Abstract
At times, obstetricians are called upon to assist pregnant women in making clinical choices between options that may selectively disadvantage either the mother or the fetus. If a mother chooses a therapeutic course that disadvantages the fetus the physician may feel distressed. In this paper we argue that the choices made by mothers are almost always in the interests of the fetus, and supported by physicians. When there is disagreement it is often due to poor communication. While acknowledging that the rare circumstances in which the physician and patient wish to pursue different clinical paths can be stressful for the provider, we explain why obstetricians should accept the judgment of their patient in all instances. Finally, we will maintain that positing a choice between maternal and fetal interests is, in fact, creating a false choice, in as much as options are presented as being exclusive, when in fact that is not the case.
In the last 25 years sophisticated imaging techniques and their marketing have made the fetus more visually accessible to parents, while evolving surgical procedures have persuaded some that successful in utero treatments of a handful of congenital conditions may be at hand [1–3]. These developments have reinforced the belief that obstetricians are caring for two patients, the mother and her fetus, and that there are instances in clinical decisions that may selectively jeopardize one of those patients. In addition, they feed into the societal belief that a balance must be struck whenever a pregnant women's behavior (e.g., drug use, employment in a work site with possible teratogens) is perceived to be jeopardizing the ideal prenatal environment of the fetus. It is at those moments that the challenges to the rights of pregnant women are brought into starkest relief.
In this article, we hope to demonstrate that the choices made by mothers are almost always in the interests of the fetus. When there is disagreement with physicians it is often due to poor communication. While acknowledging that the rare circumstances in which the physician and patient wish to pursue different clinical paths can be stressful for the provider, we explain why obstetricians should accept the judgment of their patient in all instances. Finally, we will maintain that positing a choice between maternal and fetal interests is, in fact, creating a false choice, in that options are presented as being exclusive, when in fact that is not the case.
The need for obstetricians to accept what they perceive to be ill-advised decisions by mothers is exceedingly uncommon. In the first instance, medical advances have eliminated many circumstances that created conflicts in the past. The advent of safe anesthesia, improved blood banking and potent antibiotics has ended the era when destructive instruments had to be used to spare mothers facing difficult deliveries, the perilous alternative of a cesarean section. Nonetheless, on occasion, choices must still be made. Treating maternal diseases with potentially harmful medications (e.g., chemotherapy) and delaying delivery in the face of pre-eclampsia remote from term are but two examples of clinical events that continue to have differing consequences for the pregnant woman and the fetus.
However, women are singularly dependable guardians of fetal health, in an overwhelming proportion of cases taking steps that put fetal health above maternal health. While advocates of the rights of pregnant women have challenged the ill-advised use of the courts to force medical procedures without consent, it is worth noting that the most comprehensive survey of court orders in the USA reported only 21 such cases over the course of 5 years [4] and more recent reports do not suggest that the rate has increased [5]. That would suggest that court orders are being sought approximately once for every million births, and a review of many of those cases is more demonstrative of physicians' fallibility than of pregnant women's refusal to be fetal champions; women have eloped from custody prior to court-ordered cesarean section, only to deliver healthy babies vaginally elsewhere [6,7]. Hence, the record reflects a remarkable concordance between the best interests of the fetus and the choices of women.
In those rare circumstances where there is an apparent discord, the provider must consider several factors. There may be barriers of language or culture that have compromised the consent process and, as we become a more multiethnic and multicultural society, that problem may increase. In a survey of court-ordered obstetrical interventions it was reported that 24% of woman involved did not speak English as their primary language, 81% were minority, and all were either treated in clinics or were receiving public assistance [4]. The American College of Obstetricians and Gynecologists (ACOG) ethics committee spoke directly to this aspect of consent: “Obstetricians should consider the social and cultural context in which these decisions are made and question whether their ethical judgment reinforces gender, class or racial inequality” [8]. In addition, an increased emphasis should be placed on assuring that communication between health providers and women includes all the information necessary to allow for fully informed decisions.
While mothers agree with the options proffered by their physicians in most cases, and although the remainder would be even smaller if adequate counseling were provided, there may still be circumstances in which a mother's choice and her physician's recommendation diverge. Recent surveys and cases reinforce this belief [5,9–11]. Disagreements between physicians and patients, as rare as they may be, can be distressing for providers. Obstetricians as a group are intimately aware of the value of the fetus and their own beneficence-based obligations to its wellbeing. They struggle along with pregnant women in many trying circumstances to give the fetus every possible advantage when it is endangered by preterm birth or other biologic threats. Thus, while they may appreciate the principle of patient autonomy, a principle that applies equally to women who become pregnant, that acceptance can come at a personal cost to the provider. It is important to highlight that accepting the principle of maternal autonomy is not supererogatory, nor does it require obeisance to an autonomy that differs in type or degree by dint of a woman's pregnancy. Rather, respecting a woman's right to corporal integrity during pregnancy merely reflects physicians' obligatory fealty to autonomy as required in interactions with all adult persons [12].
