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Women and children first: transforming a historic defining moment into a contemporary ethical imperative

2009; Elsevier BV; Volume: 201; Issue: 4 Linguagem: Inglês

10.1016/j.ajog.2009.07.008

1097-6868

Frank A. Chervenak, Laurence B. McCullough,

Ethics and Legal Issues in Pediatric Healthcare

“Women and children first” is a familiar phrase and comes down to us from the heroic sacrifice of their lives by British soldiers on the HMS Birkenhead in 1852. “Women and children first,” the New York Declaration of the International Academy of Perinatal Medicine, has defined biases in the allocation of health care resources for women and children in the developing world. In this clinical opinion, we identify challenges to the just allocation of resources for fetal, neonatal, and pregnant patients and provide ethically appropriate responses to these challenges. We distinguish substantive justice from procedural justice and identify biases against pregnant, fetal, and neonatal patients related to both substantive and procedural justice. We then identify ethically justified responses to these biases that obstetricians should adopt in reforming organizational and public policy by responsibly advocating for fetal, neonatal, and pregnant patients, whose health care otherwise is at risk of unacceptable compromise. “Women and children first” is a familiar phrase and comes down to us from the heroic sacrifice of their lives by British soldiers on the HMS Birkenhead in 1852. “Women and children first,” the New York Declaration of the International Academy of Perinatal Medicine, has defined biases in the allocation of health care resources for women and children in the developing world. In this clinical opinion, we identify challenges to the just allocation of resources for fetal, neonatal, and pregnant patients and provide ethically appropriate responses to these challenges. We distinguish substantive justice from procedural justice and identify biases against pregnant, fetal, and neonatal patients related to both substantive and procedural justice. We then identify ethically justified responses to these biases that obstetricians should adopt in reforming organizational and public policy by responsibly advocating for fetal, neonatal, and pregnant patients, whose health care otherwise is at risk of unacceptable compromise. “Women and children first” is certainly a familiar phrase, but its origin is less well known. In 1852, the HMS Birkenhead, with more than 600 sailors, troops, and civilians aboard, was evacuating the civilians from Cape Town, South Africa, during the Cape Frontier War (1850-1853). At 2:00 am on the morning of Feb. 26, the ship struck uncharted rocks near Danger Point and began to take on water and then to sink.For Editors' Commentary, see Table of ContentsSee related editorials, pages 335 and 336 For Editors' Commentary, see Table of Contents See related editorials, pages 335 and 336 The number of lifeboats was not sufficient to convey all safely off the doomed ship. Many of the troops on board drowned in their berths as the ship foundered. The remaining men and officers of the 74th Regiment of Foot were mustered on deck by their commanding officer, Lt Col Seton. He realized the nature of the situation and ordered his men to stand fast while the women and children were boarded onto the lifeboats. His soldiers obeyed and went down with the ship (Figure).1“Women and children first”—the silent heroes of the Birkenhead.http://www.historic-uk.com/CultureUK/WomenandChildrenFirst.htmGoogle Scholar Although it is not known whether Lt Col Seton used the phrase, “women and children first,” he is credited with being among the first to put it into practice. His heroism and that of his men allowed the women and children on board to be saved. The Birkenhead incident occurred during a period of British imperialism and colonialism. Any incident from such a time would seem to be out-of-place as an exemplar for medical ethics and health policy today. We think otherwise: making “women and children first” was a defining moment in the history of world civilizations and therefore has direct relevance for healthcare today. The sad reality is that women and children are not first in our world; indeed, they are often last. This is especially the case in developing countries, which often do not provide adequate health care for women and children, as reflected in perinatal mortality rates.2United NationsUnited Nations Children's Fund (UNICEF).http://www.unicef.org/Google Scholar International organizations, such as the United Nations Children's Fund,2United NationsUnited Nations Children's Fund (UNICEF).http://www.unicef.org/Google Scholar the World Health Organization,3World Health Organizationhttp://www.who.int/en/Google Scholar and the World Bank,4The World Bankhttp://www.worldbank.org/Google Scholar and international associations of physicians, such as the International Federation of Gynecology and Obstetrics,5International Federation of Gynecology and Obstetricshttp://www.figo.org/Google Scholar Matres Mundi,6Matres Mundihttp://www.matres-mundi.org/Google Scholar and the World Association of Perinatal Medicine,7World Association of Perinatal Medicinehttp://www.wapm.info/Google Scholar have led major efforts to identify problems in obstetric and neonatal care in developing countries and have advocated for improvement. The International Academy of Perinatal Medicine has added its voice to these advocacy efforts, with its “New York Declaration” on “Woman and Children First,” which was presented at the United Nations on July 7, 2008. The declaration defined sources of bias against the just allocation of health care resources for women and children in the developing world.8Chervenak F.A. McCullough L.B. International Academy of Perinatal MedicineWomen and children first–or last? The New York Declaration.Am J Obstet Gynecol. 