Introduction

In this brief we argue against the policy of apprehending babies in utero for the purpose either of preventing the mother from engaging in behaviour feared to be harmful to the infant or of forcing her to submit to invasive procedures thought to be in the infant’s best interest.

As with many issues involving civil liberties, we need to distinguish between moral questions about the mother’s conduct and moral questions about what the law ought to require of her. A woman may act morally wrongly by placing her baby in utero at risk of morbidity and/or mortality, as well as by refusing medical procedures that might reduce such risks. But it goes far beyond these judgments to insist that these moral wrongs ought to be legal wrongs, making a woman liable for either preventive detention or forced medical treatment. The latter questions can be taken up at at least two levels, by considering relevant maternal moral rights and obligations, as well as the likely consequences of a policy of maternal apprehension.

We argue that, though individual mothers may commit distinctly moral wrongs in refusing to submit to invasive medical procedures, they violate no legally protectable late-term fetal rights. We also argue that, though individual babies may suffer or die without a policy of apprehension, instituting one would probably produce worse consequences overall than no such policy, as well as compound pervasive injustices that already tax the poor and marginal women most vulnerable to apprehension. We are less sure about the parallel arguments against preventive detention of potentially negligent pregnant women, but argue that the case is at least as strong here as in the general case against preventive detention, a policy that civil liberties associations and unions have consistently opposed.

Fetal apprehension and the abortion controversy

Both proponents and opponents of forced obstetrical intervention have assumed a close relationship between this issue and the debate over abortion policy. More specifically, they assume that once one concedes the personhood of human fetuses (i.e. that they have a right to life of the sort enjoyed by human adults, and a substantial range of interests that others might coherently be called upon not to harm and to protect), then it follows straightaway that a law permitting apprehension of fetuses is morally permitted, even required. The implication does not hold, however. The two issues ought to be dealt with separately.

If abortion were morally (and legally) wrong because human fetuses are persons, this would entail that mothers and third parties must not kill their babies in utero, but not that they must help them at some cost to themselves by submitting to major surgery. This further conclusion would follow only if it is true that refraining from helping another person is morally on a par with killing him, an equation that many reflective people, not to mention Anglo-Canadian law, have been unwilling to make when undoubted persons are involved. If we reject the moral equation, then abortion might be wrong, but refusal of a medically advised caesarian section permitted. If the latter is indeed morally wrong, it has to be so on grounds other than or additional to the alleged right of a human fetus not to be killed. I will consider four such grounds: probably harms and benefits in individual cases, mandatory beneficence or positive service, the tacit commitment to nurture, and the obligation to assume risk of harm in order to make good on one’s own negligence.

Probable harms and benefits

Many proponents of fetal apprehension base their support on straight act-utilitarian grounds, arguing that mothers should be forced to have c-sections where (and presumably, only where) the balance of probable benefits over harms is greater than for a vaginal delivery; more specifically, where the risk of substantial morbidity and mortality to the baby without the c-section is greater than those risks to the mother with the procedure. Thus they would limit the applications of such a policy to the, presumably narrow, range of cases where the calculus of probable utilities is unequivocal. For example, in Jefferson v. Griffin Spalding County Hospital Authority (State of Georgia, 1981) the mother suffered from complete placenta previa which suggested to the medical staff that there was a 99% chance the baby (and a 50% chance the mother) would die if delivered vaginally. And in the recent Baby R. case (B.C. 1987) the infant presented in the footling breech position, leading the attending physician to conclude that there was a 80% chance he would die if delivered vaginally.

As with any utilitarian argument, there are two kinds of grounds for disputing this one. First, one might dispute the factual premise. There is in fact considerable doubt and controversy over the desirability of c-sections in a wide range of cases. As indicated in the “Consensus Conference Report, Indications for Caesarian Sections” (Can Med Assoc J 1986; 134:1350):

Frequently there is uncertainty in recognizing the precise risks and benefits of the options for delivery in the case of breech presentation… which arises from the paucity and equivocal nature of the research data regarding the relative risks and benefits of the different interventions.

