Wednesday, July 06, 2022

Ethical Progress on the Abortion Care Frontiers on the African Continent

The Supreme Court of the United States of America has overridden 50 years of legal precedent and reversed constitutional protections[i] for abortion in the country that were the result of the 1973 landmark Roe v Wade ruling. Pregnant women in the country do not enjoy a constitutional right to abortion any longer. Broadly speaking the result of this ruling results in a split of the country in terms of access to abortion care based on whether a woman lives in a Republican party controlled state or a Democratic party controlled state. The verdict has been widely condemned by associations of health care professionals, medical journals and the like, as much as it was celebrated by religious leaders like the Pope.[ii],[iii] None of that is terribly surprising.

Among secular bioethicists support for liberal access to abortion care has always been strong. The main ethical reasons for this have to do with respecting women’s rights to control over their own bodies[iv], as well as consequentialist ethical reasons that take cognizance of worse health care outcomes for the most vulnerable women in societies where restrictive access to abortion care regimes are in place[v]. The liberalization of laws on abortion, on the other hand, has demonstrably led to improved health outcomes for these women.[vi] The ethical arguments on abortion have been debated endlessly by bioethicists, there is little point in rehashing them here in any great detail[vii].

What is perhaps worth noting is that – unlike in the United States – access to abortion care has become in recent years easier in a number of countries on the African continent, including some of its very poorest. Much of this is the result of the so-called Maputo Protocol, or, more formally, the African Union’s Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.[viii] Since the Maputo Protocol came into effect in 2005, seven sub Saharan countries have taken steps to liberalise their abortion related legislation in order to bring their laws in line with the Protocol. To give just a few examples, since 2012 Benin is permitting abortion care even for economic and social reasons up to the 12th week after conception. Cape Verde permits abortion on demand up to the 12th week after conception, too. The Democratic Republic of Congo has taken to publishing the full text of the Protocol in the government gazette, thereby making it law.[ix] The result of this have been truly sweeping changes liberalizing the country’s abortion regime. Sierra Leone’s government introduced a bill in the country’s parliament that would, if passed, decriminalize abortion, and expand access to contraceptives as well as other reproductive health services. While this won’t change the country’s staggeringly high maternal deaths’ rate of around 10% over night, that is a result of unsafe abortion practices, it is an important start to bring about much needed change.[x]

Much more needs to be done on the continent as well as elsewhere in the global south. Access to abortion care is an essential feature of quality reproductive health care, but while it is arguably a necessary condition, it certainly is not sufficient. As Moodley and Akinsooto point out, even in a country like South Africa, with its liberal abortion care regime, ‘there is a need to place more emphasis on the delivery of efficient contraceptive services and reproductive health education for women.’[xi] I’m tempted to add here, ‘and men’. Unsurprisingly, in the United States the same political actors who support the reversal of Roe vs Wade are also keen to make access to contraceptives more difficult.[xii] The legal tool of choice is conscientious objection accommodation.[xiii],[xiv] Women’s health and well-being continue to remain secondary considerations in ideologies that motivate forced birth policy commitments.

[ii] Tanne JH. 2022. Roe v Wade: Medical bodies declare support for abortion rights, as doctors and states face confusion. BMJ 378:o1643 [accessed July 6, 2022]

[iii] Allen EA. 2022. In new interview, Pope Francis talks about Roe v Wade, resignation rumors. The Tablet  July 05. [accessed July 6, 2022]

[iv] Thomson JJ. 1971. A Defense of Abortion. Philosophy and Public Affairs 1(1): 47-66.

[v] Perritt J, Grossman D. 2021. The Health Consequences of Restrictive Abortion Laws. JAMA Internal Medicine 181(5): 713-714.

[vi] Moodley J, Akinsooto VS. 2003. Unsafe Abortion in a Developing Country: Has Liberalisation of Laws on Abortion Made a Difference? African Journal of Reproductive Health / La Review Africaine de la Sante Reproductive 7(2): 34-38.

[vii] Chadwick RF, Schuklenk U. 2021. This is Bioethics. Wiley-Blackwell: Chichester: 79-84.

