Hyams, Ross --- "Who Gets to Choose? Responses to the Foetal / Maternal Conflict" [1995] MurdochUeJlLaw 32; (1995) 2(3) Murdoch University Electronic Journal of Law

WHO GETS TO CHOOSE? RESPONSES TO THE FOETAL/MATERNAL CONFLICT

Author:	Ross Hyams Monash University School of Law
Issue:	Volume 2, Number 3 (December 1995)

Like most advances in technology, along with the benefits of reproductive technology come the burdens.  Advances in medical procedure and knowledge carry with them vexed questions of how this knowledge and technology will affect how we live - our duties, our responsibilities, our rights, our privacy and the State's control over our lives.  The potential conflict between a foetus and its mother mirrors this general problem.  How do we decide whose interest should take precedence?  In the United States, this question has come in for some scrutiny over the past decade.  The rights which can be accorded to a foetus, and the duties and responsibilities which are being applied to mothers-to-be have led to various doctrines being developed by American courts, mostly on an ad hoc basis.  This paper will look at some aspects of the potential foetal/maternal conflict and ask how feminist ideology is dealing with it.

1. FEMINISM AND REPRODUCTION

The concept of women's rights began to develop rapidly in the 1970's. Carol Gilligan, in her book In a Different Voice[1], describes the social revolution which took place.  She states that traditionally, women had been socially engineered to a life of self-sacrifice.  In interviews carried out by Gilligan, many women described themselves as "drifting along" or "riding it out" in a life guided by other's needs.[2] In such a life, some women felt that they could not exercise control without being perceived as selfish.  However, the burgeoning rights concept challenged this accepted morality of self-abnegation.  Put simply, the notion of morality began to change to include a consciousness of self-interest. Some women began to grasp the idea that their relationships with men did not have to be a dynamic of dependence, but of interdependence.  In this atmosphere of a new "freedom to" (that is, freedom to have an independent existence) also came the development of a new freedom from the expectation of the mothering, nurturing or caregiving role.

Also with the 1970's came aspects of feminist thought in which motherhood could not take part.  This feminist ideology, often now referred to as "radical feminism' saw procreation as forced labor in a patriarchal society which appropriated women's bodies for the purpose of continuing the race[3].  The fact that it is women who are only able to reproduce thus condemned women to an existence that could not be free.  Thus, the only way to remove the shackle of this form of slavery was to somehow deal differently with reproduction - either to remove it from the role of women or to control it.  Writers such as Shulamith Firestone,[4] and earlier feminist thinkers such as Simone de Beauvoir[5], saw women's ability to procreate as the thing which differentiated them from men and which led to their oppression.  These writers argued that the oppression of women had the requirement of motherhood at its core.  Accordingly, equality of the sexes could only be achieved when women were no longer bound by the reproductive process.

Many feminist writers relate the issue of reproductive control to the public/private dichotomy.  This view of society attributes to males the values of rationality and objectivity, whilst ascribing the irrational, the subjective and the natural, to women.

This perspective is especially invidious as it would have us subscribe to women's role as childbearer, nurturer and homemaker as being the "natural order of things" as though these gender roles were not created by society but by God or Nature.  Carol Smart, in her book Feminism and the Power of Law discusses this dichotomy and states that the legal system and medicine conspire to preserve this polarisation.  She sees law and medicine as acting in concert to relegate women to being "no more than their bodily functions and processes, or bits of bodies".[6] Thus, our legal institutions, legislation and the attitudes prevalent in medicine and heath care professionals form a strong social institution that asserts power over women and their bodies.  In support of this argument, she cites historical examples of the interplay between law and medicine, in which women and their bodies are subjected to control, such as the U.K. Contagious Diseases Act in the control of prostitutes."[7] Thus, for many feminist thinkers the contraceptive Pill, abortion and later, reproductive technology, promised a new autonomy.  By exercising control over reproduction, some women saw a future in which the public/private dichotomy would no longer exist.  Due to modern technology, childbirth did not have to be the "natural" order.  Thus, if the biological differences between the sexes became depolarised, surely the social differences would follow.  If women could be freed from the dictates of biology, then the societal forces which inevitably followed would also break down - the relegation of women to gender roles such as child rearing and home duties (the "private" sphere) would accordingly be rendered unnecessary.

