Pregnant Woman vs. Fetus: A Dilemma for Hospital Ethics Committees MARTHA SWARTZ
Introduction Hospital ethics committees are often consulted when competing patient interests blur an otherwise clear course of medical treatment. Nowhere is the potential for competing interests greater than in the field of obstetrics, where obstetricians have traditionally viewed themselves as having two patients: the pregnant woman and the fetus. Legitimate concerns about the health of newborn infants as well as the everpresent controversy concerning the legal status of embryos and fetuses make it likely that hospital ethics committees will receive a growing number of referrals in which the ethical dilemma pits the pregnant woman against the fetus she is carrying. To the extent that ethics committees can articulate the various competing interests and conflicting ethical principles arising in these cases, they can help physicians, patients, and other members of the healthcare team feel more comfortable with treatment decisions. Because the practical applicability of the outcome of ethics committee deliberations will be influenced by legal considerations, this article begins with a discussion of the relevant law in the area. Next, a case recently discussed by an ethics committee set in a large urban teaching hospital is described. Finally, specific suggestions are offered about how an ethics committee can be effective when confronted with ethical dilemmas in which a pregnant woman's interests or desires conflict with those of her fetus. Legal Background Two types of situations have given rise to the development of law in this area: 1) where the pregnant woman refuses treatment that her physician considers necessary to save the life or enhance the health of her fetus and 2) where the pregnant woman's behavior or lifestyle is believed to interfere with the development of a healthy fetus. Forced Treatment
Perhaps the most dramatic and most widely reported case involving forced treatment was the case of Angela Carder ("A.C.") (1), a terminally ill woman who was forced to undergo a cesarian section in an attempt to save the life of her 26 ^-week-old fetus, notwithstanding pleas by the woman herself, her husband, her parents, and her physicians that she not Cambridge Quarterly of Healthcare Ethics (1992), 1, 51-62. Printed in the USA.
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Martha Swartz be put through such an ordeal. In the face of these refusals of surgery, the hospital administration petitioned the court for an order that would compel treatment to save the life of the fetus. In granting the hospital's petition, the judge weighed the value of the woman's necessarily truncated remaining life against the fetus's potential life. Both the woman and the premature child died shortly after delivery. In re A.C. was subsequently overturned by the District of Columbia Court of Appeals (2), which held that in virtually all cases the question of what is to be done is to be decided by the patient—the pregnant woman —on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as "substituted judgment," not through the balancing test applied by the lower court (3). However, the decision of the District of Columbia Court of Appeals is controlling only in Washington, D.C.; elsewhere, the overwhelming trend has been to override the pregnant woman's objections to treatment. In a study published in the New England Journal of Medicine in May 1987, Kolder et al. (4) reported that 15 court orders were sought in 11 states and obtained in all except one case. The same article reports that court orders have been obtained in several other types of cases in which competent women have refused treatment that physicians have recommended to save the life or enhance the health of the fetus. These treatments include courtordered blood transfusions, forced detention and administration of medication to diabetic women, and forced intrauterine blood transfusions in cases involving Rh sensitization (5). Moreover, it is likely that many pregnant women who initially refuse treatment are coerced to comply through threats that a court order will be obtained. This propensity toward overriding the objections of pregnant women to treatment can be attributed to a number of factors. Prime among them is a consideration of the societal cost of rearing children with handicaps that might have been avoided through prenatal intervention (6). Other factors include: 1) the growing emergence of the anti-abortion movement, which imbues the fetus with legal personhood, the logical extension of which, in the minds of some people, is the fetal right to medical treatment (7); 2) the theory that a woman's voluntary decision to continue a pregnancy creates in her special obligations to optimize the fetus's chances for good health (8); 3) the continued difficulty of physicians to feel comfortable when a patient's decision concerning her medical care conflicts with what the physician believes is in her "best interest" and a corresponding lack of understanding about patients' rights to refuse recommended treatment ("physician paternalism"); 4) a societal minimalization of the value of women apart from their child-bearing roles (9); and 5) a lack of appreciation for economic, cultural, educational or philosophical differences in the patient that account for her decision. (Significantly, Kolder et al. [10] report that among the patients ordered to undergo treatment in their survey, 80% were Black, Asian, or Hispanic, 44% were unmarried, and 24% did not speak English as their primary language. Also, several of the reported cases [11] involving forced cesarian sec-
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tions or forced transfusions involved women who refused treatment based on their religious beliefs.) An anecdote from my personal experience illustrates the effect these last three factors often play in physician decision making. A group of physicians specializing in maternalfetal medicine, most of whom were male and all of whom were more educated and more financially secure than the patient, were presented with a hypothetical case involving a 20year-old woman suffering from premature contractions at 26 weeks gestation. At first, she agreed to stay in the hospital to receive intravenous medication to stop the contractions; but after 2 days on intravenous therapy, she indicated that she needed to go home to take care of her 2-year-old child. She had neither the finances nor the social support to make alternative childcare arrangements. The majority of physicians present advocated petitioning the court for an order compelling the patient to stay in the hospital to avoid a premature delivery. They viewed the patient as "hysterical" and were unsympathetic to her childcare needs. Few had any compunctions about physically restraining the patient should she refuse to voluntarily abide by the court order; they saw no distinction between this competent pregnant woman's refusal of treatment and an incompetent patient's noncooperation with treatment, which is routinely handled by physical restraints. Given this apparent comfort level with overriding the objections of pregnant women to undergo medical treatment (12), there are many future possibilities for court orders to force pregnant women to receive treatment to enhance the health of the fetus. Increased conflicts between physicians and their pregnant patients are likely with the advent of new technological developments in the areas of prenatal diagnostic testing and intrauterine surgery. Court Orders to Force Lifestyle Change
The national epidemic of drug abuse (of which pregnant women are a part) has led some judges to issue orders aimed at preventing pregnant women from taking drugs during their pregnancies. For example, a court in Washington, D.C., recently ordered a pregnant woman who pleaded guilty to forging checks but who tested positive for cocaine imprisoned until her baby was due (13). (It is unclear why her urine was tested for cocaine if the charge against her was forgery!) In Florida, New York, California, and Illinois, criminal charges have been brought against women whose children were born addicted to cocaine (13,14). The charges have ranged from delivery of a controlled substance to a "minor" to criminal "child" abuse and neglect to involuntary manslaughter. The most widely publicized case of this type was In re Pamela Stewart (15), a situation involving a woman who ignored her physician's advice to abstain from drugs and sexual intercourse during pregnancy and gave birth to a severely brain-damaged child who subsequently died. She was charged with criminal failure to provide help to a "child" under California law and briefly jailed. The court later ruled that the law did not apply to fetuses. Several state legislatures have also attempted to address the problem of drug abuse among pregnant women. Bills have been introduced in both the Illinois and Minnesota
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Martha Swartz state legislatures (16) to require drug screening of newborns and the reporting of positive results to the local welfare agencies. Counties in other states have established policies that have the same effect (17). Commentators have suggested (18) that the present trend toward regulating pregnant women's behavior might lead to extension of child abuse and neglect charges against women who drink alcohol, smoke, fail to exercise, or fail to follow prescribed diets during pregnancy. In Massachusetts, a woman was recently charged (19) with motor vehicle homicide in the death of her 8 \ -month-old fetus who was stillborn after an accident in which the woman was allegedly intoxicated. Rights of Pregnant Women Courts facing situations in which a pregnant woman is viewed as endangering the health of her fetus are often forced to make decisions on an emergency basis, often without hearing directly from the woman herself. This is especially true in cases where physicians have applied to the court for an order to proceed with treatment. As a result, courts are often not conversant with the applicable law. Uncomfortable with what they may view as life/ death decisions, courts may prefer to "err on the side of life/7 i.e., issue a decision that protects the fetus at the expense of the pregnant woman's rights. From what body of law are courts deriving their decisions? The common-law right to bodily integrity and the Constitutional rights to liberty and privacy protect a competent woman's right to direct the course of her medical treatment. Under the common-law right to bodily integrity, every competent adult has the right to determine what shall be done with his or her body (20). A physician who touches a patient without the patient's consent is liable for battery (21). When a patient is incapable of participating in medical decision making by virtue of mental incompetence, most courts apply the "substituted judgment" doctrine, which mandates that efforts be made to ascertain through oral or written evidence what the patient would have wanted under the circumstances if she were competent (22). One manifestation of this right that is often discussed in the context of forced treatment is the reluctance of courts to order competent adults to submit to bone marrow or organ donation to save the life of another (23). In fact, the District of Columbia Court of Appeals in In re AC. (24) cites these cases in support of its position that the "substituted judgment" doctrine rather than a balancing test should be applied to incompetent pregnant patients where physicians are recommending treatment to benefit the fetus. The Constitutional rights to privacy and liberty were first applied in a reproductive rights context in Griswold v. Connecticut (25), the case in which the right of married people to use birth control was held to be a Constitutionally protected privacy right. The right was further developed in Roe v. Wade (26), in which the U.S. Supreme Court held that a woman's right to abortion was a protected privacy right. Although the Webster Court (27) suggested that the right to abortion was a liberty interest rather than a privacy right, thus less deserving of the strictest protection, it did not directly overrule Roe. The Roe Court (28) secured the right of pregnant women to obtain abortions throughout their pregnancies to protect their lives or their health. However, several states (29) have attempted to narrow that right. For example, in Pennsylvania, the legislature passed a law (30) that prohibits abortions after 24 weeks gestation except in very limited circumstances. 54
