A new field of obstetrics, dubbed maternal-fetal medicine, has developed in recent years. The shift in title, from "high-risk pregnancy" to "maternal-fetal medicine," is not merely semantic: It represents an altered approach that considers the fetus a patient in its own right.
This comes in response to ultrasound and other instruments that make it possible to monitor the fetus's progress, detect disease, and even treat some diseases.
This raises a provocative question: Does the fetus have the basic right to be born healthy and whole?
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I posed this question to friends and acquaintances, including many obstetricians. The overwhelming, spontaneous response of all but a few resembled: "How can you even ask the question? Of course, it does."
But the real answer is somewhat more complex and problematic. If the fetus has the basic right to be born healthy, society is obligated to protect that right. Moreover, the fetus's basic rights may contradict those of our primary patient, the mother.
Years ago, when I directed the obstetrics-gynecology department of a major hospital in the South, I was urgently summoned to the delivery room during the wee hours of the morning. A woman adamantly refused to undergo a Caesarean section, despite the pleading of staff members who observed definitive signs of fetal distress, which demanded immediate delivery.
When efforts to persuade her failed, I contacted an on-duty judge. The judge issued an order to implement compulsory surgery, despite the mother's objections, and the infant was saved from near certain death.
Similar events occurred, from time to time, and the request for a court injunction was not extraordinary. But there was a significant twist in the mother's objections on that same night: Her refusal was accompanied by screaming and rage. She writhed in the bed, fighting with staff members, until we were forced to sedate her. That was 15 years ago.
Only three years ago, the journal of the Israel Medical Association, Harefua, published an account of a case that sparked fierce debate among physicians and attorneys:
A 31-year-old, mentally retarded woman, in the 39th week of her first pregnancy, arrived in the delivery room of a northern hospital. Fetal monitoring indicated suspected fetal distress that required immediate termination of the pregnancy. The fetus died in utero. In response, the court issued an unprecedented injunction which authorized gynecologists to perform any procedure, including a C-section, during the woman's next pregnancy, if the fetus' health appeared to be threatened, without the consent of the laboring mother.
Right of way
The unique questions raised by refusal to undergo C-Section are utterly unlike any other medical-judicial-ethical questions pertaining to refusal of treatment. Few would support coercive medical treatment of a patient who refuses to be treated, even if that treatment would save his life. But when the patient is a pregnant woman, that question touches on the destiny of two patients, the mother and the fetus. A C-Section may be a matter of life and death to the fetus while simultaneously posing risk to the mother.
The exceptional aspect of fetal treatment is that one may only reach the fetus by way of its mother's body. This employment of "right of way" directly affects the woman's autonomy. There is no disagreement between medicine, the judicial system, and [Jewish] theologians and ethicists: Maternal rights precede those of the fetus, but the fetus does not lack all rights. Although it is defined neither as human nor a legal person, society takes an interest in the fetus' well-being and protects it, albeit to a limited extent.
On one hand, Israeli society authorizes the Pregnancy Termination Committee to grant a mother's request to terminate the life of her fetus at any stage of pregnancy up to and including the eve of its due date. On the other hand, a woman who consents to an abortion and the physician who performs that procedure, with her consent but without official sanction, are committing a crime that is punishable by up to five years in prison. The American College of Obstetricians and Gynecologists published a position paper, in 2005, which firmly opposes any type of coercive treatment of pregnant women; major professional associations in the United States, like the American Academy of Pediatrics and the American Medical Association, published position papers in the 1990s that justify legally mandated treatment of a fetus against his mother's wishes, as long as the risk to the mother of the required procedure is minor and the risk to the fetus without treatment is significant and irreversible. But who will define these levels of risk?
In 1988, a prestigious, American newspaper published an analysis reviewingjudicial orders that permitted treatment of fetuses despite their mothers' objections. In three cases, this included compulsory hospitalization; three cases involved compulsory intravenous (IV) treatment of the fetus, and 15 cases involved forced C-section to prevent irreversible damage to the fetus.
About 80 percent of these court orders were issued within six hours following the request and about 20 percent were issued within only one hour. The injunctions that I witnessed were typically issued in response to only one telephone call and based on information presented by only one side. What level of proof may be seen by a judge in such a short time? However, given the urgency of the matter at hand, how much time can a judge be granted? And is the information reported by a doctor facing a difficult moral dilemma, based on signs of fetal distress, always objective and unequivocal?
In 2004, physicians in Pennsylvania were granted a court injunction making it possible to perform a compulsory C-section on a woman because of the apparent large size of the fetus. The woman slipped out of the hospital and successfully arrived in another to give vaginal birth to an infant that weighed less than those she delivered vaginally in the past.
