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Abstract. A recent statement of consensus held that the principle of double effect would allow the induction of a previable fetus in order to eliminate a grave and present danger to the life of a mother suffering from peripartum cardiomyopathy. The author responds to this declaration, points out some limitations prevent- ing it from being a vehicle for broader agreement, and offers an alternative, namely, medical induction of labor in cases of maternal–fetal vital conflict can be justified if the fetus has at least a fair chance of survival. This support of induction in cases of periviability considers the interests of both fetus and mother and, unlike the earlier consensus statement, can be defended by those who hold that one’s moral intention includes both the ultimate and proximate ends, or the immediate consequences of one’s act. National Catholic Bioethics Quarterly 16.3 (Autumn 2016): 401–407.

In their article “Medical Intervention in Cases of Maternal–Fetal Vital Conflict,” a group of moral theologians and physicians issued a statement of consensus regarding the licitness of certain clinical interventions in cases of vital conflict between mother and fetus, that is, situations in which without medical intervention both the mother and the child will die but with intervention the mother alone can be saved.1 They

Alan Vincelette, PhD, is an associate professor of philosophy at St. John’s Seminary in Camarillo, California.

The views expressed in the NCBQ do not necessarily represent those of the editor, the editorial board, the ethicists, or the staff of The National Catholic Bioethics Center.

1. Colloquium Participants, “Medical Intervention in Cases of Maternal–Fetal Vital Conflicts: A Statement of Consensus,” National Catholic Bioethics Quarterly 14.3 (Autumn 2014): 477–489. All subsequent references to this article will appear as in-text paragraph numbers. See also Peter Cataldo and Thomas Goodwin, “Early Induc- tion of Labor,” in Catholic Health Care Ethics: A Manual for Ethics Committees, ed.

Maternal–Fetal Conflict and Periviability

Alan Vincelette

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concluded, “Interventions that surgically dismember a live fetus in order to remove it from the uterus are impermissible,” but in situations involving a subsequent pregnancy in a woman with a history of peripartum cardiomyopathy, “medical induction of labor prior to fetal viability to eliminate a grave and present danger posed by the interaction of the normally functioning placenta with the weakened heart of the mother can be consistent with directive 47 [of the Ethical and Religious Directives for Catholic Health Care Services] and justified in accord with the principle of double effect” (nn. 16, 19).2

While it is impressive that a consensus on these issues could be reached by a distinguished group of moral theologians, it is not clear that this statement can, in the end, represent a broad consensus that is useful “for developing clinical guidelines for maternal–fetal vital conflict that are consistent with Catholic Church teaching and the medical standard of care” (n. 1).

Intention and the Moral Object The consensus—that one can deplant the placenta attached to a previable fetus

in order to save the life of a mother with peripartum cardiomyopathy who under- goes a subsequent pregnancy—tends to gloss over or ignore some fundamental issues regarding intention and the moral object, which divide contemporary moral theologians. The signatories appeal to the principle of double effect, which pertains to actions that have both a good effect and a bad effect. It allows such an action to be performed if (1) the rationally chosen object of the act is good or neutral, (2) the agent directly intends only the good effect and not the bad effect, (3) the good effect is not achieved by means of the bad effect, and (4) the good effect is proportionate to the bad effect (n. 12). The signatories conclude that, in the described case, medical induction of labor would be licit because “the remote end of the act—which is to eliminate the grave and present danger by deplanting the placenta from the uterus in order to save the mother’s life—is the intended good effect; the death of the child is the foreseen but unintended bad effect” (n. 19, original emphasis).

