrier to access. Furthermore, the government must take heed. If non-secular
Religiously Affiliated Hospitals and secular hospitals choose to merge, they must do so in a fashion that maintains or increases access and does not limit it. The proposed merger in Midland was unsuccessful and voted down August 2, 2007, largely due to public opposition and not because it violated official Ontario government policy (CUPE Ontario, 2007)! To assume however, that this case is a one time isolated incident would be erroneous. The experience of Midland can be extrapolated to rural areas across the province, the nation, and beyond our borders. While each country assumes its own framework of healthcare administration, the fact remains; the denial of services by religiously affiliated hospitals in rural areas limits access to those in need. Clearly lessons can be learned from this situation. Policy must be formulated in an effort to outline standards that should be upheld. Explicitly formulated government legislation must also be enacted so as to prevent a reoccurrence of the events in Midland. Preventing the establishment of a precedence favoring religiously inclined mergers is imperative. The right of citizens to access equitable health care in all rural areas should carry the same weight as it does in urban areas. Therefore, if a secular hospital is merging with a religiously governed institution for monetary reasons, the government must take responsibility to assist it financially. It must also give assurances that those religious institutions operating as sole providers in an area do not have claim to service denial on the grounds of conscientious objection.
In an era where fiscal imbalance has become intolerable and a balanced budget mandatory, hospitals in Canada and elsewhere are under increased pressure to do more with less. As a means of curbing debt, mergers between secular and religious hospitals may be initially appealing. However, for a religiously affiliated hospital to invoke conscientious objection when it occupies sole provider status amounts to holding a monopoly over the health care interests and decisions of the population for which it is responsible. While the books may give the façade of being balanced, mergers come at a severe cost to individual rights and entitlements to access services that meet the needs of the community in which they live. These rights and services must remain the primary focus if the standards of fair and equal access are to be upheld.
References
11. CUPE Ontario. (2007, August 3). Victory in Midland: Community to keep secular hospital: Community vows to pressure province for funding solution. Retrieved November 13, 2007, from http://cupe.on.ca/doc. php?document_id=88&lang=en 12. Dickens, B.M. & Cook, R.J. (2000). Ethical and legal issues in reproductive health: The scope and limits of conscientious objection. International Journal of Gynecology & Obstetrics, 71, 71-77 13. Ganhdi, U. (2007, July 19). Religion roils debate over Ontario hospital. Globe and Mail. Retrieved October 19, 2007, from http://www.theglobeandmail.com/servlet/story/RTGAM.20070719.whospital07 19/BNStory/National/home/ 14. Pong, R.W. (2007). Rural poverty and health: What do we know. Ottawa, Ontario, Canada: Standing committee on Agriculture and Forestry. 15. Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948. 16. Richardson, J.L., Milam, J., McCutchana, A., Stoyanoff, S., Bolan, B., Weiss, J., et al. (2004). Effect of brief safer-sex counselling by medical providers to HIV-1 seropositive patients: A multi-clinic assessment, AIDS, 18,1179-1186 17. Rodgers, S. &Downie, J. (2006). Abortion: Ensuring access [Guest Editorial]. CMAJ, 175(1), 9 18. Savulescu, J. (2006. Conscientious objection in medicine. British Medical Journal, 332, 294-297 19. Yaworski, K.L. (2007, January 10). Catholic hospital’s sterilization policy prompts doctors’ resignations. Canadian Catholic News. Retrieved November 29, 2007, from http://www.catholic.org
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Dr. Kenneth Kirkwood is the faculty sponsor for this submission. He is an Assistant Professor of Applied Human Ethics in the Department of Health Sciences at the University of Western Ontario. Address: Room #211 at Labatt Health Science Building, London, ON N6A 5B9 Email: kkirkwo2@uwo.ca
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1. Alta Charo, R. (2005). The celestial fire of conscience: Refusing to deliver medical care. New England Journal of Medicine, 352, 2471-2473 2. American Civil Liberties Union. (2002, January 22). Religious refusals and reproductive rights: ACLU reproductive freedoms project. Retrieved November 29, 2007, from http://www.aclu.org/reproductiverights/ religion/12679pub20020122.html 3. Berke Fogel, S. & Rivera, L.A. (2003, Spring). Religious beliefs and healthcare necessities: Can they coexist. American Bar Association Human Rights Magazine. Retrieved October 2, 2007, from http://www. abanet.org/irr/hr/spring03/religiousbeliefs.html 4. Bindman, A.B., Keane, D. & Lurie, N. (1990). A public hospital closes. Impact on patients’ access to care and health status. JAMA, 264, 2899-2904 5. Campbell, D. E. (2004). The civic implications of Canada’s Education System(s): In Educating Citizens: International perspectives on civic values and school choice. Washington, Dc: Brookings Institution. Retrieved January 13, 2008, from http://ww w.nd.edu/~amdemoc/Campbell_Canada_Education.pdf+religious+organization +%2B+publicly+funded+services+%2B+C anada 6. Canada Health Act 1985, c.6, s.12. Retrieved November 13, 2007, from http://laws.justice.gc.ca/en/C-6/ 7. Card, R.F. (2007). Conscientious objection and emergency contraception. The American Journal of Bioethics, 7(6), 8-14 8. Catholic Health Association of Canada. (n.d.). Catholic Health Association of Canada membership. Retrieved November 28, 2007, from http://www.chac.ca/ 9. Catholic Health Association of Canada. (1991). Health care ethics guide. Ottawa, Ontario Canada: Author. 10. Childress, J. (1985). Civil disobedience, conscientious objection, and evasive noncompliance: A framework for the analysis and assessment of illegal actions in health care. Journal of Medicine and Philosophy, 10, 63-83
Michelle Allain is a fourth year student at the University of Western Ontario pursuing a Honors Specialization in Health Science with Biology. Email: mallain@uwo.ca
Article
Extreme conditions triage
Andrew Bradley*
A utilitarian justification?
A classic illustration of extreme conditions triage is the
American use of penicillin during the North Africa campaign of World War II. Supplies of penicillin were limited, so soldiers suffering from venereal disease received penicillin before soldiers with traumatic injuries. The soldiers with sexually transmitted diseases could be cured and returned to their units; those with traumatic injuries could not return to combat whether or not they received penicillin. The justification for this sort of triage was simple—having fewer men at the front line could compromise the combat effectiveness of the entire formation. If the enemy succeeded in breaking American lines, there would be far more casualties and victory would be delayed or perhaps even lost. Thus, from this rather utilitarian perspective, the obvious choice was the route that would yield the fewest casualties – giving penicillin to those soldiers “wounded in brothels” (Beam, 2003; Beecher, 1969; Kipnis, 2003; Sidel & Levy, 2003). One objection to this utilitarian reasoning is that treating the walking wounded first will not necessarily prevent an enemy victory. Nor will treating the most urgent casualties first necessarily result in an enemy victory. From an individual human rights perspective, it might seem that military doctors should err on the side of taking care of the present casualties. However, even if there are no guarantees, it is intuitive that having more soldiers at the front line will reduce the likelihood of an enemy breakthrough.
A violation of the rights of military personnel?
Critics of extreme conditions triage contend that it violates the rights of the critically injured soldiers who are treated after their less-seriously injured comrades. Sidel and Levy, for example, argue that such triage practices override
* University of Virginia. 600 Brandon Avenue #32, Charlotesville, VA 22903. ajb9f@virginia.edu.
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Standard medical triage practice during what Beam considers “non-austere conditions” calls for patients to be treated solely according to injury severity. Since medical capacity is not critically limited, the most seriously injured patients receive treatment first while minimally injured patients, whose lives are not in grave danger, receive treatment last. All patients can receive the care they need to survive in a timely manner. In disaster scenarios—“austere conditions”—where emergency services are overwhelmed, it may become necessary to withhold treatment (beyond palliative care) from patients who are beyond hope and whose cases unreasonably burden the system (Beam, 2003). Military medicine has long dealt with disaster scenarios. These include situations – rare in modern US military history (Beam, 2003) – when the situation on the battlefield threatens the success of the entire mission or perhaps even the safety of the medical facility. Beam describes these situations as “extreme conditions.” At these times, military medicine has sometimes needed to further alter triage practices, treating the “walking wounded,” i.e. those who can return to combat with minimal treatment, before the most seriously injured, who will be incapable of fighting (Beam, 2003). Some writers see this plan as unethical for compromising on standard practices and placing military necessity before the good of the patient (Sidel & Levy, 2003). It clearly illustrates the dual loyalty faced by military physicians, who must balance their traditional obligations to their patients with their obligations as military officers.
