SECTION IV: ETHICS AND LEGISLATION

31
Maternal/Fetal Conflict: A Legal and
Ethical Conundrum

Nanette Elster
Spence & Elster, P.C., Lincolnshire, Illinois, U.S.A.

INTRODUCTION

What is the status of the fetus? The answer to this question might differ depending
on whether the definition sought is legal, medical, or moral. Maternal–fetal conflict
raises not only medical issues but legal and ethical issues as well. It is the convergence
of these three areas that create such conflict for practitioners. With recent advances
in medicine and technology enabling such things as fetal surgery and the expanding
time frame in which a fetus might be considered viable, maternal–fetal conflicts may
become even more pronounced.
In no other medical setting is it legally or ethically appropriate to force one
individual to undergo a medical treatment or procedure to benefit another. A parent,
for example, cannot legally be compelled to donate blood, bone marrow, or an organ
to save the life of a child (1). ‘‘The common law has consistently held to a rule which
provides that one human being is under no legal compulsion to give aid or to take
action to save that human being or to rescue’’ (1). However, it is not unprecedented
that a pregnant woman might be forced to undergo a medical intervention such as a
blood transfusion (2) or cesarean section (3) to save the life of the fetus she is gestat-
ing. This is an example of when moral obligations and legal obligations diverge, not
only for the pregnant woman but also for the physician treating her. How such con-
flicts are resolved has changed over time and continues to vary from jurisdiction to
jurisdiction. The political landscape, state and federal laws, and professional codes of
ethics all provide some guidance albeit inconsistent at times.

POLITICAL BACKGROUND

Any legal and/or ethical analysis of the issue of maternal–fetal conflict must neces-
sarily begin by considering the political context in which such conflicts arise. A
number of political actions have been taken during the current administration, which
have begun to reshape, if not redefine, the status of the fetus in our society.

565
566 Elster

Debate over the status of the fetus has been fodder for political debate for the
better part of the last 30 years, since the landmark Supreme Court ruling in
Roe v. Wade (4). The Court made it clear in this case that legally, a fetus is not
considered to be a person. The Court reasoned that:

The Constitution does not define ‘‘person’’ in so many words. Section 1 of the
Fourteenth Amendment contains three references to ‘‘person.’’ The first, in defin-
ing ‘‘citizens,’’ speaks of ‘‘persons born or naturalized in the United States.’’ The
word also appears both in the Due Process Clause and in the Equal Protection
Clause. ‘‘Person’’ is used in other places in the Constitution: in the listing of qua-
lifications for Representatives and Senators . . . . But in nearly all these instances,
the use of the word is such that it has application only postnatally. None indi-
cates, with any assurance, that it has any possible pre-natal application (4).

The determination of the Court in Roe has been at the center of controversy
since that time. In recent years, there have been a number of cases, laws, and regula-
tions at both the state and federal level, which have sought to refute the notion that
legal personhood is not established prenatally, and in fact, imbue a particular status
upon the fetus from the earliest stages of development.
One example of the shift in status of the fetus is the 2002 amendment to the
regulations under the State Children’s Health Insurance Program (SCHIP) (5).
SCHIP was enacted in 1997 as somewhat of a safety net to provide health insurance
coverage for uninsured children up to 19 years of age whose family income exceeded
state Medicaid eligibility standards but was still below 200% of the federal poverty
level (6). The program, however, did not offer benefits for pregnant women,
although the child being gestated would have been eligible for SCHIP upon birth.
The Bush administration sought to remedy this problem swiftly through the rule-
making process by redefining the term ‘‘child.’’
The Final Rule now defines ‘‘Child’’ as ‘‘an individual under the age of 19
including the period from conception to birth’’ (5). The amendment, however, does
little to extend or increase the benefits available to pregnant women in need of
prenatal services. ‘‘By making the fetus the legal beneficiary, the rule limits reimbur-
sement for services during pregnancy to those that directly affect a fetus . . . . As a
result, women may not be covered for the full range of medical services they need
during the prenatal period’’ (7). One commentator argues that the new definition
could place physicians in a difficult predicament: ‘‘The failure to follow ethical
and professional standards requiring comprehensive care may constitute malprac-
tice, yet rendering uncompensated care . . . could place them at substantial financial
risk’’ (7). The rule has, therefore, been criticized as being more of a political maneu-
ver to redefine the status of embryos rather than a means to extend health care access
to those in need.
Another recent example of the politicization of the status of the fetus is the
enactment of fetal homicide or ‘‘feticide’’ laws. Such laws are a dramatic shift from
the late 1800s when the Massachusetts court in Dietrich v. Northampton (8) found
that the fetus did not exist separate from the mother and, therefore, could not sue
for injuries sustained in utero. Current fetal homicide laws make it a separate crime
when an action toward a woman results in the death of the fetus she is gestating. As
of June 2005, at least 34 states had some form of fetal homicide law (9), and applica-
tion of these statutes is currently being put to the test in a number of jurisdictions
(10). At least 15 of these state laws apply to the earliest stages of pregnancy such
as Louisiana where ‘‘unborn child’’ is defined as ‘‘any individual of the human
Maternal/Fetal Conflict 567

