Sometimes the life of a fetus can be saved, or damage prevented a child-to-be, only if s woman refrains from doing or submits to certain things. And sometimes a woman refuses. Can we rightly compel the conduct?
Intervention is not apt when the risks to the fetus or child-to-be are relatively small. For instance, the average birth weight of babies is reduced by smoking or drinking even moderate amounts of alcohol or coffee, but no one takes serious anything other than education or persuasion to modify the behaviour.
However, many do take compulsion seriously when the risk o the fetus or child-to-be is great. Mandatory detention is suggested for women who refuse to give up inhaling gasoline or taking drugs such as heroin or cocaine. It is also suggested that we can sometimes force non-surgical medical treatment; for instance, to use compulsion to manage maternal diabetes in pregnancy, or have women with PKU follow special diets. Finally, and most intrusively, coerced surgery is sometimes contemplated: intrauterine transfusions, a variety of still-experimental fetal surgeries, ad caesarean sections (Murray 1990: 219-220).
Courts have also been prone to order such interventions, and have compelled women to undergo the whole gamut of the above (Kolder, Gallagher and Parsons 1987: 1192-1193); Rodgers 1986: 456, n.1 & N.2). some applaud this as a natural extension of certain already-entrenched legal principles (e.g. Robertson 1989; others criticize it as violating legal principles which should remain sacred (e.g. Rhoden 1989).
One must join this debate with ambivalence. On the one hand, the thought of mandatory detention or forcing a woman to undergo invasive procedures against her will is a terrible one, and one must wonder how we could ever do such a thing. On the other, the thought of a human being going through life severely damaged because we did not must make one wonder how we could not.
As long as we focus on the interests of the woman or the child-to-be to the exclusion of the other, the solution to the problem thus seems clear. And so we find the literature both pro-and anti-interventionists stating their cases with great power. But what we do not find is one side dealing fairly and fully with the arguments of the other. As soon as this is done, and the pro and con arguments laid side by side, the issue is much muddier. But however this may multiply our difficulties, it must be done, for we cannot properly argue for a position by studiously ignoring the opposing side. And once both sides are taken into account, the pro-interventionist side wins out.
Or so I shall contend. I will argue that while we should avoid all forced intervention as much as possible, there will be occasions on which even the most extreme intrusions are justifiable. My analysis will be an ethical as opposed to a legal one: I will not be concerned to argue that an examination of existing legal principles and cases points in this direction, but that moral principles do.
What interventions, if any, are justifiable depends largely on the obligations we have to the fetus or the child-to-be. If we have none, there is no question of forced obstetrical intervention, for then there would be nothing to set aside a woman’s undeniable right to control her body, and hence that latter right would carry the day. But if we do grant that a woman has obligations to the fetus or the child-to-be, then forced obstetrical intervention gains a moral foothold.
There are two putative obligations that we must consider seriously. First, and controversially, there is the obligation to ensure a live birth, which depends on ascribing the fetus a right to life. Second, and uncontroversially, there is an obligation (the exact nature of which we may leave indeterminate for the moment) to ensure that the fetus is not damaged in such a way that it will be born defective. One may, in ways that are now familiar, deny that the fetus has a right to life but one cannot deny this latter obligation. For while it may not matter whether the fetus lives, if it is to live, it surely matters whether it is damaged. Thus a woman who chooses not to abort assumes an obligation to take reasonable measures to ensure a healthy child.
My view is that women only have this latter obligation. I will not, however, try to establish that women have no obligation to ensure a live birth here. The debate over whether the fetus has a right to life is long and complex, and my strategy is to ignore it, admit the only obligation we must, and argue that we are justified in compelling obstetrical intervention to enforce that obligation. If one ascribes a right to life to the fetus as well, the same logic will dictate that the number of occasions on which such intervention is apt will increase.
Let us begin by examining the obligation to ensure that a fetus destined to be born alive is born healthy. It is easy to argue that we have an obligation to refrain from actions which will resulting hard to the child-to-be. Everyone has an obligation not to harm children by their postnatal actions; everyone likewise must have an obligation not to harm children by their prenatal actions.
It is also clear that the mother has an obligation to act to prevent very bad things from happening to the fetus when doing so does not call for any sacrifice or risk. Equally clearly, she has no such obligation when the sacrifice or risk is enormous. But the cases we are most interested in typically lie between these, and call for a substantial sacrifice (e.g. modifying a cherished life-style, accepting non-life-threatening but unpleasant procedures), or undergoing a small risk of enormous sacrifice (e.g., undergoing surgery requiring a general anesthetic). Do women have any obligation to undertake such burdens?