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“Extreme conditions” triage is a phenomenon relatively unique to the battlefield. In these situations, the survival of the fighting force or perhaps even the medical facility is threatened. In these situations, military physicians may treat lightly injured casualties—the “walking wounded”—before others so they may return to combat and help repel the enemy. This triage differs from “austere” and “non-austere” conditions when there is no military reason to treat patients with consideration to anything besides medical need. Some authors and international organizations have voiced concern about including nonmedical considerations in triage decisions. This paper examines the ethics of battlefield triage and the justifiability of extreme conditions triage. Gross’s “salvage value” model is overly harsh if applied to anything besides extreme conditions. Ideally, there would be a consistent ethical framework underlying all of battlefield triage. A “limited social utility” model of triage that considers the ability of an individual to improve the current situation can provide this framework. This approach can identify the appropriate form of triage (non-austere, austere, and extreme conditions) in a variety of different circumstances. It is best implemented through enhanced training for physicians and commanders to facilitate honest and thoughtful communication regarding medical decisions.
Article the patient’s interests in an unethical manner. Traditionally, the physician is supposed to give utmost importance to the wishes and interests of the patient (Sidel & Levy, 2003). Extreme conditions triage includes non-medical factors into the decision-making process. Soldiers’ rights are not necessarily violated by extreme conditions triage. During war, it is already understood that individual soldiers lose certain rights that they would otherwise enjoy as civilians during peace time. Service members go to war with a clear understanding that some of them may die. Gross (2004) argues that a wounded soldier’s right to life is dependent upon his chances of returning to duty—his “salvage value.” Gross says that military medicine is obligated to return as many salvageable soldiers to duty as possible. “Unsalvageable” soldiers are those who will not be able to return to duty—they do not have a right to life. If a soldier with a minor shrapnel wound is salvageable and thus has a right to life, Gross’s model cannot justify treating him after a soldier who faces amputation of entire limbs, is unsalvageable, and thus lacks a right to life. However, it seems extremely unethical to treat soldiers in order of salvage value even in situations when there is no compelling military necessity to demand it. Both Howe and Beam agree that a service member’s medical needs should only be subordinated when urgent military necessity is the overriding concern (Beam & Howe, 2003; Howe, 2003). Gross’s model may be suitable for extreme conditions, but it yields unacceptable results for austere and non-austere conditions. It is more desirable to have a single model of triage ethics that can be applied to any given scenario and still yield acceptable results.
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A “limited social utility” framework for triage
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It is widely accepted that everybody is entitled to their “fair share” of health resources (Kipnis, 2003; Veatch, 1984). A broad definition of “fair share” that considers the extent of a soldier’s injuries, likelihood for survival, and ability to help improve the current combat situation would resolve the limitations of Gross’s model. In other words, this definition considers, in a limited sense, the soldier’s “social utility” (Childress, 2003). This model allows for the expedient treatment of the walking wounded when it becomes militarily necessary. When there is no compelling military need to return as many soldiers to the front as possible, physicians can and should treat in order of injury severity. Importantly, this one model can serve as an ethical guide for non-austere, austere, and extreme conditions situations. The type of fighting prevalent in Iraq and Afghanistan is not at all like the fighting of World War II. Coupled with modern advances in healthcare, worries about needing to employ extreme conditions triage almost seem moot. Even so, it is important to examine the ethical acceptability of the practice fully in case it ever must be employed. Strong support for this limited social utility model comes from analogies to civilian situations. Consider a terrorist attack in a city causing massive numbers of casualties that overwhelm
an emergency room. Among the lightly injured victims are physicians and firefighters. Considering the social utility of their special skills and moving them to the head of the treatment line would allow them to quickly return to work helping treat or rescue others. It seems rather absurd to demand that these emergency workers be treated last in strict order of injury severity. Some other patients might be harmed from a delay in care while these workers are treated, but a greater number of people will likely be harmed if those physicians’ and firefighters’ skills are not deployed. The limited social utility model would account for their ability and willingness to assist in improving the current situation and allow them to be ethically moved to the front of the line. Kipnis (2003) poses a similar argument in the hypothetical scenario of an airplane crash. Lightly injured medical personnel can be treated first, “but only if doing so will readily increase the supply of vital resources during the period of dire scarcity.” These examples are analogous to the dire conditions of the battlefield, when lightly-injured soldiers, after treatment, may be able to provide desperately needed help at the front line. As previously mentioned, various authors are concerned that military physicians may breach the traditional norms of the doctor-patient relationship by considering non-medical needs in triage decisions. This is not necessarily true. Bloche (1999), discussing the effects of physicians breaching the doctor-patient relationship, writes “When ... patients are themselves committed to the social purpose served by medical intervention, clinical fidelity is not compromised, even if the intervention endangers patients’ physical or psychological well-being. ... The physician’s duty of fidelity is to the patient as a person, not to a professional or other conception of well-being at odds with the patient’s life aims.” Soldiers are committed to accomplishing their mission. Placing your comrades and mission before yourself is a key concept ingrained into service members during their training. “Selfless service” is one of the seven US Army values (United States Army, n.d.). The physician does not breach clinical fidelity by delaying treatment, in the name of honest military necessity, for a critically injured soldier so that a lightly injured soldier may return to combat. Sidel and Levy (2003) have, in their argument, presupposed a particular “best interest” for the wounded soldier (being treated first and/or staying out of combat), even though they themselves worry about military medicine usurping the right to make decisions “for the soldier’s own good.”
The fair share of civilians and prisoners of war
What does a fair share or limited social utility model say about civilians and prisoners of war on the battlefield? In cases of non-austere or even austere conditions, where there is no unusually pressing threat, the ethical practice is to treat everybody according to medical need. Since nobody has a better ability than the others to improve the current situation, only medical need and likelihood of recovery remain as relevant criteria. Physicians must therefore treat a critically
Extreme Conditions Triage
The World Medical Association (WMA) declares that “medical ethics in times of armed conflict is identical to medical ethics in times of peace....” The group also states “the sick and wounded must receive promptly the care they need. No distinction shall be made between patients except those based upon clinical need,” (World Medical Association, 2006) a belief mirrored by the Geneva Convention (Repine, Lisagor, & Cohen, 2005). This is the same position taken by the International Dual Loyalty Working Group from Physicians for Human Rights and the University of Cape Town (International Dual Loyalty Working Group, 2002). Although some have disagreed with the WMA’s belief that war and peace share the same medical ethics (Gross, 2004), these should not be particularly controversial declarations. Physicians are healers and by their oath they swear to save lives. The trouble arises in those few situations when it might be medically advantageous to make exceptions to the rule, such as when the military risks being overrun or in the civilian disaster scenario described earlier. Because these documents are declarations without explicit reasoning behind them (at least not in the text), it becomes impossible to divine exactly how to act in novel or unusual
Conclusion
Having argued that military triage scenarios that place the mission before the individual patient can be ethical, what remains is to decide when exactly military necessity overrides normal triage practice. In other words, when does a critically wounded soldier’s “fair share” change from being treated first to being treated after the walking wounded? Improper decisions about military necessity and the need for extreme conditions triage would result in wounded service members, civilians, and POWs not consistently receiving their fair share, rendering the triage practices unethical. If properly implemented, service members will know that when they are called upon to accept delayed medical care, it is for a good cause. This is where Howe’s (2003) view on line officers is important. Line officers, in contrast to medical officers, have a broader perspective of the battle, as well as the tactical and strategic training to make decisions about military necessity. The most reasonable approach is thus to enhance the training commanders receive so that, after careful discussion and coordination with physicians, they can make accurate and consistent decisions about military necessity. Physicians should also receive training about how to best communicate their concerns to the commander. Healthcare providers, along with all service members, have the obligation to disobey illegal or unethical orders; Beam and Howe both state this quite clearly (Beam & Howe, 2003; Howe, 2003). Legal protections from retribution for healthcare providers who raise serious concerns about ethically questionable orders could be strengthened. In light of Howe’s views on the role of line officers, some members of the International Dual Loyalty Working Group are skeptical of the ability of military physicians to disobey obviously unethical commands. They argue, “in a military-specific role [i.e., when physicians let line officers make decisions about military necessity], the health professional has already ceded any decision-making about the ethics of a policy or clinical decision to a nonmedical commander” (London, Rubenstein, Baldwin-Ragaven, & van Es, 2006). This is a particularly uncharitable reading of Howe’s argument. Howe surely did not mean to say that physicians are to become mindless automatons who obey every whim of their commander. A more proper reading of his argument might be
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International laws and customs
circumstances. Strict adherence to these rules is only appropriate when it will actually minimize suffering. In fact, the WMA (2004) itself says that, despite its declarations that the physician should be completely loyal to the patient, “it is generally accepted that physicians may in exceptional situations have to place the interests of others above those of the patient.” The US Army Field Manual adheres to the requirements of the Geneva Convention (United States Army, 2001), yet military physicians have written about the acceptability of placing the military mission first when truly necessary (Beam, 2003; Beam & Howe, 2003; Howe, 2003; Repine et al., 2005). In trying circumstances, it may be best to obey the spirit of the declarations, which seems to simply be “treat everybody fairly.”