It is important to notice that the signatories construe the intention of the act as merely the ultimate or remote end of the agent, that is, the ultimate purpose the

Edward Furton et al. (Philadelphia: National Catholic Bioethics Center, 2009): 111–118; Ron Hamel, “Early Pregnancy Complications and the Ethical and Religious Directives,” Health Progress 93.3 (May–June 2014): 48–56; Nicanor Pier Giorgio Austriaco, “Resolving Crisis Pregnancies: Acting on the Mother versus Acting on the Fetal Child,” National Catho- lic Bioethics Quarterly 15.2 (Summer 2015): 207–208; Peter Cataldo et al., “Deplantation of the Placenta in Maternal–Fetal Vital Conflicts: A Response to Bringman and Shabanow- itz,” National Catholic Bioethics Quarterly 15.2 (Spring 2015): 241–250; John Di Camillo, “Induction of Labor and Vital Conflicts: Caution with Double Effect,” Ethics and Medics 40.6 (June 2015): 1–4; John Di Camillo and Edward Furton, “Early Induction and Double Effect: Advancing the Discussion on Vital Conflicts,” National Catholic Bioethics Quarterly 15.2 (Summer 2015): 251–261; and Meredith White and Nicanor Pier Giorgio Austriaco, “The Use of Pre-Term Induction in Crisis Pregnancies: The Drowning Lifeguard–Drowning Swimmer Case,” Angelicum 92.1 (2015): 115–130.

2. See US Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services, 5th ed. (Washington, DC: USCCB, 2009).

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agent is trying to achieve. Yet such a view is not universally agreed on by Catholic moralists, many of whom would argue that one must intend not only the ultimate end of the act but also the specific means of achieving it, that is, the moral object or proximate end.3 While the signatories note that the intention may or may not coincide with the moral object or proximate end (n. 12), they do not believe that the proximate end is necessarily part of one’s intention, whereas other Catholic ethicists do. Stated more philosophically, for the signatories any overlap of the remote and proximate ends would be accidental, not essential, because the agent’s deliberate purpose includes both ends.

Additionally, the signatories assert that “the moral object or proximate end of the act which is the triggering of uterine contractions to deplant the placenta in order to eliminate the placenta’s pathology-inducing interaction with the weakened heart of the mother is good or at least morally neutral”; that is, the “exterior act is described as the medical induction of labor prior to fetal viability by triggering the uterus to contract” (n. 19). Here again, there is considerable debate among Catholic ethicists on how an exterior act should be defined. For example, Elizabeth Anscombe recognizes that it is tricky to describe what exactly one is doing when one acts, as there are different levels of description.4 The signatories seem to assume that the agent merely acts directly on the mother’s placenta or uterus, not on the fetus,5 but

3. Although I am not in favor of this position, it does have some notable defenders, including Kevin Flannery, “What Is Included in a Means to an End?,” Gregorianum 74.3 (1993): 499–513; Benedict Guevin, “Vital Conflicts and Virtue Ethics,” National Catholic Bioethics Quarterly 10.3 (Autumn 2010): 471–480; Thomas Cavanaugh, “Double-Effect Reasoning, Craniotomy, and Vital Conflicts,” National Catholic Bioethics Quarterly 11.3 (Autumn 2011): 453–464; Kevin Flannery, “Vital Conflicts and the Catholic Magisterial Tradition,” National Catholic Bioethics Quarterly 11.4 (Winter 2011): 691–704; Matthew O’Brien and Robert Koons, “Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory,” American Catholic Philosophical Quarterly 86.4 (Fall 2012): 655–703; and Steven Jensen, “Causal Constraints on Intention: A Critique of Tollefsen on the Phoenix Case,” National Catholic Bioethics Quarterly 14.2 (Summer 2014): 273–293.

4. See Elizabeth Anscombe, Intention (Ithaca: Cornell University Press, 1957), 34–49, nn. 22–27; and Philip Reed, “How to Gerrymander Intention,” American Catholic Philosophi- cal Quarterly 89.3 (Summer 2015): 441–460.

5. Cataldo et al. put it this way in “Deplantation of the Placenta,” a later paper: “The first condition [of the principle of double effect] is that the rationally chosen object of the act must be morally good in nature or at least not be intrinsically evil. The act of inducing labor is not intrinsically evil because it mirrors and augments the natural process of labor by which all the contents of the uterus are evacuated when the retention of those contents would be harmful to child or mother. The intelligibility of labor is not defined by the evacuation of one or another specific component of the in utero contents, but rather by the evacuation of all the contents including the placenta. Therefore, in any given case of early induction for the pathological interaction in PPCM+P, whether the death of the fetus occurs after the separa- tion of the placenta from the uterus, together with and at the same time as the separation, or whether it occurs prior to the separation makes no difference to the moral object of the induction, because the death of the fetus is not the chosen object or the specific means used to eliminate the pathological interaction. In all three situations, the death of the fetus remains a

