Chapter 6: Rights, Truth and Consent

Section 4. Readings

Patricia King’s article:

"Should Mom Be Constrained in the Best Interests of the Fetus?"

by Jeff McLaughlin   Fall 1997 

http://www.cariboo.bc.ca/ae/php/phil/mclaughl/students/phil433/king.html

Patricia King’s article "Should Mom Be Constrained in the Best Interests of the Fetus?" is an analysis of the contentious question should women be coerced to act in the best interest of the fetus? King believes we should not ask more of pregnant women than we are willing to ask of parents in general and suggests there are social considerations involved in this issue which go beyond the needs of a particular individual (King, 1986). She concludes women should not be forced to act in the best interests of the fetus, even if society feels it has a moral obligation to act, until equity and privacy issues are considered. The following paper will review the important concerns, positions and reasons given by King to determine there validity and present an argument for and against her position.

King’s article has four main sections to support her position. The first section begins by discussing the growing judicial conflicts between maternal and fetal interests in the courts. Instead of approaching the subject as a conflict between maternal and fetal rights, King focuses on the relationship between the prospective parents. This enables her to avoid whose rights have the greatest priority and spend more time "... to consider what obligations, if any, prospective parents owe the fetus" (King, 1989, p. 344).

In the second section, King using literature on fetal development, to compile a list of the acts a pregnant woman should use to benefit the fetus. For example, eat a balanced diet; avoid the use of alcohol; avoid unnecessary exercise; stay away from work places which use x-rays; agree to a cesarean delivery if recommended. King argues society is quick to commend a mother for following the ideal list but quicker to find fault and blame if the mother’s dedication in following the list, leads her to disregard her other obligations to family and coworkers. King feels asking a pregnant woman to comply with the list’s mandate, would be asking too much because society would require a mother to approach the level of saint hood. Requiring someone to be a saint is different than someone choosing to a saint and "... we do not require saint hood of ourselves" (King, 1986, p. 345). King then asks how can society determine what the law requires of pregnant women, if there is "... no consensus on the nature and extent of obligations parents have to existing children" (King, 1986, p. 345). To stress her point, King asks if society would we require a parent to donate a kidney to his/her child if the parent’s kidney was the only hope for the child?

In the third section, King asks if legislative law should require a pregnant women to fulfill her moral obligation to the fetus. King suggests the matter is complicated and uses equity and privacy concerns as two compelling reasons for not constraining a women’s interests.

King’s first equity concern is "we should not ask more of pregnant women than we are willing to ask of parents in general"(King, 1986, p. 346). King uses the example of the courts requiring a pregnant women to have a cesarean section. A procedure in her words which is "risky and physically invasive" (King, 1986, p. 346); yet, society does not require parents to donate kidneys to their children who might die in the absence of a kidney transplant.

Kings’s second equity concern is "we should not single out pregnant women for special attention"(King, 1986, p. 346). King suggests society should focus on the responsibilities of both men and women if society is concerned about the well being of the fetus. King uses the examples of fathers contributing to fetal harm by supplying illicit drugs to pregnant women, who smoke or physically abuse their pregnant wives. King also uses the Pamela Rae Stewart Monson court case where after a women was unsuccessfully criminally prosecuted for the birth of an injured child, the prosecutor alleged she had endangered her fetus by engaging in intercourse with her husband. "The last time, I examined the issue, the act of intercourse required two people" (King, 1986, p. 346).

King’s third equity concern is "we should be careful about creating a legal obligations for the pregnant women that are out of line with those that we impose on members of society in general" (King, 1986, p. 346). King uses the example of McFall vs. Shimp court case to show there is no general obligation in our society to be a good samaritan. McFall had leukemia and went to court to see if he could compel his cousin Shimp to provide bone marrow for his needed bone marrow transplantation. Shimp had already tested positive for an appropriate match and then decided he no longer wanted to donate his bone marrow. The court decided Shimp had no obligation to provide bone marrow to his cousin, even if it was the only hope of saving McFall’s life. King finds the court case ironic because a women is expected to go through the risks of a cesarean section for a fetus but a man who can give his bone marrow which regenerates with no risks is not expected to give bone marrow to a dying cousin.

King’s fourth equity concern is that "some women will be more heavily burdened than others" (King, 1986, p. 346). To strengthen her argument, King looked at cases of coerced medical treatment in the United States and found most of these cases were of pregnant women of minority groups or who were on public assistance. King felt the imposition of a legal obligation on pregnant women would have a greater discriminatory effect of these women due to their inadequate education and less access to individual care.

King’s privacy concerns include "those concerns of the pregnant women herself and the distinct concerns of her family"(King, 1986, p. 346). King begins the discussion by giving the example of tying a pregnant women to an operating table so surgery can be performed over her objection. Another example of force-feeding a special diet to a women suffering from phenylketonuria was further given to underscore the fact our societies respect for autonomy, the importance of voluntary cooperation in treatment decisions and the value of preserving bodily integrity.

King argues a pregnant women should make decisions about their bodies. If women were legally constrained in the best interests of the fetus they would lose their autonomy. For example, if women disagreed with their physician’s advice, they would be at risk of court intervention. King feels the doctor-patient relationship would be severely burdened because women would no longer be able to trust their doctors. King then argues this would actively encourage women who use public funded medical services to avoid prenatal care and this would be unacceptable.