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injured POW before a lightly injured friendly soldier. But what about extreme conditions? Can lightly injured friendly troops still be treated before all other patients? Although allowing their lightly injured comrades to be treated first so the enemy may be repelled is a sacrifice reasonably expected of soldiers, why should it be expected of civilians or POWs? POWs and possibly civilians likely do not share the same goals as the injured soldiers. The answer lies in realizing that the ultimate client of the military is the society it serves. The view that physicians only owe loyalty to the patient is overly simplistic (Bloche, 1999; Bloche & Marks, 2005). Society must also receive its fair share in the triage decisions made by military physicians. Decisions that greatly endanger the military’s chances for success when there are reasonable alternatives available do not satisfy the needs of society. This provides the “compelling social purpose” that Bloche (1999) describes as being necessary for a physician to break from the traditional practice of strictly placing the patient’s interests first. The social purpose physicians serve may require them to treat lightly injured friendly troops before everybody else. The order of treatment during extreme conditions would be lightly injured friendly soldiers first, then everybody else, including critically injured friendly soldiers, in descending order of need. This means that critically injured friendly soldiers will face the exact same delays in care as critically injured civilians and POWs. To be clear, civilians and POWs need not die in order for the military to succeed. Ideally, the delays caused by this triage practice will be minimal. It could also be expected that medical personnel will apply quick and simple interventions to stabilize critically injured patients so that further delays are less threatening.
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that physicians should examine their conscience and give their commander the benefit of the doubt. If the commander’s decision is one that any reasonable person could see is unethical, then the physician must speak up and disobey, if necessary. In sum, military necessity, provided it is properly invoked, can ethically be considered when making triage decisions on the battlefield. When the conditions of the battlefield dictate, the military’s mission may trump purely medical factors. Such situations are analogous to treating lightlyinjured emergency workers first during mass casualty events. None of this should suggest that the correct approach to battlefield triage in a given situation will be obvious. That is why training and deliberation are necessary to ensure commanders make the appropriate decision. The goal of military medicine should be to use extreme conditions triage as sparingly as possible. Combat commanders should themselves design their strategies to minimize the possibility that extreme conditions triage will be needed. Each time the commander cites military need, service members need to
know that it is truly necessary. Nobody should see their care delayed unless there is a compelling reason to do so. Only in this way can such an approach to triage be ethical.
References
10. Kipnis, K. (2003). Overwhelming Casualties: Medical Ethics in a Time of Terror. Accountability in Research, 10(1), 57-68. 11. London, L., Rubenstein, L. S., Baldwin-Ragaven, L., & van Es, A. (2006). Dual Loyalty among Military Health Professionals: Human Rights and Ethics in Times of Armed Conflict. Cambridge Quarterly of Healthcare Ethics, 15(4), 381-391. 12. Repine, T. B., Lisagor, P., & Cohen, D. J. (2005). The Dynamics and Ethics of Triage: Rationing Care in Hard Times. Military Medicine, 170(6), 505-509. 13. Sidel, V. W., & Levy, B. S. (2003). Physician-Soldier: A Moral Dilemma? In T. E. Beam & L. R. Sparacino (Eds.), Military Medical Ethics (Vol. 1, pp. 293-312). Washington, DC: Office of the Surgeon General. 14. United States Army. (2001). Combat Health Logistics, Appendix A: Law of War Obligations for Medical Personnel. In Department of the Army (Ed.) (Vol. FM 4-02.1): Headquarters, Department of the Army. 15. United States Army. (n.d.). Living the Army Values. Retrieved June 5, 2007, from http://www.goarmy.com/life/living_the_army_values.jsp 16. Veatch, R. M. (1984). Autonomy’s Temporary Triumph. The Hastings Center Report, 14(5), 38-40. 17. World Medical Association. (2004). Archives: Issue of the Month. Retrieved July 6, 2007, from http://www.wma.net/e/ethicsunit/whats_ new_archives05.htm 18. World Medical Association. (2006). Regulations in Times of Armed Conflict.
1. Beam, T. E. (2003). Medical Ethics on the Battlefield: The Crucible of Military Medical Ethics. In T. E. Beam & L. R. Sparacino (Eds.), Military Medical Ethics (Vol. 2, pp. 369-402). Washington, DC: Office of the Surgeon General. 2. Beam, T. E., & Howe, E. G. (2003). A Proposed Ethic for Military Medicine. In T. E. Beam & L. R. Sparacino (Eds.), Military Medical Ethics (Vol. 2, pp. 851-865). Washington, DC: Office of the Surgeon General. 3. Beecher, H. K. (1969). Scarce Resources and Medical Advancement. Daedalus, 98, 273-313. 4. Bloche, M. G. (1999). Clinical Loyalties and the Social Purposes of Medicine. Journal of the American Medical Association, 281(3), 268-274. 5. Bloche, M. G., & Marks, J. H. (2005). When Doctors go to War. New England Journal of Medicine, 352(1), 3-6. 6. Childress, J. F. (2003). Triage in Response to a Bioterrorist Attack. In J. D. Moreno (Ed.), In the Wake of Terror: Medicine and Morality in a Time of Crisis. Cambridge: MIT Press. 7. Gross, M. L. (2004). Bioethics and Armed Conflict: Mapping the Moral Dimensions of Medicine and War. The Hastings Center Report, 34(6), 22-30. 8. Howe, E. G. (2003). Mixed Agency in Military Medicine: Ethical Roles in Conflict. In T. E. Beam & L. R. Sparacino (Eds.), Military Medical Ethics (Vol. 1, pp. 331-360). Washington, DC: Office of the Surgeon General. 9. International Dual Loyalty Working Group. (2002). Dual Loyalty and Human Rights in Health Professional Practice; Proposed Guidances and Institutional Mechanisms: Physicians for Human Rights and the University of Cape Town.
Acknowledgements
Thank you to Dr. Rick Erdtmann and Cathy Liverman from the Institute of Medicine as well as Professors John Arras and Edmund Russell from the University of Virginia for their help in writing this paper. Andrew Bradley is a senior at the University of Virginia majoring in Biomedical Engineering. Email: ajb9f@virginia.edu Prof. John Arras is the faculty sponsor for this submission. He is the Porterfield Professor of Bioethics in the Department of Philosophy at the University of Virginia. Address: 1515 Stoney Creek Dr., Charlottesville, VA, 22902 Email: jda3a@virginia.edu
Article
Distilling differences: contraception and natural family planning
Steven J. Baumstark*, James A. Brown†, Craig J. Iffland†
In 1968, Pope Paul VI issued his controversial encyclical “Humanae Vitae” to the general public. It was a document meant to address an area of Catholic moral teaching (the prohibition of contraception) which was increasingly coming under siege from academics, theologians, and world policymakers. In it, the pope reaffirmed the Church’s constant teaching that contraception, whether willed as an ends or a means, is intrinsically evil (HV, para. 14). Moreover, he gave an endorsement of “natural family planning” as a licit means to regulate births, if pursued for proportionate reason. Hence, it is not the position of the Catholic Church that married couples must intend to procreate in every instance of the marital act. In spite of the many years since the document’s release, and the many defenses of the internal coherence of the papal teaching in that document, many still question the pope’s claim that there really is a significant difference between the use of natural family planning and the use of contraception. We hope to provide an adequate answer to the preceding question by appealing exclusively to the Catholic moral tradition. It is our firm belief that those readers who have little knowledge of this tradition will be able to follow our arguments and see the moral difference between natural family planning and contraception. We only reference our reliance on the Catholic moral tradition so as to establish that we do not intend this essay to be anything more than an explanation of the issue from a sufficiently Christian perspective. We will not argue that the Church’s position on birth con-
trol should be made normative to all persons. We only hope to dispel the myth that there is no significant difference between contraception and “natural family planning.” This essay breaks down into four parts. First, we lay out some basic definitions of key terms needed for those unfamiliar with ethics and/or with the correct definition of key terminology employed in Thomistic ethics. Second, we discuss the basic definitions of birth control and contraception. Third, we discuss the significant differences between married couples who seek to regulate birth by contraception and married couples who seek to regulate birth by way of natural family planning. We posit that there is a clear difference between these couples insofar as there exists a significant difference in the means employed to bring about the prevention of pregnancy. Finally, we argue that even if one does not accept our arguments above, one should acknowledge that most progesterone based methods of birth control are abortifacient and should be considered disproportionate means to any end sought by couples.
