The Separate "Fetal Patient": Does Defensive Medicine Justify Medical Coercion?
By Farah Diaz-Tello, JD
Recent debates about so-called “personhood” measures—ones that would legally separate eggs, embryos and fetuses from the pregnant women who carry, nurture, and sustain them—raise the question of whether “defensive medicine” provides a reasonable justification for forcing pregnant women to undergo cesarean surgery or for locking them up if they refuse.
In 2009, in response to a number of attempts by states to legally separate fetuses from the women who carry them, National Advocates for Pregnant Women created a short video, How Personhood USA & The Bills They Support Will Hurt ALL Pregnant Women. This video tells the stories of four women who were coerced, threatened, or punished by the legal system when they disagreed with their doctors’ decision that they needed to have cesarean surgery. These legal interventions were based on a theory that fetuses may be separated from the pregnant woman who nurture and carry them in the eyes of the law. Under this perspective, outsiders can intervene in pregnant women’s lives to enforce what they believe is best for the “unborn child.” In many cases, a hospital may claim that, acting on behalf of the state as parens patriae, it can enforce a doctor’s orders over the pregnant woman’s objections just as it can override parents’ objections to treatment after a child is born.
In a response to our video, the American Life League (“ALL”) produced their own video, Laws, Lies, and Videotape, seeking to refute our claims. The American Life League called these women’s chilling stories “propaganda,” and justified two of them on the basis of defensive medicine
That the belief that a fetus is “a tiny human being, independent as though he were lying in a crib with a blanket wrapped around him instead of his mother” would create a propensity toward coercive intervention is unsurprising. Indeed, a survey conducted by Samuels et al. showed that the factor that most consistently correlated with willingness among obstetricians to resort to court order in a series of hypothetical situations was whether the doctor identified as “pro-life.” What was surprising, however, was the extent to which the self-identified pro-life organization, the American Life League, repeatedly relied upon defensive medicine as a reasonable justification for forcibly strapping women down and cutting them open, depriving pregnant women of their dignity and any measure of constitutional personhood.
For example, the ALL video glibly dismisses Laura Pemberton’s experience as a simple reflection of the hospital’s malpractice concerns. Laura Pemberton, a woman deeply opposed to abortion, shared the cruel and heartbreaking story of her forced cesarean at NAPW’s 2007 National Summit to Ensure the Health and Humanity of Pregnant and Birthing Women. The ALL video stated that when a sheriff took her into custody at her home as she was in the process of having a vaginal birth after previous cesarean surgery the real reason for this was not fetal rights but the fact that “she was still a patient of the hospital, and hospitals fear a lawsuit.”
Amber and John Marlowe, who also identify as pro-life, were slapped with a court order granting the hospital custody of their baby before, during, and after birth and the right to force Ms. Marlowe to have cesarean surgery. In this case, a doctor believed that the baby was too big to be safely delivered vaginally. The hospital claimed that the Marlowes’ unborn child had separate legal rights giving the hospital the right to cut Amber open. Again, according to ALL, this court order was simply a reasonable reflection of the fact that hospital administrators “were afraid of her getting caught up in another heated debate about how to deliver the baby” which could “lead to legal issues if something went wrong.”
As NAPW’s detailed response (PDF) shows, all four cases discussed in the video rest on explicit fetal-separateness theories. ALL did get one thing right: providers do say that they resort to court order because of malpractice fears. For example, an attorney for the hospital in another case featured in the NAPW video, the Angela Carder case, noted that the decision to call an emergency hearing about the rights of the fetus was influenced by malpractice concerns, stating that “of course, we admit the spectre of liability. We make no bones about it.”
As any women who have been told that if they do not accede to doctors’ recommendations they will, in effect, be responsible for killing their baby know, the fear of malpractice liability—justified or unjustified—can be cloaked in the best interest of the fetus. This shifts the onus from the medical provider (who should engage in careful informed consent counseling, perhaps even providing the opportunity for the pregnant woman to sign waivers documenting her understanding of the relative risks and benefits) to the pregnant woman (who must now “prove” her merit as a mother by consenting to unwanted surgery).
Much has been written about the importance of informed consent, and about the potential impact of malpractice concerns on physicians’ practice. Nevertheless, there is nothing to suggest that malpractice fears—even if they are justified—release a provider from the legal and ethical duties of informed consent. Indeed, while providers often claim their actions are justified in order to avoid later real or imagined malpractice claims, guidelines from the American Medical Association and the American Association of Obstetricians and Gynecologists support patient autonomy and condemn the use of judicial intervention to force compliance with treatment.
In any event, no mother ever declined a cesarean in hopes that her baby would die. Moreover neither fear of liability nor claims of fetal separateness may be used to deprive pregnant women of their constitutional and human rights and to shift the burden of bad medical practices to the pregnant woman. And, finally, one would hope that ALL and other groups that identify as pro-life would include the lives of pregnant women in their calculus and oppose any reasoning for depriving pregnant women of their personhood.
 Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame L. Rev. 349, 371 (1971) (citing H. Liley, Modern Motherhood, 28 (1967).
 Terri-Ann Samuels et al., Obstetricians, Health Attorneys, and Court-Ordered Cesarean Sections, 17 Women’s Health Issues 107 (2007).
 Transcript of Oral Argument at 73, In re A.C. 573 A.2d 1235 (D.C.App. 1990) (No. 87-607).
 See, e.g. AGOG Committee on Ethics, Patient Choice: Maternal-Fetal Conflict: ACOG Committee Opinion No. 55 (1987); ACOG Committee on Ethics, Maternal Decision Making, Ethics, and the Law: ACOG Committee Opinion No. 321 (2005); Helene M. Cole, M.D., Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 JAMA 2663 (1990).
Farah Diaz-Tello, JD, is a Staff Attorney at National Advocates for Pregnant Women (NAPW). Her work at NAPW focuses on birth justice, the rights to medical decision-making and birthing with dignity, and on using the international human rights framework to protect the humanity of pregnant women regardless of their circumstances. She held a Haywood Burns Fellowship in Civil and Human Rights at the City University of New York School of Law, and is a proud Texan.