2009; 201: 335Abstract Full Text Full Text PDF PubMed Scopus (14) Google Scholar The lack of prioritization for health care for women and children is not confined to developing countries. This can also be a problem in the United States and other developed countries. The purpose of this article was to provide obstetricians with effective tools to advocate for the just allocation of health care resources for women and children. This is an especially timely topic for American obstetricians because President Barak Obama has made health care reform 1 of the major priorities of his new administration. Ethics provides powerful tools that obstetricians can and should use to advocate for the priority of women and children in a world that has been largely dominated by politics and, at times, by injustice. The allocation of health care resources is considered using the ethical principle of justice.9Beauchamp T.L. Childress J.F. Principles of biomedical ethics.6th ed. Oxford University Press, New York2009Google Scholar In general, the ethical principle of justice requires that we render to each individual and to organizations what is due them, a concept of justice that originates in the philosophy of Aristotle.10Aristotle Nichomachean ethics Translated with an introduction and notes by Martin Oswald. Boos-Merrill Co, Indianapolis, IN1962Google Scholar The crucial word in this formulation is “due.” What is due to each individual or organization is fair treatment, which can be understood in 2 related ways. The first sense of justice as fairness concerns the outcome of the decision-making process. This is known as substantive justice.11McCullough L.B. Chervenak F.A. Ethics in obstetrics and gynecology. Oxford University Press, New York1994Google Scholar, 12Chervenak F.A. McCullough L.B. Professionalism and justice: ethical management guidelines for leaders of academic medical centers.Acad Med. 2002; 77: 45-47Crossref PubMed Scopus (18) Google Scholar Substantive justice requires that the reasons for setting priorities among competing interests of stakeholders, which determine the outcome of the decision-making process, be persuasive. There are competing accounts in ethical theory about which reasons should count as persuasive and therefore about which actual allocations of scarce resources are fair. In the course of our analysis of challenges to substantive justice in the allocation of health care for women and children in health care policy, we will identify and justify the reasons that should be invoked to guide responses to these challenges. The second sense of justice as fairness concerns a fair process or procedure for allocating scarce resources. This is known as procedural justice.11McCullough L.B. Chervenak F.A. Ethics in obstetrics and gynecology. Oxford University Press, New York1994Google Scholar, 12Chervenak F.A. McCullough L.B. Professionalism and justice: ethical management guidelines for leaders of academic medical centers.Acad Med. 2002; 77: 45-47Crossref PubMed Scopus (18) Google Scholar Procedural justice requires that interests of every individual and organization affected by the allocation of scarce resources should have his, her, or its interests identified and taken into account in the decision-making process. In the course of our analysis of challenges to procedural justice in the allocation of health care for women and children in health care policy, we will identify how the interests of pregnant, fetal, and neonatal patients should be taken into account as the basis for responding to these challenges. Challenges to justice in the allocation of health care resources to women and children in the United States arise for both substantive and procedural justice. We address each set of challenges in turn. Challenges to substantive justice include the self-interest of adults, age bias, and economic bias. There can be 2 kinds of economic bias: against pregnant, fetal, and neonatal patients and against obstetric services. The first challenge to substantive justice in the allocation of health care resources to women and children arises from self-interest. Adults will never again be fetal or neonatal patients, but virtually all will be patients at some time(s) in their lives, especially as they age and, for many, also experience chronic disease and disability. In a society with a lower replacement birth rate among some subpopulations than in the past, such as the United States, the self-interest of adults who have not or will not have children may be another source of self-interest in having health care resources allocated to themselves. These sources of self-interest create a major challenge to substantive justice in the allocation of health care resources to women and children. The response to this challenge draws on professional medical ethics and its core concept of the fiduciary obligation of physicians to protect and promote the health-related interests of patients.11McCullough L.B. Chervenak F.A. Ethics in obstetrics and gynecology. Oxford University Press, New York1994Google Scholar By