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Wednesday
Jan122011

The Separate "Fetal Patient": Does Defensive Medicine Justify Medical Coercion?

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By Farah Diaz-Tello, JD


Recent debates about so-called “personhood” measures—ones that would legally separate eggs, embryos and fetuses from the pregnant women who carry, nurture, and sustain them—raise the question of whether “defensive medicine” provides a reasonable justification for forcing pregnant women to undergo cesarean surgery or for locking them up if they refuse.

In 2009, in response to a number of attempts by states to legally separate fetuses from the women who carry them, National Advocates for Pregnant Women created a short video, How Personhood USA & The Bills They Support Will Hurt ALL Pregnant Women. This video tells the stories of four women who were coerced, threatened, or punished by the legal system when they disagreed with their doctors’ decision that they needed to have cesarean surgery. These legal interventions were based on a theory that fetuses may be separated from the pregnant woman who nurture and carry them in the eyes of the law.  Under this perspective, outsiders can intervene in pregnant women’s lives to enforce what they believe is best for the “unborn child.” In many cases, a hospital may claim that, acting on behalf of the state as parens patriae, it can enforce a doctor’s orders over the pregnant woman’s objections just as it can override parents’ objections to treatment after a child is born.

In a response to our video, the American Life League (“ALL”) produced their own video, Laws, Lies, and Videotape, seeking to refute our claims. The American Life League called these women’s chilling stories “propaganda,” and justified two of them on the basis of defensive medicine

That the belief that a fetus is “a tiny human being, independent as though he were lying in a crib with a blanket wrapped around him instead of his mother”[1] would create a propensity toward coercive intervention is unsurprising. Indeed, a survey conducted by Samuels et al.[2] showed that the factor that most consistently correlated with willingness among obstetricians to resort to court order in a series of hypothetical situations was whether the doctor identified as “pro-life.” What was surprising, however, was the extent to which the self-identified pro-life organization, the American Life League, repeatedly relied upon defensive medicine as a reasonable justification for forcibly strapping women down and cutting them open, depriving pregnant women of their dignity and any measure of constitutional personhood.

For example, the ALL video glibly dismisses Laura Pemberton’s experience as a simple reflection of the hospital’s malpractice concerns. Laura Pemberton, a woman deeply opposed to abortion, shared the cruel and heartbreaking story of her forced cesarean at NAPW’s 2007 National Summit to Ensure the Health and Humanity of Pregnant and Birthing Women. The ALL video stated that when a sheriff took her into custody at her home as she was in the process of having a vaginal birth after previous cesarean surgery the real reason for this was not fetal rights but the fact that “she was still a patient of the hospital, and hospitals fear a lawsuit.”

Amber and John Marlowe, who also identify as pro-life, were slapped with a court order granting the hospital custody of their baby before, during, and after birth and the right to force Ms. Marlowe to have cesarean surgery.  In this case, a doctor believed that the baby was too big to be safely delivered vaginally.  The hospital claimed that the Marlowes’ unborn child had separate legal rights giving the hospital the right to cut Amber open. Again, according to ALL, this court order was simply a reasonable reflection of the fact that hospital administrators “were afraid of her getting caught up in another heated debate about how to deliver the baby” which could “lead to legal issues if something went wrong.” 

As NAPW’s detailed response (PDF) shows, all four cases discussed in the video rest on explicit fetal-separateness theories.  ALL did get one thing right: providers do say that they resort to court order because of malpractice fears. For example, an attorney for the hospital in another case featured in the NAPW video, the Angela Carder case, noted that the decision to call an emergency hearing about the rights of the fetus was influenced by malpractice concerns, stating that “of course, we admit the spectre of liability. We make no bones about it.”[3]

As any women who have been told that if they do not accede to doctors’ recommendations they will, in effect, be responsible for killing their baby know, the fear of malpractice liability—justified or unjustified—can be cloaked in the best interest of the fetus. This shifts the onus from the medical provider (who should engage in careful informed consent counseling, perhaps even providing the opportunity for the pregnant woman to sign waivers documenting her understanding of the relative risks and benefits) to the pregnant woman (who must now “prove” her merit as a mother by consenting to unwanted surgery). 