One rough test of the sacrifices/risks we ought to under for other is to ask what sacrifices/risks we think we can make them undergo for our sake. If we think others can be made to undergo x for us, we must also think that we have an obligation to undergo x for them. I will now argue that by this test mothers have an obligation to undergo the sacrifice and risk of a c-section to ensure that a child is not born in a damaged state. And if they have this obligation, they have an obligation to undertake the other lesser but still substantial burdens to achieve that end.
C-sections are painful, have a mortality rate of 1 in 10,000, and their necessity for the sake of the fetus cannot be predicted with certainty: Kolder et al (1987) report a study in which doctors were right in only nine of fifteen cases (60%). To see that mothers have an obligation to undertake this burden, let us reverse the situation.
Suppose that from time to time pregnant women fell into comas such that they sometimes woken up unimpaired, and sometimes with irreversible brain damage. Suppose, also, that (a) we could prevent the brain damage in the comatose women by performing surgery on the fetus, but doctors were only right in judging it necessary 60% of the time; (b) the surgery always causes the fetus substantial discomfort which sometimes recurs intermittently through its life, and in 1 out of 10,000 cases the fetus dies during the operation, (c) forgoing the surgery does not put the fetus at any risk; and (d) the woman had made no advance declaration to cover the contingency. Should the surgery be done?
Even if we grant that the fetus has a right to life, we would almost certainly, and rightly, say yes: the remote chance of death to the fetus is a risk that can be reasonably run to prevent probable and very serious harm to the woman if it is not. But if we think those burdens can be properly placed on the fetus for the sake of the mother, we must also think that when the situation is reversed, the mother ought to undertake those burdens for the sake of the fetus. Thus a woman who chooses not to abort has an obligation under certain conditions both to refrain from and to undertake actions of the sake of her child-to-be. This is commonly admitted even by anti-interventionists (e.g. Nelson and Milliken 1990: 237). But it is one thing to say that there is an obligation if those conditions are satisfied, quite another to say that in any realistic situation we can determine that they are satisfied, and quite another still to say that eve if we could establish an obligation the obligation should be enforced.
Certainly not all obligations should be legally enforced. But to show that something is an obligation is to show that it falls in principle within the scope of the law, for, as John Stuart Mill puts it, ‘Duty is a thing which may be exacted from a person, as one exacts a debt’ (Kolder et al. 1987: 45). Of course, for Mill and anyone else of sense, legal compulsion is a last resort. We can hope that reproaches of conscience or public opinion will be sufficient motivation. But if these fail, the law can in principle be resorted to, and should actually be in the absence of countervailing considerations. Thus to demonstrate (or to admit) that the woman has an obligation to make substantial sacrifices or run serious risks for the sake of the fetus is to take one large step towards forced obstetrical intervention. For there is now a prima facie case for that, and it is up to those who resist the intervention to explain why that case should be overturned.
Sometimes anti-interventionists try to take a short way with the question, arguing by analogy. As one judge in Washington State put it in refusing to order a c-section, ‘I would not have the right to require the woman to donate an organ to one of her other children, if that child were dying…. I cannot require her to undergo that major surgical procedure for this child’ (quoted in Kolder et al.: 1194).
If sound, this argument would clear up one major issue: we could not force treatment as invasive as c-sections on a woman. It would still, however, leave open the question of whether other less intrusive medical treatment and mandatory detention could be applied to a woman against her will. But the argument is not sound. First, even if there were no dis-analogies between the two cases, the conclusion will not follow, for one may assert that we can properly compel the donation. Donations of bone marrow have been ordered by the courts in the case of incompetent donors (Robertson: 325), and one may argue that there is an enforceable obligations in this case as well. I am far from confident that this right; but it cannot be dismissed out of hand, and so the anti-interventionists’ anchor point is not perfectly secure.
The fact is, however, that there are worrisome disanalogies between the cases. In the organ transplant case, we take something from A and give it to B, whereas in the c-section case we do surgery on A to benefit B by way of removing B from a threatenting environment. Again, in the organ transplant case we are asking someone who would not otherwise be exposed to any pain or risk to undertake both, whereas in the c-section case the woman has both in store, for her alternatives are either a vaginal delivery or abortion. Still again, enforcement is more difficult in the organ transplant case. There we have to arrest the person, whereas in the c-section case, the woman is typically already under the discipline of a hospital ward. Finally, the cases would be further disanalogous if the woman’s negligence is responsible for the fetus being in its distressed position. For, bizarre scenarios apart, a prospective organ donor never is responsible for the recipient’s plight.
