An Affirmation of ACOG Committee Opinion Number 55: Maternal-Fetal Conflict
In Re A.C.
Ann E. Allen, JD General Counsel The American College of Obstetricians and Gynecologists Washington, DC
n April 1990, the District of Columbia Court of Appeals issued its opinion in In Re A.C., the much-publicized case involving a court-ordered cesarean section performed on a dying woman in June 1987.1 The court's decision holding that "in virtually all cases the question of what is to be done is to be decided by the patient--the pregnant w o m a n - - o n behalf of herself and the fetus," is a precedent-setting reaffirmation of a pregnant woman's autonomy in making her own health care decisions. Although there is rarely a conflict of interest between a recommended medical treatment thought to be beneficial to a fetus and the pregnant woman's choice concerning medical care, recent cases concerning court-ordered cesarean sections and drug use by pregnant women have brought to public attention the tension that can exist between a woman's right to determine her health care treatment and concerns for the well-being of the fetus. As the representative organization of board-certified obstetricians and gynecologists, the American College of Obstetricians and Gynecologists (ACOG), through its Committee on Ethics, was the first medical specialty society to issue a public statement on this issue. Committee Opinion Number 55, "Patient Choice: Maternal-Fetal Conflict," of October 1987, is a document that supports a woman's autonomy in making health care decisions. As such, it provides important guidance for many troublesome medical/legal situations. On occasion, physicians and hospital administrators have sought court orders to require a pregnant woman to undergo a certain medical or surgical procedure to which she will not consent, on the grounds that it is necessary to protect the health of the fetus. 2-4 Of the numerous documented instances in which a court order has been sought to require a woman to undergo an emergency cesarean delivery, only one case has been described in the literature in which the judge refused to grant the order. 4 Concern about the inappropriateness of the courtroom as a forum for medical decision making as well as concern about the deleterious effect judicial intervention has on a woman's autonomy and on the physician-patient relationship prompted the ACOG Ethics Committee document. It rejects the
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© 1990 by The Jacobs Institute of Women's Health 1049-3867/90/$3.50
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intrusion of the judicial process into maternal-fetal interest conflicts, concluding that: Clinicians should be aware of the destructive effect of court orders on the pregnant woman's autonomy and on the physician-patient relationship. Because of the urgency of situations in pregnancy, the courts are often petitioned for a speedy decision, which may have serious limitations and unexpected outcomes. In light of the foregoing considerations, resort to the courts is almost never justified. The decision in In Re A.C. reaches virtually the identical conclusion but does so through primarily legal analysis as opposed to the medical-ethical reasoning used in the Committee Opinion. In Re A.C. establishes an important precedent that, it is hoped, will be followed by other courts asked to intervene in similar situations.
THE A.C. CASE The A.C. case is one of the most dramatic and tragic instances of perceived maternal-fetal conflict of interests. In 1987, Angela Carder was a 27-year-old patient in the high-risk pregnancy clinic at George Washington University Hospital in Washington, DC. Her pregnancy was considered high risk because she had had cancer as a teenager and young woman, although the cancer had been in remission for several years before she became pregnant. On June 9, 1987, when she was approximately 25 weeks pregnant, a large tumor was detected in one of her lungs and she was admitted to the hospital. Her condition deteriorated rapidly over the next few days. On June 16, on the hospital's initiative, a court hearing was held in a hospital conference room to determine whether a cesarean delivery should be performed to "save" the 26.5-week-old fetus. At that time, it did not appear to Carder's physicians that she would live more than a day or two longer. It was not clear at the time of the hearing whether or not Carder wanted the cesarean to be performed. She was sedated, conscious only part of the time, and unable to communicate clearly. The only previous discussion that her physicians had had with her about a possible cesarean section had been in the context of a cesarean delivery at 28 weeks at the earliest. Although Carder was not at the hearing, her parents and husband were there, as were her court-appointed attorney, a court-appointed guardian of the fetus, representatives from the hospital and the District of Columbia Government, and members of the medical staff. After hearing testimony about Carder's health, the viability of the fetus, and the lack of informed consent or direction from the patient, the trial court judge ordered that a cesarean delivery be performed, after using a balancing-of-interests analysis. He found that once a fetus becomes viable, the state has an "important and legitimate interest in protecting the potentiality of human life," and that "with a viable fetus a balancing of interests must replace the single interest of the mother."s The two obstetricians who relayed the decision to Carder reported to the judge that she clearly indicated, nonverbally, that she did not want the operation performed. The trial court held that despite this new evidence, her intent still was unclear, and it ordered the cesarean performed. A three-judge appellate panel, convened by telephone, refused to stay the order. The operation was done, the baby died a few hours after delivery, and Carder died 2 days later. In November 1987, almost 5 months after her death, the District of Columbia Court of Appeals issued a written decision supporting the court-ordered cesarean. The case then became the focus of national attention, and petitions were filed by Angela Carder's parents and many amici requesting a 38