Much has been written about the importance of informed consent, and about the potential impact of malpractice concerns on physicians’ practice. Nevertheless, there is nothing to suggest that malpractice fears—even if they are justified—release a provider from the legal and ethical duties of informed consent. Indeed, while providers often claim their actions are justified in order to avoid later real or imagined malpractice claims, guidelines from the American Medical Association and the American Association of Obstetricians and Gynecologists support patient autonomy and condemn the use of judicial intervention to force compliance with treatment.[4]

In any event, no mother ever declined a cesarean in hopes that her baby would die. Moreover neither fear of liability nor claims of fetal separateness may be used to deprive pregnant women of their constitutional and human rights and to shift the burden of bad medical practices to the pregnant woman. And, finally, one would hope that ALL and other groups that identify as pro-life would include the lives of pregnant women in their calculus and oppose any reasoning for depriving pregnant women of their personhood.

 


[1] Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame L. Rev. 349, 371 (1971) (citing H. Liley, Modern Motherhood, 28 (1967).

[2] Terri-Ann Samuels et al., Obstetricians, Health Attorneys, and Court-Ordered Cesarean Sections, 17 Women’s Health Issues 107 (2007).

[3] Transcript of Oral Argument at 73, In re A.C. 573 A.2d 1235 (D.C.App. 1990) (No. 87-607).

[4] See, e.g. AGOG Committee on Ethics, Patient Choice: Maternal-Fetal Conflict: ACOG Committee Opinion No. 55 (1987); ACOG Committee on Ethics, Maternal Decision Making, Ethics, and the Law: ACOG Committee Opinion No. 321 (2005); Helene M. Cole, M.D., Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 JAMA 2663 (1990).

 

Farah Diaz-Tello, JD, is a Staff Attorney at National Advocates for Pregnant Women (NAPW).  Her work at NAPW focuses on birth justice, the rights to medical decision-making and birthing with dignity, and on using the international human rights framework to protect the humanity of pregnant women regardless of their circumstances. She held a Haywood Burns Fellowship in Civil and Human Rights at the City University of New York School of Law, and is a proud Texan.

 

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Reader Comments (45)

Personhood does not apply merely to eggs. This is propaganda. It applies to *fertilized* eggs, which is the earliest stage of a new human's life, whatever the technical, medical term for that is - zygote or blastocyst or whatever. Please don't spread the lie that somehow supporting a Personhood Amendment will mean that women won't be able to menstruate.

January 12, 2011 | Unregistered CommenterKathy

Kathy, actually, that is what it means. Fertilized eggs *can* be lost at menstruation, as well, if they fail to implant. The medical definition of conception is when a fertilized egg implants. And of course a miscarriage (which happens to many many women) can take place after implantation, which puts us in the difficult position, if we consider a fetus at that stage a person, of pondering whether a woman could be charged with accidental manslaughter for doing something that might have caused that miscarriage. Such as drinking a beer, or climbing a mountain. Personhood bills would in effect put all women who might get pregnant (most women between age of 11 and 50) iin a kind of invisible cage, constantly at risk for harming a fetus they might be carrying, knowingly or not.

January 12, 2011 | Unregistered Commenteremjaybee

Kathy,
An unfertalized egg is the same in respect to a fertalized egg, embroyo or even a fetus -- it has the potential of becoming a human being. The problem is that laws like this make it easy to continue taking away rights. While it may never come to menstration as being illegal, it may come to when you're allowed to menstrate and if you're allowed to attempt "fertilizing" that egg.

Where is the cut off for these laws? There isn't one.

January 12, 2011 | Unregistered CommenterR.

I'm writing my dissertation on the human embryo and Thomistic metaphysics. And I'm adamantly pro-life. I've lost 6 babies to miscarriage whom I would have done anything to keep.

But this pattern of coercion against mothers scares the @#$!%&* out of me. And it makes me SO angry. Thank you, thank you for drawing attention to this.

You can't "get at" a baby growing in its mother's womb without going through the mother first. Any authority that tries to claim it can make a mother do things to her body (or have them done to her) for the baby's sake can't possibly have more invested in the outcome than she can.

If people want to help babies to be born healthy and safe, they should encourage mothers, give them support, up-to-date healthcare, and good information, and protect their right to informed consent (and that means freedom to refuse, too!). How can a pregnant woman seek care for her health (and her baby's) if she can't trust her doctor? If I had to worry about my doctor being legally able to force me to do things "for the baby's good" how could I trust them, and how could they trust me?