Indeed, the prediction of harm to the fetus was incorrect in six of the 15 cases of court-ordered c-sections reported in a recent U.S. survey. (V.E. B. Kolder et al, “Court-Ordered obstetrical Interventions”, The New England Journal of Medicine, May 7, 1987, 1192-96.) In the Georgia case, for example, the woman delivered a normal baby vaginally before the c-section could be performed, and this after the staff judged that it was virtually certain that the child would die without the procedure! To be sure, it would be a bit unfair the make heavy weather of failed medical predictions in individual cases. But when the cases add up to more than 30% of the total interventions in one jurisdiction, and when some of the predictions are so radically off, it becomes more appropriate to stress the fallibility of these predictions. Utilitarian arguments are, after all, hostage to our ability to make dependable assignments of probabilities.

These doubts about the benefit side of consequences of forced c-sections are matched by doubts about the harm side. Proponents of this kind of legislation would do well to remind themselves that a c-section is major surgery, carrying with it a non-trivial risk of maternal morbidity, even of mortality. (In fact, a woman did die under general anaesthesia during a c-section in Vancouver last fall.) But if we take this into account, we will be even less confident about morally condemning women who refuse this procedure, even when there is some probability that the unborn child will benefit by it, much less legally requiring them to.

The second ground for disputing a utilitarian argument is, of course, moral: one can urge that non-utilitarian considerations have greater weight. The right of a competent patient to refuse medical treatment, a fortiori invasive medical treatment, is by now firmly established in Anglo-Canadian legal morality, a right which prevails even where are medical indications are that the treatment would in fact be in the patient’s best interest. How might the balance between these two moral considerations be struck in the present case, in which a third party’s interests are at stake, namely the infant’s?

Mandatory Beneficence

We would argue that the woman’s right to refuse treatment even where it would benefit her infant, should prevail, mainly on the grounds that there should be no legally recognized obligation of beneficence when it entails risks this substantial. To keep our intuitions clear, it is important to remind ourselves that we are not asking simply whether a woman would be morally wrong to refuse to submit to a medically indicated c-section, but whether it would be morally appropriate to use the law to force her to submit to one. This distinction is crucial because, even though lack of benevolence and generosity are certainly moral vices, Canadian and American law have thus far not been prepared to make them criminal offences. Absent some special responsibility for the plight of another person, courts have been notably reluctant to make beneficence mandatory. For example, they have refused to force histocompatible potential donors to submit to bone marrow extraction, little more than a physical inconvenience, even where this would double an aplastic anaemia victim’s chance of surviving for another year (see B.J. Culliton, “Court upholds refusal to be medical good samaritan” Science, August 18, 1978). At the very least, the call for mandatory beneficence raises worries about equality before the law: if we are reluctant to force individuals to be (in the philosopher, Judith Thomson’s nice phrases) “minimally decent samaritans”, are we really prepared to force some women to be “splendid samaritans”? Fairness would dictate not.

Some might find this parallel grossly inappropriate, for a mother is not simply some “random other” who happens to be in a position to help a fetus in need. She acted in a way that brought it into existence; now it is totally dependent upon her. What relationship could be more biologically intimate, more charged with moral obligations? It is striking how different people draw different moral conclusions from the same set of biological facts, some insisting that total fetal dependence entails complete maternal autonomy, others insisting just as vehemently that it entails almost limitless maternal obligations. There is some common ground, however, for virtually everyone agrees that parents have strict, legally enforceable obligations to provide for their children, not merely not to harm them. (Indeed, when parents fail to provide for needs, we say that they have harmed their children. Contrast this with what we say of a stranger who does not provide for them.) Perhaps this is the model proponents of enforced obstetrical intervention have in mind. Unfortunately, it does not tell us just how large the morally obligatory, much less the legally mandatory, risks of parenthood ought to be.

It is doubtful that they are limitless. For example, though a parent surely does have a moral obligation to do her best to see that her child gets out of their burning house before she saves herself, it is doubtful that she has a moral obligation to risk her life by running back into the burning house to save her child who was mistakenly thought not to have been in the house in the first place. (The basis of this moral distinction may be utilitarian: more lives will probably be saved if the relatively helpless child is helped by an adult already in the burning house, whereas lives will be lost unnecessarily if the parent rushes back into the house. The moral distinction turns on the shift in probabilities. If the parent could rush back with relatively low risk, so that the calculus of probable lives saves shifted to what it is in the first scenario, then our moral response would also shift.)