2. CHALLENGING WOMEN'S AUTONOMY: THE FOETAL/MATERNAL CONFLICT

The past decades have shown that the social benefits of reproductive technology envisioned by some of the feminist writers in the 1970's have not happened.  Indeed, the pendulum seems to have swung in the opposite direction.  Medical technology is increasingly being seen by feminists as attempting to exert further control over women's bodies and a new instrument that enables male society to intrude on woman's autonomy.  The development of foetal rights has not taken much of a foot-hold in Australia.  This is not because the voices of feminism are less strident in this country.  There is a probably a two-fold explanation for this:

The breaking down of the traditional mystique surrounding doctors has not gone as far here as it has in the U.S. The medical profession has essentially remained very paternalistic here.  To a large extent, women (and men) are still accepting their doctors word as law and do not have an expectation that they can disagree with diagnoses and treatment, or have a remedy against the doctor when a certain procedure is performed which they did not want.  The U.S. is simply a more litigious environment than Australia.  Some commentators blame the contingency fee system for this atmosphere of litigation.

Accordingly, we must look to the United States and Canada for cases which have given rise to the foetal rights debate.  The concept of a foetus having legal standing can probably be traced back to cases regarding the rights of inheritance.  In the 1880's, courts would allow a claim upon a deceased's estate by a person who had been conceived before a deceased's death but had been born thereafter.[8] However, it was pushed into the forefront of the law after the landmark abortion decision of Roe v. Wade.[9] In this case, the following comments were made by the U.S Supreme Court about whether an abortion could be proscribed at the stage of viability of the foetus:

"If the State is interested in protecting foetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother"[10]

This particular passage has been cited by advocates of foetal rights as precedent for the creation of the rights of a foetus over and above that of the mother.  Some writers, however, believe that much of the Roe v. Wade decision has been misinterpreted and is not authority for a foetal rights argument.  Nevertheless, since the Roe v. Wade decision, a number of cases have been decided in the U.S. which have raised the rights and the interests of the foetus in being born healthy over the autonomy and wishes of the mother.  The cases appear to fall into one of two categories:

Those in which children (once born) are becoming entitled to sue for "abuse" that took place whilst the child was a foetus, and

The "forced caesarean" cases in which the wishes of the mother not to undergo a caesarean section are overridden by the interests of the child to be born without complications.

In the former category, there are many cases, spanning back to 1946, recognising the right of a child to succeed in a tort claim for injuries inflicted prior to birth.  These cases all depend on a subsequent live birth and the ability to show that a duty of care was owed to the foetus. They were developed as a recognition that parents should be compensated for wrongs performed by third parties upon the mother while pregnant and were not intended to confer any specific rights upon the foetus.  In recent years, however, this category of cases has expanded to allow a child, once born, to sue its mother for prenatal "abuse" if the child is born with a defect due to the actions of its mother whilst the child was a foetus.[11]

It is the second category which is the more controversial and which requires scrutiny.  Specifically, the following "infamous" cases have provoked much debate:

2.1 Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 1964:[12] Ms. Anderson was a Jehovah's Witness who was eight months pregnant and suffering from haemorrhaging.  The New Jersey Supreme Court ordered a blood transfusion against her explicit wishes in order to save her life and that of the foetus.

2.2 Jefferson v. Griffin Spalding Country Hospital Authoriry 1981:[13] In this case, Jessie Jefferson had placenta previa and was 39 weeks pregnant. She refused to undergo surgery or blood transfusion, due to her religion. The Supreme Court of Georgia ordered, based on its belief that there was a 99% chance that Ms. Jefferson's baby would not survive vaginal birth, that Ms. Jefferson submit to a caesarean section and blood transfusions, if necessary.  In the final analysis, Ms. Jefferson completely flouted the court order, did not return to hospital and gave birth vaginally to a totally healthy baby.

2.3 Taft v. Taft, 1983:[14] In this matter, Mrs. Taft refused, on religious grounds, to undergo a surgical procedure which would enable her to continue her pregnancy rather that suffer a miscarriage.  The trial judge ordered that Mrs. Taft undergo surgery.  This was reversed on appeal - however, the judge in the appellate court stated that the court was able to override a woman's refusal of such an operation, but that such a decision was not required due to the specific facts of this case.

2.4 In re AC, Appellant 1987:[15] This is a tragic case in which Angela C. was dying of cancer and was 26 weeks pregnant.  Despite being heavily sedated and only having moments of real lucidity, Angela had mouthed the words "I don't want it done" when asked whether she would agree to a caesarean section being performed in an attempt to save the baby.  Despite her wishes, the District of Columbia Court of Appeals permitted a caesarean section to be performed.  Her baby died immediately and Angela died two days after the operation.  In that matter, it was generally conceded that the operation had probably hastened Angela's death.