How many times in my young, healthy life have doctors been wrong about the proper course of treatment? How many times have the experts disagreed? So many it's scary. At best, the really good doctors are experts in their requisite medical fields. But no one else is an expert in "me." I'm not subjecting a baby to an outsider's expertise and judgment as against my own deep and abiding concern for their welfare, and we should work together to make sure no mom and baby dyad get treated as opposing teams with conflicting interests. When a woman is gestating, she's not a baby-warmer machine that might go on the fritz. She's a mother growing a child, with all her bodily systems geared toward nurturing the new life.

Bottom line: you can't cut through a person to get to a person without negating the personhood of the first. You can ask them to move. You can ask them for permission. You can plead that the second person will die or be injured or be in danger if the first does not acquiesce. But a woman does not give over her right to be a person when she carries (and nurtures) another person within the boundaries of her body.

January 12, 2011 | Unregistered CommenterMel

Mothers all want healthy babies, and mothers won't refuse cesareans when it means a high likelihood of death of their babies. The sad fact is that cesareans are coerced over much, much less. Bigger baby, small-ish hips, previous cesarean (even low transverse, years ago, with additional vaginal deliveries), post-40 weeks and unfavorable for induction, etc. None of these things make a vaginal delivery high risk in leading to maternal or fetal death, but every day, women are told they may be jeopardizing their own or their babies' lives if they don't go along with a cesarean section. The forced cesareans mentioned in the post are particularly disgusting, but they are really the tip of the iceberg when it comes to stripping away a woman's informed consent for a procedure on her own body.

January 12, 2011 | Unregistered CommenterKK

"Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
-C.S. Lewis

January 12, 2011 | Unregistered CommenterMel

Re: Mel's comment: "Bottom line: you can't cut through a person to get to a person without negating the personhood of the first."

This made me think - you should no more be allowed to force a c-section on a woman than you should be allowed to force a person to donate an organ to someone else. They seem like comparable circumstances to me, anyway.

Many pro-lifers are angered by pro-choicers' seeming intent to objectify unborn babies by considering them just another part of Mom's body, to be removed through elective abortion as a form of birth control, if the mom wants to. Sadly, it sounds as if some groups (such as ALL) have had the kneejerk reaction of going to the opposite extreme and objectifying Moms, instead.

There's a balance. Both Mom and unborn baby are people, and should have full rights. However, just as you can't force a person to donate a kidney if they don't want to, you shouldn't be able to force a mom into an unwanted c-section.

January 12, 2011 | Unregistered CommenterLysana

Thank you so much for this post from the National Advocates for Pregnant Women. Not only is NAPW of my favorite organizations in the world of maternal/child health and reproductive justice, this post is an invaluable contribution to our conversation about VBAC.

I was very frustrated recently during the media coverage of a mother who had a HBA3C. It was frequently tweeted as "Mom-Hero or Danger?" with the birth experience being privileged by some (she got the wonderful birth she wanted) and the baby's life by others (she risked her baby's life just for her birth experience) with all of risks of uterine rupture being trumpeted while the risks of repeat c/s were minimized. There was also no acknowledgment of the differing risks to mother and baby from scheduled surgery versus spontaneous uterine rupture. In my opinion, the important headline was that mothers do not give up their rights to decline surgery (of any kind) or make their own medical decisions (of whatever kind) just because they are pregnant. A mother is not a living "crib with a blanket." It really bothered me that the baby's life/narrative was being privileged over the mother's life. The lives of her partner and three young children--all people by anyone's definition--were NOWHERE in this story. As a mother of a young child, one of the reasons that I opted for a VBAC is that surgery is a greater risk to me, and, for that reason, I did not want to risk leaving my husband and possibly 2 young children without a wife and a mother. It should go without saying that the well-being of the baby I was carrying was never ever ever out of my thoughts. My first c-section, the result of a cord tear during labor, was an instance where I accepted risk for myself because of the critical risk to the baby. My scar testifies to that fact. But, through my research, the advice of my CNM and her practice, and a supportive hospital, I knew that a successful VBAC would be better for both me and the baby. Just as I did with my c-section, I signed consents acknowledging the risks inherent in my decision. And I did everything within my power to ensure a successful, healthy birth for both of us...which happened this past June!

I'm not sure who wrote this post for NAPW, but I have always been inspired by Lynn Paltrow's words at the end of Pushed: The Painful Truth About Childbirth and Modern Maternity Care. (p.271) She responds to the idea that the goal (of doctors, labor and delivery wards) is to "have a healthy baby." As a c/s mom, I heard that a lot when I came home with my son. All that matters is a healthy baby. In Pushed, Paltrow states "The context needs to be that the goal is a healthy mom. Because mothers never make decisions without thinking about that healthy baby." When I first read those words, they brought me to tears because they captured something about both of my birth experiences so critical to understanding the experience of becoming a mother...and this discussion about VBAC.

