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Maternal–Fetal Relationship: II. Ethical Issues

II. ETHICAL ISSUES

Only since the 1960s has it been recognized that the fetus in utero can be harmed by a range of maternal behaviors. Now that it is known that drinking, smoking, and using drugs during pregnancy can harm the unborn child, the question of what moral obligations a pregnant woman has to the fetus she carries has become a significant issue in biomedical ethics. When conflicts arise between what a pregnant woman wants to do or believes is right to do, on the one hand, and what may be best for the fetus, on the other, how and on what basis should those conflicts be resolved? And who should be involved in resolving them?

This article attempts to provide a conceptual framework for thinking about maternal–fetal conflicts. Whether one believes that women have moral obligations to their fetuses in utero depends largely on one's view of the moral status of the fetus—possibly the central issue in the abortion debate. The debate over whether (and at what developmental stage) fetuses can be harmed is a heated one. Pro-lifers think that fetuses can be harmed, and base their opposition to abortion on the ground that being killed is the ultimate harm. They also oppose behavior on the part of pregnant women that is likely to have less severe effects on the fetus. By contrast, many pro-choicers deny that fetuses (or at least early gestation fetuses) can be harmed. However, even if the pro-choice view of the fetus is the correct one, it does not follow that pregnant women are free to drink, smoke, or use drugs during pregnancy, if they are planning to have the baby. For if the pregnant woman does not abort but goes to term, her behavior during pregnancy can have lasting, destructive effects on the born child. Concern for the born child is a common ground that unites all people, regardless of their stance on abortion. This distinction between the fetus per se and the fetus-who-will-be-born differentiates maternal–fetal conflicts from the issue of abortion. Yet these conflicts are not entirely unrelated to the problem of abortion, because both issues concern justifications for restricting or controlling women's behavior during pregnancy.

The Moral Status of the Unborn

One of the thorniest issues in bioethics is the moral status of the fetus. (Here, the term fetus is used to refer to the unborn during all stages of pregnancy.) One view is that fetuses are merely potential children who do not have full-fledged moral rights, or perhaps any rights at all. According to this view, attempts to limit reproductive choices or coerce behavior during pregnancy violate very basic moral rights to bodily self-determination.

A different view is that fetuses are pre-born children, with all the rights of born children. Someone who regards the fetus in this way will think that a pregnant woman has the same moral obligations to protect her fetus from harm as she has to protect her born children. In keeping with this view of the fetus, some states have adopted fetal rights legislation, for example, making behavior during pregnancy that puts the fetus at risk of damage or death a form of child abuse.

Those who differentiate morally between fetuses and children tend vigorously to oppose fetal rights legislation, often seeing it as part of a larger political agenda to make abortion illegal. Even apart from the abortion question, many people are concerned that any attempts to control women's behavior during pregnancy violate their rights to privacy and self-determination. At the extreme, the position taken by some feminists and civil libertarians is that whatever a woman does during her pregnancy is her own business. They have opposed even noncoercive measures, such as a bill requiring the posting of signs warning pregnant women of the dangers of alcohol consumption (Sack).

However, if a woman decides not to abort, but to carry to term, then her behavior during pregnancy may have an adverse effect not only on the fetus but also on the child who is born. Whatever one's position on the moral standing of fetuses, born children clearly have moral status and rights.