species from fertilization and implantation until birth’’ (11). This is the same defini-
tion used in the recently enacted federal Unborn Victims of Violence Act (12).
While many of these laws, including the federal law, provide an exception for
abortion, other medical treatments, and actions by the woman, others do not. For
example, under Virginia law:
A. Any person who unlawfully, willfully, deliberately, maliciously and with
premeditation kills the fetus of another is guilty of a Class 2 felony.
B. Any person who unlawfully, willfully, deliberately and maliciously kills the
fetus of another is guilty of a felony punishable by confinement in a state correc-
tional facility for not less than five nor more than 40 years (13).
Under these fetal homicide laws such as Virginia’s that do not provide an
exception for physicians or the pregnant woman, the question remains whether a
physician might face criminal liability for failure to perform a cesarean section or
provide other recommended treatment refused by the mother/patient or if the
mother’s behavior in refusing treatment that results in the death of the fetus would
subject her to criminal liability.
These are two significant examples of how integral politics are in shaping the
social status of the fetus. The status of the fetus is quite significant in determining
what, if any, legal rights must be afforded to the fetus and has been central to a num-
ber of legal disputes arising out of a woman’s decisions and behaviors during her
pregnancy.

LEGAL ANALYSIS

The starting point for legal analysis of the conflict between a woman and her physician
over the care of her fetus is that a person has a right to maintain bodily integrity. Impli-
cit in this right is the fact that a competent person can accept or refuse medical
treatment. ‘‘Every human being of adult years and sound mind has a right to deter-
mine what shall be done with his own body’’ (14). This principle was reaffirmed by
the Supreme Court in the seminal case, Cruzan v. Director of Missouri Department
of Health in which the Court reasoned that ‘‘a competent person has a constitutionally
protected liberty interest in refusing unwanted medical treatment’’ (15). A liberty inter-
est is considered to be a fundamental right and as such, the state must prove a compel-
ling interest in impinging on that right. ‘‘Where certain ‘fundamental rights’ are
involved, the Court has held that regulation limiting these rights may be justified only
by a ‘compelling state interest,’ and that legislative enactments must be narrowly
drawn . . . ’’ (4). This burden is a difficult one to satisfy; however, the discussion that
follows illustrates how a state’s interest in the potential for life may satisfy this burden.
The cases also make clear that there is little consistency between jurisdictions with
respect to application of this balancing test.

CESAREAN SECTION/BLOOD TRANSFUSION

Nowhere in medicine has the conflict between a woman and her physician over the
care of the fetus been more pronounced than with respect to forced cesarean sections
and blood transfusions. Practitioners and courts alike have come out on both sides
of the issue, leaving physicians in continual professional, not to mention legal limbo.
568 Elster