Defining Terms: The Human Act
Although there is a variety of actions and reactions in the universe, it is only human action that interests the moralist. This is because the moralist can only reasonably heap praise or scorn onto a being which is responsible, in the fullest sense of the term, for its actions. It is only in humans that we find acts suitable for such responsibility. This is because all human action proceeds from a deliberate choice set by a rational agent.1 That
1. BY HUMAN ACTION, WE MEAN ANY ACTION WHICH NECESSARILY INVOLVES THE USE OF MAN’S INTELLECT AND WILL. HENCE, BREATHING AND GROWING, TO THE EXTENT THAT THEY ARE NATURAL FUNCTIONS QUITE SEPARATE FROM MAN’S USE OF HIS INTELLECT AND WILL, WOULD NOT BE CONSIDERED A HUMAN ACTION. RATHER, THEY WOULD BE CONSIDERED AN ACTION PERFORMED BY HUMANS. * GEORGE MASON UNIVERSITY. 5240 POMEROY DRIVE, FAIRFAX, VA 22032. STEVENBAUMSTARK@GMAIL.COM. † UNIVERSITY OF VIRGINIA
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Introduction
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Is there really a difference between contraception and natural family planning? Isnʼt it the case that regardless of the means employed, those who engage in either desire the same thing-to eliminate the possibility of pregnancy from intercourse? If this desire is the source of the problem, then why does the Catholic Church permit natural family planning, but condemn contraception? In this essay, we spell out the differences between birth regulation via natural family planning and birth regulation via contraception. Above all, we intend to show how the Churchʼs teaching is consistent in supporting responsible birth regulation while at the same time condemning contraception.
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is, all human action is governed by the kind of being which recognizes that such and such a good is to be pursued for intelligible reasons X, Y, and Z. Said being then makes a choice, based on the preceding deliberation, to pursue such and such a good by way of some process it discerns as suitable to achieving said good. Any human action, then, and any act which can be judged morally, proceeds from man’s use of his natural freedom and rationality. The goal of the ethicist is to evaluate whether or not the agent performed an action which is in accord with those moral norms derived from right reason. This evaluation necessitates that one analyze, independently, the three fundamental components of human action: the ends, the circumstances, and the means. The end is that which causes the agent to act, it is the reason for which the agent begins practical rational deliberation and choice. For example, there are many who run for Congress; they do so presumably because they wish to be a congressman. It is this desire, the desire to be a congressman, that provides a motive for the actions (of campaigning, advertising etc.) of those particular persons. The end, then, is the reason why some agent performs an exterior act; it is, in other words, the finis operantis of the human act. The circumstances which surround human action are those aspects of human action which would be answered by questions like: how many, when, who, where, and what were the consequences? The circumstances are those realities which are not essential to the end or the means. As such, circumstances cannot specify whether or not some action is morally good or evil. As circumstances qua circumstances, they can only vitiate or enhance the goodness (or evil) of human action. For example, suppose a man steals money from his employer. Without a doubt, such an action is intrinsically wrong. It is likely, however, that our evaluation of just how bad his thievery was would correspond to the amount of money he stole. So, if we suppose that the amount of money stolen was relatively small, then we would consider his act of thievery as less bad than if the amount of money he stole was relatively large. Thus, while it is always morally evil for one to steal from their employer, the circumstances surrounding the theft (the amount of money that was stolen) diminished the moral badness of the theft performed. And so the moral badness of the entire act is diminished in its badness, but its moral species (its fundamental goodness or badness) is not altered. The means is the process undertaken to achieve the end. Moral analysis of the means can take many shapes. One must discern whether or not that process is suitable to achieving the end, whether the process undertaken is proportionate to the good sought, or whether that process is one which can never be licitly pursued. The process which can never be pursued is an action which is never in accord with reason (e.g. the direct killing of innocents, taking another person’s property against their reasonable will etc.). These actions in and of themselves are intrinsically evil and cannot be performed under any set of circumstances or for any end. In determining whether some means is intrinsically evil one must ascertain whether there are any circumstances which,
when present, would change an otherwise indifferent action (neutral in kind) into a morally evil action. These types of circumstances are those circumstances without which no moral evaluation of the means is possible. For instance, we can make no moral evaluation of someone’s killing another without knowing who the person killed was; for if the person killed was an innocent, then the killing was morally evil, but if the person killed was an unjust aggressor, then the act would be morally upright. Insofar as these circumstances are essential to our evaluation of the moral species of the human act, they aren’t really circumstances properly so called, since circumstances qua circumstances do not alter the moral species of human acts and can only contribute to our moral evaluation of human acts by increasing or diminishing their moral goodness or evil. We shall call those circumstances essential to our evaluation of the moral species of the human act the essential circumstances. For the purpose of this paper, it will be important to explain one important essential circumstance called the finis operis. The finis operis, or proximate end of the means, is the purpose of some particular exterior act chosen. The question is: why did you perform this action? The reader may logically surmise that the answer to this question lies in the finis operantis, or ultimate end, of the human act, but this is not always the case. For instance, one may undergo a surgery for the explicit purpose of rendering himself infertile and may do so because he wishes to please his wife (who’s happiness demands that she may never again become pregnant). In this case, one could answer the question, “why did the man undergo this surgery” in two ways. In one sense, it would be correct to state “he underwent the surgery because he wanted to please his wife”. The satisfaction of his wife being the finis operantis, or ultimate reason, for his action. In another sense, however, it would be correct to state “he had a surgery performed on him for the explicit purpose of rendering himself infertile”. Seeing as how his wife no longer wanted children, he sought a surgical intervention which would render him incapable of impregnating his wife. Therefore, the surgery’s finis operis, the “why” or purpose for which the surgery was done, was that it render him infertile (and hence capable of pleasing his wife). In other words, the second “why” has to do with the purpose for which the surgery was done, whereas the first “why” has to do with the motive for his undergoing the surgery. Bearing these essential elements of human action in mind, we now turn to the more specific subject matter at handthat of the moral licitness or illicitness of the varying methods of birth control.
