a) Ontological foundation

Ontological personalist anthropology, which defends the substantiality of the person and the substantiality of the spiritual soul ⁽²²⁾, makes it possible to explain why man is a person from the moment of conception, or why man is a person even if he is in a situation of lesser physical, moral or intellectual integrity ⁽¹⁵⁾. This would be the case of embryos and fetuses, with or without malformations.

The classical philosophers derived the dignity of the human person not only from the intellectuality or rationality of man’s nature, or from his self-awareness, but also from his subsistence dimension. «Being» is affirmed principally in substance; a substance is properly «a being»; that is, that which exists in itself or by itself, or that which subsists by itself and not in another. Only the subsistent individual possessing rational nature can be called a person ⁽¹⁵⁾ and, as a person, he has rights, independently of the functionality or exercise of rationality that he may possess.

The ontological foundation of the person does not reduce the person to his specific acts (present or future), but accepts the existence of the person, as a substance, when his acts do not yet reflect all his capacities, either due to lack of development, as would be the embryo, or when his already developed capacities cannot express themselves, due to a physical or intellectual disability that occurs accidentally ⁽¹⁵⁾. For this reason, he considers that the fetus is a patient from the very moment it begins to exist, after the fusion of the male and female gametes.

Moratalla ⁽¹⁾ agrees with this ontological foundation, and affirms that perinatal medicine considers the fetus as a patient, who can not only be diagnosed better and more accurately, but also treated. The fetus as a patient is in phases of special fragility and vulnerability, thus needing very specialized care. Prenatal therapy seeks a benefit for the unborn and for the intervention to be low risk. It is commonly accepted that, in order to offer any procedure in favor of prenatal health or welfare, the probability of cure or potential benefits, the safety of the intervention, based on experimental animal models, and the assessment of the risks on the life and health of the mother must be assured. Logically, her consent is required after clear and objective information on the risks and benefits for her and for the child ⁽¹⁾. These conditions are very well expressed in the IFMSS criteria (criteria for the performance of fetal surgery created by the founders of the International Society for Fetal Medicine and Surgery in 1982).

The ontological foundation is based on the information offered by biology, which allows us to distinguish a new being from the genetic information of the zygote. From that moment on, there is a new body (empirically verifiable), which possesses its own identity, continues its own life cycle (assuming all necessary and sufficient conditions) under its own autonomous control, which builds itself in a highly coordinated process, dictating to itself the directions of growth, according to the program of its own genome ⁽²³⁾. This zygote will pass, without interruption, through the various stages until it reaches an adult individual. This common identity, maintained throughout development, is what leads us to affirm that the fetus is a person ⁽²⁴⁾. From this observation arises the recognition of an intrinsic dignity of the fetus, which makes it worthy of human rights ⁽²⁵⁾ throughout its existence.

Moratalla describes the «molecular dialogue» between the newly conceived embryo and its mother: As it travels the path to the uterus, the newly conceived embryo releases interleukin molecules, which are received by specific receptors in the mother’s fallopian tubes. In response, the fallopian tubes produce several substances. The so-called growth factors, which allow embryonic development. Survival factors (inhibitors of apoptosis or programmed cell death), which inject the vitality that the embryo needs because, during the first 5 days, it has no more energy than that stored in the ovum. The LIF factor, by having receptors in the cells of the trophoblast (the envelope) of the embryo, makes it possible for its cells to form part of the immune system at this stage of gestation; so that the trophoblast begins to act as the skin of the embryo⁽²⁶⁾.

As we will see below, other positions deny this continuity of the human being, affirming that the person can only be recognized at certain moments of its existence. For these authors, the person would be identified with the manifestations of intellectual capacity, especially in self-reflection. Examples of this position are the authors of utilitarian orientation ⁽²⁷⁾.

b) Functionalist foundation

In contrast to personalist bioethics, there are authors of functionalist currents such as Peter Singer ⁽²⁸⁾, who affirm that ethics extends to all beings endowed with sensitivity: all beings that are capable of feeling pain and pleasure are considered moral subjects. Taking the above into account, Singer places the fetus (not the embryo) in the same moral status as an animal. He also states that it is immoral to allow those beings whose mental capacity is less than ours to suffer. If the fetus feels pain, it can be harmed in a moral sense. In turn, he asserts, the embryo has no interest and, like other insentient organisms, cannot be harmed in any moral sense⁽²⁹⁾.