The right not to be injured is one of the most basic moral and legal rights. To extend this right to prenatal injury requires only the recognition that a person can be injured by events that occurred before his or her birth—indeed, even before conception. Here is an example of preconception injury: In the 1940s, diethylstilbestrol (DES) was sometimes prescribed to prevent miscarriage. Not only was the drug ineffective, it sometimes resulted in damaged reproductive systems in the female children of women who used it. When these girls grew up, their reproductive abnormalities sometimes led to miscarriages and premature births. Prematurity can cause cerebral palsy. Thus, a child might be born with cerebral palsy due to a premature birth ultimately caused by her grandmother's ingestion of DES years before her own conception (Enright by Enright v. Eli Lilly & Co., 568N.Y.S.2d [Ct.App. 1991]). The legal right to recover for injuries negligently inflicted during pregnancy has been widely recognized in the United States since the landmark case of Bonbrest v. Kotz (65 F. Supp. 138 [D.D.C. 1946]). Courts have been much more reluctant to accept a right to recover for preconception injuries, primarily out of a concern to confine liability within manageable limits. The important point for bioethics is that recognition of a moral right to be free from injuries inflicted before birth is not based on recognition of the fetus as having the moral status of a person. The concern is not primarily for the fetus but for the surviving child. At the same time, attempts to protect children from prenatal injury can be accomplished only through the body of the pregnant woman. As a result, some women have been subjected to forced cesareans (Annas, 1982; Rhoden, 1986, 1987; Nelson and Milliken). With the development of new fetal therapies and surgery, women could be asked, or even required, to undergo possibly painful and risky procedures for the sake of the not-yet-born child (Robertson). Thus, if the focus is exclusively on the prevention of harm to the future child, there is a risk of forgetting that the pregnant woman is a person in her own right, not merely a "fetal container" (Annas, 1986). The moral question, then, is how to balance the interests and rights of the pregnant woman against those of her not-yet-born child.

Most women who are expecting a child voluntarily adapt at least some of their behavior to protect their babies. But what if the woman is an alcoholic or a crack addict? What if, for religious or other reasons, she refuses a cesarean section her doctor thinks is necessary to prevent serious damage to her nearly born baby? Such cases "pit a woman's right to privacy and bodily integrity … against the possibility of a lifetime of devastating disability to a being who is within days or even hours of independent existence" (Rhoden, 1987, p. 118). How should such conflicts be resolved? What moral obligations do women have to prevent harm to the children they intend to bear?

Conceptualizing Maternal–Fetal Conflict

People have moral obligations to other people, both those existing today and those who will exist in the future. The mere fact that people do not now exist is no reason to discount the interests they will have when they come into existence. If people today do nothing about the national debt, if they allow the ozone layer to be depleted, if they pollute the air and water, then actual (as opposed to possible or potential) individuals, living in the future, will be harmed by what is done, or is not done, today. There is a responsibility to these actual, though future, people not to destroy the world they will live in. That they do not now exist does not obviate present obligations to them. Similarly, women have moral obligations to their future children, that is, the ones they will bring into the world.

In the United States, as in most societies, the primary responsibility for protecting the interests of children belongs to their parents. Although parents have a great deal of discretion in deciding how to care for and raise their children, they do not have absolute freedom. In industrialized nations, at least, it is widely accepted that parents are not only morally but also legally obligated not to inflict injury on their children, to feed and clothe them, to provide them with necessary medical care. It would seem, then, that pregnant women who intend to complete their pregnancies have comparable moral obligations to avoid harming their not-yet-born children. However, preventing prenatal harm is not the only morally relevant consideration. The woman's own interests count, too. How are conflicts between the interests of the future child and the interests of the pregnant woman to be resolved?

Some object to the very notion of maternal–fetal conflict. They regard this as being misleadingly adversarial, pitting pregnant women against the children they will bear, when in most cases their interests are inseparably inter-twined. A less adversarial framework stresses that what is good for pregnant women, such as better prenatal care, is also good for fetuses. While this is undeniable, some women want to do things, such as smoking or using drugs or alcohol, that risk harming their unborn children. Admittedly, behavior that endangers the fetus often endangers the health of the pregnant woman, but this does not necessarily make their interests identical. What if the woman is willing to risk her own health for the enjoyment the tobacco or alcohol or cocaine brings? She may decide—perhaps irrationally, perhaps not—that use of the substance is in her own interest, all things considered. That does not mean it is in the interest of her as-yet-unborn baby. It is wishful thinking to pretend that the possible harmful effect on the pregnant woman prevents the possibility of conflict.