Numerous hospitals have sought court orders to compel a particular medical

treatment of a pregnant woman over her refusal. A study conducted in 1987 by Kolder
et al. revealed that there were at least 21 cases in which court orders were sought for
medical intervention against a pregnant woman’s wishes, and 86% of the orders were
granted (16). During the 1990s, however, the majority of emergency rulings permitting
court ordered intervention were overturned on appeal (17). In re A.C. (18) and In re
Fetus Brown (19) are two examples of this shift away from paternalism. It is important
to note that in both cases, the order for intervention was granted and the intervention
imposed, however, the decisions were both reversed on appeal.
The case of In re A.C. was brought before the District of Columbia Court of
Appeals challenging a court ordered cesarean section. Angela Carder at 25 weeks
of pregnancy was diagnosed with a lung tumor. A week and a half later Ms. Carder,
who had chosen to fight this recurrent bout of cancer aggressively was near death
and the hospital sought an emergency court order to perform a cesarean section
to deliver the fetus. After a hearing in Ms. Carder’s hospital room, the order was
granted and the operation performed. Tragically, the baby died shortly after birth
and Angela Carder died two days later (20). The decision ordering the cesarean sec-
tion was appealed.
The appellate court vacated the order for the cesarean section and held ‘‘that it
would be an extraordinary case indeed in which a court might ever be justified in
overriding the patient’s wishes and authorizing a major surgical procedure such as
a cesarean section’’ (20). In a related action, Carder’s parents sued the hospital
asserting a range of claims including malpractice (21). The case was settled and part
of the settlement entailed the hospital implementing policy designed to protect
patients from such actions occurring in the future including adopting a hospital pol-
icy echoing the Court of Appeals decision to protect pregnant patients’ rights to
make health care decisions (22).
In 1997, the Illinois Appellate Court, confronted with another case involving
a forced medical intervention for a pregnant woman, reached a similar conclusion
to that in In re A.C. In In re Fetus Brown the court was confronted with an appeal
from a court ordered blood transfusion (19). At just over 34 weeks of pregnancy,
Darlene Brown underwent a surgical procedure resulting in a serious loss of blood.
Ms. Brown, being a Jehovah’s Witness, refused a medically recommended blood trans-
fusion. Other measures were taken to control her bleeding but more blood loss
occurred, posing a life-threatening risk to her and her fetus. Ms. Brown continued
to refuse the transfusion and the State subsequently petitioned the court to appoint
a temporary custodian of the fetus in order to consent to the transfusion. The order
was granted, naming the hospital administrator as the ‘‘temporary custodian’’ of
the fetus. Brown continued to refuse the transfusion and was sedated and forcibly
restrained in order to perform the intervention. She delivered a healthy baby and
regained her health as well. Nevertheless, Darlene Brown appealed the decision in
which a temporary custodian had been appointed for her fetus.
Although the facts of this case were resolved, the appellate court found that the
public policy implications of the case were of such significant importance that future
guidance on such issues was necessary. In the court’s opinion, this case did not involve
balancing the interests of the mother against those of her fetus but rather the balancing
of the mother’s interest against the State’s interest in the viable fetus (19). Relying on
previous case law in Illinois, the court held that ‘‘the State may not override a pregnant
woman’s competent treatment decisions, including refusal of recommended invasive
medical procedures, to potentially save the life of the viable fetus’’ (19).
Maternal/Fetal Conflict 569