Dr. Baez-Reyes, from the Instituto Nacional de PerinatologíaClínica de Especialidades de la Mujer (Mexico) ⁽³⁰⁾, has a more pro-fetus stance: she defines it as a «potential person»: the union of the sperm and the oocyte gives the potential for a fetus to become a person with morally relevant reason, and the term potential is used to describe a possibility for the fetus, which is a potential person on that path, as long as its growth is not affected. She also asserts that the fetus, or also called a potential individual, is a different patient from already born and developed children. For this reason, she rightly affirms that sick fetuses have the moral right to be attended and treated when there is a cure, with the prior consent of the parents, being the responsibility of the health services to offer them the benefits of the medical systems, with the necessary quality and warmth. However, it assures with words typical of the current neo-language and with a concept of human dignity typical of those who think that there is an ontological leap that turns a potential individual into a developed person that, when faced with a fetus with defects or diseases incompatible with life, the latter has the right to be treated with all respect and in accordance with the decision of the parents not to prolong its agony beyond birth, with all the burden of medical assistance and therapeutic ingratitude that will only lengthen its deteriorating and painful terminal process; also has the right to a dignified death prenatally⁽²⁸⁾.

Chervenak and McCullough ⁽³¹⁾ can be included in this group, although they could also be included in the third (because they resort to principled concepts). They claim that the moral status of the fetus depends on whether it is reliably expected later to achieve the relatively unambiguous moral status of becoming a child and, even later, the moral status of becoming a person ⁽²⁹⁾. This is arguably a «conditional» recognition. The fetus is a patient, and therefore a person, when it is reliably proven to have a chance of becoming a child ⁽²⁹⁾. They argue that possessing a moral status means that others have an obligation to protect and promote the interests of that entity. They disagree with the assertion that a fetus has a moral status independent of other entities, including the pregnant woman, the physician, and the state, thus creating obligations of others toward it ⁽²⁹⁾.

These authors explain that the first link between a fetus and its subsequent moral status as a child and then as a person is extrauterine viability ⁽²⁰⁾. When the fetus is viable and the pregnant woman presents herself to the physician (formally caring for her pregnancy), that is when, in the view of these authors, the fetus becomes a patient ⁽²⁹⁾. The second condition that makes a fetus jump ontologically to become a child and then a person is the pregnant woman’s decision to continue a pre-viable pregnancy to viability and, therefore, to term ⁽²⁹⁾. Consequently, ethical criteria to guide innovation in fetal surgery must take into account obligations based on beneficence for the fetal patient (adjudicated by viability and maternal decision) and obligations based on beneficence and autonomy for the pregnant woman ⁽²⁹⁾. Briozzo et al. ⁽¹⁶⁾, citing Chervenak and McCullough, state that it is the pregnant woman who presents the fetus as a patient, although this does not automatically make it a subject of rights ⁽¹⁶⁾.

Dr. Sebastiani ⁽²⁰⁾, with a view similar to the two previous authors, affirms that «viability» is the first ethical «sense» that the fetus has as a patient⁽²⁰⁾.

Viability is not an intrinsic property of the fetus, because it must be understood biologically and technologically. It is by virtue of these two factors that the fetus can be viable and can exist outside the uterus and become a child. Both of these factors are not dependent on, nor do they exist as a function of, the autonomy of the mother. Therefore, the fetus is a patient when it reaches sufficient maturity to survive the neonatal period, either by its own means or by assisted means. Since viability depends on the place where the fetus is to be born, the concept of viability differs from place to place. The advice given to the mother for the benefit of the fetus must take into account the severity of the fetal anomalies, extreme «prematurity» and the mother’s obligations. The more severe the fetal anomaly or the options of dying or being left with a permanent neurological deficit the less targeted the advice directed toward fetal benefit ⁽²⁰⁾.

According to the aforementioned authors Chervenak and McCullough, and according to the criticism made by Carlos Alberto Gómez Fajardo ⁽³²⁾, there would be situations in which there would be the paradox of a twin pregnancy with one of the fetuses sick and the other healthy, in which one of them would be a patient and the other not, justifying the selective feticide of the sick one as an action of a «therapeutic» nature, coherent with the will and interests of the mother ⁽³⁰⁾.