[x] Akinwotu E. 2022. Sierra Leone backs bill to legalise abortion and end colonial-era law. The Guardian July 06. [accessed July 6, 2022]

[xi] Moodley J, Akinsooto VS. 2003. Op. cit.

[xii] Wensel TM, Brown SA. 2020. Contraceptive prescribing and the Catholic pharmacist. Journal of the American Pharmacists Association 60(2): 291-292.

[xiii] Bhakuni H, Miotto L. 2021. Conscientious objection to abortion in the developing world: The correspondence argument. Developing World Bioethics 21: 90-95. [accessed July 6, 2022]

[xiv] Villarroel R, Montero A. A critical review of conscientious objection and decriminalisation of abortion in Chile.  Journal of Medical Ethics 44:279-283.


Wednesday, May 18, 2022

Argumenta ad passiones: Canada Debates Access Thresholds to MAiD


Canada’s parliament is reviewing its MAiD (medical assistance in dying) legislation. This is because there were some issues left to be addressed in the future when the country initial decriminalised MAiD. It is also conducting a global review because more than five years have passed since MAiD became legal in Canada and it is time to review how things are going elsewhere. The purpose of this commentary is not to go into the legal details of the discussion, this is better left to legal minds, but to focus on some of the salient ethical issues that appear to motivate another round of heated arguments between those in favour of restrictive access criteria and those supporting a more liberal approach to MAiD access.

Proponents of restrictive access criteria rightly point to the fact that – historically – arguments in favour of MAiD oftentimes went along the lines that a terminally ill patient with unbearable pain could only find relief if their request for MAiD would be granted. The paradigmatic cases were late-stage cancer patients, and, indeed, it is this group of patients that still makes up the majority of MAiD cases in most jurisdictions, including Canada. It is noteworthy that Canada’s Supreme Court in its landmark decision that decriminalised assisted dying did not base its judgment on that rationale. Terminal illness was never an access threshold in the country. Here are the access criteria laid out in the Supreme Court’s judgment:

Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.[1] (para 147)

Some of the criteria here were in part a result of findings that indicate that the motives that lead to MAiD requests are oftentimes not the result of insufficient pain management, they have to do with one’s life being unbearable, and with there being no end in sight with regard to that kind of suffering. Pain is only one possible contributing factor here, if oftentimes an important one. If the disease conditions that lead to such a dire life situation are intractable but not terminal patients are arguably worse off than those who do suffer from a terminal illness, because potentially they could be forced to suffer unbearably for many decades.  This suggests that pro-choice campaigns that focus solely on the pain experienced by some terminally ill patients are misguided.

What ethically justifies making MAiD available for decisionally capable patients is a combination of societal respect for self-regarding autonomous choice and an informed decision by a patient that their life is unbearable as a result of a particular intractable illness, disease, or disability. That illness may be cancer in some cases, it may be depression in other cases, it may also be some kind of disability.

Some of the arguments that excite Canadians currently are peculiar to the country. One such argument is the claim that the pending liberalisation of access criteria demonstrates that slippery slope concerns by opponents of MAiD were well-founded. After all, less than a decade since the Supreme Court judgment more groups of patients will become eligible for MAiD. In most other situations where these are the facts of the matter advocates of liberal and restrictive MAiD access policies would debate questions such as whether an increase of people eligible to access MAiD constitutes a slippery slope or not. To some the mere increase would be evidence of a slippery slope, to others the increase would be a sign of a maturing access system that’s fine-tuned, quite deliberately so, in order to meet patient needs. It’s probably fair to say that the philosophical technical term ‘slippery slope’ has taken on a life of its own in Canadian public MAiD discourse. It’s fairly liberally attached to situations one wants to criticise.