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Under this law, a court could order that a woman continue a pregnancy that would be detrimental to her health as long as it would not "substantially and irreversibly impair a major bodily function/' In a well-known New York case, In re Nancy Klein (31), abortion opponents appealed a lower court's order granting the request of the husband of a comatose pregnant woman that the woman have an abortion because physicians testified that a continued pregnancy would have deleterious effects on the woman's chance for recovery. The case went all the way up to the U.S. Supreme Court which rejected the group's request. The woman had the abortion and subsequently emerged from the coma. Some commentators take the position that abortion law should not be discussed in the context of refusal of treatment cases because the right to refuse medical treatment involves the right to be free from unwanted bodily intrusion; whereas, the right to an abortion involves an affirmative right to direct that a medical procedure be performed. However, abortion law is included in this discussion because both types of cases involve a pregnant woman's right to direct the course of her medical treatment. Moreover, because of the apparent conflict posed by each situation between the pregnant woman and the fetus, it appears that courts and physicians will continue to blur the distinctions. Fetal Rights
If pregnant women were treated the same as nonpregnant women and men, their rights to refuse treatment would be relatively clear. However, courts, like obstetricians, often view the pregnant woman as a "container" holding another living person, the fetus. Thus, many courts, like the lower court in In re A.C., feel compelled to engage in a balancing test, weighing the privacy/bodily integrity rights of the pregnant woman against the fetus's "right to life." Historically, fetuses have not been viewed as persons with legal rights; their rights have not been viewed as vested unless and until they are born alive. For example, in estate law, a fetus can be named as an heir, but property is vested only after a live birth. In personal injury law, in many states, the parents of a stillborn viable fetus may sue a negligent third party for wrongful death; however, some states still require that a live birth take place before the parents may recover damages. In criminal law, the states are split as to whether a fetus can be the victim of criminal or vehicular homicide (32,33). Most courts distinguish between previable and viable fetuses (32), affording more legal rights to the latter than to the former. However, some courts (34) have gone so far as to allow recovery for any injury suffered after the point of conception. Notably, all of these statutes and case law have had as their goal a means for parents to have some redress against a third party who has negligently or intentionally destroyed a fetus; none of them was intended to be a means for a fetus to obtain redress against a pregnant woman. Nevertheless, some state courts are allowing children to sue their mothers for injuries they suffered while in the womb. For example (35), in Michigan, a court allowed a son to sue his mother for negligently taking tetracycline, causing his teeth to be discolored. The other area of the law that is being used to protect fetuses is child abuse and neglect law. Traditionally, these laws prohibit parents from abusing or neglecting their children. 55
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Generally, the penalty for violating the laws is the removal of the children from the home or, in especially egregious circumstances, incarceration or other criminal sanctions. To cover fetuses under these acts, the definition of "child7' is being broadened in some states (36). The controversy about expanding the applicability of child abuse laws to cover fetuses was succinctly illustrated in conflicting opinions issued by two New York county judges in the fall of 1988. Both were confronted with pregnant women who had used cocaine during pregnancy and were charged with child neglect. The Nassau County judge held that the woman's use of cocaine and failure to obtain prenatal care were acts of neglect, writing, "There is no reason to treat a child in utero any differently from a child ex utero where the mother has decided not to destroy the fetus or where the time allowed for such destruction is past" (13,37). Conversely, the Bronx court concluded, "I see no authority for the state to regulate women's bodies merely because they are pregnant" (13,38). Society's Interests
Perhaps the strongest argument in favor of compelled medical treatment or forced detention of pregnant women to enhance the health of their fetuses arises not from fetal rights per se, but from society's interest in avoiding the financial and social burdens created by children born with handicaps that might have been avoided through appropriate prenatal care. Even the most protected of Constitutional rights can be restricted where a compelling state interest necessitates the overriding of these rights. For example, in those cases where a competent adult has refused life-saving medical treatment, even courts that acknowledge that such a right is a Constitutionally protected privacy right will engage in a balancing test that weighs the individual's right against various state interests (39). The problem is that even where society's interest is viewed as sufficiently compelling to justify the restriction of a pregnant woman's liberty, the implementation of that interest is problematic. Notwithstanding the previously described anecdote about physicians practicing maternal-fetal medicine, many physicians will feel uncomfortable physically restraining a competent pregnant woman to administer court-ordered treatment. Also, in cases involving drug or alcohol abuse, imprisonment and fines are likely to have an equally deleterious effect on the fetus and other children in the home as on the pregnant woman. Certainly, the more reasonable approach would provide pregnant women with the social services, financial resources, and education that would encourage them to voluntarily act in a manner consistent with the fetus's health. Although it may be morally and ethically appropriate in most cases in which 1) a woman's own health would not be adversely affected and 2) the fetus is viable for the woman to make decisions that would enhance the fetus's chance for good health, legislating morality in these cases raises more questions than it answers. The Role of Ethics Committees As the law in this area develops and as fetal medical technology increases, it is likely that ethics committees will see an increasing number of referrals involving pregnant women 56
Pregnant Woman vs. Fetus and their fetuses. Thus, the ethics committee's educational and policy-making roles in this area can be expected to increase. This article focuses, however, on the ethics committee's consultative role. In their consultative role, ethics committees generally must ask as one of their threshold questions: "Whose interests are we obligated to protect? The patient's? The family's? The physician's? The institution's? Society's?" In cases that involve a pregnant woman, ethics committees must first confront another problem: "Who is the patient? The pregnant woman? The fetus? Both? At what point, if ever, in gestational development does the fetus have health interests that require or deserve protection?" Any model that relies on fetal viability as a threshold point for defining fetal rights must acknowledge that developing technology may significantly reduce the gestational age at which fetuses are generally considered to be viable. However, for lack of a more just alternative, and considering current legal precedent, fetal viability seems to be an appropriate starting point for considering fetal interests in ethics committee deliberations. By no means, however, should fetal viability be the endpoint of any analysis; many people would contend that a woman's autonomy interests should prevail no matter what the gestational age of the fetus. One useful way to analyze these dilemmas is based on the autonomy/beneficence model (40). This model acknowledges the physician's dual obligations to respect the autonomy of the pregnant woman in decision making, while offering his or her professional advice about what would be in the best interest of the woman and her fetus. The model also acknowledges the pregnant woman's ethical obligations to preserve/enhance the health of her fetus on the one hand (at least when the fetus is viable) and her sometimes conflicting right to personal autonomy. In applying this model to conflicts between pregnant women and their physicians, Frank Chernevak and Laurence McCullough (40) describe four kinds of common areas of dispute: 1) Conflicts between the maternal autonomy-based obligations of the physician and the maternal beneficence-based obligations of the physician, e.g., the Jehovah's witness refusing blood or the woman refusing a cesarian section because she fears scarring. In these cases, they advocate weighing the potential goods against the potential harms, concluding that in some cases, autonomy takes precedence and in others, beneficence predominates. 2) Conflicts between the fetal beneficence obligations of the pregnant woman and the fetal beneficence obligations of the physician, e.g., where physicians recommend the surgical placement of an intrauterine shunt into the fetus's head to alleviate hydrocephaly, but the woman believes that the procedure is too risky for the fetus. Here, they conclude that because there is no clear medical answer, the woman's decision should be respected. 3) Conflicts between maternal autonomy-based obligations of the physician and fetal beneficence-based obligations of the physician, e.g., where a physician recommends intrauterine blood transfusions or cesarian section in the event of fetal distress, and the woman refuses treatment because she believes that the procedure will be painful. Here, Chernevak and McCullough engage in a balancing test between the woman's right to autonomy and the benefits to the fetus offered by treatment. They 57