their very nature, fiduciary obligations to patients are not a function of the patient's age or interest in having children. It follows that, for physicians, the health care interests of 1 population of patients should not be neglected to advance the health care interests of another population of patients. Allocating health care resources based on the self-interest of 1 population of patients when doing so results in inadequate resources for another population of patient is not compatible with professional medical ethics. Physicians should therefore identify and expose such inadequate allocations of health care resources as violations of substantive justice based on professional ethical considerations. A closely related challenge is age bias. In the United States, public funding of health care favors the elderly, in the form of Medicare, which enjoys broad and enduring political support. Before 1965, when Medicare was enacted, millions of elderly Americans were plunged into poverty or near poverty by major illness requiring hospitalization. President Lyndon B. Johnson argued that this was not acceptable because of the sacrifices that the older generation had made, especially during the Great Depression, and that aging cohorts had made in World War II. This was sound ethical reasoning because it appealed to reciprocal justice: those who have sacrificed for society's good have a legitimate claim on society's resources. The commitment to prevent medically induced poverty among the elderly remains sound ethical reasoning. The response to this ethical challenge is not to argue against Medicare and other public support for the elderly because substantive justice does not support such a response. Instead, obstetricians should invoke the life cycle principle to argue for increased priority for health care resources for children.13Emanuel E.J. Wertheimer A. Who should get influenza vaccine when not all can?.Science. 2006; 312: 854-855Crossref PubMed Scopus (128) Google Scholar This ethical principle holds that everyone should have an opportunity to live and develop through all stages of life. The younger one is, the more years one is expected to live. This creates a priority for allocating health care resources to the youngest, fetal and neonatal patients, and, by necessity, pregnant women. The resources that fulfilling such a priority requires, although substantial, are not of the scale as Medicare. Allocating health care resources to women and children may be cost saving (eg, from improved outcomes of pregnancy). In addition, healthier children are more likely to become productive members of society and repay the investment in their health care many times over economically, socially, and in other important ways. A second variant of substantive justice is also relevant (ie, the investment refinement principle), which has direct implications for substantive justice in the allocation of health care resources to pregnant women. This ethical principle “emphasizes gradations within a life span. It gives priority to people between early adolescence and middle age on the basis of the amount the person invested in his or her life balanced by the amount left to live.”14McCullough L.B. John Gregory and the invention of professional medical ethics and the profession of medicine. Kluwer Academic Publishers, Dordrecht, The Netherlands1998Google Scholar Pregnant women are in this category and have an enormous biopsychosocial investment in pregnancies being taken to term and the lives of their future children. With good obstetric (and other medical) care, pregnant women can be expected to live for many years and their children even longer. The investment refinement principle is therefore abundantly satisfied and creates a powerful response to the challenge of age bias by justifying allocation of health care resources to pregnant women. We believe that there is a general bias against the medically indigent in the United States. Medicare's justification was and remains reciprocal justice: to those who have sacrificed much for others and society, much is owed. It can be argued that poverty or near poverty resulting from major illness is not the fault of the elderly, so such poverty is undeserved. In an older discourse from 18th-century Britain, which came to the North American British colonies, the elderly poor were considered the worthy poor. This contrasts with the 18th-century concept of the unworthy poor, those who are able but unwilling to work and support themselves and therefore have no justice on the basis of reciprocity on society.14McCullough L.B. John Gregory and the invention of professional medical ethics and the profession of medicine. Kluwer Academic Publishers, Dordrecht, The Netherlands1998Google Scholar The phrases “worthy poor” and “unworthy poor” are no longer in use, but the concepts may continue to shape health care policy in the United States. Medicaid, a state-federal program of health care for the medically indigent, is not adequately funded, unlike Medicare. Medicaid also has much lower reimbursement schedules than Medicare. The precarious funding of Medicaid, compared with Medicare, may reflect the historical and disturbing distinction between the unworthy and worthy poor, a form of economic bias. This bias becomes especially vicious and therefore egregiously unacceptable when it is applied to children of poverty and fetuses being carried by pregnant women of poverty. This is because impoverished fetal and neonatal patients