In Canada these arguments would be missing an important fact: The starting point of Canada’s MAiD policies was the earlier quoted Supreme Court judgment that prescribed arguably liberal access criteria. It was followed by unconstitutional government legislation introducing a restrictive regime. Current attempts aimed at fixing this legislation would merely take the country back closer to where its MAiD journey began, namely the Supreme Court’s criteria. Strangely, proponents of restrictive access criteria choose to start with the unconstitutional legislation, then pointing to a widening of access criteria as evidence of a slippery slope, while ignoring the actual starting point, namely the framework provided in the Supreme Court judgment.[2]

Of course, one would expect academic proponents of slippery slope arguments to be aware of this history. I do wonder, for that reason, whether the deployment of such arguments is aimed at understandable anxieties about risks attached to the introduction of MAiD among people less familiar with these chronological details. Perhaps these argumenta ad passiones are more about effective political campaign strategies than they are about the facts of the matter.

Another example of this are attempts to exploit the dire straits that some patients find themselves in in the service of anti-choice activism. Ostensibly the concern is about protecting vulnerable patients, but in reality these efforts translate into removing the agency of decisionally capable patients without offering them a way out of their predicament. Patients ultimately would be worse off if this activism succeeded.

Consider this case that made the news both in Canada[3] as well as internationally[4]. I encourage you to study the two news reports as they are good examples of campaign journalism versus factual reporting. Reportedly a woman on disability benefits who experienced severe sensitivities to chemicals chose MAiD, because her efforts aimed at moving into special housing suitable for her needs failed. It has been suggested that it is not the case that she badly wanted to end her life, but rather that she considered her quality of life unbearable as a result of her inability to access more suitable housing. There are more details to this case than were revealed in the media coverage and it is certainly not the case that her decision turned solely on housing.  Regardless, there are certainly good reasons to empathise with the deceased and to be critical of government agencies’ failure to accommodate her.

On a conceptual level this case might seem to be an example of types of cases where arguably social determinants of health play a significant role in patients’ requests for MAiD. Proponents of restrictive access regimes use such cases to appeal again to anxieties about abuses in liberal MAiD regimes. This can be found in views[5] expressed along this line: ‘it’s easier to receive MAiD in Canada than adequate housing for the poor.’ The hope behind the statement is that the listener will be suitably offended by this and joins the campaign for a restrictive MAiD access regime.

These argumenta ad passiones are flawed. For one thing, on a regulatory level, Canadian MAiD legislation operates at federal government level, while health- and social care is a provincial responsibility. Any suggestion then that these liberal access criteria are designed to reduce health- and social care costs ignores the division of responsibilities for the delivery of health care. Furthermore, and this is arguably the more important ethical question: How would this patient have been any better off for not being able to choose MAiD, given her circumstances?  It’s only right to criticise government for not providing adequate housing for people like the woman in this case, but it does not follow that therefore she should not be able to access MAiD. In fact, in Canada, the level of government responsible for MAiD legislation is not even in a position to address the housing issue.

The same argumenta ad passiones come into play when it comes to the question of whether decisionally capable people with mental illnesses should be able to access MAiD. The arguments here follow the by-now-familiar pattern. They appeal again to anxieties, on this occasion about abuse inflicted on vulnerable psychiatric patients, flag the dismal state of mental health services and move from there to campaigning against granting decisionally-capable people with mental illnesses access to MAiD. Of course, in reality even state of the art best psychiatric care fails a significant number of psychiatric patients with refractory conditions. It also remains true what I pointed out already in the case of the woman with severe sensitivities to chemicals, namely: how would a psychiatric patient who is failed by an unresponsive health care system be any better off for having their ability removed to request and receive MAiD if they meet ethically defensible access thresholds? The health care system will be no more responsive. One also has to wonder how proponents of such arguments square their activism with decade-long attempts to destigmatise mental illness, given that their primary objective here seems to be to remove these patients’ agency when such patients make choices they happen to find disagreeable.

