Biomedical Ethics and the Law LEE SWEE SENG LLB, LLM, MBA Advocate & Solicitor Notary Public, Trademark, Patent Agent Certified Mediator [email protected]

Biomedical Ethics Biomedical Ethics and the Lawand the Law

LEE SWEE SENGLLB, LLM, MBA

Advocate & SolicitorNotary Public, Trademark, Patent Agent

Certified Mediator

[email protected]

The Law Relating to Abortion

The Law Relating to The Law Relating to AbortionAbortion

Section 312 Penal Code‘Whoever voluntarily causes a woman with child to miscarry shall be punished with:

a) imprisonment up to 3 years or b) fine or c) both;


Section 312 Penal Code (contd)and if the woman is quick with child, shall be punished with

a) imprisonment up to 7 years, and b) fine


Definition of ‘Woman Quick with Child’Bouvier’s Law Dictionary, Revised 6th Edition (1856)

The mother is said to be ‘quick with child’ when the motion of the foetus, called quickening, is felt by the mother.


Definition of ‘Woman Quick with Child’Bouvier’s Law Dictionary, Revised 6th Edition (1856)

Quickening happens at different periods of pregnancy in different women.

Usually about the 15th or 16th week after conception.


Explanation to S312:A woman who causes herself to miscarry is within the ambit of S312

The Law Relating to AbortionThe Law Relating to Abortion• Exception to S312:

S 312 does not apply to a registered medical practitioner

who terminates a woman’s pregnancy if he:

a) forms an opinion in good faith, that the continuance of pregnancy would


Exception to S312 (contd):

i) risk the life of the mother, or ii) causes injury to the mental or physical health of the mother,


Comments to S132

The opinion of one medical practitioner formed in good faith that the continued pregnancy involve risk to the life to the mother suffices.


PP v Dr Nadason Kanagalingam [1985] 2 MLJ 122

The facts:The woman had tubal ligation done by the accused. Later, she was found to be pregnant and had enlarged varicose veins. The accused gave her a saline injection, and a foetus was aborted.



The facts (contd):The accused gave evidence that he performed the abortion in good faith to save the life of the woman, who was suffering from enlarged varicose veins which might cause pulmonary embolism.



Held: -Procuring an abortion is a serious matter and should only be done as a last resort to save the life of a woman from becoming a mental wreck.



Held: -The accused had not given reasonable thought and had not taken enough steps to examine the woman further.

The Law Relating to AbortionThe Law Relating to Abortion


Held: -His finding that the woman had enlarged varicose veins is a result of his mere clinical examination, as there were no statistics to show from the cases of pulmonary embolism how many were caused by varicose veins.



Held: -Therefore, there was no indication that the woman’s life was or would be in danger if the pregnancy was allowed to continue.


Section 314 Penal CodeWhoever causes death to the pregnant mother by an act done with intent to cause miscarriage, shall be punished with:

a) imprisonment up to ten years, and b) liable to fine;


Section 314 Penal Code

If the act is done without the woman’s consent, shall be punished with:

a) imprisonment up to 20 years


Explanation to Section 314 Penal Code

It is not essential that the offender should know that the act is likely to cause death.


The amount of fine that can be levied under S312 and S314 Penal Code

S283(1) Criminal Procedure Code

‘ in the absence of any express provision relating to the fine in such law contained, the following provisions shall apply-


The amount of fine that can be levied under S312 and S314 Penal Code

S283(1)(a) Criminal Procedure Codewhere no sum is expressed to which the fine may extend, the amount to which the offender is liable is unlimited, but shall not be excessive;


Section 314 Penal Code Mary Shim v PP [1962] 1MLJ 132The court was satisfied that the accused procured an abortion by inserting a stick into the deceased’s womb. The deceased contracted septicaemia from which she died of septic abortion.


The Position in India

Abortion in India is legalized by the Medical Termination of Pregnancy Act 1971 (came into effect on 1.4.1972) as a method of curtailing population growth.


