Maternal obligations, rights during pregnancy
Law favors woman's autonomy
Although the law is squarely on the side of the pregnant mother in maternal-fetal conflict, the ethics should be examined to determine how one reaches that conclusion, according to Mark R. Mercurio, MD, MA, a neonatologist at the Yale-New Haven (CT) Children's Hospital and director of the Yale Pediatric Ethics Program.
"Some would say that those of us who would be parents have an obligation to prepare for and care for our children long before they're hatched," said Mecurio.
Mercurio presented on "Autonomy and Responsibility: Possible Conflicts of Rights and Obligations During Pregnancy" at the Sixth Annual Pediatric Bioethics Conference in late July in Seattle, sponsored by Seattle Children's and its Treuman Katz Center for Pediatric Bioethics.
Despite women's obligations, the law still is decidedly in favor of women's autonomy, although there have been unique instances where the mother was held accountable for behavior causing harm to an unborn child in certain state cases, he said.
He noted that Bonnie Steinbock, PhD, professor of philosophy at SUNY-Albany in New York says that parents, he said, have a responsibility to their future children, although Steinbock does not address obligation to fetuses.
Mercurio also noted that Steinbock, in her writings, cautions against acting counter to women's rights and cautions against "the dangerous concept that the woman is a 'fetal container.'"
In such instances, Mercurio explained that the point of the discussion was regarding those cases "where women choose not to follow medical advice that the providers feel is important" to protect the mother or the unborn child.
Those situations call for careful thought; for example, two studies suggest opposite outcomes in these situations.
In Ohel et al., he writes in his presentation, "refusal of a medically indicated intervention is an independent risk factor for perinatal mortality."1 In another study conducted more than a decade earlier by Kolder et al., the findings were that "one-third of medical interventions over maternal objections were subsequently proven wrong," he told the audience.2
While it could be interpreted that those two studies combined "prove that we used to get it wrong, but we don't anymore," he countered that, "Actually, we do [get it wrong]."
Possible issues in maternal responsibility
Some of the possible issues that are faced with "maternal-fetal conflict," he noted, are such behaviors as the use of alcohol or illegal drugs; poor compliance with recommended regimens, such as HIV medications; leaving a hospital "against medical advice (AMA)" and refusal of a procedure, such as intrauterine transfusions or a C-section.
The most dramatic intervention, he suggested, would be the fourth in that list of potential conflicts, calling a C-section the "most invasive of things we might choose to do for a pregnant woman."
In a case where the obstetrician may fear fetal death, for example, or permanent brain damage in a future child, Mercurio asked, "Is it ethically acceptable to operate, or is it acceptable to operate with or without a woman's consent?"
Mercurio noted the words of Judge Benjamin Cardozo in 1914, who wrote, "Every human being of adult years and sound mind has the right to determine what shall be done with his body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."
Cardozo served for many years as a New York Court of Appeals judge and later as a justice on the Supreme Court.
Mercurio also offered perspective regarding a person's right to refuse by John Stuart Mill, who in "On Liberty" wrote: ". . . the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant . . . Over himself, over his own body and mind, the individual is sovereign."
"He gave us a caveat, which is very important to the question at hand, [i.e.], the only time we can use force against an individual is to prevent harm to others."
For this topic, "others" is the fetus or future child, he said.
Legal precedents
Mercurio provided a snapshot of the case of a pregnant woman, Angela Carder, in 1985. Carder was a 28-year-old woman with cancer, thought to be fatal, and 26 weeks pregnant. In the case, the hospital sought a court order to perform a C-section over the objection of the patient and her husband. However, the court approved the intervention, the C-section was performed, and "both the mother and child died shortly thereafter," he said.
In 1990, the DC Court of Appeals ruled that "a competent woman's refusal should control in 'virtually all cases,'" according to his presentation. That court also stated that "exceptions, if any will be ". . . extremely rare and truly exceptional. . .," Mercurio writes in presentation. "Indeed, some may doubt that there could ever be a situation extraordinary or compelling enough to justify a massive intrusion into a person's body, such as a caesarean section, against that person's will."
In the case of "Mrs. Doe" in Illinois in 1994, a C-section was recommended at 37 weeks for placental insufficiency. The woman refused, citing religious reasons; however, the hospital sued to force the woman to have the intervention.
Mercurio told the audience that he chose this case "because of the wording of the state's attorney," which, according to his presentation, argued, "the fetus was a real life being kept prisoner in its mother's womb and tied to an oxygen source that is not working."
That argument was rejected by the court, and an appeals court said in a later statement, "a woman's right to refuse invasive medical treatment. . . is not diminished during pregnancy. . . The potential impact on the fetus is not legally relevant."
Ethical analysis important
As to what current legal precedent is on the subject of maternal-fetal conflict, Mercurio maintains that while the law is important, it is essential first to do an ethical analysis, based on principles, such as:
respect for autonomy ("People like to make decisions about their own body.");
beneficence ([providers must] act for good of [their] own patient");
justice ("Equals should be treated equally.");
nonmaleficence ("the obligation to do no harm").
The American College of Obstetricians and Gynecology's Committee on Ethics in November 2005 had determined the following: "In the absence of extraordinary circumstances, circumstances that, in fact, the Committee on Ethics cannot currently imagine, judicial authority should not be used to implement treatment regimens aimed at protecting the fetus, for such actions violate the pregnant woman's autonomy."
In other words, Mercurio said, "Maternal autonomy trumps [the] fetal right to beneficence."
It is important to realize, he told the audience, that most solutions to this provider-patient dilemma resulting from a material-fetal conflict, are through communication, i.e., by trying to understand the patient and what is going on with her that she would at least initially choose something counter to what the physician was recommending.
"We have to accept that women in labor sometimes will make decisions not in the best interest of the fetus or future child," Mercurio said. "Communication should not be carried out with the understanding that we have it right, and she [the patient] needs to get it right."
"Let me leave you with this thought: that just because someone in this case, a woman has a moral obligation, this does not necessarily mean that we have a right to force that obligation," he said.
References
- Ohel I, et al. Refusal of treatment in obstetrics A maternal-fetal conflict. J Matern Fetal Neonatal Med. 2009; 22(7):612-615.
- Kolder VE, et al. Court-ordered obstetrical interventions. N Engl J Med. 1987;316(19):1192-1196.
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