Still, understanding and respecting all adults' right to control their own fate does not soothe the discomfort an obstetrician might feel if he or she believed that the mother's right was being wielded in a manner that threatened a child. In those circumstances how can the obstetrician's discomfiture in respecting rights be assuaged? To do so it is necessary to consider the circumstances and beliefs that factor into the mother's decision, and to take a broader view of the costs our society has chosen to bear in order to vouchsafe our liberties.
One basis for respecting the right of the mother to decide is an awareness of the consequences of viewing the need for choice as a ‘conflict’ between mothers and their fetuses. That perception has often resulted in someone other than the mother (e.g., physicians, employers and governmental agencies) attempting to represent the interests of the fetus. When these groups have spoken for fetal rights, the consequence has often been a denial of women's civil rights, and the promulgation of policies that in fact undermine both maternal and fetal health. [13] Employers' attempts to create a fetal ‘right’ to protection from environmental toxins cost women the ability to keep good jobs that offered much needed health benefits. Physicians' and courts' advocacy of the fetal ‘right’ to health and life has cost women their bodily integrity (women have been forced to undergo cesarean sections or blood transfusion) [4], their liberty (women have been imprisoned for risking harm to a fetus through alcohol or drug use) [14] and in some cases their lives (a court-ordered cesarean section was listed as a contributing factor in the death in 1987 of Angela Carder, who was critically ill at the time with a recurrence of bone cancer that had metastasized to her lung; the fetus/baby was born alive but did not survive) [15,16].
Ethicists as well as courts that have considered these events have fairly uniformly recognized that pregnancy should not deprive women of their civil and human rights. The judges in one of the most cited cases wrote that, “in virtually all cases the question of what is to be done is to be decided by the patient – the pregnant woman – on behalf of herself and the fetus” [16]. In context, this holding left open only a theoretical possibility for an exception to the rule, making clear that none of the following – fetal viability, a pregnant woman's terminal condition, and the relatively minor nature of an intrusion – could justify an exception to the rule that the patient upon whom a procedure is to be performed must consent. Justice Blackman, in a ruling on a case involving the right of employers to exclude women from certain work environments, said that federal law “mandates that decisions about the welfare of future children be left to the parents who conceive, bear, support and raise them, rather than to the employers who hire those parents or the courts” [17]. These rights are not abstract concepts ensconced in the sterile pages of court documents. Rather they are the guarantors of women's personal dignity, their health, and their lives, all of which have been forfeit when those rights have been abridged.
ACOG has been involved in many of the cases that have advanced the cause of pregnant women's rights and the combined interests of maternal and fetal health. ACOG's ethics committee provides unstinting advocacy of those rights and interests. Specifically, they wrote that:
“[Even if] a woman's autonomous decision [seems] not to promote beneficence-based obligations (of the woman or the physician) to the fetus … the obstetrician must respect the patient's autonomy, continue to care for the patient, and not intervene against the patient's wishes, regardless of the consequences.” [8,18]
Obstetricians should also be aware that by acknowledging an adult's dominion over their own bodily integrity, they are not devaluing the unborn. In fact, even if the fetus were granted all the rights that attach to its born siblings, the pregnant woman's sovereignty over decisions that had health consequences for herself, as well as her fetus/child, would still prevail. In 1978 Robert Mcfall was dying of a rare form of aplastic anemia [19]. A cousin, David Shimp, was found to be immuologically compatible but refused to donate. Mcfall sued. In deciding for the defendant, whose position he found morally reprehensible, the judge commented on a common law that held that no human being was under legal compulsion to aid another, noting:
“A great deal has been written regarding this rule which, on the surface, appears to be revolting in a moral sense. Introspection, however, will demonstrate that the rule is founded upon the very essence of our free society … For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence.”
Those words reinforce the right of women to make all choices that have corporal consequence for them. Beyond that, they speak to our nation's values and how they justify deference to women's rights and liberties even if that stance is believed to imperil a fetus. The USA is a society founded on the pre-eminence of liberties, even in circumstances in which their exercise encumbers risk. If the diminution of risk were sufficient to permit, indeed to promote, the attenuation of a vital right, then not only David Shimp's and pregnant women's right to refuse interventions, but our very constitutional guarantees, would be in jeopardy. Our Bill of Rights include the right to “keep and bear arms” (second amendment), a prohibition against “unreasonable searches and seizures” (fourth amendment), an individual's right not to be “compelled in any criminal case to be a witness against himself” (fifth amendment) and a ban on “cruel and unusual punishment” (eighth amendment). Certainly lives might be saved if those rights could be circumvented. Gun-related homicides might be diminished, police might stumble upon criminal plans if every house could be searched without warrant, and some argue, in both the national and international settings, dangerous individuals could be more readily removed from our streets if they could be made to testify against themselves, particularly if torture was attendant upon the process (although national and international tribunals have long rejected coerced ‘confessions’ as inherently unreliable). Our society has chosen to accept risks rather than to encumber our rights, and rather than to allow potentially intrusive agencies from wresting family decisions from those personally involved, and far more likely to make informed, humane and appropriate decisions.