As we have seen, the authors with a functionalist foundation occupy a wide range that goes from the denial of the fetus as a patient to a relative and conditioned recognition. They deny that the fetus has an intrinsic dignity, and some of them make its moral status dependent on its vital prognosis and the acceptance of its mother ⁽³³⁾.

For these authors, the determining factor is what the person can «do», and not what he «is». We find significant the position of Mills (^{Mills 2013)}, who states that certain fetuses have «potential personhood» (which cannot yet be exercised) and, therefore, are not persons ⁽³⁴⁾. In our view, personhood is not in potency: it either is or it is not. What is in potency, in this case, is the possibility of exercising personal attributes.

c) Principlistic foundation

The principlist authors elaborate a moral «paradigm» for those who work in the field of health, in order to provide a practical and conceptual reference that can serve as a guide in concrete situations. This paradigm is based on the principles of autonomy, beneficence, non-maleficence and justice, interpreted in the light of two theories, mitigated utilitarianism and prima facie deontology ⁽³³⁾.

An example of this type of ethical perspective is that of Dickens and Cook ⁽³⁵⁾, who analyze the ethical implications of the concept of the fetus as a patient from this point of view. While they agree on beneficence and non-maleficence towards the fetus and the mother, they make the principle of maternal autonomy prevail as a way of respecting the principle of justice when there are conflicts of interest. They argue that physicians have developed the concept of treating fetuses as if they were patients, not in order to subordinate pregnant patients to the interests of the fetus, but to guard against the significant repercussions that treatment of the pregnant woman may have on the fetus. Dickens and Cook assert that this concept reflects several key ethical principles, including the historical ethical principle of «do no harm» (non-maleficence); the positive duty to do good by allowing patients to exercise their right to choose in a protective manner and for the benefit of the children they intend to have (beneficence); and both as central elements of the principle concerning respect for patients⁽³⁴⁾. This allows pregnant women to retain their autonomy, as they make informed decisions, allowing, in turn, for the protection of the most vulnerable. Women who are dependent on medical treatment and information are vulnerable, as are fetuses at risk of harm due to ill-informed medical decisions made by health care providers and their patients⁽³⁴⁾.

Dickens and Cook’s view of the administration of justice recognizes the dependence of the fetus, but considers the pregnant patient on an equal footing, no longer with the fetus, but with those patients who are not pregnant (e.g., other family members). This is the basis on which British law expressly permits the option of abortion because of the effects that continuation of the pregnancy could have on the health of the children born to the pregnant woman ⁽³⁴⁾.

Rodrigues Catarina et al. criticize Chervenak and McCullough’s ethical framework for perinatal medicine (^{Chervenak and McCullough, 2003}). They argue that, from the point of view of principlism, two principles should be taken into account: autonomy and beneficence. They understand that, above the principle of beneficence in favor of the fetus, is the principle of autonomy of the mother. This autonomy allows the pregnant woman to grant and withdraw patient status for herself and the fetus. For this reason, they consider that the moral status of the woman is superior to that of the fetus. The conclusion is that the fetus is not a patient to the same degree as its mother ⁽³⁶⁾. In contrast, De Vries holds the opposite position: the beneficence of the fetus should be above the autonomy of the mother, avoiding the alleged conflict between the mother and her child, through the concept of respect⁽³⁸⁾.

Radic et al. acknowledge that there is much debate about the personal status of the fetus. They state that, according to the position taken on this personal status, it will depend on whether only the mother or also the fetus is considered a patient. They even acknowledge that some authors consider that the mother would be an «altruistic volunteer» and the true patient would be the fetus. For these authors, since both the mother and the fetus are intimately related, and both undergo the intervention, both should be considered patients ⁽³⁸⁾.

It can be seen that principlism presents the difficulty of the absence of an anthropology to serve as a reference. This leads to the fact that, depending on the point of view, preference is given to one principle or the other, understanding them as if one were in competition with the other ⁽³⁹⁾. Moreover, both Beauchamp and Childress and their followers have moved towards a preponderance of patient autonomy, to the detriment of the principle of beneficence ⁽⁴⁰⁾.