Policing Pregnancy: Book Review

I recently finished reading an outstanding book about legal battles over pregnant women's rights to refuse treatment or to deviate from medical recommendations. It's called Policing Pregnancy: The Law and Ethics of Obstetric Conflict by Sheena Meredith (Ashgate Publishing, 2005). Meredith explores the legal and ethical implications of laws dealing with obstetric conflict--when pregnant women's wishes or behavior conflicts with medical recommendations. She focuses primarily on legal battles over pregnant women's autonomy in the U.S. and U.K. Although both countries theoretically uphold a person's legal right to consent to and refuse medical treatment, the two countries have seen cases of court-ordered obstetrical interventions, from cesarean section to blood transfusions to incarceration due to drug or alcohol use during pregnancy.

From the preface, Meredith explains the primary objectives of her book:

In the past two decades, a series of high-profile court cases in both the UK and the US have highlighted a novel problem for both medical law and society. In intervening in situations when pregnant women and those charged with their care do not agree on management options or appropriate behaviour, the law has been forced to try to reconcile the often competing demands made in the name of foetal "rights," maternal autonomy and medical authority. Society's interests, for instance in preserving life and safeguarding future citizens, may also be brought to bear.

This book examines the legal and ethical background to such cases and attempts to give an overview of the development of the law as it affects pregnant women; the current legal position, and potential future complications.

In addition to assessing those cases that have come before the courts, and the ensuing ramifications, it examines the legal principles underpinning such aspects as medical care in pregnancy and during childbirth, patient autonomy, foetal status and potential maternal liability, as well as the operation of these principles at the practical level of the doctor's office, clinic or obstetric ward. It discusses the varying ethical viewpoints about foetal rights and maternal duty, assesses the interaction between medicine and the law in this area, and examines those factors--medical, legal, ethical and social--that may in the coming years pose even further challenges within the already complex relationship between pregnant women and their health care providers....

[T]he book does not attempt to discuss the vast subject of abortion law per se, nor the enormous ethical questions it poses, except insofar as it relates, directly or indirectly, to issues arising when a pregnant woman and her medical advisers are in conflict over appropriate intervention or behaviour in pregnancy....

This book is a fascinating (and frightening) exploration of the various ways maternal autonomy has been undermined by law, social opinion, and medical practice. I was struck by the threat that right-to-life legislation in the US poses to maternal autonomy. Although unintended, laws attempting to grant fetuses personhood undermine pregnant women's ability to make crucial decisions about their health care and about their own bodily integrity.

Meredith has a both a medical degree and postgraduate education in law. Her approach is thorough and meticulous, but her writing always stays articulate and readable. I will be including several excerpts from her book in future posts. To end this post, I quote from a chapter section titled "Hijacking the Language of Debate," about her choice of the term "obstetric conflict" rather than "maternal-fetal conflict."

Without in-depth analysis of such issues, it is understandable that emotional entreaties to safeguard the welfare of 'unborn babies' against the actions of mothers presented as feckless and self-seeking find instinctive appeal, with both the courts and the public. The concept of 'foetal rights', which has both arisen from and perpetuated attempts to find legal solutions to problematic medical encounters, has contributed to a prevailing notion of pregnant women and foetuses as potential adversaries. In the wake of the Carder forced Caesarean case in the US (Re AC), it was recommended that all hospitals should have a 'maternal-fetal conflict' policy. Yet it has been argued that the very use of such language sets the woman up as a selfish, irresponsible being unwilling to do what is best for her baby.

This notion that there is an opposition between the interests of the woman and those of the foetus overlooks the fact that these interests are inextricably linked, and that the few women who do risk harming their foetuses are not usually seeking actively to cause such harm. It carries the implication not only that doctors possess superior knowledge but also that they have a greater claim to having the foetus's best interests at heart, and obscures the vital point that the conflict is actually between the mother and others who believe that they know best how to protect the foetus.

Yet women too may be acting according to their view of their baby's best interests in avoiding unnecessary interventions and the hazards and sequelae thereof - and, in some instances at least, they may be right. In practice, the mother's autonomy is not actually to be subordinated to her baby, but to the medical profession - the issue might be more accurately termed 'obstetric conflict'. It is interesting that in the UK, as Douglas points out, such issues of judicial compulsion surfaced just when women had begun to reassert some control over pregnancy and childbirth. Obstetric conflict may have reached the courts in the attempt to maintain medical paternalism in the face of patients increasingly questioning doctors' natural authority; such tactics also serve to discount women's experiences of their own bodies and previous birth experiences, instead elevating medical knowledge and technological interpretation to a superior position, to demonstrate the need for 'professional' intervention and control.

A further criticism of the notion of 'maternal-foetal conflict' is that such language obscures the fact that it is not only maternal actions which may harm the developing foetus — the father (vide infra), doctors (thalidomide) and the wider society (chemical contamination) may also be 'hostile' agents. In one study that demonstrated 'substantial exposure of neonates to xenobiotic agents' (foreign substances), 82.7 per cent had positive tests, of which only 11 per cent were accounted for by illicit drugs, compared with 30 per cent for local anaesthetics, 25 per cent for food additives and 10 per cent for medical analgesics. Moreover, state intervention that primarily attacks women's behaviour and choices is arguably hypocritical given widespread tolerance for the unacceptable and sometimes dangerous living conditions of many mothers and children. Court cases utilise disproportionate resources in terms of both time and cost; arguably attention would be more productively directed to measures that improve the status and well-being of all women and children.

It could also be argued that much of the language of everyday obstetrics is designed, consciously or otherwise, to reinforce medical control of the birthing process and to negate or deny women's collective experiences - for example, most women (or 'standard nullipara', etcetera) now are generally passively 'delivered' of their babies rather than actively giving birth to them, yet even then the medical profession judges the woman's 'obstetric performance,' as well as her 'reproductive success'.

Many of those women at greatest risk of forced interventions have been described (often scathingly) by medical staff as having had little or no pre-natal care - yet there is evidence, at least in the West, that input by obstetricians (as against midwives) into the antenatal care of women with normal pregnancies offers little or no clinical or social benefit. Moreover, the word 'care' in this context 'masks domination as well as self-deception among medical workers', according to anthropologists Irwin and Jordan. There has been little attention paid to medicine's role as an agent of social control and the arbiter of reproductive behaviour, according to Stephenson and Wagner. They suggest that the medical profession makes arbitrary decisions in individual cases and attempts to intervene in problems that are essentially social in nature. In cases of forced intervention, criminal sanctions for foetal abuse and attempts to limit the practice of midwifery, home birth, or the operation of alternative birth centres, 'medicine has been complicit or proactive in attempts to control the behavior or health care options of pregnant women.'