Tuesday, February 5, 2013

Fetuses and Wrongful Death

Lawyers for a Catholic hospital in Colorado recently argued that twin fetuses that died while in the hospital's care were not, under state law, human beings.  The lawyers contended that the hospital thus cannot be held responsible for the fetuses wrongful deaths.  I imagine the lawyers of the hospital had the following argument in mind:
(1) A fetus is not a human being.
(2) Wrongful death suits only apply to purported wrongful deaths of human beings.
(3) Therefore, it is not legitimate to accuse a hospital of being responsible for the wrongful death of a fetus.
As has been noted in the press, this argument directly clashes with the Church's commitment to the position that fetuses should enjoy the same legal protections as human beings like you and me.  It's quite bizarre that the lawyers would rely on premise (1) in their defense.    
Leaving aside interesting issues about Church doctrine and this surprising legal maneuver, I wonder about the moral status of fetuses and one's ability to bring a lawsuit against a hospital for wrongful death (or something in that neighborhood).  Hospitals/their staff can be grossly negligent or otherwise morally responsible for the death of a fetus.  In such cases, it seems that there ought to be some sort of law that is violated.  There should be some sort of claim that parents of the fetus(es) can level against a hospital.  Assuming one thinks that fetuses (and their parents) are deserving of the sorts of protections from wrongful death, I can see two plausible ways to go from here.  First, current laws related to wrongful deaths could be expanded to include fetuses.  Second, alternative laws could be enacted that are akin to the current wrongful death protections but which are directed at fetuses (not (other) human beings).  
It should come as no surprise that there are laws against killing non-humans.  One can be charged, for example, with the wrongful death of a dog or other pet, but the potential penalties are much less severe than those associated with the wrongful death a human being.  I suppose what one thinks of the moral status of fetuses (and how they compare morally to human beings/non-human organisms) will inform what one thinks about what sort of law ought to be in place to protect fetuses from wrongful deaths.  Nevertheless, I don't see of any plausible reason for thinking that fetuses are not deserving of such protections.  If there are really no legal protections in place (in Colorado or elsewhere), there certainly should be.  

Some people who think that abortions are morally permissible think that premise (1) above is true--that is, they think that fetuses are not human beings.  How might such a person defend the view I articulate above?  That is, how might one justify a pro-choice position and, at the same time, grant that fetuses are deserving of protections related to wrongful death?  Perhaps one could rely on the sorts of considerations that are used to justify protecting non-humans from wrongful death. Such a maneuver would involve granting that fetuses are to be given certain protections from hospitals/their staff behaving negligently or otherwise wrongfully causing the death of a fetus, but they are not to be given protections from a parent who desires not to give birth.  This makes for a fascinating and nuanced position that I haven't thought about before reading about this court case.  I'm curious what readers of this blog think about all these issues. 

And I'm curious to see how this case will turn out...  


Anonymous said...

An intereesting case indeed!

If the law is that a wrongful death lawsuit can only be brought in the case of a death to a human being caused by negligence of another human being (of course, we wouldn't put a dog on trial for "wrongfully" killing a human being), then the denial that a fetus is a human being is a reasonable try at a defense. And perhaps one could argue that a fetus is only a potential human being until such time as it is born.

However, I do believe that there have been cases where a pregnant women was hit by a car (negligently) causing the death of the fetus. Is this a case of homicide? It would be interesting to see what the courts have decided in these sorts of cases.

I think that you are right in suggesting that there needs to be clarification by the judicial system (with the help of philosophers) in regard to how to deal with these cases.

In my mind, the more important and central concept here is that of a "person." It could be argued that we should have laws that apply to potential human beings and different ones that apply to persons, where potential persons (i.e., fetuses) deserve respect and have some rights given by the state.

In this regard, the reason that mothers do not wrongfully kill potential human beings is that their right to control their bodies trumps the rights of the fetus. But if a mother kills a child after birth, there is potential for a charge of murder.

What does everyone think?

Chelsea R. said...

Here is how someone can be pro-choice and defend a fetus' right to not have a wrongful death: it depends on the trimester. If a fetus cannot survive by itself, it is essentially a parasite. Therefore, the woman has the right to do what is best for her and her incubating parasite in the first trimester; it does not count as living. A mishap in the hospital during this time of the fetus' development would not be considered a wrongful death. The moment, however, the fetus is capable of surviving independently and outside of its mother's womb, it is then deserving of the moral standing of a living functioning child. This view is nuanced to the core, but it provides a sense of moral responsibly even if only during the last half of the fetus' 'life'.

Dan S said...

I've always been a fan of Don Marquis's future conscious life of value theory when it comes to cases like this, even though Marquis wrote it in regards to abortion. The future conscious life of value theory holds that, although subject X may not have the capacities currently needed in order to value their life, it does not mean that they will not acquire those capacities under normal circumstances in the future. In most cases, we imagine that a fetus under normal conditions would grow into a human being that is conscious of their existence, and also values their life.
We are then able to apply that to this case. Under normal circumstances, both of the fetuses would have grown into human beings, conscious of their existence, and value their life. This is only half the argument though. We then have to question whether or not we are able to conclude that a fetus is a human being based on the idea that, under normal circumstances again, they would grow into a human being. If you accept that statement to be true, then you would be able to defend the claim that a fetus is not a human being through the future conscious life of value theory.
If we accept both the future conscious life of value theory to be true, and further accept that it is able to designate that fetuses would become a human being that is conscious and value their lives, then I think we are safe in defending premise 1 and further accuse the hospital of being responsible for the deaths of the fetuses.

