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Ethics and the limits of a Bill of Rights

By Amanda Fairweather - posted Friday, 6 November 2009


The procedure is considered so abhorrent that Australian law forbids any Australian doctor from performing it or referring a patient onto another doctor for it, whether in Australia or overseas. Médecins Sans Frontières - who justify their provision of abortion services on the argument that women will do them anyway so they might as well be “safe”, will NOT under any circumstances perform an FGM, even to reduce the morbidities associated with unhygienic “backyard” provisions of the procedure. In effect, the State and a significant non-governmental organisation have drawn a line in the sand and said they will not facilitate this process on moral grounds.

However, FGM is a widely accepted practice in much of the world. For example, it has a prevalence rate of 90 per cent in Somalia. It is legal in some countries, and considered an important part of the culture. In some areas, it is difficult for a girl to get married if she has not had FGM performed on her.

If I was an expatriate doctor working in Somalia, and a girl came to me asking to perform one of these operations on her what should I say? Should I tell her this procedure is wrong, that it is immoral, that it is not necessary for her medical care, and that she should not proceed? But that would be paternalistic medical practice; it would diminish her autonomy.

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Should I say, “Look I won’t provide it, but here’s a list of doctors who will - in fact, let me refer you to one”? But that would be a part of facilitating the process. My actions would help her be subjected to FGM.

Should I just give in and perform the procedure - after all, she’s more likely to suffer health risks if she takes the matter into her own hands, and considering how prevalent and widely accepted the procedure is, she’s going to get it done anyway: it might as well be under my watch so that it is as “safe” as possible? If I truly must put my own ethical considerations aside, performing the procedure would make for good clinical practice.

It is easy to see how a scenario like this is possible when we allow legislation to override the conscientious objections of practitioners. This scenario also illustrates the importance of preserving the right to conscience separately from particular ethical determinations.

The fact of the matter is that the medical profession’s ethical considerations regularly place restrictions on clinical practice, and on patient autonomy. The only question is which ethical considerations.

On a highly contentious ethical issue the Victorian legislation takes one particular position (namely, a fairly liberal approach to provision of abortions), and then prescribes a course of action to doctors without respect to (or seemingly, regard of) their conscience. It does not consider the conscience of, say, doctors within the Catholic health system, which provides a third of Victoria’s obstetric care, many of whom would have a major issue with being part of this process. It does not consider my conscience, which would be hesitant to engage in any aspect of a woman procuring a non life-saving abortion.

So we have reached a point where doctors’ rights to conscience are being breached in a most unabashed manner. Surely this is where a bill of rights comes into its own, where professionals of conscience are saved from the vagaries of legislation by the iron clad strength of explicit rights protections. Yet, this has not been the case.

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Victoria has a Charter of Rights and Responsibilities. In Section 14 it states:

Freedom of thought, conscience, religion and belief

  1. Everyone has the right to freedom of thought, conscience and religion. This right includes:
    (a) the freedom to have or to adopt a religion or belief of his or her choice; and
    (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
  2. No one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Yet this Charter did nothing to stop Clause 8 of the Act to pass, even though it clearly acts against many doctors’ freedom of thought, conscience, religion and belief.

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This article also appeared in the book Don’t Leave us with the Bill: The Case Against An Australian Bill of Rights published by the Menzies Research Centre.



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About the Author

Amanda Fairweather completed year 12 at the Mac.Robertson Girls' High School and is now studying for a Bachelor Medicine. She has written op-ed articles for the Sydney Morning Herald.

Other articles by this Author

All articles by Amanda Fairweather

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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