Imposing legal constraints on a pregnant women and her family also has other implications. There is a doctrine in family law that the State should not intervene in the decision making of the family. "The doctrine respects the pluralism that is a hallmark of our society" (King, 1986, p. 346). If family supports the pregnant woman’s decision not to permit intervention and the state still intervenes, the doctrine respecting the family ability to make decisions is ignored. When the state overrides the family’s decision making process, King feels the physician is given greater power. Judges do not have medical expertise and they depend on physicians expertise in deciding whether to constrain women. King gives the example of a judge traveling to the hospital for a hearing. Because judges are outside there own setting and are in the setting of other professionals it takes a mighty courageous judge to disagree with the physicians.

King then argues there are many cases where coerced treatment was sought and it turned out the physician was wrong. For example, a women who needed to have a cesarean section delivered naturally without injury to herself or fetus. King feels physician’s often make educated guesses about prognosis. To protect themselves from uncertainty they adopt a maximum treatment or last hope strategy especially where the fetus is involved. If the physician’s diagnosis of risk to the fetus is wrong, it is the women who will bear the burden of inaccurate diagnosis and prognosis.

The fourth section suggests there are social considerations involved in this issue which go beyond the needs of individual. For example, King can justify giving a lethal injection to an elderly person who is in pain as ethical; however, she is not prepared to argue as a matter of public policy we should use lethal injection in general. King suggests their are equity and privacy concerns which deserve consideration to determine if women should be coerced to act in the best interests of their fetuses even if society has a moral obligation to act.

King offers some convincing arguments in support of not coercing women to act in the best interests of the fetus. King argues if pregnant women were legally constrained, they would be unable to disagree with their physician’s advice. King feels this would actively encourage women who use public funded medical services to avoid prenatal care. This argument is realistic if we compare it with hospitals not providing the option of abortion to mothers. The practice has gone underground in some communities and many women have died due to lack of proper medical intervention. Society would be defeating the purpose of imposing legal constraints to protect the fetus because it could not longer regulate if the underground medical interventions were safe or if the correct information to protect the fetus was given to expectant mothers. An extreme possibility of not trusting physicians, would be having mandatory blood tests performed on women to determine which were pregnant. Society would then have to lock up these expectant mothers to protect the fetus from the mother using the underground medical interventions.

Imposing legal constraints on a pregnant women and their families also has other implications. King’s argument of the physician being given greater power is realistic because judges do not usually have medical expertise and they depend on physicians expertise in deciding whether to constrain women (King, 1986). The use of this power has the potential to be abused because the physician is only accountable to himself. If the physician’s diagnosis of risk to the fetus is wrong, it is the women who will bear the burden of inaccurate diagnosis and prognosis.

King’s argument of legal constraints having a greater discriminatory effect on minority groups or those who were on public assistance is another valid point. Education and greater access to individual care have been shown to decrease morbidity in communities (Craven & Hirnle, 1992). Legal constraints to protect the fetus would increase the burden on these groups because they would be afraid to use the services provided. Again society would be defeating the purpose of imposing the legal constraints because they would be not looking after the best interests of the fetus.

King’s concern of being careful about creating a legal obligations for the pregnant women which are out of line with those that we impose on members of general society is another valid point. By showing a woman is expected to go through the risks of a cesarean section for a fetus but a man who can give his bone marrow is not expected to give bone marrow to his dying cousin we are able to see a law to constrain women to protect the fetus is inherently wrong when looking at the principle of fairness.

King strengthen this argument by saying society cannot determine what the law requires of pregnant women, until the law defines the nature and extent of obligations parents owe to existing children is another valid point. To take the position responsibility of being pregnant is different from the responsibility of being a parent is inherently wrong. For example, the nutrition a mother gives the fetus during her pregnancy to help it grow can be thought of as the love a parent gives their child to help him/her grow. Parents can damaged their children to the degree a women can damage her fetus so in the principle of fairness society cannot constrain a women.

One aspect in King’s argument which is unclear is paragraph devoted to sainthood. Her argument could have been strengthened if she stated it was unrealistic to expect a mother to do everything on the list, especially when a non-pregnant woman would have difficulty following it. Talking about saving the life of child per year by providing food or saving the life of a homeless person through shelter does nothing to strengthen her argument.

Another aspect of King’s argument which is unclear is Kings use of the words "risky and physically invasive" (King, 1986, p. 346) when describing a women having a cesarean section. King forgets to take into account the mother or fetus or both may die if the procedure is not performed and where is her support to say the procedure is "risky". Her personal bias decreases the strength of her argument because her argument is not based on fact.

In conclusion, King offers a constructive argument in support of not coercing women to act in the best interests of the fetus. There are some aspects of King’s argument which one can find fault; however, her argument about the effects of legal coercion on pregnant women is clear and convincing. To act in the best interests of the fetus, society should not coerce women but provide them with the opportunities and information to have a healthy fetus. Imposing legal constraints on women underscores the fact our societies respect for autonomy, the importance of voluntary cooperation in treatment decisions and the value of preserving bodily integrity (King, 1986). Women should not be forced to act in the best interests of the fetus, even if society feels it has a moral obligation to act, until equity and privacy issues are considered (King, 1986).

References 

American Psychological Association. (1994). Publication manual (4th ed.). Washington, D.C: author. 

Craven, R., Hirnle, C. (1992). Fundamentals of nursing: Human health and function. J.B Lippincott Company: NewYork. 

King, Patricia. (1986). Should mom be constrained in the best interests of the fetus? Nova Law Review, 13(2), pp. 343-348.

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