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conclude that if fetal risks are minimal and the benefit sought is substantial and the risk to the woman is "one she should reasonably accept/' then intervention should take place. 4) Conflicts between maternal beneficence-based obligations of the physician and fetal beneficence-based obligations of the physician, e.g., a maternal malignancy that requires drugs toxic to the fetus. Chernevak and McCullough conclude that because there is "no clearly convincing moral argument that the woman's life is more important than that of the fetus," the woman's decision should be accepted. This model provides some helpful guidance for analysis; however, the authors' applications of the model, at least in some of the examples, seem to devalue autonomy considerations while promoting fetal beneficence considerations. Their conclusion in example 3 suggests that they may be allowing their own beliefs about what they think would be "reasonable" to confuse the weighing process. Similarly, their reasoning in example 4, that a woman's life is not necessarily more important than that of the fetus, fails to recognize that many patients and their families would strongly reject that position, based on their own moral or religious beliefs. However, notwithstanding the flaws in their reasoning, they rightly conclude that the woman's decision should prevail. Case Discussion Of all the examples discussed by Chernevak and McCullough, the most problematic is example 3, where the pregnant woman rejects a treatment that might have some detrimental effect on her but that would likely benefit the viable fetus. The following case was discussed some time ago at a large urban hospital ethics committee. A 17-year-old woman in her first pregnancy came to the hospital clinic for a checkup when she was 32 weeks pregnant, having had no previous prenatal care. An ultrasound showed that the fetus had hydrocephaly. Physicians recommended that the woman have a cesarian section because the fetus's head would be too large for a vaginal delivery. Both the woman's and the fetus's lives might be endangered if a vaginal delivery were attempted. The woman refused consent to a C-section. This was an unwanted pregnancy, and she did not want to undertake the additional risk entailed by a C-section nor did she want the scarring associated with the operation. There was no suggestion that the woman was incapable of participating in medical decision making. One physician had told the patient about the option of cephalocentesis, a procedure in which the fluid would be removed from the fetus's head while still in her uterus, thus allowing for a vaginal delivery but in all likelihood resulting in the death of the fetus. The woman chose this option; however, the consulting neonatologist vehemently opposed the idea. An ad hoc group of five ethics committee members met with the obstetrician and the neonatologist. Journal articles describing the alternative treatments and the ethical ramifications of the options were discussed. Questions posed by the ad hoc ethics consultative committee motivated the physicians to perform additional diagnostic tests on the fetus. The physicians were encouraged to discuss the case with their colleagues at neighboring academic medical centers. 58
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The risks and benefits of a C-section versus cephalocentesis were laid out as they applied both to the pregnant woman and to the fetus. A C-section would be more risky to the woman than a normal vaginal delivery. However, it would be far less risky than attempting a vaginal delivery of a hydrocephalic infant. Obviously, a C-section was much more likely to result in a live baby than was cephalocentesis. Also, the medical and legal risks of producing an even more severely handicapped baby as a result of the cephalocentesis were discussed. The possibility of petitioning the court for an order to perform the C-section was discussed. In view of judicial approaches in other jurisdictions, it was considered likely that the court would grant such an order. Thus, going to court would operate only to provide legal protection for the physicians and institution; it was unlikely to offer any insights that would make physicians more comfortable with their decisions from an ethical standpoint. The pregnant woman's rights to autonomy in medical decision making were discussed. However, the gestational age of the fetus led some members of the committee to advocate that the fetus had its own independent right to medical treatment. Most of the discussion centered around the prognosis of the fetus if it were delivered by C-section. With additional information provided as a result of the ethics committee questions, physicians diagnosed an additional fetal anomaly that doomed the fetus to death within a few days after birth. This fact seemed to be pivotal in enabling both the obstetrician and the neonatologist to feel comfortable respecting the woman's decision. The ad hoc ethics consultative committee performed a number of valuable functions in this case. 1) Presenting the case allowed physicians to ventilate their feelings and frustrations about a very tragic dilemma. 2) Playing out the scenarios that would follow from different approaches illustrated the limited helpfulness of judicial intervention in these cases. 3) In presenting the case to the ad hoc committee, the physicians were helped to articulate the issues they found confusing. Crystalizing the issues led them to a sense of empowerment and control. 4) In responding to questions from committee members, physicians were motivated to obtain additional medical and social facts that eventually influenced their ultimate approach. 5) Questioning by the ad hoc committee also helped to highlight the "hidden agendas/' i.e., the personal values, religious beliefs, social biases, professional styles, and personality characteristics that were secretly influencing the physicians' judgment in the case. Whether these functions could be performed as easily in a larger group as they were in the smaller ad hoc consultative group setting depends on the interpersonal dynamics of any particular ethics committee. Clearly, smaller groups tend to be more flexible and thus more available to deal with emergencies. It is unclear whether some special format is needed for ethics committees confronted with these types of conflicts because of the existence of two potential patients. In the preceding example, the two interests emerged naturally: the obstetrician represented the 59
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woman's interest (with some ambivalence toward the fetus), and the neonatologist represented the interest of the fetus. However, this may not always be the case. One advocate might be assigned to the pregnant woman and another advocate to the fetus to insure that their respective interests will both be represented. However, this adversarial approach to ethical problem solving presupposes a solution that benefits one party to the exclusion of the other. In many situations, a compromise solution is possible. In any case, deliberations that try to apply an autonomy-beneficence model will generally explore the risks and benefits of various alternatives to both the pregnant woman and the fetus, without resorting to the adversarial approach. Finally, special attention should be paid to the particularly high potential for personal, cultural, and religious biases that may influence physician decisions and committee deliberations in this area. A significant effort should be spent in helping physicians and committee members to articulate their biases and understand how such biases might be affecting their judgment.
Notes 1. 2. 3. 4. 5.
6. 7. 8. 9.
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In re A.C. No. 87-609 (D.C. 16 Jun 1987). In re A.C. No. 87-609 (D.C. Cir. 26 Apr 1990). See note 2. In re A.C. 1990:3-4. Kolder VEB, Gallagher J, Parsons MT. Court-ordered obstetrical interventions. N Engl J Med. 1987;316(19):1192-6. See note 4. Kolder et al. 1987;316(19):1195. See also: In the Matter of Madyun Fetus. 114 Daily Wash L Rep. 2233 (D.C. 26 Jul 1986). A court ordered a cesarian section to avert the development of a fatal infection in the fetus over the objection of a woman who wanted natural childbirth. Jefferson versus Griffin Spalding County Hospital Authority. 274 S.E. 2d 457 (Ga. 1981). A court ordered a cesarian section over the religion-based objection of a woman suffering from placenta previa to save both the woman and the fetus. The woman left the hospital before the order was implemented and later delivered a healthy newborn via a vaginal delivery. In re Unborn Baby Wilson. No. 81-108 AV (Mich. Ct. App. 9 Mar 1981). The administration of insulin to a diabetic woman was ordered over her religion-based objections. Raleigh Fitkin-Paul Morgan Memorial Hosp. versus Anderson. 42 N.J. 421, 201 A.2d 537 (1964), Cert, denied, 377 US 985 (1964). Blood transfusions were ordered performed on a pregnant woman notwithstanding the fact that the fetus was previable. Kolder et al. (see note 4, p. 1193) also describe court orders having been obtained in Colorado for two women with diabetes, 31-33 weeks gestation, who refused treatment. Taft versus Taft. 388 Mass. 331, 446 N.E. 2d 395 (1983). A pregnant woman refused an operation to close her cervix to avoid miscarriage of her previable fetus, her husband sought a court order to override her objections, and the court refused to restrict the woman's constitutional rights. See generally: Rhoden NK. Cesareans and Samaritans. Law Med Health Care. 1987; 15(3): 118-25. Rhoden NK. The judge in the delivery room: the emergence of court-ordered cesareans. Calif Law Rev. 1986; 74:19512029. Nelson L, Milliken N. Compelled medical treatment of pregnant women —life, liberty, and law in conflict. J Am Med Assoc. 1988;259(7): 1060-6. Annas G. Protecting the liberty of pregnant patients. N Engl J Med. 1987;316(19): 1213-4. Jurow R, Paul R. Cesarean delivery for fetal distress without maternal consent. Obstet Gynecol. 1984;63(4):596-9. Annas G. Forced cesareans: the most unkindest cut of all. Hastings Cent Rep. 1982; 12(3): 16-17; Bowes W, Selgestad B. Fetal versus maternal rights: medical and legal perspectives. Obstet Gynecol. 1981;58(2):209-14. Johnson DE. The creation of fetal rights: conflicts with women's constitutional rights to liberty, privacy and equal protection. Yale Law J. 1986;95:599-625. See note 5. Rhoden. 1986;74:1965. See note 5. Rhoden. 1986;74:1979. Referring to Robertson J. The right to procreate and in utero therapy. J Legal Med. 1982;3(3):333-66. Even the fact that some programs that train obstetricians identify themselves as "maternal-fetal" fellowships reveal a bias toward viewing pregnant women as "mothers" primarily and as patients
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10. 11. 12. 13. 14.