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not all will agree, especially those who include the integral nature of the act as part of its structure.6

Moreover, the signatories exclude any immediate consequences of the act from the proximate end, but this too (the so-called problem of closeness) is not uncontro- versial. As Anscombe notes, an arsonist cannot readily be excused on the grounds that he did not intend to kill anyone in a fire he set.7 She is building on the work of St. Thomas Aquinas, who asserts that “if evil is always, or, as it were, in most cases, associated with the good that is intended for itself, one is not excused from sin, even if one does not intend the evil for itself.”8 In fact, Aquinas even applies the principle of closeness to the unintentional harm done to a fetus: “One who strikes a pregnant

foreseen but unintended and indirect bad effect of the act of induction of labor, whose nature is not intrinsically evil” (249). See also Austriaco (“Resolving Crisis Pregnancies,” 207) and Di Camillo and Furton (“Early Induction and Double Effect,” 252), who argue that induction of labor is not a direct attack on the fetus and not intrinsically evil, even though they concede the placenta is a vital organ of the child.

6. Stephen Brock, “Veritatis Splendor §78, St. Thomas, and (Not Merely) Physical Objects of Moral Acts,” Nova et Vetera 6.1 (Winter 2008): 1–62; Steven Long, “ Veritatis Splendor §78 and the Teleological Grammar of the Moral Act,” Nova et Vetera 6.1 (Winter 2008): 139–156; Jean Porter, “Choice, Causality, and Relation: Aquinas’s Analysis of the Moral Act and the Doctrine of Double Effect,” American Catholic Philosophical Quarterly 89.3 (Summer 2015): 479–504. These authors might challenge the narrow interpretation that an act of inducing labor can be defined in isolation from the vital bond between the fetus and placenta and the mother.

7. Elizabeth Anscombe asserts, “The suggestion is that that is all I am doing as a means to my end. . . . ‘Nonsense’, we want to say, ‘doing that is doing this, and so closely that you can’t pretend only the first gives you a description under which the act is intentional. . . . All this is relevant to our pot-holer only where the crushing of his head is an immediate effect of moving the rock. . . . Where the crushing is immediate you cannot pretend not to intend it if you are willing to move the rock. . . . [But] consider the case where the result is not so immedi- ate—the rock you are moving has to take a path after your immediate moving of it, and in the path it will take it will crush his head. Here there is indeed room for saying that you did not intend that result, even though you could foresee it.” “Action, Intention and Double Effect,” Proceedings of the American Catholic Philosophical Association (1982): 23–24, original emphasis. Thus Anscombe appeals to the principle that one cannot exclude the guaranteed immediate consequences of an action from being part of the intended act itself, though one can exclude possible but not likely effects. Similar views occur in Denis Sullivan, “The Doctrine of Double Effect and the Domains of Moral Responsibility,” Thomist 64.3 (July 2000): 423–448; and Luke Gormally, “Intentions and Side-Effects: John Finnis and Elizabeth Anscombe,” in Reason, Morality, and Law: The Philosophy of John Finnis, ed. John Keown and Robert P. George (Oxford, UK: Oxford University Press, 2013), 93–108. Such thinkers might argue that since the death of the fetus results as an immediate consequence of the induction of labor before viability, the death of the fetus is either part of one’s intention or part of one’s act. I tend to side with the latter position.

8. “Sed si semper vel ut in pluribus adiungatur malum bono quod per se intendit, non excusatur a peccato, licet illud malum non per se intendat.” Thomas Aquinas, On Evil 1.3.15. See also Aquinas, Summa contra gentiles 2.4–6, and Summa theologiae I-II.20.5 and I-II.73.8. Translations from the Latin are by the author.