The Position in IndiaSection 3(2) Medical Termination of Pregnancy Act 1971

Pregnancies may be terminated by registered medical practitioners where:a) length of pregnancy does not

exceed 12 weeks


The Position in IndiaSection 3(2) Medical Termination of Pregnancy Act 1971

b) length of pregnancy exceeds twelve weeks but does not exceed twenty weeks, if at least two registered medical practitioners are..


The Position in IndiaSection 3(2)(b) Medical Termination of Pregnancy Act 1971Of opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve risk to the life of the pregnant woman or of grave injury to her physical or mental health ; or


The Position in IndiaSection 3(2)(b) Medical Termination of Pregnancy Act 1971

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.


The Position in IndiaMedical Termination of Pregnancy Act 1971Niketa Mehta’s case (4.8.2008)The Bombay High Court refused permission to abort a 26-week foetus with serious heart defect, as the doctors were uncertain whether there was any ‘substantive’ risk that the child would be seriously handicapped all its life.


The Position in IndiaSection 3 Medical Termination of Pregnancy Act 1971Explanation 1Where pregnancy is caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.


The Position in IndiaSection 3 Medical Termination of Pregnancy Act 1971Explanation 2pregnancy occurs as a result of failure of any device or method used …for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute grave injury to mental health.


The Position in IndiaComments to Section 3 Medical Termination of Pregnancy Act 1971

The number of registered medical practitioners is relevant only to form the opinion.



Once the opinion has been formed, the actual termination of pregnancy may be done by one registered medical practitioner.



It is not necessary that more than one registered medical practitioner should act together to terminate a pregnancy.


The Position in IndiaSection 5 Medical Termination of Pregnancy Act 1971

Pregnancy exceeding 20 weeks may be terminated even without the opinion of 2 registered medical practitioner where:


The Position in IndiaSection 5 Medical Termination of Pregnancy Act 1971 (contd)

a) the registered medical practitioner is of opinion, formed in good faith, b) that the termination is immediately

necessary to save the life of the pregnant woman.


• The Position in UKSection 37 Human Fertilization and Embryology Act

Abortion is legal only up to 24 weeks unless: a) necessary to save the mother’s life, b) there are evidence of extreme fetal

abnormality, or c) there’s grave risk of physical or mental injury to the mother.


• The Position in UKR v Bourne [1939]1 K.B. 687Held: -Doctors could rely on the defence of necessity, for an act done in good faith in performing an abortion to avert a grave threat to the life and health of a pregnant young girl who was brutally raped.

In Vitro Fertilization

In Vitro FertilizationIn Vitro Fertilization

Destruction of Embryo

Issues: -i) There are no consensus as to

when human life beginsii)There are no agreement whether

discarding of embryo is equivalent to abortion

In Vitro FertilizationIn Vitro FertilizationDestruction of EmbryoGuideline of the Malayan Medical Council on Assisted Reproduction

Clause 4If couples are separated, divorced or one of them becoming deceased, the stored gametes cannot be used and has to be destroyed

In Vitro FertilizationIn Vitro Fertilization

Meaning of Gamete

A single male or female reproductive cell (sperm or egg cell), capable of joining with a similar single cell of the other sex to form a zygote

In Vitro FertilizationIn Vitro FertilizationMeaning of Gamete

Each gamete contains a single (haploid) chromosome: the double (diploid) chromosome of the resulting zygote contains the genetic information programming the growth of the new individual.

In Vitro FertilizationIn Vitro FertilizationSelective Fetal ReductionGuideline of the Malayan Medical Council on Assisted Reproduction

Clause 10Where more than 3 fetuses are gestated, fetal reduction may be considered if:

In Vitro FertilizationIn Vitro FertilizationSelective Fetal ReductionGuideline of the Malayan Medical Council on Assisted Reproduction

Clause 10 (contd) a) the prospect of fetal viability

is compromised or b) the health or life of the mother

is threatened.

