Autonomy grew up as a street fighter, and was blooded in some genuinely noble battles against medical paternalism. But like so many rulers with this sort of pedigree, it has quickly forgotten its democratic roots, and grown fat and brutal in power.
(Preface, ix)Charles Foster minces no words. Choosing Life, Choosing Death is a comprehensive and passionately argued attack against the “tyranny of autonomy” in medical ethics and law. While autonomy has fought the good battle in the patients rights movement, articulating important concepts of informed consent, advance directives, confidentiality and reproductive rights, it has, according to Foster, become an “orthodoxy that is policed with terrifying vigour” (p. 4). He seeks to temper this tyranny with other well-established principles of medical ethics, such as beneficence, nonmaleficence, and justice.
As a barrister and a professor in medical ethics at Oxford University, Foster is uniquely situated to expose the ways that the autonomy principle has been celebrated in the academy but then fails to deliver on its own principles when applied on the ground. It is the lived practice of autonomy that reveals its messy underbelly. This surely is the strength of this slim volume—it is replete with court cases, primarily from the United Kingdom and the European Court of Human Rights, but it also cites landmark cases from the United States, describing the ways that the autonomy principle can obscure the complexities and contradictions of people's own assessment of their best interest and that of their loved ones.
Foster proceeds chronologically, beginning with questions that occur before birth (reproductive autonomy), between birth and death (such as informed consent, confidentiality, capacity, medical research on human participants, advance directives, and physician-assisted suicide), and then ending with questions that occur after death, such as transplants and ownership of body parts. Each question cites landmark cases, demonstrating the great gulf between autonomy on the books (primarily Article 8 of the European Convention of Human Rights) and in action (in the hospital, the genetic database company, the courtroom).
The limits of autonomy are explored in useful detail in the largest section of the book dealing with informed consent, which Foster calls “the fundamentalist heartland of traditional autonomy” (p. 82). Here, he critically examines the practice of giving minors access to reproductive health services without parental consent, the practice of giving medically necessary C-sections to women who had withdrawn their consent, the duty to prevent suicide by prisoners, and the right to sustain serious injury during consensual sadomasochism. Related are issues of capacity (was the woman with the needle phobia refusing the C-section temporarily incapacitated to refuse her consent?) and confidentiality (is there a duty to honor a patient's request for confidentiality not to reveal a genetically carried disease to family members who may be potential carriers?). Medical ethicists have long cast a critical glance on the notion of informed consent—suggesting that what people want most from doctors is the ability to trust them (Reference O'NeillO'Neill 2002)—and Foster's case studies usefully link readers to this work.
When it comes to reproductive autonomy, however, Foster's critique is curiously lacking. He begins his attack with a case of two British women claiming a right to reproduce by using stored embryos without their sperm-providing partners' consent (in one case the husband was deceased; in the other case, the ex-boyfriend objected). Invoking both Article 8 (the right to respect for private and family life) and Article 12 (the right to marry and found a family), the women nevertheless failed when facing the competing autonomy rights of the unwilling fathers.
The stakes get even larger when it comes to abortion. Here, Foster takes the law to task for not properly accounting for the status of the fetus (p. 41) and implies that the law gives too much weight to a woman's autonomy in questions of abortion. He assumes that “there is no reason to distinguish between a foetus in utero and a child ex utero” (p. 52; emphasis in original). Yet he steers clear of an explicit analysis of the moral implications of legal personhood for the fetus (something not recognized by either U.K. or U.S. law), because “the law until now has shown itself wholly unwilling to grapple with … anything approaching nuance in the realm of embryonic or foetal life” (p. 42). Instead, Foster paints a woman's autonomy to ethical extremes by using slippery-slope hypotheticals, suggesting that if given a choice, a woman might feel entitled to choose the killing of her son over the grazing of her knee (p. 52). “Autonomy smiles on her decision,” he comments wryly, “while everyone else is nauseated” (p. 53).
Surely, autonomy is never absolute and is tempered by other ethical principles, as is Foster's central claim. But why resort to such hypotheticals when there is a rich body of research examining the ways women grapple with autonomy when making decisions regarding abortion? Beginning with Reference GilliganGilligan's (1982) work on ethical decisionmaking and extending to more recent studies (Reference FinerFiner et al. 2005; Reference ShrageShrage 2003), readers learn that these decisions do not encounter a stark “my interests versus that of the fetus” trumping of autonomy claims, but rather a complex negotiation of relational and economic concerns. If Foster's goal is to take ethical considerations of autonomy out of the hands of the academy and portray its lived experience in the courtroom, then his refusal to engage with these studies is problematic.
The literature on end-of-life decisionmaking, which is equally rich in documenting the limits of autonomy (Reference ChannickChannick 1999), could have provided a useful backdrop to Foster's discussion of physician-assisted suicide. Thus, readers are left wondering, in the end, how exactly one should temper a respect for autonomy with concerns for justice, nonmaleficence, and beneficence. Despite his impressive list of cases, readers learn very little about the ways these other moral principles should operate, the circumstances in which they should trump autonomy, and how this negotiation would unfold in the hospital ward or in the courtroom.