The rulings in these cases and the strong position favoring the woman’s
autonomy led one commentator to suggest that, ‘‘future judicial decisions imposing
invasive medical treatment on pregnant women, whether to benefit the woman, the
fetus, or both, are unlikely’’ (17). This, however, has not been the case.
In 1999, in Pemberton v. Tallahassee Memorial Regional Medical Center, (23) a
woman appealed a court ordered cesarean section. Ms. Pemberton had chosen to
give birth at home with a midwife in attendance. After a full day in labor she needed
IV fluids and presented to the emergency room at Tallahassee Memorial. It was
determined at that time that she needed a cesarean section. She left the hospital
against medical advice and was later returned to the hospital by ambulance against
her will at which point a hearing was held and the procedure was ordered by the
judge. She and the baby were both healthy following delivery. Ms. Pemberton chal-
lenged the order, nonetheless, asserting that it violated her constitutional rights. On
appeal, however, the court held that ‘‘Whatever the scope of Ms. Pemberton’s
personal constitutional rights in this situation, they clearly did not outweigh the
interests of the State of Florida in preserving the life of the unborn child’’ (23).
While factually not dissimilar to In re A.C. and In re Fetus Brown, the outcome
in Pemberton was apposite. Such contrary outcomes leave physicians in a legal quag-
mire. The lack of uniformity in these cases makes it clear that the actions that can be
taken can and do vary from state to state, and with recent legal and policy develop-
ments redefining the fetus, outcomes such as that in Pemberton may become more
common.
A recent iteration of this issue arose in 2004 in Utah where a woman, Melissa
Ann Rowland, who refused to undergo a cesarean section resulting in the death of
one of her unborn twins, was charged with murder (24). The murder charges were
subsequently dropped when concerns were raised about Ms. Rowland’s mental
health (25). This case represents an attempt to utilize fetal homicide laws to prose-
cute for drug use during pregnancy. With the murder charges dropped, Rowland
did plead guilty to child endangerment for using cocaine during her pregnancy
(25). Although a cesarean section was not forcibly performed upon Melissa
Rowland, the attempt to prosecute her for murder for her refusal to undergo a
cesarean section suggests a serious erosion of the autonomy rights of pregnant
women to make medical decisions during their pregnancies. An important point to
remember when these conflicts arise is that ‘‘the ability of a physician to secure a
court order does not equate with a duty to seek one’’ (26).

CONDUCT DURING PREGNANCY

Coercive and, at times, punitive actions taken against women for behaviors or ac-
tions during their pregnancies is an area which has influenced and may continue
to influence the physician–patient relationship by putting the physician in a poten-
tially adversarial relationship with the pregnant patient. These types of actions, like
the action taken in Pemberton, imply that the care of the fetus may govern the rela-
tionship between the physician and the pregnant patient. There seems to be a shift
from the model of the pregnant woman as one- to the two-patient model in which
the fetus is also a patient, to once again a one-patient model. However, in the shifting
paradigm, now the one patient is the fetus.
Coercive or punitive action against pregnant woman for their behavior has
occurred most often with respect to drug/alcohol use during pregnancy. Responses
570 Elster

to maternal drug use during pregnancy have typically taken one of the two approaches:
a punitive approach or a public health approach (27). The two approaches, however,
are not mutually exclusive. The public health approach focuses on treating the
substance abuse as well as its underlying causes, whereas the punitive approach
involves such measures as civil commitment, criminal prosecution, sterilization, or
forced Norplant use and/or termination of parental rights (28). At least 200 women
in over 30 states have been arrested and criminally charged for drug use during
pregnancy (28).
It was not until 1997 that any appellate court viewing the prosecution of a
pregnant woman for drug use upheld such an action (28). The most common reason
that these criminal prosecutions were not upheld was because the laws being applied
did not recognize the fetus as a person. Around the same time, however, several
states enacted or amended legislation to specifically address prenatal substance use
through other types of laws. For example, South Dakota amended its definition of
an abused or neglected child to include, a child ‘‘Who was subject to prenatal
exposure to abusive use of alcohol or any controlled drug or substance not lawfully
prescribed by a practitioner . . . ’’ (29). Additionally, in 1997 The South Carolina
Supreme Court in reversing the appellate court’s decision to reverse a child endan-
germent conviction stemming from a pregnant woman’s use of cocaine during preg-
nancy held that viable fetuses are ‘‘persons’’ within the meaning of the state child
endangerment law (30).
Amidst this turmoil, the United States Supreme Court heard the case of
Ferguson v. City of Charleston (31). The issue in Ferguson was whether a pregnant
woman still maintains the constitutional right to be free from an unreasonable, non-
consensual search. In this case, the City of Charleston, the County prosecutor, and
the Medical University of South Carolina, a public hospital, developed and imple-
mented an interagency policy on cocaine abuse during pregnancy. Based on criteria
such as no, late, or inadequate prenatal care; abruptio placenta; and intrauterine
growth retardation of ‘‘no obvious cause,’’ hospital staff members tested pregnant
patients for cocaine use. Positive test results were then reported to the police. During
the term of this policy nearly 30 women were actually arrested (32). The Court in
Ferguson held that ‘‘performance of a diagnostic test to obtain evidence of a patient’s
criminal conduct for law enforcement purposes is an unreasonable search if the
patient has not consented to the procedure’’ (31).
These cases and this issue of criminalizing or creating civil actions for maternal
behavior during pregnancy become very important for the integrity of the physi-
cian–patient relationship. Physicians are mandated reporters of child abuse and
neglect (33) and if prenatal substance abuse or other behavior is found to
constitute child abuse and neglect, this could severely compromise the physician’s
relationship with the pregnant patient. That was precisely the concern of many of
the ‘‘friends of the court’’ who submitted briefs to the Supreme Court in the Fergu-
son case. And, the Court recognized the significance of the physician–patient rela-
tionship in its rationale. In dicta, the Court said, ‘‘The reasonable expectation of
privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is
that the results of those tests will not be shared with nonmedical personnel without
her consent’’ (31).
As with compelled interventions during pregnancy, punitive or coercive
measures applied to deal with particular behaviors during pregnancy threaten to
compromise the physician–patient relationship. In the American College of Obstetri-
cians and Gynecologists (ACOG) Ethics Committee Opinion, ‘‘Patient Choice in the
Maternal/Fetal Conflict 571

Maternal–Fetal Relationship,’’ the Committee recognizes that compelling treatment

or involving judicial authority to protect the fetus may have broader reaching, and
the potential unintended consequence of ‘‘criminalizing non-compliance with
medical recommendations’’ (34). If the relationship is one based on trust, threats
of punitive action or actions taken against a patient’s wishes will do little to foster
the development of such a relationship. As one commentator has suggested, ‘‘if a
physician goes to court to force treatment, that physician becomes the patient’s
adversary rather than advocate’’ (17). Nevertheless, in our litigious society these
conflicts continue to place physicians in what seem to be untenable situations. It will
have a chilling effect on the practice of medicine if a physician were to be found liable
for malpractice and/or guilty of murder for tragic consequences that may result from
following the informed wishes of the patient.

ETHICAL ANALYSIS

As the previous discussion has illustrated, there is varied legal precedent with respect
to addressing a range of maternal–fetal conflicts. Despite laws or legal precedent,
however, the ethical dilemmas inherent in maternal–fetal conflict are not any more
easily resolved. Additionally, even when the law provides a clear answer, that does
not always resolve the ethical conflict because what might be legal, might not neces-
sarily be moral or ethical.
The starting point for ethical analysis of these conflicts lies in balancing
autonomy and beneficence. The three guiding principles of an ethical analysis are
autonomy, beneficence, and justice (35). Autonomy in the biomedical context refers
to a competent individual’s right to make decisions regarding personal healthcare—
respect for persons. Beneficence is to do no harm and to maximize benefits while mini-
mizing risks; and the principle of justice is simply about treating people equally. The
ACOG Committee on Ethics summarizes the principle of justice as requiring ‘‘that
pregnant and nonpregnant individuals . . . be afforded similar rights’’ (34). The balan-
cing of these three principles, however, becomes complicated when the interests of two
patients are at issue that must be balanced against each other (36).
The codes of ethics of a number of professional medical societies have
attempted to address the maternal–fetal conflict within the autonomy, beneficence,
justice framework. The American Medical Association (AMA), ACOG, and even
the American Academy of Pediatrics (AAP) have all weighed in on this issue and
come to very similar ethical resolutions of such dilemmas, putting greatest weight
on the autonomy of the pregnant patient.
According to the AMA:
Judicial intervention is inappropriate when a woman has made an informed
refusal of a medical treatment designed to benefit her fetus. If an exceptional
circumstance could be found in which a medical treatment poses an insignificant
or no health risk to the woman, entails a minimal invasion of her bodily integrity,
and would clearly prevent substantial and irreversible harm to her fetus, it might
be appropriate for a physician to seek judicial intervention. However, the funda-
mental principle against compelled medical procedures should control in all cases
which do not present such exceptional circumstances. (37)
The ACOG ethical guidelines recommend that ‘‘Obstetricians should refrain
from performing procedures that are unwanted by a pregnant woman. The use of
572 Elster