Defining Terms: Contraception and Birth Control
Contraception and birth control do not mean the same thing, though the terms are often used interchangeably in the public realm. Contraception is an intentional rendering of a sexual act to be unfruitful (VM, para. 33). Under this definition, if couples pursue any action for the purpose of
The Object of Choice
The “object of choice”, or the means employed to effectuate some end, should be considered a primary consideration in the discussion of any human act. Since one cannot always know a person’s intent (and whether or not their expressed intent is their true motivation) it is vitally important that the means employed be evaluated first insofar as the means employed is that which is most often observable in reality. The first hurdle for those moralists who see no moral distinction between a couples’ routine abstinence during fertile periods and a couples’ (or one-half of the couple) deliberate rendering of sexual acts unfruitful is a precise discussion of the means employed. In the following paragraphs, we discuss (1) what the two methods of birth regulation entail and (2) we refute the claim that the two methods employed are actually the same kind of action. Birth control via abstinence simply involves the mutual decision of couples to abstain during periods of female fertility in order to space or avoid the conception of a new human life. Though one’s matrimonial consent implies an openness to the human life which springs from those acts intrinsic to the married life, it also involves a mutual commitment to chastity (HV, 21). There are times when couples should, for the sake of marital harmony, practice continence. This practice can be done for a wide variety of reasons, including the spacing and regulation of births (HV, 16). It is not the stated position or intent of the Catholic Church to place a moral obligation on couples to produce large families. There are numerous familial and personal circumstances which may require that married couples space births. In fact, it may be the case that for some married couples it would be irresponsible to not space births.2 The method popularly known as “natural family planning” is one means to foster such responsible birth regulation. The method is considered morally licit by the Church inasmuch as it does not involve any deliberate rendering of sexual acts between couples unfruitful. Instead, couples using the method achieve their end (of birth regulation and spacing) by way of routine abstinence during times of female fertility. Birth control via contraception, on the other hand, involves an action taken either before, during, or after sexual
intercourse which frustrates the natural coming to be of life from sexual union. While the motivation for those couples who take these actions, or the end for which this action was chosen, may be morally meritorious-e.g. the prevention of a grave state of affairs contrary to marital harmony which would result from a new child-the means employed by them is nevertheless one which was deliberately chosen so as to frustrate the generative process of intercourse and is therefore contraceptive. One may object, however, that such recourse to periodic continence is nothing more than a different method of contraception insofar as it is an action which prevents new life or is an action which is motivated out of a desire to avoid new life. While it can be admitted that purveyors of both methods (contraceptive and non-contraceptive) may have the same motives (that of preventing or avoiding conception), it is false to say that the two exterior actions are the same “in kind”. First, such an objection fails to recognize, as noted above, that there is more than one source of morality in human action. Earlier, we identified the two primary sources for evaluation of some action’s moral species: the ends and the means. Those who mount this objection have not properly accounted for the latter source (the means). For it is clear that two persons can have the same ends (or motives) for action, but may, nevertheless, undertake two quite different processes in order to achieve those ends. Assuming those ends sought are morally upright, or at least indifferent, a full moral judgment can only be rendered after reviewing those processes and whether they are in accord with right reason. Thus, the man who steals in order to feed his family is quite different, morally speaking, than the man who works in order to feed his family. Again, the subjective motives of persons are always informative for an ethicists evaluation of some act, but they are not always morally determinative, especially when those motives are accompanied by a means which is intrinsically evil. Second, the objection that the two actions are of the same “kind” amounts to one positing a rather absurd conclusionthat not having sex is the same as having contraceptive sex. Assuming one is only evaluating the means employed by the couples, our evaluation is this: one couple engages in intercourse when a woman’s fertility is low whereas another couple engages in intercourse when they have done something to render intercourse infertile. Under our definition, the former is engaging in non-contraceptive sex and the latter is engaging in contraceptive sex. The difference lies in that the contracepting couple deliberately frustrates the procreative potential of the sexual act whereas the non-contracepting person merely abstains from sexual intercourse when its procreative potential is high. To equate the former with the latter, to assert that both persons are using the same means, is to claim that abstaining from sexual intercourse is the same type of action as engaging in contraceptive intercourse . Yet, such a claim is groundless precisely because it
2. CONSIDER, FOR EXAMPLE, A WOMAN WHO IS TOLD THAT ANOTHER PREGNANCY WILL LIKELY YIELD A SEVERELY DISABLED CHILD DUE TO SOME PATHOLOGICAL CONDITION OF THE MOTHER ETC.
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rendering coital sexual acts unfruitful, then they are contracepting. Birth control, on the other hand, is descriptive; it is defined as the process by which couples attempt to regulate births. Thus, it can either describe certain forms of contraception or any method which attempts to regulate birth. Since the processes by which couples regulate births can vary, it is necessary to discuss whether or not certain means of birth regulation should be considered morally licit and others not. As noted above, said moral evaluation must involve, at least, a discussion of the differing ends and means willed by “birth-regulating” couples.
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Distilling Differences
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amounts to equating one’s not having sex with one’s having sex which has been purposefully rendered unfruitful. Someone could further push the claim that the two are the same by stating that a couple’s avoidance of sexual intercourse constitutes a rendering of later sexual acts between them unfruitful. However, this claim is imprecise. There is no causal relation between the avoidance of sex at one time and the having of sex at another. Not having sex during fertile periods does not make the sex had during infertile periods unfruitful, for those acts are unfruitful due to the workings of the human body not because one chose not to have sex at some other time. It is clear, however, that contraception has such a causal relation to the acts unfruitfulness. One may broaden their claim by saying it is not causality that makes both actions similar in kind, rather, it is that both actions frustrate the coming to be of human life. In other words, since both abstaining from sex and contraception deprive the world of the coming to be of new life, the two actions are of the same kind. This objection fails for two reasons. First, the Church has not stated that contraception is wrong because it deprives the world of the coming to be of new life, but that it deliberately renders coital sexual acts between couples unfruitful. Second, such an objection logically entails the grouping of all actions which are not procreative as contraceptive. Insofar as one’s decision to not have fertile sex (and one’s use of contraceptives) constitutes a frustration of the coming to be of human life, then it seems that any time one is not having fertile sex, they are contracepting. Following this logic, the persons writing this paper together right now are contracepting by virtue of the fact that they are not actively engaging in procreative sexual intercourse. Such a claim broadens the definition of contraception to a point beyond meaningful comprehension and seriously ignores the finis operis of contraceptive acts, which is to deliberately render sexual acts unfruitful. Finally, this objection also fails to account to the secondary source of morality discussed above-that of the circumstances which surround human action. As mentioned above, one circumstance, often mistaken as an essential circumstance, is the consequences of human action. We submit that another very important difference between “natural family planning” and “contraception” has to do with consequences of both methods. Put plainly, most forms of “contraception” can have an abortifacient effect, that is, the method employed could end up not merely preventing the coming to be of new life, but also preventing the continued existence of an all-ready existing human person. This consequence should
give further pause to those who wish to equate the methods morally. Furthermore, we believe that even if someone did not think contraception was intrinsically evil, and perhaps thought it morally indifferent, they should still resist most contraceptive methods insofar as they have an abortifacient effect. In the following paragraphs, we discuss our reasoning for these claims in full.
Contraception and Abortion
Within the Catholic moral tradition (and most of the Western moral tradition) it is always considered evil to directly kill an innocent human person (CCC, 2258). Moreover, the Church views each and every human life, from conception to natural death, as being intrinsically valuable and worthy of the utmost dignity and respect. Therefore, any action which directly contributes to the death or destruction of human beings is always considered an objective evil. Many forms of contraception, such as the pill and intrauterine devices, achieve their goal of preventing pregnancy by inhibiting ovulation (ensuring no eggs are produced which could be fertilized), producing changes in the cervical mucus which will increase the difficulty of sperm entry into the uterus, and inducing changes in the endometrium (or uterine lining) which reduce the likelihood of implantation of an all ready developing human person.3 The last point is most important; it illustrates how the contracepting couple and those who defend contraception fail to take into consideration the weighty moral burden which many popular birth control methods provide- the risk that said method may achieve its goal of preventing human life by acting as an abortifacient. We define an object as an abortifacient if it directly contributes to the death, that is, a complete cessation of human development, of a developing human who resides in the body of another human being.4 In the case of most forms of contraception, the changes in the uterine lining which result from the repeated use of contraceptives produce a uterine environment which is unsuitable and inhospitable to embryonic development. Insofar as couples use contraception willingly, they are directly responsible for these changes and are responsible for the environment which results from them. Therefore, the contracepting couple, assuming they have knowledge that their methods of birth control can be abortifacient, at least accept, if not conditionally intend, the possible death of a human person. To engage in contraceptive intercourse which one knows can result in the destruction of human life when other non-abortifacient methods of birth control are avail-
3. SEE PHYSICIAN’S INSERT 75137 FOR NUVARING AT HTTP://WWW.NUVARING.COM/AUTHFILES/IMAGES/309_76063.PDF, WHICH IS A POPULAR INTRAUTERINE BIRTH CONTROL DEVICE. ALSO SEE <HTTP://WWW.PLANNEDPARENTHOOD.ORG/BIRTH-CONTROL-PREGNANCY/ BIRTH-CONTROL/THE-PILL.HTM> FOR PLANNED PARENTHOOD’S ACCEPTANCE, IN THEORY, OF THE POSSIBILITY THAT CHANGES IN THE UTERINE LINING COULD EFFECT THE LIKELIHOOD OF IMPLANTATION. 4. HENCE, AN ABORTIFACIENT METHOD OF BIRTH CONTROL IS A TERMINATION OF PREGNANCY. WE VIEW PREGNANCY AS BEGINNING AT CONCEPTION RATHER THAN AT IMPLANTATION. ONE CANNOT DENY THE SCIENTIFIC CLAIM THAT AT THE MOMENT OF CONCEPTION A NEW HUMAN INDIVIDUAL IS PRESENT, THOUGH ONE MAY QUESTION WHETHER THAT LIFE HAS ANY VALUE. TO THE EXTENT THAT SAID INDIVIDUAL RESIDES IN THE BODY OF A WOMAN, WE CONSIDER THE WOMAN TO BE PREGNANT, AND THEREFORE, WE CONSIDER THE EFFECT OF CONTRACEPTIVES AS BEING ABORTIFACIENT, OR, AS EFFECTUATING THE TERMINATION OF A PREGNANCY.
