Gosnell, after-birth abortion, and Down syndrome

Kermit Gosnell
(AP Photo/Philadelphia Daily News, Yong Kim)

Kermit Gosnell, a Philadelphia physician, was convicted this week for  first degree murder. A jury found him guilty of killing babies born alive after botched abortion procedures. There are academics who have cited prenatal testing and selective abortion for Down syndrome to argue that not only are Gosnell’s actions not criminal, but morally justifiable.

Last year, the Journal of Medical Ethics featured an article by Alberto Giubilini and Francesca Minerva entitled “After-birth abortion: why should the baby live.” The authors argued that because just-born infants have not achieved self-awareness, they did not enjoy the moral status of persons. They cited the high termination rate following a prenatal diagnosis for Down syndrome to argue that parents who did not receive a prenatal diagnosis in time to terminate still should not be burdened raising a child they did not want. Since medical ethics permitted killing the child before it was born, they argued the child still could be killed even after birth–hence “after-birth abortion.”

The Gosnell criminal defense team did not call any witnesses, but perhaps they should have called these authors as expert witnesses.

Just as there are academics who would argue that Gosnell’s actions were not morally wrong–indeed they would argue he was carrying out the intentions of the mother–Gosnell also may not have been convicted had he simply been located in another country.

For several years now, the Netherlands has permitted what is called “The Groningen Protocol.” The Protocol describes when medical professionals may actively kill newborns who meet certain criteria for medical futility and fragility. A child born with Down syndrome was one of those killed by the Groningen Protocol even before it was announced.

In the United States, there is a federal law that is supposed to prohibit the actions of Gosnell and the Groningen Protocol from happening. It is called the Born Alive Infant Protection Act or BAIPA. Testimony in support of a state-level version of BAIPA included that of a nurse from a Chicago-area hospital. She testified about a child born with Down syndrome who was left to die in the hospital’s soiled utility room.

Before the testimony of BAIPA, there were the Baby Doe regulations. I wrote previously about the Baby Doe case: a child born with Down syndrome in the 1982 whose delivering doctor advised his parents to leave the child to die rather than repair a birth defect where his esophagus was not connected to his stomach–a procedure that is routinely performed successfully.

Just this month, however, an English politician was re-elected after making statements that would make an exception to BAIPA. Councillor Colin Brewer of Cornwall had resigned after saying that disabled children “should be put down.” He was re-elected on May 2, but has not backed off of his statements. Instead, in a more recent interview he compared malformed children to malformed sheep, which a farmer disposes of “by smashing them against a wall.”

There is a variety of arguments that can be made about all of these points. And, the Journal of Medical Ethics has an entire issue available online that is devoted to the issues raised by the “After-birth abortion” article. One of those articles makes the very simple (and I think persuasive) point that arguing about whether it is ethical to kill innocent newborns is madness. To illustrate his point, the author, Robert P. George, makes the analogy that a modern-day argument justifying the enslavement of certain classes of people would also be madness. Similarly, it simply is madness to feature in a journal devoted to medical ethics an argument that legitimizes killing newborns simply because the parents do not want to raise them.

But, clearly, that is not what some physicians have considered when it comes to newborns born with Down syndrome. They have been left to die in the corner of a nursery as stomach acid ate away at their internal organs. They have been left to die in hospital soiled utility rooms. And, they have been actively killed by doctors.

That these medical decisions are not also recognized as crimes and madness is yet one more demonstration of how prenatal testing for Down syndrome does not occur in a sterile vacuum, but is administered by real people in a profession that has a history of its members deeming lives with Down syndrome not worthy of receiving medical care.

To be clear, this is not to say these physicians are representative of the medical community. But, until the professional societies publicly condemn the killing and letting die of children born with Down syndrome, it is only a matter of time before another crime is committed. And, the guilty physicians can point to historical medical practice, a journal on medical ethics, and an international protocol to justify their actions.