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Hastings Cent Rep. 1987 Aug-Sep;17(4):33-40.

A new threat to pregnant women's autonomy.

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U.S. Court of Appeals for the Seventh Circuit, Chicago, Illinois.


Courts and legislatures are increasingly being called upon to restrict the autonomy of pregnant women by requiring them to behave in ways that others determine are best for the fetuses they carry. The state should not attempt to transform pregnant women into ideal baby-making machines. Pregnant women make decisions about their behavior in the context of the rest of their lives, with all the attendant complexities and pressures. Our interest in helping future children by improving prenatal care would best be furthered by helping pregnant women to make informed, less constrained choices, not by punishing women or depriving them of choices altogether.


After introducing a case of a woman who was prosecuted for her child's death for not seeking timely medical care when she was pregnant, and listing 13 other cases where fetal rights were asserted over those of the mother, this reviewer considers the legal principles involved in rights of the unborn. This trend has appeared since 1980. The prosecution of Pamela Stuart of California involved a son born brain damaged related to a diagnosis of placenta praevia, where the mother did not go for treatment immediately after she began bleeding. There have been 11 situations where women were ordered to have caesarean sections against their choice, and 2 cases where women were sued by the father on behalf of the child for damages. In both of these cases, the existence of medical insurance was probably a factor, that is, the couple may have hoped to ease financial difficulties by claiming injuries on the part of the child. The current debate concerns whether women should have the right to control their own lives, or whether criminal sanctions, tort recovery, forced medical treatment or involuntary civil commitment should be allowed to compel pregnant women to behave in ways the state deems optimal for their fetuses. Traditionally the woman and the fetus were considered one, but now adversarial claims are being brought, primarily by the opponents of abortion. As in the case of Ms. Stuart, who faced a battering husband and poverty, there are biological and psychological realities beyond the physical connection between mother and child. Women make innumerable trivial decisions throughout pregnancy, hundreds of which may affect their unborn. In medical practice today, doctors are forsaking giving of advice, for fear of malpractice suits, while shifting the focus to the fetal rights debate. Yet in no other situation does the state intrude into a person's decision regarding medical care. Even involuntarily committed mental patients may refuse medical treatment. The response of professional associations has been a concern that women may not go for prenatal care for fear that they may be prosecuted. Society's best hope for improving fetal health is to consider the woman and her fetus a single legal entity, provide adequate prenatal care, nutrition, child care, help with housework and education about drugs, not prosecution for decisions made during pregnancy.

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