Written by Nishanth Araveti
Edited by Pooja Suganthan
“A man should be mourned at his birth, not at his death”
Writing in the 18th century, it was Baron De Montesquieu who argued that the tally sheet of existence boils down to a negative number– life it seemed was better left unlived than forced to endure the slog of being. By and large though, we agree that existence is a positive experience worth living despite the many hurdles of everyday life. How then, do we begin to judge existence against non-existence? of identity against non-identity?
It is this problem of non-identity that is explored in the relatively recent court case of Toombes vs. Mitchell. Toombes, a 20-year-old equestrian born with lipomyelomeningocele (a condition that closely resembles spina bifida and arises from congenital neural tube defects) alleges that Dr. Mitchell exercised gross negligence in failing to warn Toombes’ mother to take folic acid supplements– a warning that Toombes argues would have led to her mother delaying conception by a few months. As a result of her condition, Toombes requires nasogastric feeding and suffers from weakness, mobility issues, a neuropathic bladder, and bowel incontinence among other issues. Also of marginal importance, is her successful and award winning career as a showjumper, an author, and an avid advocate of spreading non-visible disability awareness.
Responses to the case have often focused on the shadowy doubt cast onto the relationship between Folic Acid and lipomyelomeningocele, as well as the legal implications of a wrongful life claim where the predisposition to the illness cannot be conclusively proved. Still others have worried about the slippery slope of the court’s ruling of wrongful conception with the many uncertainties of pregnancy. None however, have attempted to examine this case from the perspective of the bioethical problem of non-identity as we shall now attempt to do in this case study.
At its core, this philosophical quandary is a question of what actions affect personal identity and existence – of what we can do to an unconscious being and if it is still the same being. As such, actions under this framework are seen as largely divided into two categories: identity-affecting actions and identity-preserving actions.
Identity-affecting actions are those that change the identity of the being involved entirely. In essence, they are actions that produce a different person, a different existence than the one that could have existed. For example, things such as delaying conception and choosing to implant different fertilized embryos in the case of IVF are all identity-affecting actions. In the first scenario, the life that would have come into existence in 1996 would be a fundamentally different person than one that would have been conceived in 2005. Similarly, choosing to implant a specific embryo X would create again a different being than embryo Y or Z.
Of course, the counter-argument could arise that we do not for sure know that they must necessarily be different persons – it could very well be that there exists a realm similar to Plato’s realm of forms with each being assigned a specific mother and father and the ability to transgress realms. As interesting as that may seem, bioethics is ultimately the study of what actions are moral or immoral in a clinical setting grounded by science and medicine and so this is not a cogent counterargument.
An argument with significantly more worth is the idea that assigning moral worth to actions that affect identity is impossible. After all, if action A had a significant impact X on person Q and action B would have had a different and “objectively better” impact Y on person Q, then it seems clear that action B is the one that results in the most good and is therefore the most ethical.
However, what if action B results in the nonexistence of person Q and instead in the existence of person R? How can we argue that B is better than A if A is a conditional necessity for the existence of Q? In truth, it seems intuitive to us that advising the parents to hold off on conception for a few months in order to produce a child without as many medical issues is the most moral. However, this only holds true (from an utilitarian standpoint) if we can conclusively prove that the life lived by person Q would be a truly miserable existence whose net-tally of happiness ends in the red zone. For all other cases (and for the non-utilitarians), what seems intuitive is generally agreed upon as a mistaken belief predicated on a mistaken assumption.
Identity-preserving actions are actions that do not face this moral quandary of identifying good and evil with shifting subjects and hypotheticals. Rather, as the name implies, this category of actions maintains the identity of a being and affects that being alone. In doing so, identity-preserving actions give us a concrete way of examining which choice is the most moral because we now have a concrete subject we can project our judgment onto. Actions that go against medical advice during pregnancy (e.g smoking, drinking, and using drugs) are considered Identity-preserving because no other life would have been formed even if these actions hadn’t taken place. Rather, that original life already exists.
