Jacob M Appel writes in the Huffington Post that Samantha Burton was 25 weeks pregnant when she ruptured her membranes and started contractions. There was a risk of infection and premature birth, risking her health and the life of her unborn child. It could also risk the health of her future child who may survive but be disabled.
Burton was ordered rest in hospital for the remainder of her pregnancy. She wanted to go home but wasn't allowed to leave.
The hospital successfully went to court forcing Burton to comply.
Three days later she had an emergency cesarean, but the baby was stillborn.
This case raises several issues, including:
Bed Rest as Obstetric treatment
Bed rest, including prolonged hospitalization, is a traditional treatment for obstetric complications such as threatened miscarriage, multiple pregnancy and risk of preterm labour. It is commonly of no proven benefit. When doctors recommend hospitalization, women find it hard to refuse. While no court order compels their hospitalization, the patient is held all the same.
Hospital rest is expensive, isolating and disruptive treatment. Wise patients might request a second opinion (the judge barred Burton from seeing another doctor). Patients are not always informed when the benefits of rest are uncertain – they should be. Courts should not enforce unproven treatments.
Should Burton have been compelled to protect the welfare and life of her fetus?
The judge cited the state's authority to ensure that children receive necessary medical treatment. But a fetus is not a child. Under Florida law, the judge said, the welfare of a child (i.e. fetus in this case) overrides that of its parent. Under these rules, amniocentesis and CVS might have to stop – they have no fetal benefit and can result in miscarriage. And late termination is lawful in at least some circumstances in most western jurisdictions, including in USA.
Since Burton’s fetus was 25 weeks it was not sentient and had minimal awareness, such as feeling pain (RCOG’s Working Party report Fetal Pain 1997), so could suffer limited harms. Protection by the courts was not warranted to protect its life.
Should pregnant women be compelled to protect the health of their future child?
Future child risks are arguably more important than fetal risks since living persons may possess greater moral status than fetuses. Some pregnant women expose their fetuses to alcohol, smoking and other potentially harmful substances. This can result in the future child being born alive but harmed. Pregnant women should be encouraged to avoid them.
But amniocentesis and CVS can also expose the future child to risks, such as prematurity, for the benefit of the couple yet these tests are considered acceptable. It is not known if ultrasound causes health risks to the future child, yet many are performed when there is no potential fetal benefit (L. de Crespigny, T. Douglas, D. Wilkinson J. Savulescu: Ultrasound Obstet Gynecol 2009; 34: 613)
If the courts compel women to undergo treatments for the sake of their fetus perhaps they should also compel multifetal reduction in high multiple pregnancies, such as the Californian IVF octuplets, to reduce the risks of extreme prematurity.
It may sometimes be ethical for a woman to impose a future child risk in order to derive some benefit herself, but this will depend on the level of future child risk and the maternal benefits. In Burton’s case, going home would probably have added little future child risk.
Court ordered treatments
It has been proposed that in those few instances when pregnant women make choices which result in great harm to their future children for little personal benefit, the state is arguably justified in protecting the interests and rights of future generations (Savulescu J. Utilitas Vol. 19, No. 1, March 2007). Some believe emergency coerced cesarean delivery has a broader role (Chervenak FA et al. Obstet Gynecol. 1993 82:1029).
On the other hand, an ACOG Committee Opinion (Patient choice in maternal-fetal relationship) states that “The use of judicial authority to implement treatment regimens to protect the fetus violates the pregnant woman’s autonomy and should be avoided.”
The UK Court of Appeal ruled that a mentally competent patient has an absolute right to refuse medical treatment even where that decision might lead to her death or the death of her baby, for any rational or irrational reason or for no reason at all. (S Goldbeck-Wood BMJ 1997;314:1143). But fetal death is arguably not the worst outcome. Severe disability to the future child may be. When a pregnant woman knowingly risks the health of her future child despite there being no great benefit to her there are times courts should intervene.
Doctors should tell patients when intrusive interventions are of no proven efficacy. Courts should not compel pregnant women to accept treatments that are of no or dubious benefit to future children.
“But a fetus is not a child” begs both the legal and the ethical question of when social (ethical, legal) protection should be given the carrier of human life at each stage of development, as against others interested in terminating it or risking its termination. The term “child” means the carrier of human life entitled to total protection as against anyone (which should mean that the ordinary law of homicide should apply; but it doesn’t).
A properly nuanced idea of when the human life carrier becomes a “child” under the law should include the countervailing interests of others (normally, only the pregnant woman, but in the case of a surrogate mother, perhap the biolgical parents as well). The conferral of legal protection on the developing human should depend on the social interest in protecting that human. It should not depend on some religious concept of ensoulment or on the biological truism that the developing human is, in fact, human. That interest grows as the fetus becomes recognizably human, and the pregnant woman’s interests decrease with the relative cost of protecting the fetus. The command to go to bed for the duration of the pregnancy is essentially imprisonment under minimum security conditions. What of the command to refrain from using hard drugs or alcohol or tobacco products during the pregnancy? Addiction certainly raises the cost of restraint to the pregnant woman. Should that cost count?
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