Relying on this analogy is also problematical in that there is another plausible analogue for the c-section case which points in the opposite direction. Specifically, we can liken the case to that of the apprehension of a child where child abuse or neglect is suspected. This analogue is worse in that no surgery is involved. But in other ways it is as good or better. Serious pain, albeit of a psychological nature, is caused the woman, perhaps sufficient to driver her, in a small but significant number of cases, to suicide. The child, like the fetus, is removed from an environment that we have reason to think threatens its well-being. There is an improved (though still far from perfect) match of enforcement problems: apprehending a child against the mother’s wises is of comparable difficulty to forcing a woman in hospital to have a c-section, whereas arresting and then subjecting the woman to surgery to extract an organ is more difficult than both. I do not content that this analogue is better; only that, all things considered, it is as good.
The moral I draw from the above is that we cannot cancel the prima facie obligation by arguing by analogy to unanalyzed cases. Canceling objections have to take the form of specific reasons against the practice of forced obstetrical intervention. And there is no shortage of these. They divide into two kinds: (1) those which contend that forced obstetrical intervention is wrong whatever the consequences, and (2) those which contend that it is wrong because of the consequences. I will first argue that there is no in principle bar to the practice and therefore the issue comes down to an evaluation of consequences. I will the argue that the consequences cannot be predicted with enough certainty to allow for a clean resolution – that is why the issue remains so vexed, and proposed solutions so unsatisfying – but that there are considerations which are sufficient to tip the balance in favour of intervention.
I now begin with the non-consequentialist objections. The first applies exclusively to interventions involving forced medical treatment. It is sometimes argued that such interventions are illegitimate because they sin against the rule forbidding medical treatment on the competent without their consent. And this rule, Nancy Rhoden argues, finds expression in the law, writing that: “the assumption that a third party can step in and weight the risks of surgery for someone who has competently chosen to forego them … is an assumption that has always been rejected in American jurisprudence” (Robertson 1989: 33-4).
Both the ethical and legal claims here are mistaken. The rule forbidding medical interventions on the competent without their consent when the person alone stands the consequences of refusal is well entrenched in ethics. But forced obstetrical intervention does not violate that rule. The rule which forced obstetrical intervention violates is quite different, namely, that there shall be no medical interventions on the competent without their consent for the good of others. That rule, however, has no clear ethical basis. Nor is it supported in law. As John Robertson (1989: 324-5) has pointed out:
Bodily intrusions without a person’s consent for the sake of another are highly disfavoured, but they are not unknown to the law. The state may force people to have blood draw or even surgery performed to produce evidence of crimes. Compulsory vaccination and military service are a well-established tradition. Prisoners may be forcibly fed or treated for the sake of prison discipline. The courts have often stated that the right of a competent adult to refuse necessary medical treatments can be limited to avoid burdening minor children with the financial or psychological loss of a parent, and on this basis have ordered parents who are Jehovah’s Witnesses to receive blood transfusions.
Common legal practice settles no ethical issues, but is hard to assert that one cannot be forced to undertake any burdens for the sake of others. But if so, why medical burdens should be exempted yet needs to be explained. The clearest case for forced medical treatment is when the burden is small, its need certain, and the benefits great. When the anticipated benefits are great, but the burden is considerable and the need to undertake it only uncertainly predictable, as in the c-section case, we should be more reluctant. But there is no principled ground in the above for absolutely forbidding such surgery in selected cases and as a last resort.
The second non-consequentalist objection is directed specifically against mandatory detention, and claims that it is wrong because it constitutes preventive detention, and preventive detention is wrong whatever the consequences. But the objection has implications for other interventions as well. For if it is wrong to detain a woman against her will to benefit the child-to-be, it must be equally wrong to do anything more radical to the woman against her will for the same purpose.
Preventive detention is sometimes thought to be a legal rarity, but this is not so: it is common to all systems of jurisprudence. English common-law tradition allows for confining persons about whom there was “a probable suspicion that some crime is intended or likely to happen”, unless they could find “pledge or securities for keeping peace, or for their good behaviour,” and peace bonds are authorized in many parts of the United States. On the basis of predictions of dangerous conduct, Great Britain, the United States, and Canada created internment camps in wartime. Similar predictions allow the confinement of the mentally ill, juveniles, suspected sex offenders, and so-called “preventive arrests” which allow for suspicious persons to be held overnight (Dershowitz 1969: 23-24).