A common counterargument to the notion of identity-preserving actions and their larger implication is that life does not begin at conception. For the nay-sayers, it is at birth or perhaps later in the pregnancy that a fetus can be said to truly have the capacity for a distinct existence. The argument then extends to argue that no life can be said to have been harmed by the mother’s choices during pregnancy. Often, we are then dragged into a rather complicated debate about the beginning of life and personhood– a debate occupied by influential minds like John T. Noonan and Mary Anne Warren and one with profound implications about other issues such as abortion. However, we can see that even if life were to not exist until the moment of birth, we can trace the causal effects of a mother’s poor choices to a child’s poor quality of life. As such, unless the mother’s choice results in the termination of the pregnancy, the fact that her choice ultimately results in an objectively worse life for the child remains. Therefore, even in the face of this argument we are seemingly able to deem certain actions immoral.
For our purposes however, the case of Evie Toombes revolves around the moment of conception and is therefore concerned with identity-affecting actions. Even if we were to assume that the premises put forth by the prosecution are valid:
That Dr. Mitchell failed to recommend the use of folic acid supplements to Mrs. Caroline Toombes
That Mrs. Toombes (sr.) would have avoided conception had she been informed
That Folic Acid would have prevented lipomyelomeningocele
That later conception would have been entirely normal
It does not follow that Ms. Evie Toombes is entitled to damages that proceed from the doctor’s liability because the delaying of conception would have been an identity-affecting action that would result in a fundamentally different being. Again, if Ms.Toombes’ existence is predicated on not-delaying conception, then we recognize that such an action cannot be said to be immoral because it would be comparing existence to non-existence, apples to oranges. Even as hardcore utilitarians, we cannot conclusively prove that Ms. Toombes’ exceedingly accomplished life would have been better off not existing. Furthermore, legal precedent for cases of wrongful life often has them disbarred on either the grounds of a universal respect for life or the impossibility of determining fault except for exceedingly niche cases.
Furthermore, the fact that the plaintiff is Ms. Evie Toombes herself and not her mother is of importance. Whether the defendant Dr. Mitchell committed an act of negligence or not, the fact remains that Ms. Caroline Toombes would have been the only constant in the two scenarios (e.g. delaying conception would have resulted in a different being than Ms. Evie Toombes but Ms.Caroline Toombes would have been the mother in either situation.) Therefore, while we cannot measure the effects of an action on the child given the instability of being, we can measure the effects on a constant bystander such as the mother. Accordingly, it follows that if there was indeed negligence on the part of the doctor, Ms. Caroline Toombes is the one entitled to sue for damages– not her daughter.
In the end, this case is a landmark decision in the realm of “wrongful life” cases and one that will probably be used as legal precedent for decisions to come. While we may not know with complete certainty whether the care provider was guilty of negligence or otherwise, observing legal proceedings through this framework of bioethics casts doubt on, if not disapproving of, the decision made by the judge. Intuition is an amazing tool, but it must be tempered with a critical examination of the moral framework that it stems from in order to be effective with issues as complex as life and death, birth and nonexistence. Finally, while we have wrapped up our case study neatly, the unanswerable question remains:
What determines a life worth living?
Sources
Dunn, Michael, and R. A. Hope. Medical Ethics: A Very Short Introduction. Oxford University Press, 2018.
Roberts, M. A. “The Nonidentity Problem.” Stanford Encyclopedia of Philosophy, Stanford University, 2 Apr. 2019, https://plato.stanford.edu/entries/nonidentity-problem/#WronLife.
Royal Courts of Justice Strand, London, WC2A 2LL. Toombes v Mitchell. no. QB-2019-001503, 12 Jan. 2021.
#bioethics #bioethicsandmedicine #medicine #studentvoices #cuny #huntercollege #prehealth #blog #premed #predental #prepa #prenursing #stem #students #bioethicsblog #societyofbioethicsandmedicine #science #healthdisparities #mentalhealth #student #cuny #collegestudents #medicalschool #bioethicalissues #artificialintelligence #research #debate