Keep your laws off my body!
Keep your laws off my body!
Do you protect mother or unborn?
Respect for patient autonomy and confidentiality of the patient-provider relationship are long-accepted doctrines of medical ethics. But, there are legally recognized limits to patient autonomy in certain circumstances.
In fact, there have been instances in which the law has seen fit to compel action against a patient’s will, notes Teresa Collett, professor of law at South Texas College of Law in Houston.
"The law in most cases recognizes that mentally competent adults are free to make bad decisions," she says.
However, that autonomy can be limited when the patient is not legally competent, their decision will impact a dependent third party, or there is illegal conduct involved, adds Collett.
The issue of patient autonomy recently went all the way to the U.S. Supreme Court, where justices will rule later this term on a case involving pregnant women testing positive for using cocaine. The women were arrested as a result of a program developed by Charleston police and physicians at the Medical University of South Carolina hospital that tested pregnant women for cocaine use without their consent, and alerted the police department when they tested positive.
"In the South Carolina case, you have behavior by the patients that have clear, devastating consequences for dependent third parties, their unborn children," she says. "And, in that case, you also have illegal conduct."
The law recognizes the right of women to terminate an unwanted pregnancy. But once a pregnant woman decides to continue the pregnancy, she has a moral and ethical obligation to act in the best interests of the fetus, argues Collett.
To the extent that policies like the one in South Carolina act to discourage women from seeking medical care, they should be questioned and may, indeed, be harmful, agrees Collett. But, pregnant women ethically can be held to a different standard than other people, she says.
Dangerous precedents
Such arguments are made by a number of legal scholars, notes Jean Reith Schroedel, PhD, associate professor and chair of the department of politics and policy at Claremont Graduate University in Claremont, CA. The practical applications of these theories, however, result in much more harm that good, she says.
"This is very scary stuff," she claims. "Pregnant women can have their bodily integrity violated to protect the fetus, when it is not clear from a legal sense that we consider the fetus a person. In a sense, in these situations, the fetus has more rights than a born human being. It is the women’s rights [that] are violated."
In addition, fetal protection measures may actually end up harming the unborn children it is their purpose to protect, she says.
"One of the factors most likely to influence a woman to seek treatment for an addiction problem is pregnancy," she continues. "But frequently, there aren’t enough slots open. You have some women waiting five, six, seven months to get treatment. You have some women who are on waiting lists to get treatment and then get arrested and sent to prison under these fetal abuse laws while they were trying to get treatment."
Lack of appropriate prenatal care for incarcerated women also is a problem, she adds. "Rates of stillbirth and miscarriage in prisons and jails are sky high," she claims. Studies have shown that pregnant addicts have a better chance of having a healthy baby if they are living on the street than if they are incarcerated when their children are born.1
Reference
1. Shelton B, Gill D. Childbearing in prison: A behavioral analysis. J Obstet Gynecol Neonatal Nurs 1989; 18:301.
Further Reading
Schroedel J, Fiber P, Snyder B. Women’s rights and fetal personhood in criminal law. Duke Journal of Gender Law and Policy 2000; 7:89-120.
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