As noted before, common legal practice does not justify anything ethically. But it is worth recognizing that mandatory detention is not a legal novelty, and I shall now argue that there is nothing in principle wrong with it.
If our predictions about who is going to do what were as good as our predictions about who did what, there could be no objection to preventive detention. If we can punish persons when it is beyond reasonable doubt that they have committed a crime, we must be able to punish them what it is beyond reasonable doubt they will commit a crime. In both cases, the innocent sometimes will be punished. But if we are prepared to buy the advantages of punishment for this price in the case of the former, as we surely are, we must also be prepared to do the same in the case of the latter. Thus, if we could establish that persons will drink and drive with the same certainty that we can establish they are drunk behind the wheel, we could prevent them from getting behind the wheel. And if that meant incarcerating them, indefinitely into the future, every day we could make the prediction, we would be entitled to do so. But if so, then if we could predict beyond reasonable doubt (or, using the child apprehension model, predict on balance of probability) that a woman will do something which will expose a child-to-be to great risk of serious harm, we should also be able to confine her for as long as her behaviour continues to be a danger.
One may, of course, claim that we cannot make such predictions. But that is not to argue that mandatory detention is wrong whatever the consequences, but that it is wrong because of the (uncertainty of the) consequences. And the claim is not, in any event, true. Women occasionally say that they will not follow medical advice, and sometimes, especially in the case of addicts, we know they will not whatever they may say.
I thus find in the above no principled grounds for prohibiting forced obstetrical intervention. Perhaps other non-consequentialist candidates could be presented, but these will be no more successful. If we acknowledge that a woman has an obligation to undergo a certain risk to prevent something very bad from happening to the child-to-be, and know that there would be no countervailing social consequences, it is hard to see what could trump forced obstetrical intervention. Hence if the practice is to e resisted at all, it must be resisted because undesirable social consequences will flow from it.
Two such social consequences have been alleged. First, it is often argued that allowing intervention to save children-to-be will, paradoxically, hurt more than it helps. If court-ordered obstetrical interventions become more common, this will tend to make certain women reluctant to visit doctors or to deliver in hospitals. The groups that are most in need of prenatal care will thus be driven away from it (Annas 1987: 1214; Kolder et al. 1987: 1196; Nelson and Milliken 1990: 236).
We must begin by noticing that we have already adopted a number of policies that run this risk. Apprehending children and reporting suspected child abuse may deter mothers from seeking assistance, and that mandatory reporting of venereal disease and other information acquired in confidence (such as threats of violence made to a psychiatrist) might likewise result in those needing help not getting it, to the cost of others. We nonetheless persist in these practices, partly because while we know they do have the unwanted deterrent effect on occasion, we do not know the extent of this, and it is hard to sit by and do nothing to remove a more certain damage to a particular person. Insofar as we do not argue for abandoning these practices, we cannot condemn intervention in the obstetrical case on this ground unless we have some special reasons for treating that case differently.
Second, it is argue that allowing forced obstetrical intervention will lead to discrimination. Kolder et al. (1987: 1194) produce some evidence that those ordered to undergo confinement or treatment will likely be the ethnically, socially and economically disadvantaged (see also Annas 1987: 1213).
This, however, is not an objection to forced obstetrical interventions if, as is almost certainly the case, the ethnically, socially and economically disadvantaged are disproportionately engaged in the conduct in question. Of course we should have sympathy and work seriously to remove the causes. But we do not suspend the law of theft until the ghetto is removed on the ground that the ghetto causes people to steal, and I do not see why we should say the analogue of that here.
However, even if all classes in society were equally engaged in putting the fetus at risk but contingencies of circumstance only made some of them visible, that is no objection to prohibiting the conduct. We should strive for the equal application of the law, but there is a legal maxim which says that the law should do what it can when it can, how it can, and it is better to curtail some of the undesirable conduct than none.
It thus appears that we cannot oppose forced obstetrical intervention by appeal to the two just-discussed social consequences; nor is it likely that we can do so by appeal to any others. For it will be difficult to cite any which we can say will, as opposed to might, occur. And no reasonable moral calculus will allow the bare possibility of bad consequences to cancel interventions which on balance of probability, will protect a child-to-be from great risk.
This brings us to an end of our review of the arguments against forced obstetrical intervention, and we have failed to find any considerations sufficient to cancel the prima facie case for the practice. This leaves that case in sole possession of the field, and hence we must conclude that forced obstetrical intervention is permissible in select cases and as a last resort. No one can wholeheartedly welcome this conclusion. But, like so many other hard choices, it is made more palatable by the fact that the alternative is even more unattractive.
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