Thursday, August 19, 2021

Access to mental health care – a profound ethical problem in the global south

From Developing World Bioethics

As I write this on October 10, 2020 World Mental Health Day is upon us once again. The global picture of the suffering that mental health problems visit upon humanity remains as grim today as it does in every other year. Neuropsychiatric disorders remain stubbornly the third leading global cause of disability-adjusted life-years. Reliable access to mental health care, when it is needed, remains a significant problem even in the global north, but those problems pale into insignificance when compared against the situation in much of the global south. According to WHO data about 75% of people with mental health problems in the global south receive no treatment for their illness.1 The disruption of health services, courtesy of the global response to COVID-19, has resulted in already unreliable and insufficient access to health care under ‘normal’ circumstances turning into no access for many. That has impacted patients seeking relief from mental illness-related suffering disproportionately. The disregard for the suffering mental illness causes in the global south is also reflected in global health aid allocations to this problem. As far as global health aid is concerned, only about 1% of international development assistance for health is earmarked for mental health. Considering the much higher contribution to disability-adjusted life years impact that mental illnesses make, this does raise questions of distributive resource allocation justice.

Human Rights Watch recently released a landmark report that shines a light on how countries in the global south respond to patients with mental illness related needs. They often put them in chains or shackle them in confined spaces. The human rights group quotes ‘Paul’, a patient who has been chained in a ‘faith healing’ institution in Kenya: ‘I’ve been chained for five years. The chain is so heavy. It doesn’t feel right; it makes me sad. I stay in a small room with seven men. I’m not allowed to wear clothes, only underwear. I have to go to the toilet in a bucket. I eat porridge in the morning and if I’m lucky, I find bread at night, but not every night…. It’s not how a human being is supposed to be. A human being should be free.’2 – Whatever ‘Paul’s' mental health issues may be, he is right. If he is a service user who does require permanent care, this surely isn’t the type of care that he is owed. Unsurprisingly, one explanation for the abuse that ‘Paul’ is subjected to has to do with the fact that ‘in many countries around the world, there is a widespread belief that mental health conditions are the result of possession by evil spirits or the devil, having sinned, displaying immoral behaviour, or having a lack of faith. Therefore, people first consult faith or traditional healers and often only seek medical advice as a last resort.’3

I reported in an Editorial in this journal last year about questionable research in such ‘faith healing’ institutions.4 The research was undertaken with the best of intentions,it aimed to reduce the number of people with mental health issues living in chains in such ‘healing’ outfits. The researchers tried to show that other methods, involving actual professional care, are superior to mere praying while-in-chains. While they were able to show that, apparently little has changed since then. Human Rights Watch reports that shackling occurs today in at least 60 countries across Asia, Africa, Europe, the Middle East, and the Americas.

I would urge bioethics researchers to focus at least some of their valuable attention on the plight of the global south’s mentally ill people and their need to access professional health care. It’s unlikely to capture as much public attention as the much-discussed question of how to allocate a prospective COVID-19 vaccine, but it’s arguably of greater importance.

From the chimera research frontiers: Ethics of monkey–human embryos

From Bioethics

It was just a matter of time after the successful creation of pig and cow embryos grown with human cells that some researcher somewhere would think it might be worth trying to find out whether it is possible to grow more closely related monkey embryos with human cells, and so they did.1 The experiment reportedly has not been a straightforward runaway success, but, of 132 monkey embryos injected with human extended pluripotent stem cells, three embryos were still alive at day 19. The low success rate may be a consequence of the fact that the researchers, led by a stem cell biologist at the Salk Institute, have not quite figured out yet how to manipulate which cells grow into which kind of tissue.

The primary objective of such research is not to develop more human-like monkeys, or more monkey-like humans, but to create new pathways towards making new organs for transplant purposes. This does raise interesting ethical questions. First among them is the question of what the moral status of such chimeras would be, should they ever be birthed. Then there are other issues, such as whether such research is itself ethically defensible, seeing that its primary objective is to—essentially—create a new source of organs for humans. Would it be ethically acceptable to create highly developed monkey–human chimeras only to kill them in order to extract organs for xenotransplantation purposes? Arguably the shortage of organs for transplant purposes can be addressed by changing how we go about sourcing them. Options available to us range from paying prospective donors for their organs to making it more difficult for those opposed to the use of their organs after their demise to opt out. Creating a new class of highly developed chimeras for xenotransplantation purposes does not appear to be necessary to achieve what is otherwise an uncontroversially desirable objective.