In Vitro FertilizationIn Vitro FertilizationProhibited PracticesGuideline of the Malayan Medical Council on Assisted Reproduction

Clause 15Research cannot be carried out on human embryos more that 14 days old or where primitive streak has appeared, whichever earlier except with approval of Health Ministry

The Law Relating to Euthanasia

The Law Relating to The Law Relating to EuthanasiaEuthanasiaThe Definition of Death

a) Traditional definitionBennett v Peattie [1925] 57 OLR 233Permanent cessation of cardiovascular and respiratory functions

The Law Relating to The Law Relating to EuthanasiaEuthanasia

The Definition of Death

b) Section 46 Penal Code:‘The word "death" denotes the

death of a human being, unless the contrary appears from the context’

The Penal Code has failed to provide for a clear definition of ‘death’.



c) The development of organ transplant led to the concept of ‘brain death’.

The concept of ‘brain death’ is important to facilitate cadaveric organ transplants from brain dead donors



d) Brain DeathA person is recognized as dead

when the function of the brain as a whole, including the brain stem, is irreversibly lost.

A person certified to be brain dead is dead

The Law Relating to The Law Relating to Euthanasia Euthanasia

Advance Directives

Written instructions regarding the declarant’s medical care preferences.

Includes:-a) Living willb) Medical power of Attorneyc) Do Not Resuscitate order

The Law Relating to The Law Relating to Euthanasia Euthanasia

Advance Directivesa)Living will

Describes life sustaining treatments which the declarant wants, in the event he suffers from terminal illness

or is in permanent vegetative state.


Advance Directivesa) Living will

Conditions to be fulfilled for the Living will to become effective: -i) declarant is incapacitatedii) declarant is suffering from a

terminal illness or is permanently unconsciousiii) ultimate recovery is hopeless



Conditions to be fulfilled for the Living will to become effective: -

Therefore, where the declarant suffers from a heart attack but

he does not have any terminal illness and is not permanently unconscious,



Conditions to be fulfilled for the Living will to become effective: -

The declarant’s ‘Living will’ will not have any effect and he will still be resuscitated even if he had a living will indicating that he does not want life prolonging procedures


Advance Directives

b) Medical Power of AttorneyDesignates an individual to

make medical decisions in the event the declarant is unable to do so.


Advance Directives

c) Do Not Resuscitate OrderDeclarant’s request not to

have cardiopulmonaryresuscitation (CPR) if his heart stops or if he stops breathing.


Penal Code does not expressly provide on the law relating to euthanasia. It provides for: -

i)Abetment of suicideSection 306 Penal Code

‘abetment of suicide’ is an offence and punishment can extend up to 10 years imprisonment and fine


i)Abetment of suicide

Section 107(c) Penal CodeAbetment of suicide includes the acts of a person who intentionally aids, by an act or illegal omission, the doing of that thing,


i) Abetment of suicide

Illustration to Section 107(c)Abetment can be done by ‘procuring’ or ‘facilitating’


ii) Attempt to Commit SuicideSection 309 Penal Code

Whoever attempts to commit suicide shall be punished with imprisonment for a term up to one year or with a fine or with both


Provisions under the Penal CodeNon brain-dead patientsEuthanasia may fall under S306 and

S309 of the Penal Code, as euthanasia may be a form of ‘attempted suicide’, or ‘abetted suicide’

To this extent, euthanasia is a crime, and it would seem that the doctors cannot switch off the ventilator


Common LawAiredale NHS Trust v Bland (1993) AC 789, Lord Goff at p 865

General Rule:‘Euthanasia is not lawful at common law’


Common Law

Exceptions:Court can order for the

withdrawal of life support by exercising its inherent power to exercise parens patriae jurisdiction, and if the action is in the patient’s ‘best interest’


What amounts to the patient’s ‘best interest’?

i) Physical BenefitRe A (children) (conjoined twins: surgical separation) (2000) 4 All E.R. 961The Facts: -J and M were conjoined twins.J sustained the M’s life by circulating oxygenated blood through a common artery.