Those who support obstetrical intervention will reply that this is precisely where the disanalogy lies, because c-sections should be required only where the balance of probable benefits over harms favours it. But this reply assumes that a moral distinction ought to be reflected in the law, which is not always the case. Do we really want the parent who flees the burning house without looking to the safety of her child to be prosecuted for child abandonment? It would be highly undesirable for the law to reflect our moral judgements of such a parent for two reasons: we ought to acknowledge realistically what fear is likely to do to people under dangerous conditions, and how relatively ineffective the threat of legal sanction is likely to be in getting panicked parents to do their moral duty in extremis. It might be replied that this is another point of disanalogy: legally forcing a woman to have a c-section is a, likely successful, attempt to secure a prospective benefit for this identifiable child, whereas prosecuting the fire-panicked parent is a, likely misguided, attempt to create a general deterrent that will secure benefits for unspecified children. But this reply fails to take seriously enough the problems in assessing probable benefits and harms in individual cases (rehearsed above, p. 34), as well as the likely unfortunate consequences of a general policy permitting obstetrical intervention. If the women most vulnerable to such a policy, the poor, powerless and inarticulate, came to believe that they might well be forced to undergo surgery, many of them, whose prenatal care is already inadequate, would be even less likely to seek it, a result which is the last thing anyone concerned about the welfare of soon-to-be-born babies ought to encourage.

Tacit commitments to nurture

Some supporters of this kind of policy derive the mother’s moral obligation to submit to surgery on a tacit promise or undertaking. Thus John Robertson has urged that:
Once she decides to forego abortion… she waived her right to resist bodily intrusions made for the sake of the fetus when she chose to continue the pregnancy. (“Procreative Liberty and the Control of Conception, Pregnancy and Childbirth”, Virginia Law Review, 69 (1983), p. 405).

The movie mogul, Harry Cohn, once remarked that “A verbal contract isn’t worth the paper it’s written on.” We do not have to extend his skepticism all the way to tacit contracts or commitments, but we should be cautions about their force and especially their scope. There is problem enough determining just what counts as the vehicle of a tacit commitment. (How self-consciously does a woman have to forego an abortion in order to count as having made an undertaking to her child in utero?) But, more crucially, there are problems in determining its content. She commits herself to act in a way that is in the child’s best interests, to be sure, but what precisely, or even roughly, does this commit her to? To accept any and all risks of harm or death? We are back at the question of parental risk, with all the indeterminacy encountered a moment ago. Invoking tacit undertakings does not help make this problem more manageable. Organ and tissue donation remain useful prods to reflection here, for it is virtually out of the question that any court in North America would order an unwilling parent to donate bone marrow to his or her child who would die without it, much less a major organ like a kidney. If this is the way we think the law morally ought to be, then the burden is on proponents of forced obstetrical intervention to show that there is a morally relevant difference between organ and tissue donation and c-sections.

It is no surprise that the “conflict of interest” that might arise between mother and fetus is so hard to resolve: pregnancy is a unique relationship that seems to create unique moral problems. But women, who have already suffered much insensitivity at the hands of a largely male medical profession, may be forgiven if they react with great suspicion to a call for mandatory beneficence directed exclusively at them.

Obligations flowing from negligence

Of course, these doubts about legally mandatory beneficence do not apply where a mother has placed her own fetus at risk by smoking, drinking alcohol or carelessly contacting herpes. She is not being asked or required to be generous, but rather to help minimalize the damage she herself has (at least in part) caused. A law requiring only negligent pregnant women to submit to obstetrical procedures would thus be consistent with the more general law of negligent harm. There are many reasons for doubting its wisdom, however.

First, there remain all those doubts about the benefit-harm calculation: It is frequently uncertain whether obstetrical intervention would truly be in the baby’s best interest.

Second, in no area of the law of negligence is the individual who jeopardizes another required to assume risks to health or life in order to help that other out of the difficulty he himself has contributed to. To be sure, the law is getting tougher with the negligent. Recently, several executives of a chemical company in the U.S. were sentenced to jail terms for knowingly failing to protect workers from dangerous substances. But a jail sentence is far less invasive than a surgical procedure. Suppose instead that the executives had failed to install safety devices in their asbestos processing factory, knowing that this would increase their workers’ risk of aplastic anaemia and cancer. It is virtually inconceivable that any Canadian or American court would require these criminally negligent executives to donate bone marrow to their stricken (and, let us assume, histocompatible) employees so as to increase their chance of survival. But, if not, then the law of negligence does not provide a moral basis for requiring negligent mothers to submit to surgery.

Third, assessing degrees of responsibility is often extremely difficult, so much so that it would be undesirable to add this to the obstetrician’s other burdens. Her concerns are essentially therapeutic, that is, forward-looking, whereas the principle of redress for negligence is essentially backward-looking. The patient’s degree of responsibility is important to his physician only as an indication of cause, and prevention or treatment of future morbidity.