January 12, 2011 | Unregistered CommenterChicagoMaMusing

"you can't cut through a person to get to a person without negating the personhood of the first. You can ask them to move. You can ask them for permission. You can plead that the second person will die or be injured or be in danger if the first does not acquiesce."

This conjures up a vision of a hostage situation where the baby is the hostage, the mother is the captor and the doctor/courts are the negotiator/sharp-shooter sent in to deal with the mother. This is how the supporters of free-riegn over a birthing woman surely see the situation. Sadly the mother isn't commiting any crimes. She is trying to do what the doctors/courts say they are doing. She is trying to do what is best for her child and she has a much greater interest in that child than the doctors/courts, but that fact can not be recognized in this system. Sadly the relationship between the mother and baby is not even a factor.

THe problem comes with artificially seperating the needs of the mother and the needs of the child. Their needs are largely the same. They are dependant upon one another in a way that is no longer recognized. A baby needs a mother's warmth, but we have electricity for that now, A baby needs his mother's milk, but we have formula now. A baby needs his mother to be whole and capable of caring for him, but we have pills for that now. Until we can really aknowledge the needs of the mother AND the needs of the child and meet those needs then both will surely be made to suffer.

January 12, 2011 | Unregistered CommenterAbbey

It is commonly accepted that many, many times fertilization does not result in a clinical pregnancy, much less the birth of a live baby. In fact, this is usually given as a reason for promoting abortion -- the old canard, "Many times women get pregnant and they don't know it, and end up having a miscarriage (many times so early that they assume is just a period), therefore since nature ends a high percentage of pregnancies naturally, it must be okay for us to end them unnaturally." However, there is a 100% fatality rate with life. Yep, 100% of the time, it ends. Anybody want to volunteer to be the person for whom it ends prematurely and unnaturally? Anybody raising her hand to get shot and killed in a botched robbery? Didn't think so.

The medical definition of conception is when a fertilized egg implants. This definition was changed in the mid-70s, as abortion became accepted. Previously, conception was defined as and accepted as fertilization.

...of pondering whether a woman could be charged with accidental manslaughter for doing something that might have caused that miscarriage. Extremely and exceedingly unlikely, until we get more knowledge of what might possibly be leading to miscarriages. Most of the time women are told, "we don't know." I think it takes a huge leap of faith to say that if a Personhood Amendment passes, then doctors will suddenly possess a wealth of knowledge of what causes and prevents miscarriages, which today are considered largely unavoidable. If we haven't made many steps in the past 50 years to reduce the incidence of miscarriage, I doubt that suddenly passing a Personhood Amendment will suddenly impel OB/GYNs (who largely support abortion) to suddenly start investigating miscarriages to try to increase our knowledge.

An unfertalized egg is the same in respect to a fertalized egg, embroyo or even a fetus -- it has the potential of becoming a human being. No, an unfertilized egg has the potential of becoming a human being, if combined with a sperm; a fertilized egg is already a genetically unique human -- read any book on embryology. The contention comes with the definition of "human being" or "person", which is a philosophical statement, and not grounded in anything else. Science and medicine very strongly come down on the pro-life side. The developing baby, starting at fertilization, is genetically different from the woman and separate from, though inside, her. If and when that baby develops, it remains a separate person -- otherwise if the baby is a boy, the woman acquires a penis and set of testicles. [Speaking of male genitals, I find it extremely hypocritical of people who support abortion on the grounds that "a woman can do with her body what she wants" even though that means "a woman can destroy another human's body just because it is inside her," yet oppose circumcision on the grounds that the baby's bodily integrity is at stake and nobody else has the right to remove even a small part of the body without his consent. I guess if circumcisions were done prenatally, they'd be okay.]

You see, when a woman releases an egg, it can live only for about 24 hours by itself before dying. When a man releases sperm, it may live for as little as 30 minutes or (in the right conditions in the woman's uterus) up to 5-7 days before dying. But here is the evidence of the huge difference between an unfertilized and a fertilized egg -- a fertilized egg can potentially live for over 100 years, if nothing is done to prevent it from growing.

January 12, 2011 | Unregistered CommenterKathy
This blog is all done!
Thanks for wanting to comment. This is an archive of a blog that once was. Take care! Jill