i) Physical BenefitRe A (children) (conjoined twins: surgical separation) (2000) 4 All E.R. 961The Facts: -If they were not separated, J’s heart would eventually fail and both would die. If separated, J would have a life worthwhile but M would die.



i) Physical BenefitRe A (children) (conjoined twins: surgical separation) (2000) 4 All E.R. 961Held: -The operation was in the best interest of each twin, even if it cost the life of M which J had unnaturally supported. J’s bodily condition is capable of supporting a chance of life.



i) Physical BenefitRe A (children) (conjoined twins: surgical separation) (2000) 4 All E.R. 961Held: -M was born without capacity of life. The operation would enable M die with dignity. To continue living would only confer pain and discomfort. She would die because her own body could not sustain her life, not because the operation had killed her



ii) Emotional BenefitRe Y (adult patient)(transplant: bone marrow) (1997) Fam. 110, (1997) 35 BMLR 111The Facts: -The defendant was the most suitable donor for her sister’s a bone marrow transplant.



ii) Emotional BenefitRe Y (adult patient)(transplant: bone marrow) (1997) Fam. 110, (1997) 35 BMLR 111The Facts: -However, the defendant was mentally handicapped and is unable to consent to the operation


What amounts to the patient’s ‘best interest’?ii) Emotional Benefit

Re Y (adult patient)(transplant: bone marrow) (1997) Fam. 110, (1997) 35 BMLR 111

Held: -The operation is in the

defendant’s best interest. It would preserve the life of her sister and would improve their relationship.


What amounts to the patient’s ‘best interest’?ii) Emotional Benefit

Re Y (adult patient)(transplant: bone marrow) (1997) Fam. 110, (1997) 35 BMLR 111

The defendant would receive emotional, psychological and

social benefit and suffer minimum detriment.



iii) Futility of TreatmentAiredale NHS Trust v Bland (1993) AC 789The Facts: -The patient was seriously injured in the Hillsborough disaster which reduced him in a persistent vegetative state.



iii) Futility of TreatmentAiredale NHS Trust v Bland

(1993) AC 789The Facts: -The hospital applied for a

declaration that it might lawfully discontinue all life-sustaining treatment including the termination of ventilation.



iii) Futility of TreatmentAiredale NHS Trust v Bland (1993) AC 789Held: -The court granted the declaration

to lawfully discontinue all life-sustaining treatment.



iii) Futility of TreatmentAiredale NHS Trust v Bland (1993) AC 789Held: -The question is not whether it is

in the patient’s best interest that he should die. It is whether it is in his best interest that his life should prolonged by artificial means



iii) Futility of TreatmentAiredale NHS Trust v Bland

(1993) AC 789Held: - The withdrawal of treatment is

regarded as a pure omission. There was no duty to treat because it was not in the patient’s best interest to continue the life-prolonging treatment.



iii) Futility of TreatmentAiredale NHS Trust v Bland (1993) AC 789Held: - There was no prospect of the

treatment improving the patient’s condition, as he was totally unconscious. The futility of treatment justifies its termination



iii) Futility of TreatmentAiredale NHS Trust v Bland (1993) AC 789Held: -The law distinguish between

cases where a doctor decides not to provide life- prolonging treatment and cases where he decides to actively end his patient’s life by administering a lethal drug.



iii) Futility of TreatmentAiredale NHS Trust v Bland (1993) AC 789Held: -Discontinuance of life support is consistent with a doctor’s duty

of care. However, a doctor’s duty of care does not include the duty to administer lethal injections to put his patient out of his agony.

The Law Relating to

Organ Transplant

The Law Relating to Organ The Law Relating to Organ TransplantTransplant

Organs for transplantation can come from:

i) a living person (living donor) or

ii) a dead person (cadaveric donor)


Living Donor

There is presently no legislation in Malaysia governing the removal of organs from living donors.