15. 16. 17. 18.
19. 20.
21. 22. 23.
with independent medical interests only secondarily. This "pronatalist" bias is also apparent in discussions concerning the selective termination of multiple fetuses induced by hormonal therapy. See, e.g., Overall C. Selective termination of pregnancy and women's reproductive autonomy. Hastings Cent Rep. 1990;20(3):6-ll. Significantly, the tendency of courts to override women's objections to medical treatment extends beyond pregnant women. The New York Times recently reported that in a study of right-to-die decisions in which courts were faced with situations in which a patient had no advance directive so that the courts were forced to "construe" the patients' wishes, courts said that they could not construe female patients' preferences in 12 of 14 cases. In contrast, in cases involving men, the courts were unable to construe male patients' preferences in only 2 of 8 cases. The author of the study noted that in court opinions in these cases, "women are referred to by their first names and constructed as emotional, immature, unreflective and vulnerable to medical neglect, while men are called by their last names, and construed as rational, mature, decisive, and assaulted by medical technology." From: [Anonymous]. Courts, wills and women. The New York Times. 1990 Jul 23;sect A:2. See note 4. Kolder et al. 1987;316(19):1193. See note 5. In re Unborn Baby Wilson. Jefferson versus Griffin Spalding County Hospital Authority. Robertson J. Legal issues in prenatal therapy. Clin Obstet Gynecol. 1985;29(3):603-ll. Holder A. Maternal-fetal conflicts and the law. Female Patient. 1985; 10:80-90. Lenow J. The fetus as a patient: emerging rights as a person? Am J Law Med. 1983;9(l):l-29. [Anonymous]. When the courts take charge of the unborn. The New York Times. 1989 Jan 9;sect A:l. [Anonymous]. Philadelphia Inquirer. 1988 Dec 17;sect A:3. The New York Times Magazine has reported that prosecutors in Florida, Georgia, South Carolina, Massachusetts, California, and Michigan have charged pregnant women whose infants were born addicted to cocaine or whose urine tested positive for cocaine use with delivering a controlled substance to a minor. [Anonymous]. The New York Times Magazine. 1990 Aug 8:33. Although courts have dismissed charges against most of the women, a Florida Court of Appeals recently upheld the conviction of a woman charged with delivering cocaine to her newborn. [Anonymous]. Appeals court in Florida backs guilt for drug delivery by umbilical cord. The New York Times. 1991 Apr 20;sect A:5. Also, in Illinois, a court recently ordered a pregnant cocaine addict who was near the end of her term confined to a drug treatment center in an effort to protect her fetus. [Anonymous]. Court orders pregnant woman held in drug treatment center. The New York Times. 1991 Apr 13;sect A:3. People versus Stewart. No. M50819, slip op., at 7-8, 10 (San Diego County, CaL, 26 Feb 1987). [Anonymous]. Crime and pregnancy. Am Bar Assoc J. 1989;Aug:14. See note 13 describing policies in Nassau County, New York, and Los Angeles County, California, requiring drug tests for newborns and possible removal of the child from the home by the Department of Social Services. Field M. Controlling the woman to protect the fetus. Law Med Health Care. 1989; 17(2): 114-29. [Anonymous]. Maternal rights and fetal wrongs: the case against criminalization of'fetal abuse'. Harvard Law Rev. 1988; 101:994. [Anonymous]. Maternal substance abuse: the need to provide legal protection for the fetus. South Calif Law Rev. 1987;60:1209-41. Robertson J, Schulman J. Pregnancy and prenatal harm to offspring: the case of mothers with PKU. Hastings Cent Rep. 1987; 17(4):23-40, which describes maternal phenylketonuria, a condition that causes mental retardation in offspring unless the pregnant woman's diet is controlled. [Anonymous]. [Photograph]. Philadelphia Inquirer. 1989 Sep 29;sect A:8. Scholendorf versus Society of New York Hospitals, 111 N.Y. 125, 129-30, 105 N.E. 72, 93 (1913). The court held: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body: and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages." Swartz M. The patient who refuses medical treatment: a dilemma for hospitals and physicians. Am J Law Med. 1985; 11(2).-147-94. In re Spring. 380 Mass. 629, 405 N.E. 2d 115 (1980). In re Jobes. 108 N.J. 394, 529 A.2d 434 (1987). McFall versus Shimp. 10 Pa.D&C 3d 90, 91 (Allegheny County Ct. 1978). The court refused to order Shimp to donate bone marrow that was necessary to save the life of his cousin, McFall, holding "for our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn." See also the case of the Curran twins, in which the father of a leukemia-stricken boy sought the appointment of a guardian by the Illinois Supreme Court to consent to the testing of the bone marrow of the boy's twin half-brothers over the objections of the
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24. 25. 26. 27. 28. 29.
30. 31. 32. 33. 34. 35. 36. 37.
38. 39.
40. 41.
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twins' mother; a lower court had refused to order the tests saying it would be an invasion of the twins' privacy. [Anonymous]. Guardians named for children in marrow suit. The New York Times. 1990 Aug 18;sect A:26. See note 2. In re A.C. 1990:31. Griswold versus Connecticut. 380 US 479, 485-6 (1965). Roe versus Wade. 410 US 113, 153 (1973). Webster versus Reproductive Health Services et a\. No. 88-605, slip op. (US 3 Jul 1989). See note 26. Roe versus Wade. 1973:164-5. After overriding the governor's veto, the Louisiana state legislature passed a law prohibiting all abortions except those performed to save the life of the mother or in cases of rape or incest that is reported within 7 days. The law is presently being appealed to the Fifth Circuit Court of Appeals. Sojourner T. versus Roemer, No. 91-2247 (DC La. Aug. 7, 1991). Guam has also passed a law severely restricting abortions. The Pennsylvania, Louisiana, and Guam laws are likely to be presented to the U.S. Supreme Court in the near future. 18 Pa. C.S.A. Section 3211 (1989). [Anonymous]. With court's OK, abortion done on comatose woman. Philadelphia Inquirer. 1989 Feb 12;sect A:8. See note 12. Lenow. 1983;9(1):3-15. See note 6. Johnson. 1986;95:600-13. Hornbuckle versus Plantation Pipe Line, 212 Ga. 504, 93 S.E. 2d 727 (1956). Bennett versus Hymers, 101 N.H. 483, 485, 147 A.2d 108, 110 (1958). See note 16. [Anonymous]. 1989;Aug:16. NJ. Stat. Ann. Section 30:4C-ll (West 1981) authorizes the Bureau of Children's Services to petition to care for an "unborn child" when it appears that the "child" is of such circumstances that his welfare will be endangered unless proper care or custody is provided. In re Ruiz. 17 Ohio Misc. 2d 31, 500 N.E. 2d 935 (1986). The trial court ruled that a viable fetus is a child and that the mother's prenatal use of heroin constituted child neglect. In re Baby X. 97 Mich. App. I l l , 293 N.W. 2d 36 (1980). The court held that evidence about a woman's prenatal "abuse" or "neglect" could be considered in proceedings to determine whether she should be deprived of the custody of her newborn. In re Steven S. 126 Cal. App. 3d 23 (Cal. App. 1987). In re Dittrick Infant. 263 N.W. 2d 37 (Mich. App. 1977). The courts ruled that fetuses were not "children" under child neglect laws. Cruzan versus Director, Missouri Department of Health. 58 U.S.L. W. 4916, 4918 (US 25 Jun 1990). Citing Superintendent of Belchertown State School versus Saikewicz. 373 Mass. 728, 370 N.E. 2d 417 (1977). The U.S. Supreme Court upheld the decision of the Missouri Supreme Court to consider the state's interest in preserving life in deciding whether to allow the guardians of a patient in a persistent vegetative state to withdraw her artificial nutrition and hydration. Chernevak F, McCullough L. A practical method of analysis of the physician's ethical obligations to the fetus and pregnant woman in obstetric care. Resid Staff Physician. 1989;35(l):79-87. That a woman's decision should prevail in the vast majority of cases is now the official policy of George Washington University Medical Center, the site of the In re A.C. case. As the result of an out-of-court medical malpractice settlement with Angela Carder's parents, the hospital issued a policy that states, "When a fully informed and competent pregnant patient persists in a decision which may disserve her own or fetal welfare, this hospital's policy is to accede to the pregnant patient's preference whenever possible." [Anonymous]. The New York Times. 1990 Nov 29;sect B:14.