Preventive detention of negligent pregnant women

Thus far, we have been arguing only against the imposition of highly invasive procedures, most notably c-sections, that create a substantial risk of morbidity, even of mortality, for women. Some of our arguments are less strong when directed against the detention of pregnant women who are negligently harming themselves and thus their babies in utero by smoking or drinking alcohol, or abusing other drugs like heroin or cocaine. For one thing, such a policy of preventive detention does not yield to doubts about the scope of mandatory beneficence, because detaining a negligent pregnant woman is not an instance of forcing one person to help out another, but rather or forcing one person not to harm another. Nor does it obviously yield to our doubts about the scope of the obligation to redress negligent harms. First, limiting an individual’s liberty is widely and plausibly taken to be a less grave assault upon the integrity of the person than are bodily invasive procedures like major surgery. For example, we are generally less troubled (if troubled at all) by the imprisonment of sex offenders than by their castration, even if they prefer this treatment-cum-punishment. Second, assessing the negligent pregnant woman’s degree of responsibility for endangering her infant in utero is here a forward-looking consideration, and thus within the physician’s therapeutic mandate. The New England Journal survey quoted several pages ago indicates that forty-six percent of the surveyed heads of fellowship programs in maternal-fetal medicine believe such detention is appropriate.

Despite all this, there are still good reasons for doubting the wisdom of even this narrower policy of forced obstetrical intervention. First, there is its potential unfairness. Of the patients reported in the New England Journal article 81% were black, Asian or Hispanic, suggesting that low income women would be the most likely to be detained. (This is true even in Canada with its relatively more just distribution of prenatal health care: the woman detained for a c-section in Vancouver was on social assistance.) This is likely to be unjust in two ways. Low income negligent pregnant women are more likely to be detained than middle class negligent pregnant women. Furthermore, though the incidence of perinatal neglect is probably substantially greater among low income mothers, the explanation has much to do with prior injustices: lower income women have less medical information and fewer resources. Many are locked in a cycle of poverty and despair, and thus more likely to be mired in self-destructive ways of life, involving drugs and alcohol. While it is crucial for a society to hold its citizens up to an appropriate standard of personal responsibility, it is also crucial to be realistic about why some citizens fail to meet it.

Second, the consequences of such a policy are likely to be bad overall, for reasons considered already. If they thought it likely that they would be forcibly detained, mothers already prone to negligence would be all the less inclined to seek prenatal care.

In pondering the acceptability of detaining negligent pregnant women we would do well to recall the debate over preventive detention of those thought to be especially prone to violence. Civil libertarians consistently oppose such legislation, on the grounds that it would violate due process without clear and unequivocal enough gains in public safety. Much the same is true here. A perhaps closer parallel is the quarantining of those with serious infectious illness who refuse to take steps to avoid infecting others. But as the recent debate over the quarantining of AIDS patients indicates, the moral calculus is not at all clear. We believe that on balance it tips against preventive detention of negligent pregnant women. The loss of liberty is certain, the gains to individual babies in the aggregate very uncertain.

“Rule Consequentialist” worries and two analogies

No sensible civil libertarian would wish to argue that the law has no place in medicine. It was a clear moral advance, for example, when the doctrine of informed consent assumed a central place in health care. But sometime the law is a blunt instrument for achieving undeniably desirable goals. A recent unhappy example is the so-called Baby Doe rules proposed by the Reagan administration to protect defective newborns from parental and medical unwillingness to treat them. Many of its opponents do not object to some of its goals, for example, to ensure treatment of many Down’s syndrome babies. Instead, they fear it may be impossible to draft laws sensitive enough to degrees of moral responsibility, or to the hazards of assessing probable harms and benefits. They fear, in short, that in this area of clinical practice hard cases (do indeed) make bad law.

In criticizing obstetrical intervention, George Annas has urged:

The best chance we have to protect fetuses is through enhancing the status of all women by fostering reasonable pay for the work they do, providing a reasonable social safety net, and ensuring all pregnant women access to high-quality prenatal services. (“Protecting the Liberty of Pregnant Patients”, The New England Journal of Medicine, May 7, 1987, 1214).