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woman does an illicit deed. And therefore if the death, either of the woman or the animated fetus, results, one will not be excused from the crime of homicide, especially since death readily results from such a blow.”9

The Morally Safest Course When formulating clinical guidelines for Catholic health care institutions, it

would presumably be best to start with the morally safest course of action, which is least likely to lead to sin and most likely to achieve broad consensus. With this in mind, I make an alternative proposal here that is prudentially safe, considers the interests of both mother and child, and could achieve a much broader consensus than the 2014 proposal, even garnering the assent of those who hold disparate views on some of the disputed issues noted above. Specifically, in a pregnancy where a grave and present danger is posed by the interaction of the normally functioning placenta with the weakened heart of the mother, medical induction of labor can be consistent with directive 47 and justified in accord with the principle of double effect if the fetus is developmentally advanced enough to have at least a fair chance of survival. One can debate exactly what “fair chance of fetal survival” means, but perhaps the simplest way to explicate this is to say that inducing labor can be morally justifiable once a fetus has reached the point of development where its chance of surviving induction is at least 50 percent, that is, where its viability is at least a distinct pos- sibility (periviability).10

While each particular case would have to be looked at individually, taking into account fetal weight, the mother’s left ventricular ejection fraction, and other factors, in general this proposal would mean bringing a fetus to at least twenty-four weeks of gestation.11 Arguably, the fetus should be brought to at least twenty-six weeks

9. “Ille qui percutit mulierem praegnantem dat operam rei illicitae. Et ideo si sequatur mors vel mulieris vel puerperii animati, non effugiet homicidii crimen, praecipue cum ex tali percussione in promptu sit quod mors sequatur.” Aquinas, Summa theologiae II-II.64.8 ad 2.

10. See the similar, though not identical, concept of periviability developed by obstetri- cians in T. N. Raju et al., “Periviable Birth,” Obstetrics and Gynecology 123.5 (May 2014): 1083–1096.

11. On fetal mortality and morbidity at various gestational ages, see V. Fellman et al., “One-Year Survival of Extremely Preterm Infants after Active Perinatal Care in Sweden, ” JAMA 301.21 (June 3, 2009): 2225–2233; K. L. Costeloe et al., “Short Term Outcomes after Extreme Preterm Birth in England: Comparison of Two Birth Cohorts in 1995 and 2006,” British Medical Journal 345, e-pub December 4, 2012, e7976, doi: 10.1136/bmj.e7976; F. García-Muñoz Rodrigo et al., “Morbidity and Mortality in Newborns at the Limit of Viability in Spain: A Population-Based Study,” Anales de Pediatría 80.6 (June 2014): 348–356; P. Y. Ancel et al., “Neonatal Outcomes of Very Low Birth Weight and Very Preterm Neonates: An International Comparison,” JAMA Pediatrics 169.3 (March 2015): 230–238; S. Bolisetty et al., “Preterm Infant Outcomes in New South Wales and the Australian Capital Territory,” Journal of Pediatrics and Child Health 51.7 (July 2015): 713–721; Matthew Rysavy et al., “Between- Hospital Variation in Treatment and Outcomes in Extremely Preterm Infants,” New England Journal of Medicine 372.19 (May 7, 2015): 1801–1811; Barbara Stoll et al., “Trends in Care Practices, Morbidity, and Mortality of Extremely Preterm Neonates, 1993–2012,” JAMA 314.10

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of gestation, when it would have around a 75 percent chance of surviving and a 75 percent chance of not having a severe health impairment. At twenty-four weeks, the fetus’s chance of being free of a major impairment would be only around 25 percent.

While there would be more agreement on not intentionally killing the fetus— hence a broader consensus that the act is in accord with the principle of double effect—it might be argued that such a proposal does not adequately consider the mother’s interests and might too facilely risk her death. Yet according to current scientific data, this is not necessarily the case: the latest studies suggest that the current mortality rate for mothers with peripartum cardiomyopathy who undergo a subse- quent pregnancy is typically 10 to 20 percent.12 If the mother dies, as happens rarely, her death typically occurs two to three months after delivery and, in one case, two years after delivery.13 So the chance a subsequently pregnant mother with peripartum cardiomyopathy will survive to carry her baby to at least twenty-four weeks’ gestation

(September 2015): 1039–1051; and Tracy Manuck et al., “Preterm Neonatal Morbidity and Mortality by Gestational Age: A Contemporary Cohort,” American Journal of Obstetrics and Gynecology 215.1 (July 2016): 103.e1–103.e14, doi: 10.1016/j.ajog.2016.01.004.