Discussing the development of these cases, John Robertson, a Professor of Law at the University of Texas, has suggested that the State has the right to pass laws prohibiting a pregnant woman's ability to drink alcohol, smoke, or take drugs.  Further, he believes that the State should have the ability to legally punish women who act in a way which may cause harm to the foetus, such as not taking necessary medication or refusing to undergo a therapeutic procedure to the foetus in utero.  Further, at the time of actual childbirth, he believes that if the mother's wish for vaginal delivery conflicts with the need to safeguard the foetus' health, the foetus' interests should prevail and the mother should be subjected to civil liability and criminal prosecution if the child is injured as a result of the mother's will prevailing.[16] Robertson apparently sees foetal rights as evolving after the woman makes her decision to forgo abortion.  Thus, he believes that, up to viability, a woman has the right to exercise her autonomy in the decision not to procreate, but having "crossed over" the viability threshold, she then sacrifices her liberty and autonomy to act in a manner which might affect the foetus in a negative way.  This is because, once viable, the foetus acquires the right, not only to be born but to have its mothers actions proscribed by the State in such a way as to ensure it (the foetus) is born as healthy as possible.  Robertson apparently believes that the State then has the right to step in to protect the foetus, presumably because the State has an interest in the foetus being born healthy.

It would seem that the U.S. courts, whilst not necessarily enunciating the law in exactly the terms that Robertson would envisage, substantially agree with his analysis.  In the case of In re AC, Appellant, 1987 (described above), the District of Columbia Court of Appeals looked to previous cases concerned with orders made for medical treatment of children against the wishes of their parents and stated

"There is a significant difference however, between a court authorising medical treatment for a child already born and a child who is yet unborn, although the state has compelling interests in protecting the life and health of both children, and viable unborn children"[17]

Thus, it would seem that the State, in certain circumstances, is prepared to put its interests in having women give birth not only to healthy children, but to just give birth, over and above the bodily integrity of the individual woman concerned.  Robertson does not see this as problematic and has no difficulty with a view of the future in which woman's liberty, integrity and autonomy become more limited whilst the horizon of foetal rights expands.  It is now to the arguments opposing the expansion of foetal rights which we need to turn.

3. RESPONSES

Opposition to the doctrine of foetal rights take many and varied forms. This paper will now consider the broad range of feminist thought regarding the foetal/maternal specifically and reproductive technology in general. The arguments can be broadly described under four headings:

3.1 Male attempts to control procreation: Some feminist writers see the development of reproductive technology as an attempt by male-dominated society to procure the power of reproduction.  This is not simply because the medical profession itself is dominated by male doctors.  The motivations of males in this area are implanted in much deeper psychological and sociological roots.  In her book, The Mother Machine, Gena Corea bases her views in this area on the following assumptions:

"I often refer to the developers and supporters of reproductive technology as 'men'.  In doing so, I recognise the following: The overwhelming majority of reproductive engineers are male. The overwhelming majority of persons on whose bodies these men experiment are female.  The technology used emerges from a science developed by men according to their own values and sense of reality... When I write the word 'men' in this book, I am writing about some individuals, but also about the institution of masculinist politics, about men as a social category and dominant class".[18]

Corea looks to history in her belief that male society's concentration on the development of reproductive technology is yet another version of the male desire to possess reproductive power.  She sees the male desire to control reproduction as a reaction against the alienation and separation of men not being part of the reproductive process.  To men, reproduction and paternity are abstracts.  Men know that their sperm is part of the process, but it is a mental leap between sexual intercourse, the growth of a foetus and birth.  Women suffer no such alienation, as they are an intimate in the process.

This perception of the male motivation in the reproductive technology area is echoed by other feminist writers.  Elaine Hoffman Baruch, in discussing the concept of male "womb envy" has stated that the (male) doctors who are conducting their experiments on women are a "type of contemporary Frankenstein, who snatches the eggs out of a woman's body in his attempt to recreate life."[19] She concludes that, despite the fact the control of one's body was at the core of feminist thought, this control is exactly what is being lost through male control of reproduction and thus this form of technology may, in fact, be disadvantageous for women.

3.2 Invasions of the right to privacy and bodily integrity: It has been argued that the current trends in the development of foetal rights are intruding further into a pregnant woman's right to bodily integrity.  Some writers ask why a pregnant woman does not have the same right to be free from non-consensual invasion of the body as any other individual.  What is it about being pregnant, they ask, which removes this right of privacy?