Introduction Hospital ethics committees are often consulted when competing patient interests blur an otherwise clear course of medical treatment. Nowhere is the potential for competing interests greater than in the field of obstetrics, where obstetricians have traditionally viewed themselves as having two patients: the pregnant woman and the fetus. Legitimate concerns about the health of newborn infants as well as the everpresent controversy concerning the legal status of embryos and fetuses make it likely that hospital ethics committees will receive a growing number of referrals in which the ethical dilemma pits the pregnant woman against the fetus she is carrying. To the extent that ethics committees can articulate the various competing interests and conflicting ethical principles arising in these cases, they can help physicians, patients, and other members of the healthcare team feel more comfortable with treatment decisions. Because the practical applicability of the outcome of ethics committee deliberations will be influenced by legal considerations, this article begins with a discussion of the relevant law in the area. Next, a case recently discussed by an ethics committee set in a large urban teaching hospital is described. Finally, specific suggestions are offered about how an ethics committee can be effective when confronted with ethical dilemmas in which a pregnant woman's interests or desires conflict with those of her fetus. Legal Background Two types of situations have given rise to the development of law in this area: 1) where the pregnant woman refuses treatment that her physician considers necessary to save the life or enhance the health of her fetus and 2) where the pregnant woman's behavior or lifestyle is believed to interfere with the development of a healthy fetus. Forced Treatment
Perhaps the most dramatic and most widely reported case involving forced treatment was the case of Angela Carder ("A.C.") (1), a terminally ill woman who was forced to undergo a cesarian section in an attempt to save the life of her 26 ^-week-old fetus, notwithstanding pleas by the woman herself, her husband, her parents, and her physicians that she not Cambridge Quarterly of Healthcare Ethics (1992), 1, 51-62. Printed in the USA.
Copyright © 1992 Cambridge University Press 0963-1801/92 $5.00 + .00
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Martha Swartz be put through such an ordeal. In the face of these refusals of surgery, the hospital administration petitioned the court for an order that would compel treatment to save the life of the fetus. In granting the hospital's petition, the judge weighed the value of the woman's necessarily truncated remaining life against the fetus's potential life. Both the woman and the premature child died shortly after delivery. In re A.C. was subsequently overturned by the District of Columbia Court of Appeals (2), which held that in virtually all cases the question of what is to be done is to be decided by the patient—the pregnant woman —on behalf of herself and the fetus. If the patient is incompetent or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as "substituted judgment," not through the balancing test applied by the lower court (3). However, the decision of the District of Columbia Court of Appeals is controlling only in Washington, D.C.; elsewhere, the overwhelming trend has been to override the pregnant woman's objections to treatment. In a study published in the New England Journal of Medicine in May 1987, Kolder et al. (4) reported that 15 court orders were sought in 11 states and obtained in all except one case. The same article reports that court orders have been obtained in several other types of cases in which competent women have refused treatment that physicians have recommended to save the life or enhance the health of the fetus. These treatments include courtordered blood transfusions, forced detention and administration of medication to diabetic women, and forced intrauterine blood transfusions in cases involving Rh sensitization (5). Moreover, it is likely that many pregnant women who initially refuse treatment are coerced to comply through threats that a court order will be obtained. This propensity toward overriding the objections of pregnant women to treatment can be attributed to a number of factors. Prime among them is a consideration of the societal cost of rearing children with handicaps that might have been avoided through prenatal intervention (6). Other factors include: 1) the growing emergence of the anti-abortion movement, which imbues the fetus with legal personhood, the logical extension of which, in the minds of some people, is the fetal right to medical treatment (7); 2) the theory that a woman's voluntary decision to continue a pregnancy creates in her special obligations to optimize the fetus's chances for good health (8); 3) the continued difficulty of physicians to feel comfortable when a patient's decision concerning her medical care conflicts with what the physician believes is in her "best interest" and a corresponding lack of understanding about patients' rights to refuse recommended treatment ("physician paternalism"); 4) a societal minimalization of the value of women apart from their child-bearing roles (9); and 5) a lack of appreciation for economic, cultural, educational or philosophical differences in the patient that account for her decision. (Significantly, Kolder et al. [10] report that among the patients ordered to undergo treatment in their survey, 80% were Black, Asian, or Hispanic, 44% were unmarried, and 24% did not speak English as their primary language. Also, several of the reported cases [11] involving forced cesarian sec-
52
Pregnant Woman vs. Fetus
tions or forced transfusions involved women who refused treatment based on their religious beliefs.) An anecdote from my personal experience illustrates the effect these last three factors often play in physician decision making. A group of physicians specializing in maternalfetal medicine, most of whom were male and all of whom were more educated and more financially secure than the patient, were presented with a hypothetical case involving a 20year-old woman suffering from premature contractions at 26 weeks gestation. At first, she agreed to stay in the hospital to receive intravenous medication to stop the contractions; but after 2 days on intravenous therapy, she indicated that she needed to go home to take care of her 2-year-old child. She had neither the finances nor the social support to make alternative childcare arrangements. The majority of physicians present advocated petitioning the court for an order compelling the patient to stay in the hospital to avoid a premature delivery. They viewed the patient as "hysterical" and were unsympathetic to her childcare needs. Few had any compunctions about physically restraining the patient should she refuse to voluntarily abide by the court order; they saw no distinction between this competent pregnant woman's refusal of treatment and an incompetent patient's noncooperation with treatment, which is routinely handled by physical restraints. Given this apparent comfort level with overriding the objections of pregnant women to undergo medical treatment (12), there are many future possibilities for court orders to force pregnant women to receive treatment to enhance the health of the fetus. Increased conflicts between physicians and their pregnant patients are likely with the advent of new technological developments in the areas of prenatal diagnostic testing and intrauterine surgery. Court Orders to Force Lifestyle Change
The national epidemic of drug abuse (of which pregnant women are a part) has led some judges to issue orders aimed at preventing pregnant women from taking drugs during their pregnancies. For example, a court in Washington, D.C., recently ordered a pregnant woman who pleaded guilty to forging checks but who tested positive for cocaine imprisoned until her baby was due (13). (It is unclear why her urine was tested for cocaine if the charge against her was forgery!) In Florida, New York, California, and Illinois, criminal charges have been brought against women whose children were born addicted to cocaine (13,14). The charges have ranged from delivery of a controlled substance to a "minor" to criminal "child" abuse and neglect to involuntary manslaughter. The most widely publicized case of this type was In re Pamela Stewart (15), a situation involving a woman who ignored her physician's advice to abstain from drugs and sexual intercourse during pregnancy and gave birth to a severely brain-damaged child who subsequently died. She was charged with criminal failure to provide help to a "child" under California law and briefly jailed. The court later ruled that the law did not apply to fetuses. Several state legislatures have also attempted to address the problem of drug abuse among pregnant women. Bills have been introduced in both the Illinois and Minnesota
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Martha Swartz state legislatures (16) to require drug screening of newborns and the reporting of positive results to the local welfare agencies. Counties in other states have established policies that have the same effect (17). Commentators have suggested (18) that the present trend toward regulating pregnant women's behavior might lead to extension of child abuse and neglect charges against women who drink alcohol, smoke, fail to exercise, or fail to follow prescribed diets during pregnancy. In Massachusetts, a woman was recently charged (19) with motor vehicle homicide in the death of her 8 \ -month-old fetus who was stillborn after an accident in which the woman was allegedly intoxicated. Rights of Pregnant Women Courts facing situations in which a pregnant woman is viewed as endangering the health of her fetus are often forced to make decisions on an emergency basis, often without hearing directly from the woman herself. This is especially true in cases where physicians have applied to the court for an order to proceed with treatment. As a result, courts are often not conversant with the applicable law. Uncomfortable with what they may view as life/ death decisions, courts may prefer to "err on the side of life/7 i.e., issue a decision that protects the fetus at the expense of the pregnant woman's rights. From what body of law are courts deriving their decisions? The common-law right to bodily integrity and the Constitutional rights to liberty and privacy protect a competent woman's right to direct the course of her medical treatment. Under the common-law right to bodily integrity, every competent adult has the right to determine what shall be done with his or her body (20). A physician who touches a patient without the patient's consent is liable for battery (21). When a patient is incapable of participating in medical decision making by virtue of mental incompetence, most courts apply the "substituted judgment" doctrine, which mandates that efforts be made to ascertain through oral or written evidence what the patient would have wanted under the circumstances if she were competent (22). One manifestation of this right that is often discussed in the context of forced treatment is the reluctance of courts to order competent adults to submit to bone marrow or organ donation to save the life of another (23). In fact, the District of Columbia Court of Appeals in In re AC. (24) cites these cases in support of its position that the "substituted judgment" doctrine rather than a balancing test should be applied to incompetent pregnant patients where physicians are recommending treatment to benefit the fetus. The Constitutional rights to privacy and liberty were first applied in a reproductive rights context in Griswold v. Connecticut (25), the case in which the right of married people to use birth control was held to be a Constitutionally protected privacy right. The right was further developed in Roe v. Wade (26), in which the U.S. Supreme Court held that a woman's right to abortion was a protected privacy right. Although the Webster Court (27) suggested that the right to abortion was a liberty interest rather than a privacy right, thus less deserving of the strictest protection, it did not directly overrule Roe. The Roe Court (28) secured the right of pregnant women to obtain abortions throughout their pregnancies to protect their lives or their health. However, several states (29) have attempted to narrow that right. For example, in Pennsylvania, the legislature passed a law (30) that prohibits abortions after 24 weeks gestation except in very limited circumstances. 54
