Recently, a young woman admitted to Melbourne’s Royal Women’s Hospital confronted a tragic dilemma and an even more tragic consequence. The woman, 32 weeks pregnant with twins, was informed that one of her twins suffered a congenital heart condition that would require years of operations – if he survived at all. On medical advice, she decided to terminate the unhealthy twin. During the abortion, the wrong twin was injected, and the healthy foetus was terminated. The mother was then required to have an emergency caesarean to abort the unhealthy foetus.
My maternal instincts may not yet have kicked in, but I can fully empathise with the horrible emotional tempest of loss, sadness and anger the family would be dealing with. But the thinker inside me questions how words like ‘dead’ and ‘killed’ are being thrown around, and what the legal ramifications for the hospital staff might be.
The media headlines so far include:
“Twins die in tragic hospital bungle”
“Hospital kills wrong twin in abortion, both babies now dead,”
“Medical bungle kills healthy foetus”
“Healthy twin dies in aborted bungle”
“Horror: 32-week unborn twins killed after hospital accidently aborts healthy baby”
(Keep in mind that the story would not have been news at all, if the procedure had gone successfully and only one foetus had been aborted. It is interesting to note, that one sick foetus’s abortion is a ‘termination’, while the other is a killing, a death, when in reality, both foetus’s were developmentally identical.)
If we accept the media’s account that the twin was ‘killed’ at the hands of another, then doesn’t it follow that the doctor then be charged with murder?
According to Sir Edward Coke’s 1797 definition of murder, a child in utero is not deemed a ‘reasonable creature in being’ until it is ‘born alive’.
The born alive rule maintains that a child can only be a victim of murder if the child has an independent existence from its mother. That is, death must occur after ‘the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs’. This ‘born alive’ rule still prevails today in Australian law, despite being overturned inAmericaandCanada.
For example, in the 2003 case of R v King in New South Wales, a person deliberately caused the stillbirth of a pregnant woman by kicking and treading on her stomach. Under the born alive rule, the defendant was only charged with grievous bodily harm to the mother, not the murder of the foetus. 
So has a death occurred inMelbournetoday? If death is merely ceasing to exist, to function physiologically, then the foetus has died and someone should be responsible. But the foetus was fully-reliant on the mother’s womb, they certainly had no personality, arguably no intellectual capacity. Did they have a life per se to end? Although a future has been lost, has a life?
Under the born alive rule, there has been no death, at least of legal or ethical concern. The problem with the born alive rule is that there is almost no physiological or intellectual distinction between a near-term foetus and a newborn infant.
The story is heart wrenching, of that there is no doubt. But at least legally, the death is not of two people, but of two futures.
On a surgery table in an Indian warehouse just outside New Delhi, a local labourer lies face up on the table. Above him, a doctor wields a scalpel, hurriedly slicing through his abdomen to remove his left kidney. The operation means he will be at a higher risk of severe injury, high blood pressure and kidney abnormality for the rest of his life, but when the surgery is complete, he stuffs an envelope into his pocket, making him $1000 richer.
At the same time, a foreign tourist waits in the operating theatre of a nearby hospital for his transplant. Unable to find a suitable donor at home and running out of time, he has travelled to India on the assurance of a guaranteed match. For the organ alone, he paid $37,500. Hundreds of thousands of others like him bide their time on public waiting lists, until desperation pushes them to the same ends. And so continues the cycle of one of the most gruesome white-collar crimes to date.
Three years ago, Time magazine reported how Indian police shut down a black market organ transplant ring that had harvested kidneys from more than 500 Indian labourers, sometimes against their wishes, and sold them to cash-wielding foreigners desperate for transplants. In a situation where patients in the UK, USA and even Australia can die waiting for an organ, transplant tourism is a lucrative business. But the United Nation’s World Health Assembly forbids the sale of body parts. So why is it that paying for organs seems so intrinsically wrong – Is it simply because of the issue of exploitation? Would we still feel uneasy if there were a regulated market for organ sales? Is it ethical to pay people for body parts?
Professor Dame Marilyn Strathern asked that very question to a curious crowd at the Australian National University last night. As Chair of the Working Group on Human Bodies in Medicine and Research for the UK’s Nuffield Council on Bioethics, she is overseeing an inquiry into (amongst other things) remuneration options for organ donors – from free funerals to cold hard cash.
Illegal as it may be, black market organ trading is borne out of a global health issue – the worldwide scarcity of donated organs. Right now the fate of 80,000 people in the US alone rests on a waiting list for organ donations. Worldwide, the story is the same. As we deal with an ageing population and advances in medical treatments, more people would benefit from transplants now than ever before.
As a solution to the critical shortage, some scientists are investigating the use of animal organs to meet demand, while some countries and states (like Victoria and Western Australia) explore ‘opt-out’ systems for organ donations, where everyone is a donor upon their death by default unless they have legal documents stipulating otherwise. Another option, being considered by the Nuffield Council on Bioethics is the creation of a legitimate market for the sale of organs.
According to Professor Strathern there is a ‘meaningful absence of money’ in the donor-recipient relationship. When the gift is as large as a part of ourselves, the receiver has a need, an urge to reciprocate in some way. When there is no currency, and there is no way for recipients to ‘give back’, the debt can become a burden. Ethnographical studies have looked at participants’ attempts to relieve the debt, which include writing letters of thanks to donors, thinking of the donor daily, or feeling obliged to take care of themselves better. In some cases, recipients feel as if they cannot talk about their ‘ongoing medical misery’ since the others’ sacrifice is bigger.
Likewise, for families of people who require organs, there is a sense of obligation, guilt and duty to give up an organ, which can later lead to resentment. Even in cases when donors say they ‘didn’t even have to think about whether or not to donate’ one must consider the emotional coercion. Would any of us be willing to watch a loved one die because we didn’t sacrifice a non-vital organ?
What could prevent all of this however, is the availability of more organs, and the ability to pay for them, therefore eliminating the altruism from the act and warranting a sense of ‘justice’. The act of ‘give and receive’ is the basis of our economy and our relationships – when someone gives you a present, or invites you to a wedding, there is a sense of obligation to reciprocate. Organ donation is one of the few transactions where givers receive nothing in return. Whether or not true altruism exists is debatable, but the topic for another post. But as an example, in many donors there is a hope that their altruism will encourage the altruism of others, potentially to their benefit. (Professor Strathern used the example of a mother donating her kidney to a friend, with the expectation that if she needed one down the track, her two children would be able to donate).
In some countries, commercial systems and altruistic systems already exist side by side. In egg donation in the USA for example, women donate their eggs for research (often excess from IVF) for free, but can also sell eggs to infertile couples for high prices. Is money then, the currency needed to alleviate the expectations on family members, and the burden felt by recipients?
Joyce Robbins, co-director of the campaigning group Patients Concern argues that the act of paying is abhorrent.
“Paying the family of someone who has just died could tempt them to go against the wishes of a loved one at a time when they are most vulnerable.”
Remuneration by means other than cash are potentially the middle ground. Contributions to the donor’s funeral, or payments made to families after their death all avoid potential rash decisions by people needing quick cash. Unfortunately, they do not avoid Mrs Robbins concern of coercing people in vulnerable positions.
Unless the market is government regulated and subsidised by the health system, it also does little to alleviate the ethical concern that rich people will have quicker access to life-saving surgery, while poorer people depend on donations of friends and family.
In Iran, a commercial system overseen by Government is already underway whereby the donor of the kidney gets financial compensation from the Government and free health insurance for one year. In nine years, the waiting list for transplants has been obliterated. While no similar move is yet on the cards for Australia, the Nuffield Council report is due on October 11.