Joan Mahoney, for example, argues very convincingly that no court has ever made an order attempting to enforce a competent adult to donate an organ. Indeed, she cites the case of In re Pescinski[20] in which a U.S. court refused to make an order permitting a kidney to be removed from a mentally incompetent person in order for it to be donated to that person's sister. Such a refusal was made on the basis that there would be no benefit to the mentally incompetent person.  She also refers to the case of Winston v. Lee[21] where the court held that a criminal defendant was able to refuse surgery, even in a situation where performing the surgery was the only way to obtain evidence necessary to secure a conviction against him.

Mahoney compares these cases to the forced caesarean cases and asks why the court feels itself able to deny bodily integrity to pregnant women whilst upholding the same for competent males, those accused of serious criminal offences and the mentally incompetent?[22]

Further, there appears to be a contradiction in the way in which the U.S. courts have been dealing with the privacy issue in the Roe v. Wade decision.  On the one hand, the judiciary have used the Roe decision as precedent to recognise the right of privacy - for example, in the now famous Karen Quinlan case in 1976, in which it was decided that Karen Quinlan, although comatose and terminally ill, had the right to privacy and thus the removal of her life support system.[23] Further, a court in Michigan recognised the rights to be free from non consensual invasions of the body when it barred psychosurgery on mental patients in Kaimowitz v. Department of Mental Health.[24] Again, in this case, Roe was invoked in order to protect privacy.  However, Roe has also been used as a basis for the argument that, after foetal viability, the State may intervene against a woman's explicit wishes to protect the foetus.  This would seem to be totally contradictory.  Advocates of foetal rights who invoke Roe as precedent for invasions of women's privacy apparently see no difficulty in the fact that this case is also used as an argument against invasions of privacy.  Thus, if Karen Quinlan had been pregnant whilst in a coma, Roe could have been resorted to as authority for the opposite proposition (that is, to continue to invade Karen Quinlan's privacy in order to bring a foetus to term).  The gender bias here is impossible to ignore. Roe cannot stand for two opposite propositions - one upholding privacy if you are male or not pregnant, one denying privacy if you are pregnant with a viable foetus.

3.3 Equality before the law: The U.S. Constitution's Fourteenth Amendment protects people from discrimination on the basis of membership of a disadvantaged group.  Since the case of Reed v. Reed[25] in 1971, U.S. courts have increasingly interpreted this to include women as members of a "disadvantaged group".  Indeed, as a reaction to some courts deciding that discrimination because of pregnancy could not be defined as sex discrimination, the U.S.  Congress passed the Pregnancy Discrimination Act[26] in 1980.  This Act specifically and explicitly includes pregnancy-related discrimination under the rubric of sex discrimination.

Given Congress' apparent new found sensitivity to discrimination in the workplace, it seems bizarre that courts are continuing to discriminate against women by allowing foetal rights' claims.  Dawn Johnsen points out that the "similarly situated" model (which provides a standard for equality in the workplace by requiring that similarly situated people be treated the same regardless of race) is not appropriate in sex discrimination.  She states that it is the inherently dissimilar situation of the sexes which has been used by courts to rationalise different treatment of the sexes - by first acknowledging the difference and then using that difference to justify discrimination against women.[27] Unfortunately, despite anti-discrimination legislation like the Pregnancy Discrimination Act, courts are still finding a way to bypass the requirement that the sexes are treated as equals.  If equality was truly being upheld by the U.S. Congress and courts, then the foetal rights issue would develop no further.

3.4 The "slippery slope" argument: Opposition to foetal rights by the use of this argument is not necessarily a feminist viewpoint, but it is raised in much of the feminist literature.  Writers such as Dawn Johnsen have expressed concern at the potential for expansion of foetal rights, and the consequent limitation to women and increase in control over their bodies and reproductive processes by men.  Combined with arguments set out in the first category (above) concerning male desire to continue to control women, it is a forceful contention. Johnsen, amongst others, asks "Where will it end?" and envisages a future whereby pregnant women are proscribed by law as to diet, smoking, infectious diseases, drugs, exercise, high altitudes and sexual intercourse.[28]

Thus, this "floodgates" perspective visualises a future in which foetal rights continue to expand.  In a society which remains essentially patriarchal, seeking to control women and to take further control of the reproductive process, there is a very real possibility of women's autonomy being increasingly eroded.

4. WHAT OF THE FUTURE?

Litigation thrives in the U.S. there continues to be expansion of rights, duties and positive obligations.  The imposition of positive duties, so anathema to the common law of the U.K. and Australia, seems to be prevailing in the U.S.

