Maternal vs. Fetal Rights
Claire Andre and Manuel Velasquez
Janet Rowen may be incarcerated because she is pregnant. Her doctor, Marion Smyth, thinks Janet drinks too much alcohol and has repeatedly advised her of the risks her drinking poses to the child she has chosen to have. Heavy alcohol use during pregnancy can result in "fetal alcohol syndrome." Infants with this syndrome suffer from mental retardation and physical deformities and have an increased chance of dying shortly after birth. Janet is unwilling to cut down on her drinking. Dr. Smyth is seeking a court order that would incarcerate Janet for the duration of her pregnancy, forcing her to follow Dr. Smyth's medical advice.
Research in medicine continues to reveal more and more ways in which a baby's health can be jeopardized by what a woman does during pregnancy. And, developments in genetics and obstetrics continue to provide us with more and more prenatal diagnostic tests and medical treatments that enable us to prevent birth defects. Most women welcome these developments. There are some, however, who are unwilling to avoid those activities or behaviors that could harm their offspring and who refuse to undergo medical treatments that would prevent birth defects.
As our knowledge of prevention and prenatal harm grows, so too has public pressure to change the behavior of "non-compliant" pregnant women. Almost half of the maternal-fetal specialists surveyed in a recent national study thought that pregnant women who refused medical advice and thereby endangered their future children should be detained in hospitals and forced to "follow doctors orders." A growing number of legal cases throughout the U.S. show a trend toward forced treatment of pregnant women--court ordered Caesarean sections, mandatory diet restrictions and, as in Janet's case, incarceration for failing to follow medical advice. But does society have a right to control the behavior of pregnant women? Moral opinion is sharply divided on the matter.
Those opposed to forced treatment of pregnant women argue that every person has a fundamental right to freedom of choice and control over his or her own life. Forcing a pregnant woman to undergo medical treatment against her will or to behave in ways she does not freely choose violates this right. The decisions a woman makes during pregnancy are based on her own circumstances, her own values, and her own preferences. Others have no right to impose on her their own judgments about what they think is best for her and her fetus, depriving her of her freedom to make her own choices and to control her own life.
The threat to freedom posed by forced treatment of pregnant women is not a minor threat, either. It is rare for a woman to refuse medical advice that promises to benefit her fetus and poses little risk to her, and it is troubling when it happens. But if we allow society to intervene in these cases, what will prevent us from assuming wholesale control of women's lives during pregnancy? If pregnant women are incarcerated to prevent them from heavy drinking, will we also seize them for drinking coffee or exercising too little, each of which could pose some risk to a fetus according to some doctors. If pregnant women are compelled to undergo surgery that would prevent their future child from being born with handicaps, will they also be compelled to undergo amniocentesis or genetic screening in order to detect those handicaps that could be prevented by such surgery?
Furthermore, forcing pregnant women to submit to medical treatment for the sake of their fetuses is to impose an obligation on them that we do not impose on others. And, justice requires that all persons be treated equally. In our society, we allow people the right to refuse medical treatment and the right to refuse to subordinate their desires or needs to the needs of others. We don't, for example, force some people to donate their kidneys, bone marrow or blood in order to benefit or even to save the lives of other people. Why, then, should pregnant women be forced to undergo surgery or to change their lifestyles in order to benefit a fetus? To require this of pregnant women is to demand from them something over and above what we demand from the rest of society.
Finally, compelling a pregnant woman to follow medical advice in order to benefit her fetus will only cause more harm than good. To avoid being treated against their will or to avoid being incarcerated, women with high-risk pregnancies and therefore the greatest need for prenatal care, will avoid doctors or will withhold important information from their doctors concerning their health. As a result, the health of the fetus will be placed in even greater jeopardy.
Those who support forced treatment of pregnant women agree that every person has a right to freedom of choice. But when a woman decides to carry her pregnancy to term, we can expect that a child will be born, and this future child has a right to be protected from avoidable harm. Certain behaviors during pregnancy are known to cause harm to offspring. Poor nutrition can retard fetal growth and impair brain development. Use of heroin can result in fetal addiction. Heavy alcohol use can cause mental retardation and physical malformations. Altering one's diet or refraining from alcohol or drugs presents no serious risk to a pregnant woman's life or health. When a pregnant woman who has decided to give birth to a child engages in activities that she could reasonably avoid and that will damage that child, society has a duty to protect the future child, even if this means forcing the pregnant woman to change her behavior.
Furthermore, it is argued, there are cases in which a pregnant woman's right to freedom of choice must be weighed against a child's right to be born in a healthy state. There are a number of established prenatal medical treatments to prevent birth defects that pose little risk to pregnant women, including the administration of certain drugs or low-risk in-utero surgery. The discomfort or inconvenience of taking a medication or undergoing a low-risk surgical procedure is a small price to pay to prevent a child from being born with handicaps. Society has a right to prevent pregnant women who choose to have children from refusing to undergo medical treatments that would prevent birth defects when such treatments pose little risk to their own lives or health.
And, supporters contend, we need not fear that forced treatment of pregnant women will lead to the public assuming wholesale control of women's lives during pregnancy. Just as we draw lines as to what does or doesn't constitute child abuse and thus are grounds for taking a child from his or her parents, so we can distinguish between what does or doesn't constitute harmful prenatal conduct, and thus are grounds for forced treatment of pregnant women.
Mother or fetus? Where do our obligations lie? Our answer will require a careful balancing of the values of freedom and self-determination, and the value we place on the right to be protected from harm.
For further reading:
Dawn Johnson, "A New Threat to Pregnant Women's Autonomy," Hastings Center Report, Volume 17 (August/September 1987), pp. 33-40.
"When a Pregnant Women Endangers Her Fetus" (commentaries by Thomas B. MacEnzie and Theodore Nagel, and Barbara Katz Rothman) Hastings Center Report, Volume 16 (February 1986), pp. 24-25.
John A. Robertson and Joseph D. Schulman, "Pregnancy and Prenatal Harm to Offspring: The Case of Mothers with PKU," Hastings Center Report, Volume 17 (August/September 1987), pp. 23-33.
This article was originally published in Issues in Ethics - V. 1, N.2 Winter 1988