Published online by Cambridge University Press: 01 March 2007
I argue that pregnant women have a duty to refrain from behaviours (e.g. taking illicit drugs) or to allow certain acts to be done to them (e.g. caesarean section) for the sake of their foetus if the foetus has a reasonable chance of living and being in a harmed state if the woman does not refrain from those behaviours or allow those things to be done to her. There is a proviso: that her refraining from acting or allowing acts to be performed upon her does not significantly harm her. This duty does not presuppose that the foetus is a person. It is grounded on principles of respect for the interests of sentient beings and prevention of harm to future individuals. I give an argument for a general duty of easy rescue.
1 Annas, G. J., ‘Forced Caesareans: The Most Unkindest [sic] Cut of All’, Hastings Center Report 12.3 (1982), p. 16; Annas, G. J., ‘Pregnant Women as Fetal Containers’, Hastings Center Report 16.6 (1986), pp. 13–15; Annas, G. J., ‘Protecting the Liberty of Pregnant Patients’, New England Journal of Medicine 316 (1987) p. 213; Faludi, S., Backlash: The Undeclared War against American Women (New York, 1991); Elkins, T. E., Anderson, F. H., Barclay, M., Mason, T., Bowdler, N., Anderson, G., ‘Court-ordered Cesarean Section: An Analysis of Ethical Concerns in Compelling Cases’ American Journal of Obstetric Gynecology 161 (1989), p. 150; Johnsen, D., , D. ‘A New Threat to Pregnant Women's Autonomy’, Hastings Center Report 17.3 (1987), p. 33; Paltrow, L., ‘When Becoming Pregnant is a Crime’, Criminal Justice Ethics 9.1 (1990), p. 41; Robertson, J. A., ‘Procreative Liberty and the Control of Conception, Pregnancy and Childbirth’, Virginia Law Review 69 (1983) p. 405; Rhoden, N. K., ‘Cesareans and Samaritans’, Law, Medicine and Health Care 15 (1987), p. 118.
2 Johnson v. State, 578 So. 2d 419 (Fla. 5th DCA 1991), rev’d 602 So. 2d 1288 (Fla. 1992).
3 ‘Drugged Mum Dooms Baby Zaria’, Herald Sun, 14 April (2001), p. 19.
4 See Gallagher for a review of a number of American cases in which women found taking drugs have been sentenced to jail for minor offences to protect their foetus (Gallagher, J., ‘Collective Bad Faith: “Protecting” the Foetus’, Reproduction, Ethics and the Law: Feminist Perspectives, ed. Callahan, J. C. (Bloomington, 1995), pp. 343–4, 355).Google Scholar
5 Kolder, V. E. B., Gallagher, J., and Parsons, M. T., ‘Court-Ordered Obstetrical Interventions’, New England Journal of Medicine 316 (1987), p. 1192.CrossRefGoogle ScholarPubMed
6 Kolder et al., ‘Court-Ordered Obstetrical Interventions’. The most celebrated cases were: Raleigh Fitkin-Paul Morgan Memorial Hospital v Anderson (1964) 201 A 2d 537 (NJ Sup Ct), which involved the involuntary blood transfusion of a pregnant Jehovah's Witness in her and her foetus's interests. Jefferson v Griffin Spalding County Hospital Authority (1981) 274 SE 2d 457 (Sup Ct Georgia) ordered a caesarean section and blood transfusion against the mother's religious convictions in her and her foetus’s interests. In Re Madyun, 114 Daily Wash L Rptr 2233 (DC Super Ct July 26, 1986) ordered a caesarean section in the mother and child's interests. Schulman J in Winnipeg Child and Family Services Ltdv DFG  10 WWR 95 (QB) was a Canadian case.
7 Robertson, J.Children of Choice: Freedom and the New Reproductive Technologies (Princeton, 1994), p. 87.Google Scholar
8 Annas, G. J., ‘She's going to die: The case of Angela C’, Hastings Centre Report 18 (1988), p. 23; Annas, G. J., ‘Foreclosing the use of force: AC reversed’, Hastings Centre Report 20 (1990), p. 27.
9 Annas, ‘Foreclosing the use of force’.
10 American College of Obstetricians and Gynaecologists Committee on Ethics, ‘Statement on Court-Ordered Cesarean Section for Dying Woman’, ACOG: Washington, D.C., 24 Nov. (1987).
11 Re S(adult: refusal of treatment) (1992) 3 WLR 806.
12 Ramsay, S. ‘UK Woman Wins Right to Refuse Caesarean Section’, Lancet 351 (1998), p. 1498.CrossRefGoogle ScholarPubMed
13 RCOG Guidelines: Ethics, ‘A Consideration of the Law and Ethics in Relation to Court-Authorised Obstetric Intervention’, no. 1, April 1994, p. 14.