Thus, disagreements between patients and physicians are uncommon, and may well be resolved with linguistically and culturally competent counseling. In the rare circumstance in which a woman is determined to make a choice at odds with her physician's advice, obstetricians must consider their ethical and professional obligations. The American Board of Internal Medicine, The American College of Physicians, and the European Federation of Internal Medicine have concluded that: “the center of patient care is not in the physician's office or the hospital. It is where people live their lives, in the home … There, patients make the daily choices that determine their health” [12]. In other words, physicians may be better positioned to interpret fetal heart rate tracings, but mothers are better able to place fetal concerns into the context of their family's social, psychological and physical wellbeing.
It is this truism that underpins our belief that positing a choice between mother and fetus in trying obstetrical circumstances creates a false choice. A false choice is one that is based on the fallacy that only one of two options is possible and that the two are mutually exclusive (e.g., ‘If you support my opponent's position you are either stupid or misinformed’). In fact, crises in pregnancy often do not present a simple either/or choice. Rather, they present an array of options. Even in circumstances in which the choices seem limited to one that benefits the mother and harms the fetus and an alternative that benefits the fetus and harms the mother, either choice might actually be of advantage (or disadvantage) to both. Thus, when a mother considers whether to begin chemotherapy when cancer is discovered in midgestation, she cannot simply balance risks of cancer to herself against risks of drug toxicity to her fetus. She must balance the often-small risk to the fetus from exposure to medication at that gestation, against the risk to the fetus and its born siblings of the loss of their mother early in their lives. The consequences of that loss may be far greater than any proven fetal risks of exposure to medication.
In conclusion, the fact that pregnant women have been remarkably reliable and valiant stewards of their families' health should provide succor to those wedded to the misguided theory that pregnancy poses potential maternal–child conflicts (a theory grounded in what we consider to be a false choice). However, the comfort derived from mothers' selfless and wise acts in the overwhelming majority of difficult circumstances, should never mask the physician's obligation to respect and support a mother's choices, even in more trying circumstances when her decision is at odds with theirs. At its irreducible core, the ethic that animates all these considerations is the belief that women have fully endowed rights that do not diminish with conception, nor progressively degrade as pregnancy advances to viability and birth.
Future perspective
Two conflicting trends will shape the future of pregnant women's rights over the next 10–15 years. On the one hand there is a clear consensus among ethicists, as reflected in the work of ACOG's ethics committee, that a woman's rights, particularly her right to autonomy, should not be diminished during pregnancy. More recently other professional organizations and courts have joined that emerging consensus. On the other hand there is a fetal rights movement that is quite active in the political arena. Legislators have proposed and/or acted upon legislation such as the Unborn Victims of Violence Act, the Unborn Child Pain Awareness Act and the expansion of the definition of ‘child’ in the State Children's Health Insurance Program to include the period between conception and birth. While it should be hoped that obstetricians will be valiant stewards of their patients' reproductive rights, there is no question, given the growing claims/assertions of ‘fetal rights’, that the next decade will pose significant challenges to those who believe that a woman's civil and human rights do not end during pregnancy.
Executive summary
Reports of fully informed pregnant women refusing advice proffered by their obstetrician are uncommon.
Good communication and an understanding of the basis for women's concerns can further reduce the number of instances in which disagreements between providers and patients occur.
A woman's autonomy is not lessened by pregnancy.
There is an unfortunate history of pregnant woman's rights being trampled by employers, physicians and legislators. The courts have ruled in the favor of pregnant women when these occurrences have subsequently been reviewed.
The courts have also ruled that no person, even a born person, can make demands on the bodily integrity of another.
The USA has as a founding principle, the primacy of liberty, even when its exercise poses a risk. Thus women, who must decide on a course of therapy on behalf of her entire family, should be granted the liberty to make that choice.
Footnotes
H Minkoff takes full responsibility for the whole manuscript and contributed to the conception and design, and drafting of the manuscript. L Paltrow takes full responsibility for the whole manuscript and contributed to the conception and design, and critical revision of the manuscript for important intellectual content.