Distilling Differences
It is important to recognize that much of what drives ethicists to claim that there is no difference between these two methods springs from their allegiance to alternative moral theories which differ significantly than the one we briefly outlined earlier. However, our chief claim is that the Church is consistent in holding that there is a difference. She is consistent with her own method of moral methodology which distinguishes between means, end, and circumstance and evaluates each of these aspects of human action separately (CCC #1749-1756). The two birth control methods (contraception and natural family planning) pursued by couples differ in many significant ways. Contraception works by way of deliberately rendering sexual acts unfruitful whereas natural family planning works by way of routine abstinence during periods of fertility. The two differ in the consequences of their actions i.e. potential abortion for contracepting couples . Moreover, the two couples can differ in their outward behaviors, where one couple intends to have intercourse only during infertile periods while abstaining during fertile periods and the other predicates their marital intercourse on the use of various contraceptive methods which are intended to deliber-
References: 1. Vi, Pope Paul. “Humanae Vitae.” The Vatican. 25 July 1968. 08 Dec. 2007 <www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_ 25071968_humanae-vitae_en.html> 2. Trujillo, Alfonso Cardinal L. “Vademecum for Confessors Concerning Some Aspects of Conjugal Life.” The Vatican. 12 Feb. 1997. Pontifical Council for the Family. 25 Dec. 2007 <http://www.vatican.va/roman_curia/ pontifical_councils/family/documents/rc_pc_family_doc_12021997_vademecum_en.html
Steven Baumstark is a senior at George Mason University and majoring in Philosophy. Email: stevenbaumstark@gmail.com John Portmann is the faculty sponsor for this submission. He is an Assistant Professor in the Department of Religious Studies at the University of Virginia. Address: P.O. Box 400126, Charlottesville, VA 22904 Email: portmann@virginia.edu
3. “Catechism of the Catholic Church.” USCCB. 1994. United States Conference of Catholic Bishops. 15 Aug. 2007 <http://www.usccb.org/catechism/ text/>
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Conclusion
ately render sexual acts between couples unfruitful. It is also seems very likely that, more often than not, the two couples have dissimilar motives for their actions. In some cases, those couples who contracept do so because of a desire to be unencumbered by children and the care that is required by them. This desire is one which would be out of sync with what the Church understands to be authentic marital love, a love which is fruitful, monogamous, and permanent. In all, the essential difference between those who contracept and those who make use of natural family planning is that the former performs an action specific to the married life which is contrary to the demands and goods intrinsic to marital love whereas the latter retains, by virtue of their actions, a loving respect for those goods and a full cooperation with those demands.
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able is to act irresponsibly, irreverently, and immorally toward human life.
Article
Female genital cutting: a philosophic approach
Gina Anne Vaz*
Much controversy surrounds the practice of female genital cutting (FGC). On the one hand, FGC is attributed much socio-cultural significance because it is intrinsically linked to the expression and maintenance of cultural norms and values. On the other hand, correlative relationships have been established between FGC and genitourinary and reproductive morbidity in women. These positive and negative consequences have engendered much debate about the ethics of FGC. While ʻuniversalistsʼ condemn FGC as being unethical, ʻrelativistsʼ rationalize the practice because it coheres within a culturally-specific web of moral beliefs. The clash between these two seemingly incommensurate ethics (universalistic and particularistic) makes FGC a living philosophic problem. It is hypothesized that, if these two opposing moral positions can be reconciled using philosophic concepts and reasoning, an ethical, culturally sensitive ʻsolutionʼ to FGC can be elucidated.
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According to the United Nations Children’s Fund (UNICEF), female genital cutting (FGC)1 is a global problem. Every year, three million girls and women are subject to a practice that “violates their basic human rights, denying them of their physical and mental integrity, their right to freedom from violence and discrimination, and in extreme cases, their life” (UNICEF Innocenti Research Centre, 2005, p.10). Though clearly impassioned, UNICEF’s rhetoric is rife with assumptions. For instance, the existence of ‘basic human rights’ is implicitly assumed by UNICEF. Moreover, the assertion that ‘FGC is a global problem’ involves a normative judgment deemed problematic by many cultural groups and scholars (Gruenbaum, 1996, p.3-14). These criticisms of UNICEF’s statement are indicative of broader debate about the merits of FGC. Relativists condone the operations because they believe them to be justified and positively reinforced by the social institutions, values, and norms in various communities. In contrast, universalists argue that FGC is unethical and unjust. Although the arguments for and against FGC seem juxtaposed, they can can be deconstructed and reconceptualized using philosophic thought and reasoning, yielding the form of an ethical and culturally-sensitive ‘solution’ to FGC. This form can then be used to evaluate the contents of current approaches to the ‘problem’.
Understanding FGC
The millions of women and children who experience FGC every year are likely to reside in some 28 African and Middle Eastern countries. However, because of immigration, FGC is sometimes practiced in North America and Europe (UNICEF Innocenti Research Centre, 2005, p.2-4). Therefore, the practice of FGC is not restricted to one particular country, but is performed to varying degrees around the world. Three different forms of genital cutting are currently practiced.2 The first type, sunna (meaning ‘tradition’ or ‘duty’ in Arabic) circumcision, is the least invasive. (Gordon, 1991, p.7). The second form, ‘excision’ or ‘clitoridectomy’, involves removing the whole clitoris, as well as parts or all of the labia minora. PLThe third type of genital operation, known as ‘infibulation’ or ‘Phararonic circumcision’ (Kouba and Muasher, 1985, p.96), is the most radical. The procedure entails the excision of the clitoris, labia minora, and the interior walls of the labia majora (Kouba and Muasher, 1985, p.98). Remnants of the labia majora and vulva are sewn together, leaving “a small pinhole opening” (Gordon, 1991, p.9) for the passage of urine and menstrual fluid.
1. ALTHOUGH THE TERM ‘FEMALE GENITAL CUTTING’ IS CURRENTLY IN VOGUE, IT HAD FORMERLY BEEN KNOWN AS ‘FEMALE CIRCUMCISION,’ A TERM WHICH WAS CRITICEZED FOR DILUTING THE HORROR OF THE RITUAL (SILVERMAN 2004:429). IN THE 1970S, THE TERM ‘FEMALE GENITAL MUTILIATION,’ WAS ESPOUSED TO “EVOKE THE HORROR” OF THE ACT (SILVERMAN 2004), BUT WAS LATER SCRUTINIZED FOR BEING VALUE-LADEN AND OPPRESIVE; ALSO, IT IMPLIES THAT FAMILY MEMBERS ARE WILLINGLY HARMING THEIR DAUGHTERS. IN LIEU OF THESE CONCERNS, THE MORE NEUTRAL DESCRIPTION OF THE PRACTICE - ‘FEMALE GENITAL CUTTING’ - HAS BEEN ADOPTED BY THE UNITED NATIONS AND VARIOUS NON-GOVERNMENTAL ORGANIZATIONS, AND IS USED IN THIS PAPER. 2. IT IS IMPORTANT TO NOTE THAT THE WHO HAS IDENTIFIED A FOURTH TYPE OF GENITAL CUTTING THAT SUBSUMES ALL UNCLASSIFIED FORMS OF GENITAL INJURY. EXAMPLES INCLUDE STRETCHING OF THE CLITORIS AND/OR LABIA, CAUTERIZATION BY BURNING OF THE CLITORIS AND SURROUNDING TISSUES, AND INTRODUCTION OF CORROSIVE SUBSTANCES INTO THE VAGINA TO CAUSE BLEEDING. PLEASE REFER TO HTTP://WWW.WHO.INT/MEDIACENTRE/FACTSHEETS/FS241/EN/ FOR MORE DETAILS ABOUT THE VARIOUS FORMS OF FGC.