Pregnant Woman vs. Fetus
Under this law, a court could order that a woman continue a pregnancy that would be detrimental to her health as long as it would not "substantially and irreversibly impair a major bodily function/' In a well-known New York case, In re Nancy Klein (31), abortion opponents appealed a lower court's order granting the request of the husband of a comatose pregnant woman that the woman have an abortion because physicians testified that a continued pregnancy would have deleterious effects on the woman's chance for recovery. The case went all the way up to the U.S. Supreme Court which rejected the group's request. The woman had the abortion and subsequently emerged from the coma. Some commentators take the position that abortion law should not be discussed in the context of refusal of treatment cases because the right to refuse medical treatment involves the right to be free from unwanted bodily intrusion; whereas, the right to an abortion involves an affirmative right to direct that a medical procedure be performed. However, abortion law is included in this discussion because both types of cases involve a pregnant woman's right to direct the course of her medical treatment. Moreover, because of the apparent conflict posed by each situation between the pregnant woman and the fetus, it appears that courts and physicians will continue to blur the distinctions. Fetal Rights
If pregnant women were treated the same as nonpregnant women and men, their rights to refuse treatment would be relatively clear. However, courts, like obstetricians, often view the pregnant woman as a "container" holding another living person, the fetus. Thus, many courts, like the lower court in In re A.C., feel compelled to engage in a balancing test, weighing the privacy/bodily integrity rights of the pregnant woman against the fetus's "right to life." Historically, fetuses have not been viewed as persons with legal rights; their rights have not been viewed as vested unless and until they are born alive. For example, in estate law, a fetus can be named as an heir, but property is vested only after a live birth. In personal injury law, in many states, the parents of a stillborn viable fetus may sue a negligent third party for wrongful death; however, some states still require that a live birth take place before the parents may recover damages. In criminal law, the states are split as to whether a fetus can be the victim of criminal or vehicular homicide (32,33). Most courts distinguish between previable and viable fetuses (32), affording more legal rights to the latter than to the former. However, some courts (34) have gone so far as to allow recovery for any injury suffered after the point of conception. Notably, all of these statutes and case law have had as their goal a means for parents to have some redress against a third party who has negligently or intentionally destroyed a fetus; none of them was intended to be a means for a fetus to obtain redress against a pregnant woman. Nevertheless, some state courts are allowing children to sue their mothers for injuries they suffered while in the womb. For example (35), in Michigan, a court allowed a son to sue his mother for negligently taking tetracycline, causing his teeth to be discolored. The other area of the law that is being used to protect fetuses is child abuse and neglect law. Traditionally, these laws prohibit parents from abusing or neglecting their children. 55
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Generally, the penalty for violating the laws is the removal of the children from the home or, in especially egregious circumstances, incarceration or other criminal sanctions. To cover fetuses under these acts, the definition of "child7' is being broadened in some states (36). The controversy about expanding the applicability of child abuse laws to cover fetuses was succinctly illustrated in conflicting opinions issued by two New York county judges in the fall of 1988. Both were confronted with pregnant women who had used cocaine during pregnancy and were charged with child neglect. The Nassau County judge held that the woman's use of cocaine and failure to obtain prenatal care were acts of neglect, writing, "There is no reason to treat a child in utero any differently from a child ex utero where the mother has decided not to destroy the fetus or where the time allowed for such destruction is past" (13,37). Conversely, the Bronx court concluded, "I see no authority for the state to regulate women's bodies merely because they are pregnant" (13,38). Society's Interests
Perhaps the strongest argument in favor of compelled medical treatment or forced detention of pregnant women to enhance the health of their fetuses arises not from fetal rights per se, but from society's interest in avoiding the financial and social burdens created by children born with handicaps that might have been avoided through appropriate prenatal care. Even the most protected of Constitutional rights can be restricted where a compelling state interest necessitates the overriding of these rights. For example, in those cases where a competent adult has refused life-saving medical treatment, even courts that acknowledge that such a right is a Constitutionally protected privacy right will engage in a balancing test that weighs the individual's right against various state interests (39). The problem is that even where society's interest is viewed as sufficiently compelling to justify the restriction of a pregnant woman's liberty, the implementation of that interest is problematic. Notwithstanding the previously described anecdote about physicians practicing maternal-fetal medicine, many physicians will feel uncomfortable physically restraining a competent pregnant woman to administer court-ordered treatment. Also, in cases involving drug or alcohol abuse, imprisonment and fines are likely to have an equally deleterious effect on the fetus and other children in the home as on the pregnant woman. Certainly, the more reasonable approach would provide pregnant women with the social services, financial resources, and education that would encourage them to voluntarily act in a manner consistent with the fetus's health. Although it may be morally and ethically appropriate in most cases in which 1) a woman's own health would not be adversely affected and 2) the fetus is viable for the woman to make decisions that would enhance the fetus's chance for good health, legislating morality in these cases raises more questions than it answers. The Role of Ethics Committees As the law in this area develops and as fetal medical technology increases, it is likely that ethics committees will see an increasing number of referrals involving pregnant women 56
Pregnant Woman vs. Fetus and their fetuses. Thus, the ethics committee's educational and policy-making roles in this area can be expected to increase. This article focuses, however, on the ethics committee's consultative role. In their consultative role, ethics committees generally must ask as one of their threshold questions: "Whose interests are we obligated to protect? The patient's? The family's? The physician's? The institution's? Society's?" In cases that involve a pregnant woman, ethics committees must first confront another problem: "Who is the patient? The pregnant woman? The fetus? Both? At what point, if ever, in gestational development does the fetus have health interests that require or deserve protection?" Any model that relies on fetal viability as a threshold point for defining fetal rights must acknowledge that developing technology may significantly reduce the gestational age at which fetuses are generally considered to be viable. However, for lack of a more just alternative, and considering current legal precedent, fetal viability seems to be an appropriate starting point for considering fetal interests in ethics committee deliberations. By no means, however, should fetal viability be the endpoint of any analysis; many people would contend that a woman's autonomy interests should prevail no matter what the gestational age of the fetus. One useful way to analyze these dilemmas is based on the autonomy/beneficence model (40). This model acknowledges the physician's dual obligations to respect the autonomy of the pregnant woman in decision making, while offering his or her professional advice about what would be in the best interest of the woman and her fetus. The model also acknowledges the pregnant woman's ethical obligations to preserve/enhance the health of her fetus on the one hand (at least when the fetus is viable) and her sometimes conflicting right to personal autonomy. In applying this model to conflicts between pregnant women and their physicians, Frank Chernevak and Laurence McCullough (40) describe four kinds of common areas of dispute: 1) Conflicts between the maternal autonomy-based obligations of the physician and the maternal beneficence-based obligations of the physician, e.g., the Jehovah's witness refusing blood or the woman refusing a cesarian section because she fears scarring. In these cases, they advocate weighing the potential goods against the potential harms, concluding that in some cases, autonomy takes precedence and in others, beneficence predominates. 2) Conflicts between the fetal beneficence obligations of the pregnant woman and the fetal beneficence obligations of the physician, e.g., where physicians recommend the surgical placement of an intrauterine shunt into the fetus's head to alleviate hydrocephaly, but the woman believes that the procedure is too risky for the fetus. Here, they conclude that because there is no clear medical answer, the woman's decision should be respected. 3) Conflicts between maternal autonomy-based obligations of the physician and fetal beneficence-based obligations of the physician, e.g., where a physician recommends intrauterine blood transfusions or cesarian section in the event of fetal distress, and the woman refuses treatment because she believes that the procedure will be painful. Here, Chernevak and McCullough engage in a balancing test between the woman's right to autonomy and the benefits to the fetus offered by treatment. They 57