In Australia, it is unlikely that the concept of positive obligations and duties will extend as far as it has in the U.S. in the near future. However, there is worrying precedent in relation to a court's belief in its ability to make decisions against the wishes of pregnant women.  In the 1989 Family Court case of In the Marriage of F[29] the Court decided that it had the jurisdiction to grant an injunction to prevent a woman having an abortion, but declined to do so.  Although this decision is a far cry from a forced caesarean case, it does show that the Family Court of Australia believes itself able to interfere with female autonomy and decision-making in the area of reproduction.

There is every reason to suggest that, given the prevailing litigious environment in the U.S., foetal/maternal conflict cases in that country will continue to come before the courts and the doctrine of foetal rights will be upheld and, more than likely, expanded.  To most feminists, this is a very worrying trend.  If women's autonomy and right to bodily integrity continue to be viewed by U.S. courts as secondary to the rights of the unborn, there is little to stop the case law developing in the direction of the "slippery slope" that Dawn Johnson envisages.

Most feminist thought appears to view female autonomy as paramount.  This view continues to be upheld through all the various feminist viewpoints, regardless of whether the writings are expounding the "radical" feminist view or the views of "modern" (post 1980's) writers.  An expansion of the foetal rights doctrine can only be seen as the antithesis of this concept.

Thus, it would seem that the task for feminism in the future in relation to this conflict is to centre the autonomy principle.  Female autonomy was at the core of the abortion debate in the U.S. and resulted in the achievement of the principles enunciated in Roe v. Wade.  Similarly, it would seem that autonomy is also the primary focus in the foetal/maternal conflict.  Expansion of foetal rights presents a challenge to women which is fundamental, as it has wider implications which are not limited to the forced caesarean cases or children's ability to sue their mothers. Inherent in the foetal rights debate is the state's ability to invade not only in the area of women's choices, but their privacy, and worse, their very bodily integrity.

NOTES

[1] Gilligan C, "In a Different Voice: Psychological Theory and Women's Development" (1982), Cambridge, Mass., Harvard University Press.

[2] Id. at l4l.

[3] Hoffman Baruch E, "A Womb of His Own" in Baruch, D'Adamo, Seager et. al. (eds.), Embryos, Ethics and Women's Rights, 1988 at 135.

[4] Firestone S, "The Dialectic of Sex" (1971) London, Johnathon Cape.

[5] de Beauvoir S, "The Second Sex" (1960) London, Landsborough Publications.

[6] Smart C, "Feminism and the Power of Law" (1989) London, Routledge at 96.

[7] Id. at 94.

[8] Johnsen, D "The creation of Foetal Rights; Conflicts With Women's Constitutional Rights; Liberty, Privacy and Equal Protection" 95 Yale L.J 599(1986) at 601.

[9] [1973] USSC 43; 410 U.S. 113 (1973).

[10] Id. at 163-4, cited in Gallagher, I "Prenatal Invasions and Intervention: What's Wrong With Foetal Rights" (1987) I0 Harvard Women's Law Journal 9 at 15.

[11] Grodin v. Grodin, 102 Mich. App. 396, 301 N.W.2d 869(1980).

[12] 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985(1964).

[13] 274 SE 2d. 457(1981) Supreme Court. Ga. cited in Rodgers, S "Foetal Rights and Maternal Rights: Is there a conflict?" (1986) 1 Canadian Journal of Women and the Law 456 at 466.

[14] 446 N.F.2d. 395(1983).

[15] 533 A.2d 611 (D.C. 1987) cited in Mahoney, J "Death with Dignity: Is There An Exception for Pregnant Women?" (1989) University of Missouri-Kansas City Law Review 221 at 226.

[16] Robertson, J "Procreative Liberty and the Control of Conception, Pregnancy and Childbirth" Virginia Law Review 69 (1983) 405 at 455.

[17] Cited in Graycar. R & Morgan J, "The Hidden Gender of Law" (1990) Leichhardt, Federation Press at 224.

[18] Corea G, "The Mother Machine" reproduced in Alpern, K (ed.) "The Ethics of Reproductive Technology" (1992) New York, Oxford University Press at 229.

[19] Hoffman Baruch, E supra Note 3 at 136.

[20] 67 S.W.2d 145 (Ky. Ct. App. 1969).

[21] [1985] USSC 68; 470 U.S. 753(1985).

[22] Mahoney supra Note 15 at 229.

[23] In re Quinlan, 70 N.J. 10, 355 A.2d 647,664, cert. denied 429 U.S. 922(1976).

[24] Cited in Gallagher supra Note 10 at 17.

[25] [1971] USSC 177; 404 U.S. 71,75(1971).

[26] 42 U.S.C. 2000e (k) (Supp. IV 1980).

[27] Johnsen supra Note 8 at 622.

[28] Id. at 606-607. [29] (1989)13 Fam L R 189.