* UNIVERSITY OF CALGARY. 415-3111 34 AVENUE NW, CALGARY, ALBERTA, CANADA T2L0Y2. GINA.A.VAZ@UCALGARY.CA
Female Genital Cutting
Positive Impacts of FGC on Women and Their Communities
Despite these negative consequences, FGC positively influences community life and social norms. For instance, since FGC is perceived to prevent premarital and extramarital sex, it is considered an effective means of protecting a woman’s modesty, her purity, and her family’s honour (Oldfield Hayes, 1975, p, 624; Gordon, 1991, p. 12-13). A woman’s circumcision also symbolizes her fertility because it encloses the womb and protects the unborn foetus (Boddy, 1982, p.682-698). Because infibulated women are viewed as modest and fertile, they are considered by prospective suitors to be attractive and thus command high brides prices (Williams and Sobieszczyk, 1997, p.971). Finally, dayas – the women who perform the operations – are paid for their services, enabling them to achieve a degree of finan-
FGC: A Living Philosophic Problem
The positive and negative effects of FGC have engendered much debate about the ethics of the practice, forcing scholars and stakeholders to engage in philosophicPL discussions about the nature of morality and human rights. Proponents of universal principles of human rights and ethical conduct tend to oppose FGCBecause FGC is the source of both acute and prolonged suffering for women, the practice contravenes the principle that “no one [should] be subjected to cruel or inhuman treatment” (United Nations, 1948, Article 5). Moreover, because the obstetrical complications caused by FGC imperil the lives of women and their unborn children, opponents argue that the practice violates another human right − the right to “life and security of person” (United Nations, 1948, Article 3). For these and other reasons, opponents of FGC believe that the practice violates the universal human rights of women (Aniekwu, 2004). Universalists have also used the four principles of bioethics (justice, beneficence, nonmalificence, and autonomy) to portray genital operations as being unethical. FGC is construed as being unjust because it violates women’s basic human rights. Furthermore, because the operations are associated with adverse health consequences, they are perceived as neither doing good, nor avoiding harm. Finally, because FGC is often performed on minors without their consent, the principle of autonomy is not respected. Therefore, because FGC violates the four central tenants of bioethics, it is deemed by universalists to be unethical. In brief, universalists employ a principles and rights-based approach to develop arguments that condemn the practice of FGC as unethical because it violates women’s basic human rights. However, relativists disagree with the universalist position. While relativists do not turn a blind eye to the sufferings of circumcised women, they do not completely reject the practice of FGC. Instead, they argue that FGC is rationally justified within the societies where it is practiced (Bishop, 2004, p. 475). As previously mentioned, genital operations persist (in part) because they positively reinforce the social, economic, and political facets of women’s lives. Moreover, many women and their families believe that FGC is mandated by Islam. Perhaps this is why Egyptian girls interviewed by Tag-Eldin et al. cited respect for religion, cultural and social tradition, and chastity as reasons to support the practice of FGC (Tag-Eldin et al., 2008, p.8). In lieu of these results, the relativist argument that FGC is a highly-valued tradition that coheres within a culturallyspecific web of beliefs seems reasonable. Relativists also criticize two main assumptions that imbue the universalist case. First, they argue that the notion of human rights is an overly individualistic conception of human dignity and social justice that should not be imposed upon cultures who emphasize the pre-eminence of the commu-
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Circumcised women often experience a plethora of adverse physiological, psycho-sexual and obstetrical events that affect their wellbeing. The most common effects of all forms of FGC include severe pain, bleeding, and fatal shock (UNICEF Innocenti Research Centre, 2005, p.17). However, if damage to the urethra occurs, incontinence and urine retention can result. Prolonged urine retention is especially dangerous because it makes urinary tract infections (UTIs) a virtual certainty. If left untreated, these UTIs can ascend to the bladder and kidneys, causing pyelonephritis and renal failure (Jones et al., 1999, p. 219-30). This correlation between FGC and genitourinary morbidity in women is of grave concern to many within domestic and international communities. Finally, the prevalence of bacterial vaginosis (BV) and herpes simplex virus 2 (HSV2) are significantly higher in circumcised women. This is especially worrisome in the context of Subharan Africa because BV and HSV2 are associated with the transmission of the human immunodeficiencyvirus (HIV) (Sewankambo et al., 1997, p.350, 346-350; Weiss et al., 2001). Female genital operations are also a source of psychological trauma. The aforementioned physiological complications can “lead to irritability, anxiety, depression , and reduced feelings of femininity” (Kuba and Muasher, 1985, p. 104). Moreover, inflexible scar tissue and a narrowed vaginal opening increase the likelihood of tearing and bleeding during sexual intercourse. As such, first-time sex is particularly feared (Chalmers and Hashi, 2000, p.231). These findings indicate that FGC adversely affects women’s mental health and sexual drive (Obermeyer, 1999). Finally, a variety of obstetrical complications appear in infibulated women. Because fibrous tissues formed after the operations do not dilate, labour is often obstructed. This increases the likelihood that the child will be stillborn or will suffer from brain damage caused by a lack of oxygen (Gordon, 1991, p.8). Therefore, to facilitate labour, women are often cut open along the original scar (Gordon). Unfortunately, this deinfibulation sometimes causes maternal haemorrhaging and oftentimes prolongs delivery. It appears, therefore, that FGC jeopardizes the health of both mother and child.
cial independence and to attain esteemed positions in their communities. Therefore, FGC can be justified within the communities where it is practiced because it serves a variety of practical and symbolic functions.
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Negative Impacts of FGC on Women and Their Communities
Article nity or the family (Messer, 1993). Second, they disagree with the assertion that FGC is unethical because, from a relativist perspective, morality is determined by experience and context, not by abstract principles of bioethics. In sum, relativists argue that FGC does not erode the basic human rights of women and is not unethical. It appears, therefore, that the controversy surrounding FGC is based upon disagreements about the interdependence of culture and morality. These disagreements, in turn, stem from a perceived incompatibility between universalistic and particularistic ethics andmake FGC a living and contemporary philosophical problem.
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Deconstructing the Universalist-Relativist Polemic Using Kant and Burkeʼs Moral Philosophies
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Immanuel Kant (1724-1804) and Edmund Burke (17291797) were amongst the original thinkers exploring the influence of empirical circumstance and culture on morality. When used to analyze the contemporary issue of FGC, Kant and Burke’ moral philosophies support the universalist and relativist perspectives respectively. Yet, when employed as complementary analytical tools, Kant and Burke’s moral philosophies can be used to deconstruct the universalist-relativist polemic. In his Groundwork of the MetaphysicsPL of Morals (1785) Kant argues that no worse service can be rendered to morality than an attempt to derive it from examples (Kant, 1981, p.408). Instead, moral principles should stem from the individual’s reason – the foundation of the categorical imperative (Kant, 1981, p,412). The categorical imperative is reason’s fundamental moral principle which states, “Act as if the maxim of your action were to become through your will a universal law of nature” (Kant 1981: 421) Since all rational beings have access to reason, they can not only grasp and understand the categorical imperative, but are also bound by it. Simply put, the categorical imperative is conceptualized by Kant as a universal moral law that holds true for all rational beings in all contexts (Kant, 1981, p.408, 412). In contrast, Burke asserts that “pure metaphysical abstraction does not belong to [moral] matters” (Burke, 1999, p.476) In fact, by emphasizing that moral laws are derived from experience and context, not from abstract principles, Burke concludes that “nothing universal can be rationally affirmed on any moral subject” (Burke). This position enables Burke to reject the notion of a categorical imperative and to construct a flexible moral philosophy in which exceptions and modifications are both acceptable and necessary. In the context of FGC, application of the Burkean ethic is problematic. Because the Burkean ethic regards morality as a social construct, it could be interpreted as endorsing cultural relativism. This relativism, in turn, could be used by the international community to justify inaction towards what some would call a morally repugnant practice. Yet, Burke’s philosophy could also be viewed as a means of validating the practice of FGC itself. For example, since FGC is entrenched within the ancient constitutions of many societies and is rationalized by culture-specific logics, Burke would argue that it is worth preserving. Therefore, using Burke’s
moral philosophy to analyze FGC is unwise because it provides both an internal and external justification for the continuation of a cultural practice that harms women. Kant’s account of morality also has several weaknesses. In the context of FGC, the application of Kant’s categorical imperative produces two dichotomous, yet equally problematic results. According to the Kantian ethic, an action is moral if the maxim of this action can become a universal law (Kant, 1981, p.421). Since harming women cannot be translated into a universal law, it could be argued that Kant would consider the practice of FGC to be immoral in all circumstances. Although this result is one that seems superficially acceptable, a hidden danger lurks beneath the surface. Because it brands the practice as being unequivocally immoral, Kant’s philosophy justifies value-laden characterizations of FGC as ‘being repugnant’ or as ‘violating basic human rights.’ In doing so, the Kantian ethic rationalizes the imposition of normative judgements upon different cultures around the world. Moreover, Kant’s categorical imperative could be used to defend the practice of FGC and its persistence. For instance, in 1983, El Dareer found that over 80% of Sudanese men and women favoured the continued practice of FGC (El Dareer, 1983, p.142). Presumably, these men and women would have no problem translating the maxim of their actions into universal law. As such, Kant’s categorical imperative could be used by these individuals to condone the sustained practice of FGC in their communities, or it could be used by the international community to condemn FGC. This two-part conclusion is problematic because the use of one formula (i.e. the categorical imperative) appears to generate contradictory results. As neither the Kantian nor the Burkean ethic can independently assess the morality of FGC, it might appear that our analysis has reached an impasse. . Yet, when the essence of each moral philosophy and positions they support are elucidated, the form of a culturally-sensitive and ethical FGC intervention can be identified.