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rehearing en banc. The motions for rehearing were granted, and the November opinion was vacated in early 1988. The full Court of Appeals reheard the case in September 1988 and issued its opinion in April 1990.1 In ruling that the trial court judge should not have ordered the cesarean section, the Court of Appeals rejected the balancing of maternal-fetal interests approach. The court's analysis began with the premise that all patients have the right to make an informed choice about medical treatment, including the decision to decline it. Furthermore, one person cannot be compeUed to submit to a medical procedure for the benefit of another. The Court of Appeals ruled that although the right to refuse treatment is not absolute, "the state's interest in preserving life must be truly compelling to justify overriding a competent person's right to refuse medical treatment. ''6 Furthermore, the right to bodily integrity does not depend on the person's health or proximity to death. Emphasizing the importance of this right of bodily integrity, the court asserted: To protect that right against intrusion by others--family members, doctors, hospitals, or anyone else, however well-intentioned--we hold that a court must determine the patient's wishes by any means available, and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them. 6 The court reaffirmed that the right to bodily integrity belongs to both competent and incompetent persons. If a patient is not competent to make an informed treatment decision, a decision that "will control in virtually all cases," the appeals court held that the trial court must make a substituted judgment on behalf of the patient, acting, in effect, as a surrogate for her. This is what the trial court should have done in the A.C. case, but failed to do. Consequently, not having determined whether Carder would have consented to or refused the surgery, the trial court could not posit a conflict between her interests and those of the fetus. Therefore, it erred in moving to the stage of "balancing" the interests of maternal against fetal interests. The Court of Appeals gave two additional significant reasons for not overriding Carder's objections to surgery. First, court-ordered intervention erodes the physician-patient relationship and may drive women away from the health care system. Second, the hurried nature of any judicial hearing convened in response to a medical emergency is not a good forum for making decisions. The April 1990 decision set aside the trial court's ordered cesarean because the lower court had not made a substituted judgment for A.C. but had ordered the surgery in the face of her uncertainty. The Court of Appeals then made dear what the outcome of a balancing of interests, properly conducted, should be: Again, in virtually all cases the decision of the patient, albeit discerned through the mechanism of substituted judgment, will control. We do not quite foreclose the possibility that a conflicting state interest may be so compelling that the patient's wishes must yield, but we anticipate that such cases will be extremely rare and truly exceptional. This is not such a case.7 The court then added parenthetically: Indeed, some may doubt that there could ever be situation extraordinary or compelling enough to justify a massive intrusion into a person's body, such as a cesarean section, against that person's will.7 T h e A.C. decision is an unprecedented judicial recognition of the autonomous decision-making authority of the pregnant woman. Its repeated assertions that not only must the decision of the woman always be respected, WH1 Vol. 1, No. 1 Fall 1990
ALLEN: COMMENTARY
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but that a court should not even engage in a balancing of maternal a n d fetal interests, is a major departure from previous judicial analyses. It is consistent with the A C O G Committee Opinion on Maternal-Fetal Conflict. U n d e r the guidance of A . C . , it can be h o p e d that physicians and hospitals will avoid resorting to the courts in similar cases and that courts faced with petitions for court orders for treatment of p r e g n a n t w o m e n will decline to intervene or will use the substituted j u d g m e n t analysis.
REFERENCES 1. In re A.C. 533 A2d 611 (DC 1987), vacated 539 A2d 203 (DC 1988); vacated and
remanded 573 A2d 1235 (DC 1990). 2. Kolder VE, Gallagher J, Parsons MT. Court-ordered obstetricial interventions. N Engl J Med 1987;316:1192. 3. GaUagher J. Prenatal invasions and interventions: What's wrong with fetal rights. Harvard Women's Law J 1987;10:9. 4. Rhoden J. The judge in the delivery room: The emergence of court-ordered cesareans. Calif Law Rev 1986;74:1951. (This article reports that Judge Margaret Taylor of New York City Family Court refused to order a cesarean section be performed over the woman's objections.) 5. 533 A2d 611, 614-15. 6. 573 A2d 1235, 1247. 7. 573 A2d 1235, 1252.
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In Re A.C.
