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Published online by Cambridge University Press: 29 July 2009
Hospital ehtics committees are often consulted when cmopeting patient interests blur an otherwise clear course of medical treatment. Nowhere is the potential for competing interests greater than in the field of abosterics, wherer obstetricians have traditionally viewed themselves as having two patients: the pregnant woman and the fetus.
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5. 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 07 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 03 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.Google ScholarSee generally: Rhoden NK. Cesareans and Samaritans. Law Med Health Care. 1987; 15(3): 118–25.Google ScholarPubMedRhoden NK. The judge in the delivery room: the emergence of court-ordered cesareans. Calif Law Rev. 1986;74:1951–2029.CrossRefGoogle ScholarPubMedNelson, L, Milliken, N. Compelled medical treatment of pregnant women-life, liberty, and law in conflict. J Am Med Assoc. 1988;259(7): 1060–6.CrossRefGoogle ScholarAnnas, G. Protecting the liberty of pregnant patients. N Engl J Med. 1987;316(19):1213–4.CrossRefGoogle ScholarPubMedJurow, R, Paul, R. Cesarean delivery for fetal distress without maternal consent. Obstet Gynecol. 1984;63(4):596–9.Google ScholarPubMedAnnas, G. Forced cesareans: the most unkindest cut of all. Hastings Cent Rep. 1982;12(3):16–17;CrossRefGoogle ScholarBowes, W, Selgestad, B. Fetal versus maternal rights: medical and legal perspectives. Obstet Gynecol. 1981;58(2):209–14.Google ScholarPubMed
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9. 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 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.,Google ScholarOverall, C. Selective termination of pregnancy and women's reproductive autonomy. Hastings Cent Rep. 1990;20(3):6–11.CrossRefGoogle ScholarPubMedSignificantly, 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: [Anonymous5]. Courts, wills and women. The New York Times. 1990 07 23;sect A:2.Google Scholar
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14. [Anonymous]. Philadelphia Inquirer. 1988 12 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 08 8:33. Although courts have dismissed charges against most of the women, a Horida 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 04 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 04 13;sect A:3.Google Scholar
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17. 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 Service.Google Scholar
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23. 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 Martha Swartz 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 08 18;sect A:26.Google Scholar
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25. Griswold versus Connecticut. 380 US 479, 485–6 (1965).Google Scholar
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29. 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. 08. 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.Google Scholar
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36. NJ. Stat. Ann. Section 30:4C-11 (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.Google Scholar
37. In re Ruiz. 27 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. 04. 111, 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.Google Scholar
38. In re Steven S. 126 Cal. 04. 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.Google Scholar
39. Cruzan versus Director, Missouri Department of Health. 58 U.S.L.W. 4916, 4918 (US 25 06 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.Google Scholar
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41. 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 11 29;sect B:14.Google Scholar