12. Uri Elkayam et al., “Maternal and Fetal Outcomes of Subsequent Pregnancies in Women with Peripartum Cardiomyopathy,” New England Journal of Medicine 344.21 (May 2001): 1576–1571; K. Sliwa et al., “Outcome of Subsequent Pregnancy in Patients with Documented Peripartum Cardiomyopathy,” American Journal of Cardiology 93.11 (June 2004): 1441–1443; James D. Fett, Len G. Christie, and Joseph G. Murphy, “Outcomes of Subsequent Pregnancy after Peripartum Cardiomyopathy: A Case Series from Haiti,” Annals of Internal Medicine 145.1 (July 4, 2006): 30–34; M. Habli et al., “Peripartum Cardiomyopathy: Prognostic Factors for Long-Term Maternal Outcome,” American Journal of Obstetrics and Gynecology 199.4 (October 2008): 415.e1–415.e5, doi: 10.1016/j.ajog.2008.06.087; James D. Fett, Karie L. Fristoe, and Serena N. Welsh, “Risk of Heart Failure Relapse in Subsequent Pregnancy among Peripartum Cardiomyopathy Mothers,” International Journal of Gynecol- ogy and Obstetrics 109.1 (April 2010): 34–36; Debasmita Mandal et al., “Pregnancy and Subsequent Pregnancy Outcomes in Peripartum Cardiomyopathy,” Journal of Obstetrics and Gynaecology Research 37.3 (March 2011): 222–227; and Uri Elkayam, “Risk of Subsequent Pregnancy in Women with a History of Peripartum Cardiomyopathy,” Journal of the American College of Cardiology 65.14 (October 2014): 1629–1636. These studies indicate an overall maternal mortality rate of around 8 percent when subsequent pregnancies occur in women with preexisting peripartum cardiomyopathy. The mortality rate varies 5–25 percent between studies.

13. S. J. Whitehead et al., “Pregnancy-Related Mortality Due to Cardiomyopathy,” Obstetrics and Gynecology 102.6 (December 2003): 1328. Table 3 in Whitehead records only two of 171 maternal deaths on account of peripartum cardiomyopathy. One percent occurred prior to delivery, but the study does not distinguish between first or subsequent pregnancies. Among peripartum cardiomyopathy cases with known intervals correlating fetal delivery and maternal death, 2 percent of mothers died prior to delivery, 48 percent died within forty-two days of delivery, and 50 percent died between forty-three days and one year postpartum. Mandal (“Pregnancy and Subsequent Pregnancy Outcomes,” 225–226) records only one death of a woman with pre-existing peripartum cardiomyopathy during a subsequent pregnancy, which occurred at twenty-seven weeks of gestation. Still, Cataldo et al. (“Deplantation of the Placenta,” 245–247) and Di Camillo and Furton (“Early Induction and Double Effect,” 257–258) rightly note that, in spite of the rarity of preparturitional maternal mortality, particular factors may suggest to a clinician that a pregnant mother with peripartum cardiomyopathy is in great danger of dying. Ultimately, the question is what bearing this has on a decision to engage in the induction of labor of a previable fetus.

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is at least 80 to 90 percent, though indeed there can be real costs to the mother’s health and even the need for a heart transplant. If physicians closely monitor the mother’s health after the birth, she has a very good chance of survival. In such a situation, arguably the morally safest course is to bring the fetus to twenty-four to twenty-six weeks’ gestation and thereafter closely monitor the mother’s health, hoping for the survival of both mother and child, of which there is a fair to good chance. Certainly, significant mitigating factors could reduce the moral culpability of someone who chooses to end a pregnancy by inducing labor prior to fetal viability.

In some cases, clinical evidence will show that the mother is in great danger of dying. Yet might there not be an analogous situation, such as being trapped under rubble with one’s child, where one could free oneself only by dislodging a large piece of debris that would almost certainly crush and kill the child, and where one should out of love choose to await help and perhaps risk dying along with the child rather than freeing oneself and thereby causing the child to be killed?

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