Martha Swartz
conclude that if fetal risks are minimal and the benefit sought is substantial and the risk to the woman is "one she should reasonably accept/' then intervention should take place. 4) Conflicts between maternal beneficence-based obligations of the physician and fetal beneficence-based obligations of the physician, e.g., a maternal malignancy that requires drugs toxic to the fetus. Chernevak and McCullough conclude that because there is "no clearly convincing moral argument that the woman's life is more important than that of the fetus," the woman's decision should be accepted. This model provides some helpful guidance for analysis; however, the authors' applications of the model, at least in some of the examples, seem to devalue autonomy considerations while promoting fetal beneficence considerations. Their conclusion in example 3 suggests that they may be allowing their own beliefs about what they think would be "reasonable" to confuse the weighing process. Similarly, their reasoning in example 4, that a woman's life is not necessarily more important than that of the fetus, fails to recognize that many patients and their families would strongly reject that position, based on their own moral or religious beliefs. However, notwithstanding the flaws in their reasoning, they rightly conclude that the woman's decision should prevail. Case Discussion Of all the examples discussed by Chernevak and McCullough, the most problematic is example 3, where the pregnant woman rejects a treatment that might have some detrimental effect on her but that would likely benefit the viable fetus. The following case was discussed some time ago at a large urban hospital ethics committee. A 17-year-old woman in her first pregnancy came to the hospital clinic for a checkup when she was 32 weeks pregnant, having had no previous prenatal care. An ultrasound showed that the fetus had hydrocephaly. Physicians recommended that the woman have a cesarian section because the fetus's head would be too large for a vaginal delivery. Both the woman's and the fetus's lives might be endangered if a vaginal delivery were attempted. The woman refused consent to a C-section. This was an unwanted pregnancy, and she did not want to undertake the additional risk entailed by a C-section nor did she want the scarring associated with the operation. There was no suggestion that the woman was incapable of participating in medical decision making. One physician had told the patient about the option of cephalocentesis, a procedure in which the fluid would be removed from the fetus's head while still in her uterus, thus allowing for a vaginal delivery but in all likelihood resulting in the death of the fetus. The woman chose this option; however, the consulting neonatologist vehemently opposed the idea. An ad hoc group of five ethics committee members met with the obstetrician and the neonatologist. Journal articles describing the alternative treatments and the ethical ramifications of the options were discussed. Questions posed by the ad hoc ethics consultative committee motivated the physicians to perform additional diagnostic tests on the fetus. The physicians were encouraged to discuss the case with their colleagues at neighboring academic medical centers. 58
Pregnant Woman vs. Fetus
The risks and benefits of a C-section versus cephalocentesis were laid out as they applied both to the pregnant woman and to the fetus. A C-section would be more risky to the woman than a normal vaginal delivery. However, it would be far less risky than attempting a vaginal delivery of a hydrocephalic infant. Obviously, a C-section was much more likely to result in a live baby than was cephalocentesis. Also, the medical and legal risks of producing an even more severely handicapped baby as a result of the cephalocentesis were discussed. The possibility of petitioning the court for an order to perform the C-section was discussed. In view of judicial approaches in other jurisdictions, it was considered likely that the court would grant such an order. Thus, going to court would operate only to provide legal protection for the physicians and institution; it was unlikely to offer any insights that would make physicians more comfortable with their decisions from an ethical standpoint. The pregnant woman's rights to autonomy in medical decision making were discussed. However, the gestational age of the fetus led some members of the committee to advocate that the fetus had its own independent right to medical treatment. Most of the discussion centered around the prognosis of the fetus if it were delivered by C-section. With additional information provided as a result of the ethics committee questions, physicians diagnosed an additional fetal anomaly that doomed the fetus to death within a few days after birth. This fact seemed to be pivotal in enabling both the obstetrician and the neonatologist to feel comfortable respecting the woman's decision. The ad hoc ethics consultative committee performed a number of valuable functions in this case. 1) Presenting the case allowed physicians to ventilate their feelings and frustrations about a very tragic dilemma. 2) Playing out the scenarios that would follow from different approaches illustrated the limited helpfulness of judicial intervention in these cases. 3) In presenting the case to the ad hoc committee, the physicians were helped to articulate the issues they found confusing. Crystalizing the issues led them to a sense of empowerment and control. 4) In responding to questions from committee members, physicians were motivated to obtain additional medical and social facts that eventually influenced their ultimate approach. 5) Questioning by the ad hoc committee also helped to highlight the "hidden agendas/' i.e., the personal values, religious beliefs, social biases, professional styles, and personality characteristics that were secretly influencing the physicians' judgment in the case. Whether these functions could be performed as easily in a larger group as they were in the smaller ad hoc consultative group setting depends on the interpersonal dynamics of any particular ethics committee. Clearly, smaller groups tend to be more flexible and thus more available to deal with emergencies. It is unclear whether some special format is needed for ethics committees confronted with these types of conflicts because of the existence of two potential patients. In the preceding example, the two interests emerged naturally: the obstetrician represented the 59
Martha Swartz
woman's interest (with some ambivalence toward the fetus), and the neonatologist represented the interest of the fetus. However, this may not always be the case. One advocate might be assigned to the pregnant woman and another advocate to the fetus to insure that their respective interests will both be represented. However, this adversarial approach to ethical problem solving presupposes a solution that benefits one party to the exclusion of the other. In many situations, a compromise solution is possible. In any case, deliberations that try to apply an autonomy-beneficence model will generally explore the risks and benefits of various alternatives to both the pregnant woman and the fetus, without resorting to the adversarial approach. Finally, special attention should be paid to the particularly high potential for personal, cultural, and religious biases that may influence physician decisions and committee deliberations in this area. A significant effort should be spent in helping physicians and committee members to articulate their biases and understand how such biases might be affecting their judgment.
Notes 1. 2. 3. 4. 5.
6. 7. 8. 9.
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In re A.C. No. 87-609 (D.C. 16 Jun 1987). In re A.C. No. 87-609 (D.C. Cir. 26 Apr 1990). See note 2. In re A.C. 1990:3-4. Kolder VEB, Gallagher J, Parsons MT. Court-ordered obstetrical interventions. N Engl J Med. 1987;316(19):1192-6. See note 4. Kolder et al. 1987;316(19):1195. See also: In the Matter of Madyun Fetus. 114 Daily Wash L Rep. 2233 (D.C. 26 Jul 1986). A court ordered a cesarian section to avert the development of a fatal infection in the fetus over the objection of a woman who wanted natural childbirth. Jefferson versus Griffin Spalding County Hospital Authority. 274 S.E. 2d 457 (Ga. 1981). A court ordered a cesarian section over the religion-based objection of a woman suffering from placenta previa to save both the woman and the fetus. The woman left the hospital before the order was implemented and later delivered a healthy newborn via a vaginal delivery. In re Unborn Baby Wilson. No. 81-108 AV (Mich. Ct. App. 9 Mar 1981). The administration of insulin to a diabetic woman was ordered over her religion-based objections. Raleigh Fitkin-Paul Morgan Memorial Hosp. versus Anderson. 42 N.J. 421, 201 A.2d 537 (1964), Cert, denied, 377 US 985 (1964). Blood transfusions were ordered performed on a pregnant woman notwithstanding the fact that the fetus was previable. Kolder et al. (see note 4, p. 1193) also describe court orders having been obtained in Colorado for two women with diabetes, 31-33 weeks gestation, who refused treatment. Taft versus Taft. 388 Mass. 331, 446 N.E. 2d 395 (1983). A pregnant woman refused an operation to close her cervix to avoid miscarriage of her previable fetus, her husband sought a court order to override her objections, and the court refused to restrict the woman's constitutional rights. See generally: Rhoden NK. Cesareans and Samaritans. Law Med Health Care. 1987; 15(3): 118-25. Rhoden NK. The judge in the delivery room: the emergence of court-ordered cesareans. Calif Law Rev. 1986; 74:19512029. Nelson L, Milliken N. Compelled medical treatment of pregnant women —life, liberty, and law in conflict. J Am Med Assoc. 1988;259(7): 1060-6. Annas G. Protecting the liberty of pregnant patients. N Engl J Med. 1987;316(19): 1213-4. Jurow R, Paul R. Cesarean delivery for fetal distress without maternal consent. Obstet Gynecol. 1984;63(4):596-9. Annas G. Forced cesareans: the most unkindest cut of all. Hastings Cent Rep. 1982; 12(3): 16-17; Bowes W, Selgestad B. Fetal versus maternal rights: medical and legal perspectives. Obstet Gynecol. 1981;58(2):209-14. Johnson DE. The creation of fetal rights: conflicts with women's constitutional rights to liberty, privacy and equal protection. Yale Law J. 1986;95:599-625. See note 5. Rhoden. 1986;74:1965. See note 5. Rhoden. 1986;74:1979. Referring to Robertson J. The right to procreate and in utero therapy. J Legal Med. 1982;3(3):333-66. Even the fact that some programs that train obstetricians identify themselves as "maternal-fetal" fellowships reveal a bias toward viewing pregnant women as "mothers" primarily and as patients
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10. 11. 12. 13. 14.