I should add in, there are definitely quite a few objections to Marquis's future conscious life of value theory. Much of which is summarized well here if you're curious: http://www.clas.ufl.edu/users/woodling/cmi/marquis_notes.pdf

Jesse Steinberg said...
This comment has been removed by the author.
Jesse Steinberg said...

Thanks for commenting folks.

Dan--I'm most concerned here with the view that (a) abortions are morally permissible and yet (b) fetuses are deserving of protections from wrongful death. As you know, Marquis's strategy would get you (b) but not (a).

Chelsea offered a suggestion about how might one justify both of these claims--it depends upon the trimester. But then wouldn't a fetus only be protected from wrongful death in, say, the last trimester? Isn't it deserving of such protections earlier than this (since, perhaps, conception)? And if you think that fetuses are deserving of deep moral consideration at an early stage of development--enough to warrant protections from harm, for example--then doesn't this protect the fetus from being aborted?

It seems to me that the person who defends (a) and (b) needs two distinct moral principles. One has to do with protecting fetuses from harm. The other has to do with a mother's right to choose. The first principle protects fetuses from wrongful death. The second allows the mother to chose to have an abortion since it "trumps" the first principle. That is, one might think that the mother's right to choose is more morally weighty than the fetus' right to be protected from harm. This kind of maneuver would seemingly enable one to hold both (a) and (b)--but it open the door to an interesting discussion of principles like those I just mentioned and the issue of whether/why one trumps the other.

J. P. H. Stephens said...

I thought I had an argument that protected a fetus from negligence, yet allowed for a pro-choice opinion...but I have subsequently forgotten it. For the time being, I will present an alternative argument...

Let's start by assuming that premise 1 IS true. In this case, it would seem that abortions are permissible, or at least, they are not forbidden on the moral grounds that it is wrong to kill another human.

Yet, I don't think that this prevents prosecuting the hospital for negligence. It seems to me that even if the fetus is a parasite, it is granted rights through the vehicle of the mother. The mother has a vested biological interest in the survival of the fetus, and any negligence against the fetus can be seen as negligence against the mother. This isn't wrongful death, but it is still negligence in the same way it would be negligent for a hospital to accidentally cut off blood flow to an arm during surgery, resulting in the need to amputate.

Will Psilos said...

I agree with the idea above that if the fetus is recognized as a part of the mother's body, then there aren't any real complications from the argument that it isn't human. Even without making any specific laws akin to those concerning pets (that give fetuses strange intermediate rights), I think the hospital would still be liable if they performed an operation that was not approved by the patient, or in this case, failed to perform an operation that was desired by the patient's proxy. As stated above this wouldn't have the same legal weight as a wrongful death suit, and I think that some very specific laws would have to be enacted in order to give it an equivalent status and to not outlaw abortions. I think the Democrat's suggestion to outlaw killing a fetus in the act of committing some other crime (negligence, in this case) could do the job somewhat simply, without granting fetuses the same rights as people.

Jordan Bowe said...

Building off of Chelsea's use of the trimester when considering the morality of abortions...

I would look at it in more biological terms, as I'll explain...
In response to why a fetuses rights wouldn't extend to the moment of conception is because at that point it is just a non-thinking, non-feeling group of cells. Like Chelsea said, it is essentially a parasite in the mother's body- for her to do with what she chooses. However, once the fetus is developed enough that there are brainwaves, it seems to me, that the fetus gains a higher status. Consider a fetus that is relatively developed, theoretically, it could feel the impact of a car crash that would kill it. Perhaps this thinking/feeling would be primitive compared to what we as developed adults experience- but it is still there. And traditionally, our brains and the ability to think are what define us being human, and worthy of life. (This also extends to animals, and why unnecessarily hurting them is considered to be wrong- they experience the pain).

--Interesting comparison: To someone who has been in an accident and although they have brainwaves, is pronounced "brain dead." In this situation, whoever is legally responsible for their medical treatment has the right to make decisions for them. They do not think or feel anymore, and therefore someone else makes decisions about their life. They cannot survive outside of the hospital or away from the machine that keeps them alive.

As to when brain waves appear in fetal development, I haven't found any concrete scientific facts (so far). Electrical activity is detected at 6 weeks, however I don't think that is on the same level as brain waves. Another site said it was at 13 weeks, which seemed to be more plausible.

Or perhaps it should be a combination of the two notions that a fetus can feel, albeit primitively, and can survive outside of the mother's womb, that makes it gain a higher moral status.

... Sorry this was a bit scattered. I guess my point is biology should play a heavier role in the consideration of a fetus' moral status and therefore the rights they have. Which definitely would play into the court case in which the hospital's negligence lead to the death of the fetuses.

young and young law said...

Personally I feel like Fetuses and people in development they may not be people yet but they will be eventually so I still feel like they shouldn't be treated like they aren't human.