Is Terminating a Late-Term Zika Fetus Euthanasia?

This article was first published on the Verdict site.

The Zika virus has now infected over 7,000 people in the United States (if we include the U.S. territories) and, accordingly, has affected increasing numbers of pregnant women among them.

Because Zika can cause catastrophic birth defects in those infected with the virus, the spread of the infection in the United States and elsewhere has led some to ask soul-searching questions about abortion.

Further complicating matters, the severe birth defects caused by Zika are not detectable by ultrasound until late in pregnancy. Thus terminations of Zika pregnancies combine two morally fraught questions: (1) Is it right to end a pregnancy because the baby would be severely disabled if brought to term? and (2) Is it right to take the life of a fetus late in pregnancy, regardless of the reason?

Reasons for Termination Should Be Irrelevant for Legal Purposes

As I argued in an earlier column, I generally consider the reasons for a woman's choice to terminate her pregnancy to be irrelevant to the question of whether she should be legally permitted to do so. Like a woman who chooses not to have sex with a man for a bad reason, she is still entitled to be free of the bodily intrusion that is pregnancy, even if her reason for wanting to assert her bodily integrity is an offensive one. The most salient part of the equation is the fact that her bodily integrity is at issue.

Nonetheless, when large numbers of women may be terminating their pregnancies because of a particular set of birth defects, caused by the Zika virus, it is worth considering the moral question, even if our answer will not affect the legal conclusion that the woman should be free to terminate.

Is it right to terminate a pregnancy because the resulting child will suffer from birth defects?

Part of an answer depends on the nature of the birth defects. In the case of Zika, they can be horrifying, leading to microcephaly and a very abnormally developed brain, hardened calcium deposits in the brain, a breakdown in brain tissue and brain swelling, among other problems.

Therefore, unlike the case of Down syndrome, when the parents may be choosing abortion despite the fact that a Down syndrome child would be happy and glad to be alive, the decision to terminate the life of a Zika-infected fetus is arguably in the best interests of the fetus itself. Stated differently, it may be that an abortion will spare not only the parents but their child a life that is, in some sense, not worth living.

Ordinarily, if a termination takes place before a point in pregnancy when we consider abortion to be very close to killing a child, we have the luxury of being able to make a calculation that some lives may not be worth living. After all, people with markers for genetic diseases use birth control because they make that very judgment about the potential offspring that they would have, and few people quarrel with that use of contraception.

And interestingly, the Pope has himself reportedly suggested that contraception (ordinarily barred by the Catholic faith) could be morally acceptable in the battle against the Zika virus.

To the extent that an abortion happens when we still consider the fetus a "potential" life, then, the calculation that it would be better for this person not to come into existence at all than to be born and to live a catastrophically impaired life is one that, as with birth control, many of us would not judge to be morally problematic.

When Abortion Becomes Euthanasia

The problem with Zika birth defects is that they may not be detectable to doctors until relatively late in pregnancy, perhaps at a point when many of us would regard an abortion as morally significant.

In my view, the point of moral significance is sentience, when the fetus is capable of experiencing pain or pleasure, and that may happen in the latter part of the second trimester or early part of the third trimester. Others may place the moral line at a different point, but the later in pregnancy we are referencing, the more likely that people will have the moral intuition that we are no longer talking about a "potential" child but are instead talking about either an existing child or at least someone worthy of nearly as much moral consideration as a newborn baby.

News reports have some women terminating Zika-affected pregnancies very late term, including, in one case, at 32 weeks. By this point, a normal, non-Zika fetus could be delivered, viable and grow into a healthy baby. Indeed, it is not that unusual for a woman to give birth early at this point and to have what is already considered a "baby" (rather than a fetus) at the time of its birth.

Accordingly, at this stage, two facts emerge that may change the moral calculus of abortion.

First, if the woman were truly concerned only about her bodily integrity, she could induce labor and safely give birth to her child, thereby ending her internal occupation without causing the death of her fetus/baby. It is therefore no longer clear that abortion (in the sense of killing rather than simply removing the fetus or baby) should even be legally acceptable, and most states prohibit post-viability abortions that do not threaten the life or health of the mother.

Second, because bodily integrity may no longer be a plausible driver of the abortion right, the choice to terminate the life of the fetus or child truly becomes a form of euthanasia rather than abortion. In other words, because we can no longer say that terminating the pregnancy will necessarily terminate the life of the fetus or baby, the choice to have an abortion (one that kills the fetus or baby) is really a choice to take the life of the fetus or baby because it is not considered a life worth living.

Once we enter the realm of euthanasia, it is no longer clear that late abortions for Zika virus can be morally justified. To answer the question whether they are, we may need to ask whether it would be morally and/or legally acceptable to kill the Zika-afflicted baby, once born, when abortion is no longer even arguably part of the equation.

As a moral matter, some might want to argue that the lives of infants may be so compromised by defects, as would be the case for many of these babies, that killing them painlessly at birth would be a kindness rather than a harm.

At this point in time, though, laws in the U.S. do not recognize euthanasia as a legitimate approach to an infant (or an adult) whose life might not be considered worthwhile, due to impairments or pain or some other index of value.

Indeed, many within the disabilities rights community would find horrifying the prospect of euthanizing someone because of his or her impairments, especially when we are talking about an infant who cannot in any way give consent to the choice.

Once we characterize the late-term abortion of Zika fetuses as tantamount to euthanasia, then, our laws and the moral intuitions that underlie them utterly reject such an abortion, and feminist arguments for bodily integrity no longer have much purchase.

A Legal and Moral Loophole

In short, then, the Zika virus and its impact on pregnancy raises extremely painful and difficult issues that we can ordinarily avoid when discussing abortion of pregnancies that would result in birth defects.

The dilemma highlights the moral issue of discriminating against the disabled, always in the background when people terminate for Down syndrome, and brings that issue front and center, due to the late stage in pregnancy when defects are discovered.

If one nonetheless concludes that because of the potentially catastrophic nature of the birth defects, children with Zika are better off not existing than living the severely compromised lives that they would otherwise live, the fact that they live inside a pregnant woman may give people a legal—if not a moral—loophole through which they can achieve their desired end, though it is really euthanasia.

The pregnant woman can find a place where very late-term abortions are permitted, and end her pregnancy for the sake of the child who would otherwise have been born. She can do so without beginning the slide down the euthanasia slippery slope, because we can fit what she has done under the heading of "abortion" instead of "euthanasia."

But though this might work legally, the issue of euthanasia nonetheless lurks and beckons to us to answer the question: might some lives be better off ended than permitted to continue, given what is in store for them? The woman who terminates at 32 weeks for Zika-caused birth defects may thus have indirectly made a case for euthanasia, while allowing us to pretend that what she has had was just another abortion.

Sherry F. Colb is professor of law and Charles Evans Hughes scholar at Cornell Law School. Her most recent book is Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans.