Ms. A is 19 years old and 25 weeks pregnant. Although her pregnancy was unplanned, at no time has she considered pregnancy termination. During a prenatal office visit, Ms. A reveals that she has a daily drug habit that includes crack cocaine and intravenous narcotics. She refuses to consider a change in her behavior, despite a thorough review of the potential effects of her substance abuse on her pregnancy outcome. Specifically, she refuses to participate in a methadone or other substance-abuse program.
Ms. B is 24 years old and has been in labor for 18 hours. The cervical dilatation has not progressed past 3 cm. The fetal heart rate tracing has been worrisome but is now seriously abnormal, showing a profound bradycardia of 65 beats per minute. This bradycardia does not resolve with conservative measures. Repeat pelvic examination reveals no prolapsed cord and confirms a vertex presentation at 3 cm dilatation. The obstetrician explains to Ms. B that a cesarean section will be necessary because of suspected fetal distress. Ms. B absolutely refuses, saying “No surgery.”
When a pregnant woman engages in behavior(s) that may be harmful to her fetus, or refuses a recommended diagnostic or therapeutic intervention aimed at enhancing fetal health and well-being, her physician may experience an ethical dilemma. An ethical dilemma arises when a person has an ethical obligation to pursue two (or more) conflicting courses of action (Beauchamp and Childress, 1994), as when a physician believes that he or she has an obligation both to respect a patient’s decision and to protect the fetus from harm.
Ethical dilemmas in the care of pregnant women can arise because of women’s personal healthcare choices, lifestyle and behaviors, and occupational situation. These dilemmas are often described as maternal–fetal conflicts (Hornstra, 1998; Oduncu et al., 2003; Wallace et al., 1997). Use of this term is problematic, however, for several reasons. Firstly, the term maternal–fetal conflict situates the conflict between the pregnant woman and the fetus. In so doing, it misdirects attention away from the conflict that needs to be addressed: namely the conflict between the pregnant woman and others (such as child welfare agencies, physicians, and other healthcare providers) who believe they know best how to protect the fetus. Secondly, the term perpetuates the underlying, but unfounded, assumption that the problem involves the opposition of maternal rights and fetal rights when, at most, there is a conflict between the woman’s autonomy and the best interest of the fetus. Finally, the term maternal–fetal conflict is factually incorrect. The term maternal suggests the existence of parental obligations toward the fetus, whereas the woman is yet to become a mother to the fetus she is carrying. Although maternal–fetal conflict has some currency, we advocate the use of the more accurate, descriptive phrase, “ethical dilemmas in the care of pregnant women.”
The principle of reproductive freedom stipulates that people have the right to make their own reproductive choices and that the state has an obligation to foster conditions under which this can occur (Sherwin, 1992). For some, this principle is morally objectionable because it grants women the right to make decisions concerning the termination of unwanted pregnancies. In their view, whatever rights pregnant women may or may not have, they do not override the fetus’ right to life (Kluge, 1988) or prenatal care (Keyserlingk, 1984; Fasouliotis and Schenker, 2000). The problem with this view is that it rests on the highly contested belief that the fetus has a right to life and a “right to be born of sound mind and body.”
Others endorse the principle of reproductive freedom but advocate for what they believe to be legitimate restrictions on this principle as it applies to pregnant women. They maintain that a woman has a limited right to terminate her pregnancy but that once she has chosen to continue her pregnancy, she incurs obligations to protect and promote the health and well-being of her fetus and the state incurs obligations to limit or preclude actions that would irreversibly harm the future person. These obligations to the fetus are grounded in the belief that the fetus has a right not to be damaged and a right not to be deliberately or negligently harmed. (For a brief description of the difference between the right to be born of sound mind and body, the right not to be damaged and the right not to be deliberately or negligently harmed, see Bewley [2002]). The problem with this alternative view in support of state intervention is that it erroneously assumes that continuing a pregnancy involves a deliberate active choice on the part of the woman, and that behaviors that ultimately may harm a fetus can properly be described as choices – consider, for example, addictive behaviors (Baylis, 1998; Harris, 2000). Further, this view egregiously suggests an opposition between the interests of the woman and those of the fetus, when in fact these interests are inextricably linked.
A third perspective on state intervention in the lives of pregnant women insists that forced screening, forced incarceration to prevent continued substance abuse, and forced obstetrical interventions are always indefensible. Such coercion is an unacceptable infringement of the woman’s rights to personal autonomy, inviolability, and bodily integrity (Annas, 1987; Mahowald, 1993; Hornstra, 1998; Harris and Paltrow, 2003).
State coercion is also deeply problematic when considered in its broader social and political context. One of the justifications for state intervention in pregnancy is the belief that such intervention benefits the fetus. In fact, however, the harm to women that results from state coercion often occurs without any countervailing benefit to the fetus. Consider, for example, reports of healthy infants delivered after women have refused consent for cesarean section (Kolder et al., 1987; American College of Obstetricians and Gynecologists, 2006). Also, at times, no benefit accrues to the fetus from state intervention because by the time the health need is identified and state intervention is contemplated, irreversible fetal harm has already occurred.
State intervention is also counter-productive relative to the goal of promoting fetal health and well-being as it undermines the trust between pregnant women and physicians that is necessary to foster the education which would promote the birth of healthier babies. When trust is diminished or absent, women whose fetuses may be most at risk may be discouraged from seeking appropriate care from physicians whom they perceive as merely “agents of the state.”
It is also important to note that state intervention in pregnancy to save fetal lives is far in excess of any non-voluntary action that would be tolerated to save non-fetal lives. For example, parents are not coerced to become organ donors, even if failure to do so would likely result in the death of their child. We may consider a parent’s refusal to make such a donation morally reprehensible, but not within the realm of state authority.
Finally, state intervention to promote fetal well-being is hypocritical given the inconsistency between aggressive efforts to rescue a few fetuses from a few women in unfortunate situations, when there is widespread tolerance for unacceptable and sometimes dangerous living conditions for many children whose moral status (unlike that of the developing fetus) is not contested. Here, it is also important to emphasize that the attention paid to pregnant women’s behaviors and choices overlooks the fact that “malnutrition, violence, chaotic lives, serious maternal health problems and lack of medical care” (Pollitt, 1990, p. 411) have a significant impact on the health and well-being of the fetus.
In general, both domestic laws and international covenants address issues relevant to this discussion, confirming both the absence of fetal rights and the competent woman’s right to make her own treatment decisions: For example, see cases such as Re MB (1997), St George’s NHS Trust v. S (1999), Regina v. Collins (1999) in the UK; Harrild v. Director of Proceedings (2003) in New Zealand; R v. Phillip Nathan King (2003) in Australia; Paton v. UK (1980), RH v. Norway (1992), Boso v. Italy (2002), and Vo v. France (2004), all at the European Court of Human Rights.
In many countries, the courts have recognized that the fetus does not have legal rights until it is born alive and with complete delivery from the body of the pregnant woman (R v. Sullivan, 1991; Rodgers, 1993; Martin and Coleman, 1995). Because the fetus has no legal rights until born, child protection legislation (which, under certain circumstances, authorizes state intervention on behalf of a child at risk) does not apply to the fetus. Additionally, a number of international instruments affirm that legal rights attach only at birth, making clear that the fetus has no legal rights that could override the pregnant woman’s right to determine her own healthcare (Council of Europe, 1989; United Nations, 1989, 1966, 1994; Cook et al., 2003; Copelon et al., 2005). The Universal Declaration of Human Rights (United Nations, 1994) states that “All human beings are born free and equal in dignity and rights.” The Convention on the Elimination of All Forms of Discrimination Against Women (United Nations, 1979) provides that all women have “The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.”
As regards the right of pregnant women to make their own healthcare choices – physicians who treat competent patients (including competent pregnant patients) without their consent put themselves at risk of both criminal and civil liability (cf. Malette v. Shulman, 1990). Courts considering cases from various jurisdictions, including England, France, Italy, New South Wales, New Zealand, and the USA, all have confirmed the right of pregnant women to make decisions concerning their own healthcare. In Paton v. UK (1980), for example, the European Commission held that “The life of the fetus is intimately connected with, and it cannot be regarded in isolation of, the life of the pregnant woman …” They held that to preclude abortion would mean that “… the ‘unborn life’ of the fetus would be regarded as being of a higher value than the life of the pregnant woman.”
Also, in many jurisdictions, decisions refer to and rely on a decision of the Supreme Court of Canada in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) (1997). At issue was whether there was legal authority to order a pregnant woman to undergo counseling and hospital admission to manage a drug addiction in the absence of her consent. The Supreme Court held that forced detention and treatment would violate the woman’s constitutional rights and that there was no legal basis on which to do so. This decision also confirmed that the fetus is not protected before birth and that courts have no legal grounds on which to order a competent pregnant woman to undergo a medical intervention that she does not want. The Court held (paragraph 43) that imposing legal liability on pregnant women for injury to their fetus during pregnancy was not likely to result in improved pregnancy outcome:
It is far from clear that the proposed [legal duty of the mother] will decrease the incidence of substance-injured children. Indeed, the evidence suggests that such a duty might have negative effects on the health of infants. No clear consensus emerges from the debate on the question of whether ordering women into “places of safety” and mandating medical treatment provide the best solution or, on the contrary, create additional problems.
The Court added (paragraph 44) that imposing liability might:
… tend to drive the problems underground. Pregnant women suffering from alcohol or substance abuse addictions may not seek prenatal care for fear that their problems would be detected and they would be confined involuntarily and/or ordered to undergo mandatory treatment. As a result, there is a real possibility that those women most in need of proper prenatal care may be the ones who will go without and a judicial intervention designed to improve the health of the fetus and the mother may actually put both at serious health risk. … In the end, orders made to protect a fetus’ health could ultimately result in its destruction.
The legal position is supported by the policies of a number of important professional organizations. For example, the Society of Obstetricians and Gynecologists of Canada (1997), the American College of Obstetricians and Gynecologists (2004, 2006) and the International Federation of Gynecology and Obstetrics (FIGO) (2003a,b) all have policies that recognize the authority of the pregnant woman to make healthcare decisions and underline that this is in the best interests of both the woman and the fetus. The FIGO (2003a) policy on Professional and Ethical Responsibilities Concerning Sexual and Reproductive Rights enjoins its member societies to:
Support a decision-making process, free from bias or coercion, which allows women to make informed choices regarding their sexual and reproductive health. This includes the need to act only on the basis of a fully informed consent or dissent, based on adequate provision of information and education to the patient regarding the nature, management implications, options and outcomes of choices. In this way, healthcare professionals provide women with the opportunity to consider and evaluate treatment options in the context of their own life circumstances and culture.
When a physician’s view of the best interest of the fetus conflicts with the view of the pregnant woman, the role of the physician is to provide counseling and persuasion, but not coercion. Codes of ethics that apply to medical practice in many countries support the same. For example, the Royal College of Obstetricians and Gynaecologists (1996) in the UK stipulates that: “Obstetricians must respect the woman’s legal liberty to ignore or reject professional advice, even to her own detriment and that of her fetus.”
Unfortunately, there is no standardized system for documenting and assessing cases where pregnant women refuse medical advice and physicians seek judicial intervention to overcome refusals of treatment.
A recent survey of physician (obstetrician–gynecologist, pediatrician, and family physician) attitudes towards mandatory screening and legal coercion of pregnant women with problems of alcohol and illicit drug abuse found that half (or more) supported such measures (Abel and Kruger, 2002). This finding indicates that physician attitudes are at variance with recent court cases and the policy statements of professional organizations. As regards physician attitudes to court-ordered treatment (particularly surgery), a recent survey of directors of maternal–fetal medicine programs revealed strong opposition to such efforts and a continuing decline in the number of requests for this type of judicial intervention (Adams et al., 2003).