What about the uncertainty about moral status mentioned earlier? Let us assume that at least one of the remaining embryos could be successfully implanted (something not planned by this research team) and carried to term. What would be the moral status of the newborn chimera, seeing that it is a hybrid made up of both monkey and human cells? Those of us not hung up on species membership will focus on the capabilities of the newborn and base our answer to the moral status question on those capabilities. Is there sentience? Then inflicting pain and suffering on it matters morally. If, as was the case when human glia cells were injected into mice brains, mental capacities turned out to increase as a result of the monkey–human stem cell mix,2 then the moral status of the chimeras should rise. What matters for the determination of your moral status should be your capabilities, not how those capabilities came about. If anything, such a finding should give us further cause to reconsider using such chimeras as a convenient solution to our organ-shortage problem.

Julian Savulescu and Julian Koplin have considered a different solution. They propose a two-step solution: ‘Firstly, the cells which cause human brain development should be knocked out through gene editing, if possible. And secondly, the live-born chimeras should not immediately be “used”, instead, they are allowed to develop in social groups and are studied for their cognitive capacities and potential for non-verbal communication’.3 This strategy would permit us to study the chimeras carefully, and make a considered determination of what their moral status is, and of what is and what is not morally owed to them.

Of course, those opposed to the use of non-human primates for research purposes will likely be opposed to their use as living human organ banks, too, whether they are primate–human chimeras or ‘just’ primates. We do not need to rehearse those ethical arguments here, as readers of the journal will be very familiar with them.4 Berna Sozen, a stem cell biologist at Yale University, is quoted as saying that ‘it is really hard to say that it will ever be possible to grow organs for transplantation by creating these animal–human chimeras, but this research should continue for us to understand whether we will ever achieve this’.5 My view would be that it serves no apparent purpose to find out, if one is not also prepared to use such chimeras as mere means-type vessels carrying organs for transplant purposes. That seems difficult to justify.

Disability, mental illness, and medical assistance in dying in Canada: Recent slippery slope and social determinants of health arguments miss the mark

Cross posted from JME blog. 

By Jocelyn Downie and Udo Schuklenk

In its 2015 landmark Carter decision, Canada’s Supreme Court ruled that the blanket criminalisation of medical assistance in dying (MAiD) unjustifiably infringes on Canadians’ rights and declared that the prohibitions were:

“of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The ruling’s eligibility criteria meant that someone who requested MAiD did not have to be suffering from a terminal illness. For instance, some patients suffering non-lethal intractable mental illnesses or disabilities could be eligible to request and receive MAiD.

Canada’s Parliament responded 16 months later with legislation (Bill C-14) defining persons with a grievous and irremediable medical condition thus:

“(a) they have a serious and incurable illness, disease or disability; (b) they are in an advanced state of irreversible decline in capability; (c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and (d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.”

With this narrow definition, the country’s political leaders demonstrated an unwillingness to fully reflect the Supreme Court’s boundaries of permissibility in the regulatory regime they sought to introduce, despite warnings during parliamentary hearings by constitutional law experts that the Bill was inconsistent with both the judgment and the Canadian Constitution. The Canadian Senate unsuccessfully tried to amend the Bill to remove the unconstitutional provisions. Predictably, within days of the Bill passing it was challenged in court in British Columbia and Quebec. The Quebec trial court agreed with the plaintiffs, declaring that the “reasonably foreseeable” eligibility criterion violated their constitutional rights, including that it unjustifiably discriminated against persons with disabilities (and others whose natural death was not reasonably foreseeable) by preventing them from accessing MAiD.

The Canadian government chose not to appeal this decision (publicly acknowledging that it was sound and that they would lose on appeal) and proposed Bill C-7 to bring its legislation in line with constitutional requirements. The Bill removed “natural death has become reasonably foreseeable” as an eligibility criterion for MAiD, so persons with disabilities as their sole underlying medical condition could access MAiD. However, persons with a mental illness as their sole underlying medical condition could not because the government added an exclusion criterion – for the purposes of the “serious and incurable illness, disease or disability” provision in the legislation, mental illness is not considered an “illness, disease or disability.” However, Parliament added a sunset clause to this exclusion so in March 2023 there will automatically no longer be a blanket exclusion of people with mental disorders as their sole underlying condition.