American research has revealed inaccuracies in predicted severity of damage in six of 15 cases examined in which injunctions permitted compulsory C-Section. It is interesting to note that 46 percent of the directors of 61 maternal-fetal medicine units justified compulsory hospitalization of women who refuse fetal treatment; 47 percent supported insertion of an intrauterine IV in the fetus against the mother's will, and a fourth sided with a proposal that would grant the state the right to monitor the welfare of fetuses of women who engage in behavior that endanger their fetuses' welfare within or beyond the boundaries of the hospital.
A Pandora's box opens at this juncture: If society is to protect fetal health, it must supervise the woman's behavior during pregnancy to ensure she does no damage to the fetus. Is it tenable to force women to subject to a variety of tests to facilitate early detection of fetal defect or disease?
Is it acceptable to coerce pregnant women to maintain a special diet or medical regimen, as advised in the case of gestational diabetes? What about physical exercise, flying during pregnancy or engaging in sexual relations? Is it possible to enforce such orders, and who must report to whom when a pregnant woman endangers the life of her fetus? What about a woman who is not yet pregnant, who does not "behave" in a way which reduces the risk to a fetus that will result from a future pregnancy?
It is known that managing diabetes and taking folic acid before pregnancy significantly reduces the risk of fetal defect. Might society demand to supervise the behavior and lifestyle of every woman of reproductive age to defend the "fetus' right to be born healthy and whole?"
The approach that maintains that it is plausible to force a woman to undergo invasive treatment, like a C-section, for the sake of her fetus has already embarked on this slippery slope. And if it is plausible to force her to subject to risky treatment for the sake of her fetus, why not force her to donate a kidney for the sake of her fetus? Should society and the courts be granted the right to invade individual freedom to such a profound extent?
In 1999, the United States convicted a woman of the murder of her stillborn infant. It ws the first such conviction. She was sentenced to 12 years in prison because judges concluded that the death of the fetus was associated with her use of drugs during pregnancy; in 2003, a woman in New York was arrested because alcohol was discovered in her blood immediately after she delivery; in 2004, a woman was indicted for the murder of her stillborn infant after she refused to undergo a C-Section; another woman was imprisoned only because physicians believed she would not seek adequate prenatal care.
In 1998, issues such as these caused the British High Court to rule that physicians must honor a patient's refusal to subject to any invasive treatment, including C-Section. Moreover the British Court of Appeals ruled that a sane woman has the absolute right to refuse any treatment, including C-section, even if the result is her own certain death or that of her fetus. The British court ruled that a judge has no place in the delivery room in cases such as these. This is also the position of the Ethical Committee of the British Gynaecological Society, as published in a paper in 1997.
The judge in the delivery room
In 1993, the judicial system in Israel also addressed this issue. Dr. Carmel Shalev of the Justice Ministry expressed the unequivocal opinion that it is wrong to coerce a woman to subject to a C-Section against her will. Then-deputy attorney general Yehudit Karp summarized the state prosecutor's position by writing, "It is fitting that the issue [of whether to coerce a woman to have a C-section] not be taken out of its vague context... and preferable that physicians... act according to their best professional knowledge and conscience... and that the woman's will be honored... and that, in extreme cases in which doubt is raised, the physician will not act according to a principled opinion, but turn to the court to request its guidance...." Indecision has prevailed. Physicians must occasionally make critical decisions, while the judicial system leaves one leg in the delivery room and fails to decide whether its rightful place is inside or outside.
What about the legal standing of physicians in this matter?
The British court addressed this, as well: A physician, who makes considerable effort to explain before honoring the will of a sane patient in refraining from operating, despite signs of severe fetal distress, is not liable to suit for malpractice. On the other hand, any coercive medical treatment is considered assault. The British insurance system, which protects doctors in cases of malpractice, is not obligated to protect them in cases of assault.
What if a physician is acting in accordance with a judicial injunction based on the testimony of one side against the will of a sane woman? The British High Court, ruled, in 1998, that the physician is not protected in such cases.
The phenomenon in which a woman refuses to undergo C-Section that is vital to her fetus's well-being is rare, nowadays, but this represents an example of a certain type of compulsory treatment for a woman in labor. It is highly plausible that a pregnant woman has a moral obligation to permit intrauterine treatment of her endangered fetus, and morally plausible that she should agree to a C-Section to prevent danger to her fetus' health. The vast majority of women behave exactly this way. It is also very hard for anyone, particularly a physician, to remain indifferent in the presence of a pregnant woman who endangers her fetus by means of lifestyle or refusal of vital treatment. But the price of coercive treatment that negates basic human rights is too high in an enlightened society.
Does a fetus have the right to be born healthy? In principle, yes, but this is absolutely conditional upon the consent of the pregnant woman to any procedure that is required to protect that right. The physician must provide the pregnant woman with all the necessary tools and information to make a decision, but she alone must be the final judge.
Professor Glazerman is the director of the Helen Schneider Women's Comprehensive Health Center and Maternity Hospital at Rabin Medical Center and the head of the Obstetrics and Gynecology Department at Tel Aviv University.
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