Of note, a review of relevant data shows unequivocally that state intervention is disproportionately oppressive of poor women, aboriginal women, and women who are members of other racial and ethnic minorities (Chasnoff et al., 1990; Royal Commission on New Reproductive Technologies, 1993). This finding is cause for concern. Of equal concern is the almost exclusive focus on the impact of pregnant women’s behaviors and choices on the health and well-being of the fetus when there is ample evidence to show that paternal drug and alcohol abuse, excessive caffeine and nicotine use, spousal abuse, and certain paternal occupations are also potentially hazardous to the fetus (Olshan et al., 1991; Zhang and Ratcliffe, 1993; Losco and Shublack, 1994; Schroedel and Peretz, 1994; Chavkin, 2001; Frank et al., 2001; Uncu et al., 2005).
Although many jurisdictions do not recognize fetal rights, fetal interests are taken into consideration by physicians and their pregnant patients. In fact, with the development of detailed ultrasound imaging, excellent perinatal technology, and the ability to improve outcomes for very small infants, it is hard for many physicians not to envision the fetus as a patient. Thus, some physicians see themselves as having responsibility for two “patients” in one body. It is extraordinarily difficult for a physician to stand by while a fetus dies or becomes irreparably harmed, when an intervention might prevent this result. Nonetheless, it is inappropriate to coerce a patient to undergo an intervention or to abandon her.
Difficult as it may be, the physician must respect the competent woman’s right to make decisions for herself and her fetus. Moreover, care must be taken not to question the competence of the woman merely because she does not concur with the physician’s recommendation(s). There are many reasons why competent women reject medical advice, and to counsel these women effectively it is important to understand their particular reason(s) for rejecting medical advice.
As one of us has argued elsewhere (Baylis and Sherwin, 2002, pp. 295–6), sometimes women do not accept medical advice because of value conflicts, epistemological conflicts, or lack of trust in the medical profession:
… [W]omen sometimes make a deliberate decision to reject their physician’s advice because it runs contrary to their values … In other cases, women may agree with the values that inform the physician’s recommendation (e.g., promotion of their own health and that of their fetuses), but question the medical knowledge on which that advice is based … [In still other cases] women who intentionally reject medical advice do so not because of conflicting values, or problematic knowledge claims, but rather because of a deep-seated mistrust of physicians and the medical profession as a whole.
In addition to the above, sometimes medical advice may not be followed because of ignorance, failure to understand, fear or apprehension, denial, and bias toward the present and near future.
Communication, understanding, and respect for women are essential in the management of these difficult situations. However, no matter how skilled a communicator the physician may be, a woman may not alter her decision or behavior. The physician’s communication skills may be significantly tested in such cases (especially when a decision is needed urgently), and it may be difficult to develop the trust that is integral to the physician–patient relationship. As in other challenging medical situations, consultation with a colleague may be extremely helpful.
As Ms. A’s pregnancy progresses, she develops a rapport with her physicians and the perinatal staff. An ultrasound shows a modestly growth-restricted fetus, with increased resistance noted in umbilical artery Doppler flow studies. With the help and support of her care providers, Ms. A decides to enter a methadone support program. Had she not voluntarily decided to do this, her care providers would have continued to follow her pregnancy (as much as she would allow) and sought to provide advice on timing of the birth and on subsequent treatment options for her newborn.
In the second case, further discussion clarifies that Ms. B is terrified of general anesthesia because her mother died from anesthesia complications. Moreover, Ms. B has a strong distrust of physicians and believes that too many cesarean sections are done. When it is explained that the cesarean can be done with spinal anesthesia, and in view of the risks of the ongoing bradycardia, Ms. B agrees to the surgery. However, if the patient had continued to refuse the surgery, the physician would have been obliged to respect her decision despite the serious risks to the fetus.
An earlier version of this chapter has appeared: Flagler, E., Baylis, F., and Rodgers, S. (1997). Ethical dilemmas that arise in the care of pregnant women: rethinking “maternal–fetal conflicts.” CMAJ 156: 1729–32.