While his remarks apply most directly to the U.S., we in Canada have no cause for complacency: we have our own share of the poor, the ignorant, the desperate. Nonetheless, many people who care deeply about the welfare of babies in utero will react with impatience to Annas’s suggestion that social justice for all women is the best therapy. They will insist that, though this strategy is sensitive and sensible, it is not sufficient, because it is only a long-term approach, which does not address the immediate problem of helping babies at risk right now, who can be saved by prompt intervention from illness and death. This reaction is humanly compelling, for if one truly believes that this identifiable, real, seriously ailing human baby in utero can probably be saved by prompt action, then it is hard to resist the impulse to intervene, even at the cost of the mother’s autonomy.

This understandable impulse should be resisted, however, for it is an illusion to think that we can neatly pick out the cases in which the calculus of probable benefits and harms points unequivocally toward obstetrical intervention. Some have urged that the dangers of misidentification can be alleviated by instituting a set of guidelines, which would include at least a second, independent medical opinion, and advocates for both child and mother. Perhaps such guidelines would help ensure justice and welfare where the forced hospitalization of a substance-abusing pregnant woman is being contemplated; but we fear that they would be ineffective in those emergencies where a doctor believes that a c-section is needed immediately. We fear that such guidelines would be more honoured in the breech (so to speak) than in the observance. Note that we are not just asking what individual doctors are morally permitted to do in individual situations, but also what social policy ought to be from a moral point of view. Risking a bit of pedantry, we will label one of our misgivings “rule-consequentialist”. This moral theory has it that an act is morally permitted if and only if it is permitted by a rule the general acceptance of which as part of publicly acknowledged morality (and, as here, law and social policy) would probably yield a better balance of morally relevant good over bad consequences than any other rule we might adopt instead. Here the possible rules up for adoption are:

1. an across-the-board proscription of obstetrical intervention (except perhaps where the mother is legally incompetent), i.e., roughly the status quo before the recent rash of detentions and c-sections;
2. a rule permitting such intervention subject to at least the guidelines mentioned.

Our guess is that even though there are individual cases in which the balance of morally relevant consequences points toward intervention, the overall consequences of introducing an explicit policy that permitted doctors and health care workers to apprehend babies in utero would be worse than the status quo, for reasons indicated throughout the earlier portion of this brief.

Two analogies will bring out the moral structure of the situation. We believe that some acts of “positive euthanasia” are morally justifiable, provided that it really is in the best interest of the patient to be killed, and (crucially) that he has given genuine consent (or an appropriate proxy has). In fact, in some cases it may be morally more justifiable to kill a person than to let him die. (For example, if his end is near anyway, and his intense pain is impossible to palliate.) I have serious doubts, however, about the consequences of introducing an explicit policy that would permit active euthanasia, even with guidelines. The Dutch Parliament has just passed such a law. Perhaps their experience with it in the next few years will allay the fear of abuse and misapplication, in which case this analogy is intended mainly to bring out the structure of my worries about obstetrical intervention.

The dangers posed in the second analogy are perhaps more real, and will certainly resonate with civil libertarians. We find it easy to believe that there are some cases in which men prone to violence against women are sent over the edge by reading or viewing violent pornography. But civil libertarians have consistently opposed laws making the sale and distribution of such material a criminal offense for rule-consequentialist reasons. A law that would capture just the right cases is virtually impossible to draw. Therefore, any actual law would be subject to abuse, and thus have a chilling effect on freedom of expression at great cost. So also here. Any actual law or policy permitting obstetrical intervention, especially any permitting major surgery, would be a nightmare to try to administer accurately and fairly.

Summary

For the reasons rehearsed in this brief, the British Columbia Civil Liberties Association opposes strongly any law proposed by the government or policy promulgated within the Ministry of Social Services and Housing that would permit medical detention or treatment of pregnant women without their consent. To summarize these reasons:

• Health care professionals have an obligation to obtain informed and unconstrained consent to treatment; all patients, including pregnant women, have a right to withhold such consent.
• There are no countervailing moral considerations which override this right….
• Though babies, including late term babies in utero, have interests, and thus have moral claims on their mothers to be helped when they are at risk of morbidity and mortality, there is no reciprocal maternal obligation of beneficence that requires a woman to assume substantial risks of harm or death.
• Nor does any such obligation flow from the tacit commitment to nurture one’s baby.
• Nor does it flow from the obligation to make good harms one has negligently caused.
• And finally, the consequences of trying to promulgate and administer a law that captures just the right cases of fetal distress is likely to have substantially worse consequences than the status quo.