and many impoverished pregnant women are not able to work and support themselves and are therefore not responsible for their poverty. A powerful response to economic bias comes from the application of the ethical theory of justice of John Rawls (1921-2002), arguably the most important American political philosopher of the last century. Rawls's concern was that allocation of resources can seriously disadvantage the economically vulnerable, the “least well off,” in his nomenclature. A utilitarian public policy would allocate resources to maximize the benefits to the greatest number, but this could leave the situation of the least well off unchanged or even worse. Rawls sought to modify utilitarian substantive justice by arguing that such policy is ethically permissible only if it also improves the economic and social circumstances of the least well off. He called this the “maximin” principle.15Rawls J. A theory of justice.revised edition 1999. Belknap Press, Harvard University, Cambridge, MA1971Google Scholar Failure to constrain the utilitarian impulse by the maximin principle violates justice because unconstrained utilitarianism perpetuates exploitation (ie, a situation in which some are benefited and many others are burdened with no or very limited opportunity to experience offsetting benefit). The least well off, as we suggested in previous text, can be understood in terms of vulnerability, the diminished ability to protect oneself. Fetal and neonatal patients are certainly among the most vulnerable patients, as are pregnant women who are impoverished. The substantive justice-based maximin principle is therefore justifiably invoked to make allocation of resources to fetal, neonatal, and impoverished pregnant patients a health care priority. Unlike neonatal services, which are usually profit centers, there can also be economic bias against obstetric services in health care organizations, especially when they are considered distinctly. This bias results from what can be called the “trumping power” of economic values, which is distinct from economic bias against the poor. By “trumping power” we mean the tendency in public policy and therefore in health care organizations for economic concerns to override or even eliminate all other ethical considerations. This trumping becomes more pronounced when economies experience stagnant growth or contraction, as is currently the case. It is certainly a legitimate interest of health care organizations to be fiscally sound. To protect this legitimate interest, it is ethically permissible for health care organizations to emphasize higher margin clinical services, such as cardiovascular surgery, orthopedics, or oncology, and the profits they generate from high-quality patient care. Ethical concern arises when other clinical services that may not be profitable may be cut back or eliminated, such as inpatient pediatrics. As a consequence, some patient populations come to be viewed as less valuable and therefore less important than other patient populations, an organizational attitude that threatens professional integrity.16Chervenak F.A. McCullough L.B. The diagnosis and management of progressive dysfunction of healthcare organizations.Obstet Gynecol. 2005; 105: 882-887Crossref PubMed Scopus (20) Google Scholar The cost of professional liability insurance has hit obstetrics especially hard in many parts of the United States.17Chervenak F.A. McCullough L.B. Neglected ethical dimensions of the professional liability crisis.Am J Obstet Gynecol. 2004; 190: 1198-1200Abstract Full Text Full Text PDF PubMed Scopus (20) Google Scholar As a consequence, obstetrics' cost profile can be markedly different from that of other specialties. The high cost of professional liability insurance for obstetrics in many states means that economic values gain trumping power at the level of health care organization leadership. The result is that obstetrics often comes to be seen exclusively as a cost center. This means that obstetrics can be viewed as a problem rather than a mission-vital clinical service. This can be manifest by a low prioritization for obstetrics in organizational philanthropic endeavors. The response of obstetricians should be based on professional responsibility, as explicated in previous text: no group of patients, grouped by specialties and their economic value to health care organizations, should count for less than any other group of patients. All groups of patients are important in professional medical ethics, whether 1 group of patients happens to generate more net revenues than another. Before making the case for organizational resources based on the equal importance of pregnant, fetal, and neonatal patients, leaders in obstetrics need to get their financial houses in order (ie, run obstetrics on a sound business basis).12Chervenak F.A. McCullough L.B. Professionalism and justice: ethical management guidelines for leaders of academic medical centers.Acad Med. 2002; 77: 45-47Crossref PubMed Scopus (18) Google Scholar Otherwise, legitimate advocacy will be subjected to unnecessary vulnerability. There is a tendency in all health care systems for economic values to trump or automatically override all other considerations, especially including professional integrity. As the great American folk singer and philosopher, Bob Dylan, once put it, “While money doesn't talk; it swears.”18Dylan B. It's all right, ma, I'm only bleeding.http://www.bobdylan.com/#/songs/its-alright-ma-im-only-bleedingGoogle