As Bill C-7 was being considered by Parliament, there was a heated debate about the inclusion of people with disabilities and mental illnesses as their sole underlying conditions. Commentators invoked slippery slope arguments and arguments grounded in concerns about the role of social determinants of health in MAiD requests. These deserve a response.

Slippery slopes

Some argued that making MAiD available to people with mental illnesses or disabilities as their sole underlying condition was evidence of a slippery slope, as predicted by opponents of MAiD when the initial legislation came into effect. They argued that because the change from C-14 to C-7 moved Canada in a more permissive direction, it was evidence of an – in their view – unwanted slide down a slippery slope.

However, slippery slope claims vis-à-vis today’s law take a narrowly composed snapshot that fails to capture the entire scene. Yes, the change from C-14 to C-7 moved Canada in a more permissive direction. However, that ignores where Canada was before C-14. The change from the Supreme Court 2015 criteria to 2016’s C-14 moved Canada in a restrictive direction. Canada did not become more permissive between Carter and Bill C-7. Rather, Canada unconstitutionally restricted the eligibility criteria for a few years, but today the country is back where the Supreme Court of Canada put it in its decision.

Social determinants of health

Some disability rights activists opposed to the proposed reforms to Canada’s legislation argued that it is never the disability or the mental illness that renders a person’s life not worth living to the person, but rather it is the person’s social determinants of health. On this view, people with disabilities or mental illness as their sole underlying medical conditions seek MAiD because their suffering is caused, not by their condition, but rather by the absence of reliable support services when they are needed or poverty, homelessness, and other social determinants of health. These activists argue, persons with disabilities or mental illnesses as their sole underlying condition should be ineligible for MAiD until the disparities in the social determinants of health are fully remedied.

These arguments disrespect the lived experience of some people with disabilities or severe mental illness who report that their suffering is caused by their condition and not by social determinants of health. These arguments also fail to recognize that: some people with disabilities or severe mental illness seeking MAiD are privileged and not lacking with respect to the social determinants of health; and some people with disabilities or severe mental illness have good access to all possible treatments. A collective’s vulnerability tied to the social determinants of health cannot be used to justify overriding an individual’s right to choose.

Even if one accepts (as we do) that supports and services for persons with mental illnesses and disabilities should be dramatically improved, it still does not follow that a patient who is unwilling to tolerate their situation any longer should be stripped of their agency to request MAiD. Removing such patients’ agency to make such decisions condemns such patients to potentially very long periods of excruciating suffering, in an attempt to improve a particular health care system – reducing these patients to a mere means used to achieve another, worthy, objective. The decision to partake in such activism should be a person’s voluntary and deliberate choice. It should not be a result of holding decisionally-capable people hostage to the project of reform.

Furthermore, many people with disabilities support access to MAiD for persons with disabilities. The available polling demonstrates that. And it should not be ignored that the lead counsel in Carter, the sponsor of Bill C-7, and the plaintiffs in the Quebec case were all persons with disabilities – vehemently arguing that denying this group access to MAiD is stigmatizing, strongly paternalistic, and unjustly discriminatory.

Looking forward

Canada clearly has a permissive MAiD regime. Its legislation embodies a regime that respects the rights of each individual autonomous person with a mental illness or disability causing them enduring and intolerable suffering to choose to end that suffering through MAiD.

Paper title: Social determinants of health and slippery slopes in assisted dying debates: lessons from Canada

Authors: Jocelyn Downie and Udo Schuklenk


JD: School of Law, Dalhousie; University Schulich School of Law, Halifax, Nova Scotia, Canada

US: Department of Philosophy, Queen’s University, Kingston K7L 3N6, Ontario, Canada udo. schuklenk@ pm. me

Competing interests: None declared.

Social media accounts of post authors:

Jocelyn Downie twitter @jgdownie

Udo Schuklenk twitter @schuklenk

Ethical Progress on the Abortion Care Frontiers on the African Continent

The Supreme Court of the United States of America has overridden 50 years of legal precedent and reversed constitutional protections [i] fo...