judicial authority to implement treatment regimens to protect the fetus violates

the pregnant woman’s autonomy and should be avoided’’ (34). And, the AAP
Committee on Bioethics identifies three conditions that must be satisfied in order
to contemplate going against a woman’s refusal of a recommended intervention:
‘‘1) There is reasonable certainty that the fetus will suffer irrevocable and substantial
harm without the intervention, 2) the intervention has been shown to be effective, and
3) the risk to the health and well-being of the pregnant woman is negligible’’ (38). The
AAP Committee goes on to find that ‘‘given the potential adverse consequences of
forced medical or surgical procedures, court intervention should be seen only as a last
resort’’ (38).
Unlike case law or statutory law, however, these guidelines are merely
recommendations and, therefore, are not binding; nevertheless they are of tre-
mendous importance in considering a maternal–fetal conflict. In the context of
maternal–fetal conflicts, respect for persons as in any other context can be
accomplished through the informed consent process. A clear and understandable
description of the risks, benefits, and alternatives to a recommended course of
action should enable a competent patient to render an appropriate decision. That
decision may nevertheless not be what the physician recommends and believes to
be the best course of action, but making a decision that goes against clinical
recommendations does not mean that the patient is irrational and that her choice
should be disregarded. After all, what truly is the point of informed consent if a
competent patient cannot refuse the treatment for which consent is sought?
The principle of beneficence is probably the most difficult to reconcile when
addressing a maternal–fetal conflict. If a woman and the fetus are found to have
the same moral status and the proposed intervention or impingement on the liberty
of the woman to protect the fetus is minor or of minimal risk to her, the interests of
the fetus may prevail, especially if the amount of harm from the intervention is mini-
mal in light of the risk to the fetus and if the risk of harm to the fetus is great without
such intervention. On the other hand, if the moral status of the woman is greater
than that of her unborn child, her informed choice must be respected. From a legal
perspective, the fetus, while deserving a heightened level of respect, does not have the
same status as a liveborn individual.
Finally, if justice is about treating like people similarly, allowing nonpregnant
individuals to refuse treatment and prohibiting pregnant woman from doing so
would not seem to promote this principle.
Personal viewpoints will undoubtedly influence a practitioner in balancing
these three principles, and for this reason, the practitioner should make such treat-
ment decisions in consideration of hospital policies, reference to existing professional
society guidelines, in consultation with colleagues including the assistance of an
ethics committee or ethics consultant as well as mental health professionals. In fact,
the ACOG Committee recommends that ‘‘Consultation with others, including an
institutional ethics committee, should be sought when appropriate to aid the preg-
nant woman and obstetrician in resolving the conflict’’ (34).

CONCLUSION

The Supreme Court in Planned Parenthood v. Casey summed up the unique role of a
pregnant woman:
Maternal/Fetal Conflict 573

The mother who carries a child to full term is subject to anxieties, to physical con-
straints, to pain that only she must bear. That these sacrifices have from the
beginning of the human race been endured by woman with a pride that ennobles
her in the eyes of others and gives to the infant a bond of love cannot alone be
grounds for the State to insist she make the sacrifice. Her suffering is too intimate
and personal for the State to insist, without more, upon its own vision of the
woman’s role, however dominant that vision has been in the course of our history
and our culture. The destiny of the woman must be shaped to a large extent on
her own conception of her spiritual imperatives and her place in society. (39)

It is directly a result of this unique position of pregnant women that maternal–

fetal conflicts pose such tremendous challenges. They involve a range of legal and
ethical issues as well as personal and societal values that are often inextricably inter-
twined and at times seemingly irreconcilable. Having an understanding of what is
legally required in a particular jurisdiction, knowing hospital policy, and knowing
professional society guidelines as well as maintaining clear and open communication
with a patient from the outset of the relationship may help to reduce these conflicts
and preserve the integrity of the physician–patient relationship, even in the event of a
disagreement. As with many ethical dilemmas, the ethical course of action is not
necessarily the legal course of action, nor is the legal course of action necessarily
the ethical one.

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