15. 16. 17. 18.
19. 20.
21. 22. 23.
with independent medical interests only secondarily. This "pronatalist" bias is also apparent in discussions concerning the selective termination of multiple fetuses induced by hormonal therapy. See, e.g., Overall C. Selective termination of pregnancy and women's reproductive autonomy. Hastings Cent Rep. 1990;20(3):6-ll. Significantly, the tendency of courts to override women's objections to medical treatment extends beyond pregnant women. The New York Times recently reported that in a study of right-to-die decisions in which courts were faced with situations in which a patient had no advance directive so that the courts were forced to "construe" the patients' wishes, courts said that they could not construe female patients' preferences in 12 of 14 cases. In contrast, in cases involving men, the courts were unable to construe male patients' preferences in only 2 of 8 cases. The author of the study noted that in court opinions in these cases, "women are referred to by their first names and constructed as emotional, immature, unreflective and vulnerable to medical neglect, while men are called by their last names, and construed as rational, mature, decisive, and assaulted by medical technology." From: [Anonymous]. Courts, wills and women. The New York Times. 1990 Jul 23;sect A:2. See note 4. Kolder et al. 1987;316(19):1193. See note 5. In re Unborn Baby Wilson. Jefferson versus Griffin Spalding County Hospital Authority. Robertson J. Legal issues in prenatal therapy. Clin Obstet Gynecol. 1985;29(3):603-ll. Holder A. Maternal-fetal conflicts and the law. Female Patient. 1985; 10:80-90. Lenow J. The fetus as a patient: emerging rights as a person? Am J Law Med. 1983;9(l):l-29. [Anonymous]. When the courts take charge of the unborn. The New York Times. 1989 Jan 9;sect A:l. [Anonymous]. Philadelphia Inquirer. 1988 Dec 17;sect A:3. The New York Times Magazine has reported that prosecutors in Florida, Georgia, South Carolina, Massachusetts, California, and Michigan have charged pregnant women whose infants were born addicted to cocaine or whose urine tested positive for cocaine use with delivering a controlled substance to a minor. [Anonymous]. The New York Times Magazine. 1990 Aug 8:33. Although courts have dismissed charges against most of the women, a Florida Court of Appeals recently upheld the conviction of a woman charged with delivering cocaine to her newborn. [Anonymous]. Appeals court in Florida backs guilt for drug delivery by umbilical cord. The New York Times. 1991 Apr 20;sect A:5. Also, in Illinois, a court recently ordered a pregnant cocaine addict who was near the end of her term confined to a drug treatment center in an effort to protect her fetus. [Anonymous]. Court orders pregnant woman held in drug treatment center. The New York Times. 1991 Apr 13;sect A:3. People versus Stewart. No. M50819, slip op., at 7-8, 10 (San Diego County, CaL, 26 Feb 1987). [Anonymous]. Crime and pregnancy. Am Bar Assoc J. 1989;Aug:14. See note 13 describing policies in Nassau County, New York, and Los Angeles County, California, requiring drug tests for newborns and possible removal of the child from the home by the Department of Social Services. Field M. Controlling the woman to protect the fetus. Law Med Health Care. 1989; 17(2): 114-29. [Anonymous]. Maternal rights and fetal wrongs: the case against criminalization of'fetal abuse'. Harvard Law Rev. 1988; 101:994. [Anonymous]. Maternal substance abuse: the need to provide legal protection for the fetus. South Calif Law Rev. 1987;60:1209-41. Robertson J, Schulman J. Pregnancy and prenatal harm to offspring: the case of mothers with PKU. Hastings Cent Rep. 1987; 17(4):23-40, which describes maternal phenylketonuria, a condition that causes mental retardation in offspring unless the pregnant woman's diet is controlled. [Anonymous]. [Photograph]. Philadelphia Inquirer. 1989 Sep 29;sect A:8. Scholendorf versus Society of New York Hospitals, 111 N.Y. 125, 129-30, 105 N.E. 72, 93 (1913). The court held: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body: and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages." Swartz M. The patient who refuses medical treatment: a dilemma for hospitals and physicians. Am J Law Med. 1985; 11(2).-147-94. In re Spring. 380 Mass. 629, 405 N.E. 2d 115 (1980). In re Jobes. 108 N.J. 394, 529 A.2d 434 (1987). McFall versus Shimp. 10 Pa.D&C 3d 90, 91 (Allegheny County Ct. 1978). The court refused to order Shimp to donate bone marrow that was necessary to save the life of his cousin, McFall, holding "for our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn." See also the case of the Curran twins, in which the father of a leukemia-stricken boy sought the appointment of a guardian by the Illinois Supreme Court to consent to the testing of the bone marrow of the boy's twin half-brothers over the objections of the
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24. 25. 26. 27. 28. 29.
30. 31. 32. 33. 34. 35. 36. 37.
38. 39.
40. 41.
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twins' mother; a lower court had refused to order the tests saying it would be an invasion of the twins' privacy. [Anonymous]. Guardians named for children in marrow suit. The New York Times. 1990 Aug 18;sect A:26. See note 2. In re A.C. 1990:31. Griswold versus Connecticut. 380 US 479, 485-6 (1965). Roe versus Wade. 410 US 113, 153 (1973). Webster versus Reproductive Health Services et a\. No. 88-605, slip op. (US 3 Jul 1989). See note 26. Roe versus Wade. 1973:164-5. After overriding the governor's veto, the Louisiana state legislature passed a law prohibiting all abortions except those performed to save the life of the mother or in cases of rape or incest that is reported within 7 days. The law is presently being appealed to the Fifth Circuit Court of Appeals. Sojourner T. versus Roemer, No. 91-2247 (DC La. Aug. 7, 1991). Guam has also passed a law severely restricting abortions. The Pennsylvania, Louisiana, and Guam laws are likely to be presented to the U.S. Supreme Court in the near future. 18 Pa. C.S.A. Section 3211 (1989). [Anonymous]. With court's OK, abortion done on comatose woman. Philadelphia Inquirer. 1989 Feb 12;sect A:8. See note 12. Lenow. 1983;9(1):3-15. See note 6. Johnson. 1986;95:600-13. Hornbuckle versus Plantation Pipe Line, 212 Ga. 504, 93 S.E. 2d 727 (1956). Bennett versus Hymers, 101 N.H. 483, 485, 147 A.2d 108, 110 (1958). See note 16. [Anonymous]. 1989;Aug:16. NJ. Stat. Ann. Section 30:4C-ll (West 1981) authorizes the Bureau of Children's Services to petition to care for an "unborn child" when it appears that the "child" is of such circumstances that his welfare will be endangered unless proper care or custody is provided. In re Ruiz. 17 Ohio Misc. 2d 31, 500 N.E. 2d 935 (1986). The trial court ruled that a viable fetus is a child and that the mother's prenatal use of heroin constituted child neglect. In re Baby X. 97 Mich. App. I l l , 293 N.W. 2d 36 (1980). The court held that evidence about a woman's prenatal "abuse" or "neglect" could be considered in proceedings to determine whether she should be deprived of the custody of her newborn. In re Steven S. 126 Cal. App. 3d 23 (Cal. App. 1987). In re Dittrick Infant. 263 N.W. 2d 37 (Mich. App. 1977). The courts ruled that fetuses were not "children" under child neglect laws. Cruzan versus Director, Missouri Department of Health. 58 U.S.L. W. 4916, 4918 (US 25 Jun 1990). Citing Superintendent of Belchertown State School versus Saikewicz. 373 Mass. 728, 370 N.E. 2d 417 (1977). The U.S. Supreme Court upheld the decision of the Missouri Supreme Court to consider the state's interest in preserving life in deciding whether to allow the guardians of a patient in a persistent vegetative state to withdraw her artificial nutrition and hydration. Chernevak F, McCullough L. A practical method of analysis of the physician's ethical obligations to the fetus and pregnant woman in obstetric care. Resid Staff Physician. 1989;35(l):79-87. That a woman's decision should prevail in the vast majority of cases is now the official policy of George Washington University Medical Center, the site of the In re A.C. case. As the result of an out-of-court medical malpractice settlement with Angela Carder's parents, the hospital issued a policy that states, "When a fully informed and competent pregnant patient persists in a decision which may disserve her own or fetal welfare, this hospital's policy is to accede to the pregnant patient's preference whenever possible." [Anonymous]. The New York Times. 1990 Nov 29;sect B:14.