14 Gibb, F., ‘Women Have Right To Reject Caesarean, Court Rules’, The Times, Thursday 17 March 1997, pp. 1–2.Google Scholar
15 Hornstra, D., ‘A Realistic Approach to Maternal-Foetal Conflict’, Hastings Centre Report 28.5 (1998), p. 7.CrossRefGoogle Scholar
17 Mill, Principles, p. 132.
18 Mill, Principles, p. 132. The subject of this essay is to describe the conditions under which the state's interference in a person's life is justified, not the conditions under which such interference is not justified. However, it should be said that Mill clearly believed that disapproval of an individual's choices was not sufficient ground for interference. This at least prima facie calls into question the position widely held by the medical profession and others (Seymour, J., ‘A Pregnant Woman's Decision to Decline Treatment: How Should the Law Respond?’, Journal of Law and Medicine 2 (1994), p. 27) that medical disapproval is sufficient grounds for withholding a medical intervention from a patient.Google ScholarPubMed
19 Mill, Principles, p. 135.
20 Lenow, J. L., ‘The Foetus as a Patient: Emerging Rights as a Person?’ American Journal of Law and Medicine 9 (1983) p. 1.Google ScholarPubMed
21 Johnsen, D. E., ‘The Creation of Foetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy and Equal Protection’, Yale Law Journal 95 (1986), p. 611; Seymour, ‘A Pregnant Woman's Decision to Decline Treatment’, p. 27.CrossRefGoogle ScholarPubMed
22 Of course, the foetus is a sentient being after about 18–20 weeks’ gestation (Anand, K. J. S., Hickey, P. R., ‘Pain and its Effects in the Human Neonate and Foetus’, New England Journal of Medicine 317 (1987) p. 1321, Royal College of Obstetricians and Gynaecologists’ Working Party, Foetal Awareness, Oct 1997). We have an obligation not to inflict pain on sentient beings (Singer, P., Animal Liberation (London, 1990)). Whether or not the foetus is a person, we have an obligation to prevent or relieve its suffering. If caesarean section for obstructed labour would relieve foetal suffering, this is a reason to perform it.
23 Sidgwick, H., The Methods of Ethics (London, 1963), p. 111; Nagel, T., The Possibility of Altruism (Oxford, 1970), p. 60, 72; Rawls, J. A., Theory of Justice (Oxford, 1972), p. 293; Hare, R. M., Moral Thinking: Its Levels, Method and Point (Oxford, 1981), p. 105.
24 See also: Mathieu, D., Preventing Prenatal Harm: Should the State Intervene (Washington DC, 1996); Robertson, Children of Choice, ch. 8.Google Scholar
25 In so far as these harms are irremediable.
26 Singer, P., Practical Ethics (Cambridge, 1979); Tooley, M., Abortion and Infanticide (Oxford, 1983).
27 However, if it can be shown that foetuses have a strong interest in continued existence, it would imply that abortion is wrong.
28 The argument is also consistent with the reductionist view that what matters for personal identity is the connectedness and continuity of psychological states, and that the foetus is not closely connected in psychological terms with the later individual and so not closely connected in terms of personal identity (Parfit, D., Reasons and Persons (Oxford, 1984), sect. 103–5).Google Scholar
29 This is not quite accurate because a foetal life-enhancing treatment may save the life of the future person the foetus will become as, for example, when a treatment in utero prevents the person developing a fatal disease in middle age by, for example, deleting a cancer gene.
30 Stern, K., ‘Court-Ordered Cesarean Sections: In whose Interests?’, The Modern Law Review 56 (1993), p. 243.CrossRefGoogle ScholarPubMed
31 Mill, Principles, p. 150.
32 The situation is more difficult when our actions change the identity of future individuals (Parfit, Reasons and Persons, part IV). The present argument is limited to interventions which harm the individual who will exist.
33 Mill, Principles, p. 150.
34 A point emphasized by Thomson (Thomson, J. J., ‘A Defense of Abortion’, Philosophy and Public Affairs 1 (1971), p 47). Thomson argues that we have a moral obligation to be Minimally Decent Samaritans, but not Good Samaritans. Our question is: when does the risk of harm to A become sufficiently small to make an act morally required and indeed so small that it might justify the state compelling a person to act in that way? Thomson argues that people cannot be compelled by law to risk their lives for others. The state imposes quite large risks of death on some individuals when it decides not to spend resources on constructing traffic lights on a busy intersection in a local community because it calculates that the money could do more good elsewhere. It is, I have argued, legitimate for the state to cause some individuals to incur some risk of death, if small enough, to prevent great harm to others.Google Scholar
35 Ten suggests that Mill intended something like this: ‘the sacrifice a person is called upon to make is at least not greater, and perhaps much less, than the harm to the beneficiary’ (Ten, C. L., Mill on Liberty ( Oxford, 1980), p. 65).Google Scholar
36 On this account, the justifiability of forced recycling and rubbish disposal is that it is not only in the interests of future generations, but in our interests as well.
37 Gallagher, ‘Collective Bad Faith’.
38 However, the case of S involved life-saving rather than life-enhancing treatment. Thus my account is open as to whether treatment in this case was in the foetus’s interests.