Scholar By getting their own financial houses in order and advocating for the equal importance of pregnant, fetal, and neonatal patients, obstetricians will be in a position to talk back, countering the trumping power of economic considerations with advocacy for obstetric services as mission vital. There are also challenges to procedural justice. The first is bias in favor of persons and the second is bias against those who cannot speak for themselves. Persons in the ethics literature are understood to be human beings with independent moral status and autonomy. Personhood comes into existence only after birth and, on some accounts, not until the acquisition of language and social identity sometime after birth. Personhood is a self-generated moral status, usually expressed in the language of rights.11McCullough L.B. Chervenak F.A. Ethics in obstetrics and gynecology. Oxford University Press, New York1994Google Scholar The interests of stakeholders with personhood-based rights obviously have to be taken into account to meet the requirements of procedural justice. Any claim that fetuses are also persons and therefore have rights is highly controversial in both philosophical ethics and theological ethics. As a consequence, fetuses are put at a competitive disadvantage in decision-making processes about allocation of resources because their very status as stakeholders is in doubt, especially for those who think that only persons can be stakeholders. The result is a bias in procedural justice in favor of persons because is assumes that only the interests of persons need to be taken into account. Professional medical ethics provides a powerful antidote: the generation of interests from a human being's status as a patient, rather than a person.11McCullough L.B. Chervenak F.A. Ethics in obstetrics and gynecology. Oxford University Press, New York1994Google Scholar All patients have an interest in the protection and improvement of their health. Patients have this interest in virtue of being presented to a physician or other health care professional and the existence of clinical interventions that can protect and improve health. The genius of the ethical concept of the fetus as a patient is that it goes beyond the binomial of being a person or not and therefore undercuts the biases generated by this categorization. The way to take the interests of all patients into account is to recognize that all patients have an interest in being treated according to accepted standards of care. This applies to fetal patients, who are not yet persons, as well as to pregnant patients, who clearly are persons. Obstetricians should therefore point out that procedural justice requires that the interests of all patients be taken into account by those responsible for making and implementing health care policy. In particular, obstetricians should advocate that health care resources be made available to ensure that all patients are treated according to accepted standards of care. Fetal and neonatal patients cannot speak for themselves in the policy-making process. In many cultures, pregnant women struggle to have their interests recognized and taken into account in setting health care priorities.8Chervenak F.A. McCullough L.B. International Academy of Perinatal MedicineWomen and children first–or last? The New York Declaration.Am J Obstet Gynecol. 2009; 201: 335Abstract Full Text Full Text PDF PubMed Scopus (14) Google Scholar As a consequence, the health-related interests of fetal, neonatal, and pregnant patients may not be routinely taken into account on forming and implementing health care policy, which violates procedural justice. Obstetricians are in a unique position to assume an advocacy role because they have expert scientific and clinical knowledge about how to identify and protect the health-related interests of fetal, neonatal, and pregnant patients.8Chervenak F.A. McCullough L.B. International Academy of Perinatal MedicineWomen and children first–or last? The New York Declaration.Am J Obstet Gynecol. 2009; 201: 335Abstract Full Text Full Text PDF PubMed Scopus (14) Google Scholar On this basis, obstetricians should advocate for health care priorities that create resources to support the development and global implementation of evidence-based medical care for fetal, neonatal, and pregnant patients so that their interests are taken into account in a scientific, unbiased fashion. The goal should be the elimination, to the greatest extent possible, of national and wide area variation in the processes and outcomes of obstetric care. Ideally, where a patient lives should not make a difference in the quality of medical care that an individual receives. Obstetricians can be cynical about the ethical principle of justice because it appears abstract and therefore lacks clinical application. This cynicism can be reinforced by their experience with the professional liability crisis.17Chervenak F.A. McCullough L.B. Neglected ethical dimensions of the professional liability crisis.Am J Obstet Gynecol. 2004; 190: 1198-1200Abstract Full Text Full Text PDF PubMed Scopus (20) Google Scholar The antidote to this understandable cynicism and therefore to effective advocacy is to distinguish substantive and procedural justice, explicitly identify biases that distort organizational culture and health care policy, and use relevant concepts of justice to advocate for fetal, neonatal, and pregnant patients whose health care otherwise is at risk of unacceptable compromise.