4.2.3 Abortion and Capacity to Consent
Dick Sobsey, EdD, Brendan Leier, PhD, and Tracey Bailey, LLB
- To identify the ethical issues raised by abortion for a woman whose capacity to consent is questionable
- To identify the legal issues raised by abortion for a woman whose capacity to consent is questionable
Paula Robeson is a 24-year-old woman with mild to moderate intellectual disability and a tested full-scale IQ of 54 (Verbal 49, Performance 68). In addition to her intellectual disability, Paula has previously been treated for depression and self-injurious behaviour, but she has been doing well for the last year or two without medication. She lives with her mother and stepfather, and she works in a local grocery store bagging groceries. Her mother, Janet Robeson, brought Paula to her family physician because of bouts of nausea and vomiting. Physical examination and a pregnancy test revealed that she was approximately eight weeks pregnant. Her mother immediately indicated that her daughter should terminate the pregnancy. Paula Robeson told the doctor that whatever her mother wanted was okay with her, but when her mother was out of the room, she told the nurse that she wanted to keep her baby and take care of it. When the nurse asked Paula if she knew how to take care of a baby, Paula said she thought that she could learn and asked the nurse what she thought was the right thing to do. Paula smiles when she talks about having a boyfriend but does not reveal any details of the relationship. She seems frightened of her stepfather and refuses to say anything about him. The nurse who talked to Carla wonders if Carla may be the victim of sexual abuse, possibly by her stepfather, but there was no direct disclosure in their conversation. At this point, the circumstances of Paula's pregnancy remain unclear.
Janet Robeson gave a long list of reasons why terminating her daughter's pregnancy was the only reasonable option:
- "Paula cannot take care of a baby. She still needs someone to take care of her."
- "Four years ago when Paula had appendicitis, I was appointed her guardian to make medical decisions on Paula's behalf because she was not considered competent to consent. Therefore, I am the person empowered to make this decision."
- "If Paula has this baby, I will be the one who ends up caring for it. Since I am the one who will have to care for the baby, I should have some control over its birth."
- "Paula has just gotten over some serious mental health and behavioural issues; pregnancy could set her back and cause major mental health issues."
- "We don't know what causes Paula's disability. How do we know her baby won't have the same problems or even worse?"
- "Paula's stepfather will be furious if he finds out that Paula is going to have a baby. He may leave or throw Paula out of the house."
Paula's mother believes that an abortion should be carried out as soon as possible. Since Paula has been previously determined to be incompetent to make another medical decision and her mother has been previously appointed as guardian and substitute decision-maker, her mother believes she has the authority to make this decision and feels comfortable authorizing the procedure. She knows that Paula has mixed emotions and wants the doctors and nurses to help convince Paula that terminating her pregnancy is the right thing to do.
- Who should be involved in the decision to continue or terminate Paula's pregnancy?
- What ethical and legal principles should be considered in making this decision?
- Which, if any, of the six concerns raised by Paula's mother should be given consideration in addressing this issue, and what implications do these have for determining the course of action?
- What additional information might be important in considering this matter?
- Should the potential best interests of the child to be born be considered and, if so, how?
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- United Nations. Convention on the Rights of Persons with Disabilities. Available from: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html