39 Some of the difficulty in these cases stems from the fact that some commentators operate a subjective conception of interests, believing that a competent refusal of a treatment indicates that that treatment is not in that person's interests. Thus Rhoden writes that decisions about major surgery ‘cannot rightfully be anything but subjective’ (Rhoden, ‘Cesareans and Samaritans’. Thus for Rhoden, every caesarean performed against a competent woman's wishes is against her best interests, even if it saves her life and that life is full and rewarding. This appears false, and is not the view which judges have taken in England. It is absurd to suggest that simply because a person wants to die experiencing a natural birth that such a natural birth is best for her.
40 Jean Robinson, personal communication.
41 This corresponds to Thomson's minimally decent Samaritan (Thompson, ‘A Defense of Abortion’).
42 This is consistent with Ten's interpretation (Ten, Mill on Liberty, p. 64). Ten suggests that in all Mill's examples, A can resume his or her life plan after preventing harm to B. ‘No permanent obstacles are placed to their achievement of their aims and purposes in life’ (ibid.). This is not very demanding of agents, and I will presently suggest more demanding alternatives. My own view is that it is reasonable to intervene in A's behaviour even if there is a chance that intervention will permanently frustrate A's goals, provided that that chance is small enough.
43 Mill, Principles, p. 138. See italics in quote below.
44 McFall v Shimp 10 Pa D and C 3d 90 (1978); N. Rhoden, ‘The Judge in the Delivery Room: The Emergency of Court-Ordered Caesarean Sections’, Cal LR 74 (1986), p. 1951; Bennett, ‘Pregnant Women and the Duty to Rescue: A Feminist Response to the Fetal Rights Debate’, Law in Context 9 (1991), p. 86. The situation is different in some European countries which recognize a legal duty of easy rescue.
45 Johnsen, ‘A New Threat’.
46 John Robertson has a similar example (Robertson, Children of Choice, p. 192).
47 Mill, Principles, p. 132.
48 As quoted in Ten, Mill on Liberty, p. 61.
49 Mill, Principles, p. 135.
50 Ten, Mill on Liberty, pp. 61–2.
51 Mental Health Act 1983, England. Liberals would reject treating competent people against their will for their own benefit. Such acts may represent a legal pragmatism: if a mentally ill person is a risk to himself, he is more likely to be a risk to others.
52 Mill, Principles, p. 163.
53 Mill, Principles, p. 138.
54 When does such a duty begin? At least when a decision is made to continue or carry the pregnancy. Keyserlink similarly remarks that ‘since between the child when unborn and after birth there is continuity in all essential respects, then it would seem logical and just to assign to parents duties to their unborn children analogous . . . to those they have to their children’ (Keyserlink, E. W., The Unborn Child's Right to Prenatal Care. A Comparative Law Perspective (Montreal, 1984), p. 103).Google Scholar
55 Mill, Principles, p. 160. This argument applies to childrearing in general. It could be argued that this infringes excessively on parental autonomy. Yet there are limits to parental autonomy, as child abuse and care legislation reflect. If parents are unable to provide adequate care for their children, the state is entitled to take over their care and in some cases punish the parents.
56 As Mill recognized (Mill, Principles, p. 138).
57 This assumes that the genetic damage is not identity-altering. If the damage is identity-altering, the state should only intervene when the disability which results causes the person's life to be so bad it is not worth living.
58 Bennett, ‘Pregnant Women’, Rowland (Rowland, R., Living Laboratories: Women and Reproductive Technologies (Indianapolis, 1992), p. 123) and Annas, ‘Pregnant Women as Fetal Containers’ assert that attributing interests to the foetus has this effect.Google Scholar
59 Mill, Principles, p. 132.
60 See Robertson, Children of Choice, pp. 187–90.
61 BAL, Beech. Court ordered caesarean sections are discouraging women from seeking obstetric care. British Medical Journal 314 (1997), p. 1908. See also Gallagher (Gallagher, ‘Collective Bad Faith’) and Seymour, ‘A Pregnant Women's Decision’.Google Scholar
62 Robertson, Children of Choice, p. 191.
63 Connor, E. M. et al. , ‘Reduction of Maternal-Infant Transmission of Human Immunodeficiency Virus Type 1 with Zidovudine Treatment’, New England Journal of Medicine 331 (1994), p. 1173; Sperling, R. S. et al. , ‘Maternal Viral Load, Zidovudine Treatment, and the Risk of Transmission of Human Immunodeficiency Virus Type 1 from Mother to Infant’, New England Journal of Medicine 335 (1996), p. 1621.
64 Draper, H. ‘Women, Forced Caesareans and Antenatal Responsibilities’, Journal of Medical Ethics 22 (1996), p. 327; Scott, R., ‘The Pregnant Woman and the Good Samaritan: Can a Woman Have a Duty to Undergo Caesarean Section?’, Oxford Journal of Legal Studies 20 (2000), p. 407.