Ann E. Allen, JD General Counsel The American College of Obstetricians and Gynecologists Washington, DC
n April 1990, the District of Columbia Court of Appeals issued its opinion in In Re A.C., the much-publicized case involving a court-ordered cesarean section performed on a dying woman in June 1987.1 The court's decision holding that "in virtually all cases the question of what is to be done is to be decided by the patient--the pregnant w o m a n - - o n behalf of herself and the fetus," is a precedent-setting reaffirmation of a pregnant woman's autonomy in making her own health care decisions. Although there is rarely a conflict of interest between a recommended medical treatment thought to be beneficial to a fetus and the pregnant woman's choice concerning medical care, recent cases concerning court-ordered cesarean sections and drug use by pregnant women have brought to public attention the tension that can exist between a woman's right to determine her health care treatment and concerns for the well-being of the fetus. As the representative organization of board-certified obstetricians and gynecologists, the American College of Obstetricians and Gynecologists (ACOG), through its Committee on Ethics, was the first medical specialty society to issue a public statement on this issue. Committee Opinion Number 55, "Patient Choice: Maternal-Fetal Conflict," of October 1987, is a document that supports a woman's autonomy in making health care decisions. As such, it provides important guidance for many troublesome medical/legal situations. On occasion, physicians and hospital administrators have sought court orders to require a pregnant woman to undergo a certain medical or surgical procedure to which she will not consent, on the grounds that it is necessary to protect the health of the fetus. 2-4 Of the numerous documented instances in which a court order has been sought to require a woman to undergo an emergency cesarean delivery, only one case has been described in the literature in which the judge refused to grant the order. 4 Concern about the inappropriateness of the courtroom as a forum for medical decision making as well as concern about the deleterious effect judicial intervention has on a woman's autonomy and on the physician-patient relationship prompted the ACOG Ethics Committee document. It rejects the
I
WH1 Vol. 1, No. 1 Fall 1990
© 1990 by The Jacobs Institute of Women's Health 1049-3867/90/$3.50
ALLEN: COMMENTARY 37
intrusion of the judicial process into maternal-fetal interest conflicts, concluding that: Clinicians should be aware of the destructive effect of court orders on the pregnant woman's autonomy and on the physician-patient relationship. Because of the urgency of situations in pregnancy, the courts are often petitioned for a speedy decision, which may have serious limitations and unexpected outcomes. In light of the foregoing considerations, resort to the courts is almost never justified. The decision in In Re A.C. reaches virtually the identical conclusion but does so through primarily legal analysis as opposed to the medical-ethical reasoning used in the Committee Opinion. In Re A.C. establishes an important precedent that, it is hoped, will be followed by other courts asked to intervene in similar situations.
THE A.C. CASE The A.C. case is one of the most dramatic and tragic instances of perceived maternal-fetal conflict of interests. In 1987, Angela Carder was a 27-year-old patient in the high-risk pregnancy clinic at George Washington University Hospital in Washington, DC. Her pregnancy was considered high risk because she had had cancer as a teenager and young woman, although the cancer had been in remission for several years before she became pregnant. On June 9, 1987, when she was approximately 25 weeks pregnant, a large tumor was detected in one of her lungs and she was admitted to the hospital. Her condition deteriorated rapidly over the next few days. On June 16, on the hospital's initiative, a court hearing was held in a hospital conference room to determine whether a cesarean delivery should be performed to "save" the 26.5-week-old fetus. At that time, it did not appear to Carder's physicians that she would live more than a day or two longer. It was not clear at the time of the hearing whether or not Carder wanted the cesarean to be performed. She was sedated, conscious only part of the time, and unable to communicate clearly. The only previous discussion that her physicians had had with her about a possible cesarean section had been in the context of a cesarean delivery at 28 weeks at the earliest. Although Carder was not at the hearing, her parents and husband were there, as were her court-appointed attorney, a court-appointed guardian of the fetus, representatives from the hospital and the District of Columbia Government, and members of the medical staff. After hearing testimony about Carder's health, the viability of the fetus, and the lack of informed consent or direction from the patient, the trial court judge ordered that a cesarean delivery be performed, after using a balancing-of-interests analysis. He found that once a fetus becomes viable, the state has an "important and legitimate interest in protecting the potentiality of human life," and that "with a viable fetus a balancing of interests must replace the single interest of the mother."s The two obstetricians who relayed the decision to Carder reported to the judge that she clearly indicated, nonverbally, that she did not want the operation performed. The trial court held that despite this new evidence, her intent still was unclear, and it ordered the cesarean performed. A three-judge appellate panel, convened by telephone, refused to stay the order. The operation was done, the baby died a few hours after delivery, and Carder died 2 days later. In November 1987, almost 5 months after her death, the District of Columbia Court of Appeals issued a written decision supporting the court-ordered cesarean. The case then became the focus of national attention, and petitions were filed by Angela Carder's parents and many amici requesting a 38