Living DonorThe guide to the removal of

organs from living donors are currently provided under the ‘Guidelines for Organ Transplantation from Living Donor’ issued by the Malaysian Medical Council 006/2006 (hereinafter referred to as ‘the Guidelines’)

The Law Relating to Organ The Law Relating to Organ TransplantTransplantLiving donorClauses 6.1 (a) and (f) of the Guidelines provides that an individual willing to donate organ must: -

be an adult legally able to give consent

have not receive any coercion

The Law Relating to Organ The Law Relating to Organ TransplantTransplantLiving donorClause 6.6 of the Guidelines provides that: -

‘No financial transactions are permitted except payment for expenses incurred by the donor, payable to a third party.

The Law Relating to Organ The Law Relating to Organ TransplantTransplantLiving donor

Therefore, it is presumed that live donations are legally permissible if:a) valid consent is obtained from the donorb) no financial transactions are

involved


Living donorThe Position in Singapore.Section 14(1) Human Organ Transplant Act (1987) prohibits the supply of any human organs or blood for any monetary transaction, and renders such transaction as void.


The Position in Singapore.Section 14(2) Human Organ Transplant Act (1987) provides that a person who enters into such contracts or arrangement is guilty of an offence and shall be liable to a fine not exceeding $10,000 or to imprisonment not exceeding 12 months or both.


The Position in Singapore.

a) PP v Wang Chin Sing [2008] SGDC 268

b) PP v Tang Wee Sung [2008] SGDC 262

The Law Relating to Organ The Law Relating to Organ TransplantTransplanta) PP v Wang Chin Sing [2008] SGDC

268b)PP v Tang Wee Sung [2008] SGDC 262

The Facts: -Tang required a kidney transplant and engaged Wang to source a donor. Sulaiman was approached and he agreed to donate his kidney for a fee.

The Law Relating to Organ The Law Relating to Organ TransplantTransplanta) PP v Wang Chin Sing [2008] SGDC 268b)PP v Tang Wee Sung [2008] SGDC 262

Held: -a)Wang was sentenced to

imprisonment for 14 months on two counts of entering into arrangements for the supply of kidney contrary to S14(2) read with S14(1) Human Organ Transplant Act

The Law Relating to Organ The Law Relating to Organ TransplantTransplanta) PP v Wang Chin Sing [2008] SGDC

268b)PP v Tang Wee Sung [2008] SGDC 262

Held: -

b)Tang was fined $7000 in default of 7 weeks’ imprisonment

The Law Relating to Organ The Law Relating to Organ TransplantTransplantThe Position in Singapore.

Proposed changes:-Foreigners who donate their organs in Singapore may be compensated.

Money should not be an ‘inducement’ for organ donations and those involved would have to adhere to strict ethical standards.


The Position in Singapore.Health Minister Khaw Boon Wan:‘Anything more than S$5,000 will require more justification. Anything more than S$10,000 is likely to be deemed inappropraite


Effect of the proposed changes:-Donors in Singapore and from overseas can be reimbursed for medical costs if they donated their organs in Singapore


Cadaveric donorThe Position in MalaysiaTransplantation of cadaveric tissues are governed by the Human Tissues Act 1974 which is based on the Human Tissues Act 1961 in England

The Law Relating to Organ The Law Relating to Organ TransplantTransplantCadaveric donor

Section 2 of the Human Tissues Act 1974 permits the removal of cadaveric tissues under two circumstances:i) at the express request of the

donor given at any time in writing or stated orally during the donor’s last illness in

the presence of two witnesses

The Law Relating to Organ The Law Relating to Organ TransplantTransplantCadaveric donorSection 2 of the Human Tissues Act 1974 permits the removal of cadaveric tissues under two circumstances:ii) the person lawfully in possession of the deceased’s body may authorize the removal of any part from the body if the deceased had no objection and the deceased’s next- of-kin consents


Cadaveric donor

The Human Tissues Act 1974 does not ban the sale or purchase of organs

The EndThank you

Documents

Biomedical Ethics and the Law LEE SWEE SENG LLB, LLM, MBA Advocate & Solicitor Notary Public, Trademark, Patent Agent Certified Mediator [email protected]