A Universal Form for FGC Interventions
From a philosophic standpoint, it would seem logical to draw specific elements from two divergent positions if the strengths of one perspective could be used to compensate for the weaknesses of the other. When applied in the context of this paper, this approach can be used to reorient Kant and Burke’s seemingly dichotomous arguments in a more complementary manner. For instance, it is apparent that moral laws are neither derived completely from reason, nor from completely from social context. Yet, if the elements of ‘reason’ and ‘context’ are selected for, they could be combined and used to ‘neutralize’ the weaknesses inherent within both Kantian and Burkean ethics. This strategy could also be used to establish some common ground between the universalist and relativist positions. As previously mentioned, universalists condemn the practice of FGC, while relativists rationalize it using culturespecific arguments. At first glance, these two arguments seem juxtaposed. However, when their extreme forms are discarded, it becomes clear that universalists defend the
Female Genital Cutting physical integrity and dignity of women, while relativists demand tolerance and appreciation of cultural values and norms. These two goals are not incompatible. In fact, FGC interventions must aim to be ethical and culturally-sensitive. Therefore, the protection of physical and cultural integrity constitutes a universal form for FGC interventions against which the contents of specific endeavours can be evaluated. For example, many policy makers and academics argue that FGC should be performed by health professionals in clinical settings. Proponents of this approach argue that medicalizing FGC prevents the operations from being performed by unskilled practitioners in unsanitary conditions. Although this initiative reduces the complications associated with FGC and acknowledges the cultural importance of the practice, it does not actively protect the physical integrity of women. Because it only meets one of the two aforementioned goals, medicalization cannot be characterized as a truly ethical ‘solution’ to the ‘problem’ of FGC. However, there are other promising alternatives to FGC that respect the wellbeing of women without compromising their cultural values. The ‘initiation without cutting’ approach to FGC has been adopted in several African communities. The initiative requires girls to participate in the usual rituals and ceremonies that accompany the circumcisions. However, in countries like Ghana and Kenya, the initiation does not involve any bloodletting (Sarkis, 2003). This approach to FGC is becoming increasingly popular - entire villages in Tanzania, Senegal, Guinea, and Burkina Faso (to name a few) have replaced female genital operations with such initiations. Perhaps the approach resonates with local communities because it protects women’s rights while reinforcing their cultural integrity.
Conclusion
References
11. Kant, Immanuel. 1981. Grounding for the Metaphysics of Morals (trans. James W. Ellington). Indianapolis, IN: Hackett Publishing Company Inc. 12. Kouba LJ and J Muasher. 1985. Female Circumcision in Africa: An Overview. African Studies Review 28(1): 95-110. 13. Messer, Ellen. 1993. Anthropology and Human Rights. Annual Review of Anthropology 22: 221-249. 14. Obermeyer, Carla Makhlouf. 2005. The consequences of female circumcision for health and sexuality: An update on the evidence. Culture, Health & Sexuality 7(5): 443–461. 15. Oldfield Hayes, Rose. 1976. Female Genital Mutilation, Fertility Control, Women’s Roles, and the Patrilineage in Moden Sudan. American Ethnologist 2: 617-633. 16. Sarkis, Marianne. 2003. Female Genital Cutting: An Introduction. Female Genital Cutting Education and Networking Project. Retrieved February 1st, 2008, from http://www.fgmnetwork.org/intro/fgmintro. html 17. Sewankambo N, R Gray, MJ Wawer et al. 1997. HIV-1 Infection associated with abnormal vaginal flora morphology and bacterial vaginosis. Lancet 350: 546-550. 18. Universal Declaration of Human Rights. 1948. United Nations. Retrieved February 1st, 2008, from http://www.un.org/Overview/rights. html 19. Weiss HA, A Buve, NJ Robinson et al. 2001. The epidemiology of HSV-2 infection and its association with HIV infection in four urban African populations. AIDS 15 suppl 5 (in press). 20. Williams, L and T Sobieszczyk. 1997. Attitudes Surrounding the Continuation of Female Circumcision in the Sudan: Passing the Tradition to the Next Generation. Journal of Marriage and the Family 59(4): 966-981.
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1. Aniekwu, N. 2004. A legal perspective on reproductive health and gender-specific human rights in Nigeria. Journal of Medicine and Biomedical Research 3(1): 21-29. 2. Bishop, Jeffrey P. 2004. Modern Liberalism, Female Circumcision, and the Rationality of Traditions. Journal of Medicine and Philosophy 29(4):473-497. 3. Boddy, Janice. 1982. Womb as Oasis: The Symbolic Context of Pharaonic Circumcision in Rural Northern Sudan. American Ethnologist 9(4): 682-698. 4. Burke, Edmund. 1999. An Appeal from the New to the Old Whigs. In I. Kramnick (ed.), The Portable Edmund Burke (pp. 474-499). New York, NY: Penguin, The Viking Portable Library. 5. Chalmers B and KO Hashi. 2000. Somali Women’s Birth Experiences in Canada after Earlier Female Genital Mutilation. Birth 27(4): 227-234. 6. Changing a harmful social convention: Female Genital Mutilation/Cutting. 2005. UNICEF Innocenti Research Centre. Retrieved February 1st, 2008, from http://www.unicef-irc.org/publications/pdf/fgm-gb-2005.pdf 7. El Dareer, Asma. 1983. Attitudes of Sudanese people to the practice of female circumcision. International Journal of Epidemiology 12: 138-144. 8. Gordon, Daniel. 1991. Female Circumcision and Genital Operations in Egypt and the Sudan: A Dilemma for Medical Anthropology. Medical Anthropology Quarterly (New Series) 5(1): 3-14. 9. Gruenbaum Ellen. 1996. The cultural debate over female circumcision: The Sudanese are arguing this one out for themselves. Medical Anthropology Quarterly 5: 3-14. 10. Jones H, D Nafissatou, I Askew and I Kabor. 1999. Female genital cutting practices in Burkina Faso and Mali and their negative health outcomes. Studies in Family Planning 30(3):219-30.
In conclusion, it seems that a universal form for FGC interventions does exist andconstitutes two criteria - respect for human rights and cultural tradition. These two elements respectively represent distillations of the universalist and relativist positions. The universal form for intervention is also informed by a respect for reason and context. Since reason can be, but is not necessarily context-dependent, FGC interventions must merge culture-specific and universal logics in order to justify and ensure the long-term protection of women’s physical and cultural integrity. In this way, the combined essences of the Kantian and Burkean ethics reinforce the two pillars of the universal form for FGC intervention. Generating a universal form for intervention is an interesting philosophic exercise. However, it is also a valuable conceptual tool that can be used to rationalize and evaluate existing FGC interventions, or to create effective strategies that address the problems associated with FGC without eliminating its positive effects on women and their communities. Therefore, when applied in a given context, this universal form for intervention could guide the development of culturally-sensitive and ethical approaches to FGC that result in positive outcomes for all stakeholders involved. Gina Anne Vaz is a fourth year student at the University of Calgary majoring in Health and Society with a minor in Political Science. Email: gina.a.vaz@ucalgary.ca Dr. Joshua D. Goldstein is the faculty sponsor for this submission. He is an Assistant Professor in the Department of Political Science at the University of Calgary. Address: Social Science Bldg., 7th Floor, 2500 University Dr. NW, Calgary, AB T2N1N4 Email: joshua.goldstein@ucalgary.ca