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WHI Vol. 1, No. 1 Fall 1990
rehearing en banc. The motions for rehearing were granted, and the November opinion was vacated in early 1988. The full Court of Appeals reheard the case in September 1988 and issued its opinion in April 1990.1 In ruling that the trial court judge should not have ordered the cesarean section, the Court of Appeals rejected the balancing of maternal-fetal interests approach. The court's analysis began with the premise that all patients have the right to make an informed choice about medical treatment, including the decision to decline it. Furthermore, one person cannot be compeUed to submit to a medical procedure for the benefit of another. The Court of Appeals ruled that although the right to refuse treatment is not absolute, "the state's interest in preserving life must be truly compelling to justify overriding a competent person's right to refuse medical treatment. ''6 Furthermore, the right to bodily integrity does not depend on the person's health or proximity to death. Emphasizing the importance of this right of bodily integrity, the court asserted: To protect that right against intrusion by others--family members, doctors, hospitals, or anyone else, however well-intentioned--we hold that a court must determine the patient's wishes by any means available, and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them. 6 The court reaffirmed that the right to bodily integrity belongs to both competent and incompetent persons. If a patient is not competent to make an informed treatment decision, a decision that "will control in virtually all cases," the appeals court held that the trial court must make a substituted judgment on behalf of the patient, acting, in effect, as a surrogate for her. This is what the trial court should have done in the A.C. case, but failed to do. Consequently, not having determined whether Carder would have consented to or refused the surgery, the trial court could not posit a conflict between her interests and those of the fetus. Therefore, it erred in moving to the stage of "balancing" the interests of maternal against fetal interests. The Court of Appeals gave two additional significant reasons for not overriding Carder's objections to surgery. First, court-ordered intervention erodes the physician-patient relationship and may drive women away from the health care system. Second, the hurried nature of any judicial hearing convened in response to a medical emergency is not a good forum for making decisions. The April 1990 decision set aside the trial court's ordered cesarean because the lower court had not made a substituted judgment for A.C. but had ordered the surgery in the face of her uncertainty. The Court of Appeals then made dear what the outcome of a balancing of interests, properly conducted, should be: Again, in virtually all cases the decision of the patient, albeit discerned through the mechanism of substituted judgment, will control. We do not quite foreclose the possibility that a conflicting state interest may be so compelling that the patient's wishes must yield, but we anticipate that such cases will be extremely rare and truly exceptional. This is not such a case.7 The court then added parenthetically: Indeed, some may doubt that there could ever be situation extraordinary or compelling enough to justify a massive intrusion into a person's body, such as a cesarean section, against that person's will.7 T h e A.C. decision is an unprecedented judicial recognition of the autonomous decision-making authority of the pregnant woman. Its repeated assertions that not only must the decision of the woman always be respected, WH1 Vol. 1, No. 1 Fall 1990
ALLEN: COMMENTARY
~9
but that a court should not even engage in a balancing of maternal a n d fetal interests, is a major departure from previous judicial analyses. It is consistent with the A C O G Committee Opinion on Maternal-Fetal Conflict. U n d e r the guidance of A . C . , it can be h o p e d that physicians and hospitals will avoid resorting to the courts in similar cases and that courts faced with petitions for court orders for treatment of p r e g n a n t w o m e n will decline to intervene or will use the substituted j u d g m e n t analysis.
REFERENCES 1. In re A.C. 533 A2d 611 (DC 1987), vacated 539 A2d 203 (DC 1988); vacated and
remanded 573 A2d 1235 (DC 1990). 2. Kolder VE, Gallagher J, Parsons MT. Court-ordered obstetricial interventions. N Engl J Med 1987;316:1192. 3. GaUagher J. Prenatal invasions and interventions: What's wrong with fetal rights. Harvard Women's Law J 1987;10:9. 4. Rhoden J. The judge in the delivery room: The emergence of court-ordered cesareans. Calif Law Rev 1986;74:1951. (This article reports that Judge Margaret Taylor of New York City Family Court refused to order a cesarean section be performed over the woman's objections.) 5. 533 A2d 611, 614-15. 6. 573 A2d 1235, 1247. 7. 573 A2d 1235, 1252.
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