Others object to characterizing the conflict as one between mother and fetus. In the so-called obstetrical cases(e.g., forced cesareans), the conflict may not be between mother and fetus. Rather, it is between mother and doctor, who disagree about what is best for both mother and child. In one case, doctors sought a court order because the fetus's umbilical cord was wrapped around its neck, a clear indication for an emergency cesarean. The woman, who had nine children, refused surgery out of concern for her own health, a belief in "natural childbirth," and an intuition that the delivery would turn out fine, despite the doctors' dire predictions. She delivered vaginally, and the child was fine (Rhoden, 1986).

Attempts to prevent prenatal harm often impose risks or burdens on pregnant women, particularly when an intervention, such as a cesarean section or blood transfusion, is deemed necessary to protect the unborn child. The moral question then becomes how much risk, burden, or sacrifice a woman must undergo for the sake of her future child.

Moral Obligations to the Not-Yet-Born

It is important to distinguish the question of moral obligation and responsibility from legal obligation. Only the most extreme legal moralist would advocate compelling people to do whatever they morally ought to do. Claims that women have moral obligations to their future children should not be construed as advocating legal coercion. Thinking about moral obligations to future children in the context of general parental obligations to children prevents sentimentalizing pregnancy and the imposing of especially stringent obligations on pregnant women, or thinking that pregnant women are morally required to subordinate all their interests to their fetuses. After all, parents are not morally required to avoid any and all risks to their children's health. The obligation is, rather, to avoid unreasonable risks of substantial harm.

With a few notable exceptions (King; Robertson; Shaw), most commentators have argued that a pregnant woman should not be forced to undergo medical treatment even when this is judged necessary to preserve the life or health or her fetus (Annas, 1982; Gallagher; Johnsen; Nelson and Milliken; Rhoden, 1986, 1987). Cesarean sections are major surgery and, while generally very safe, are associated with higher rates of maternal mortality, morbidity, and increased pain than occur with vaginal delivery. Requiring a woman to undergo a cesarean requires her to risk her own life and health for the sake of her not-yet-born child. This is contrary to our legal tradition, which forbids the forced use of the body of one person to save another. In one widely cited case, Shimp v. McFall (10 Pa. D. & C.3d 90 [1978]), a court refused to order David Shimp to donate bone marrow to his cousin, Robert McFall, who was dying of aplastic anemia. The court emphasized that there is no legal duty to rescue others. It would seem to follow that compelling a pregnant woman to undergo medical treatment for the sake of the fetus, when this is not required of other potential rescuers, violates equal protection.

There are compelling arguments against the government's using coercive and punitive measures to regulate women's actions in order to promote healthy births. Most people do not want to live in a society in which they can be compelled to undergo surgery or to sacrifice body parts, even if it would be morally incumbent on them to do so. Placing limits on what can be demanded of citizens, especially where bodily integrity is involved, is essential to a free society. This helps to justify the conviction that people are not legally obligated to donate parts of their bodies, even if others need them for life itself.

The situation is different when we consider people's moral obligations. While an absolute ban on forced donation seems the correct legal response, a balancing approach seems more appropriate from a moral perspective. Whether one has a moral obligation to donate a body part, or undergo invasive surgery, depends on the degree of risk and sacrifice incurred, balanced against the need of the endangered individual. Perhaps people are morally required to donate replenishable body parts, such as blood, to others who need it. Blood donation takes only an hour, has no lasting effects, and causes only slight discomfort to most donors. Where a special relationship exists between the potential donor and the needy person, there may be a moral obligation to incur greater risks and sacrifices. Parents may be thought to have a moral obligation to donate blood and bone marrow, and perhaps even nonreplenishable body parts, such as kidneys, to their children, because of their duty to protect and care for their children, and because parents are supposed to love their children. Certainly a parent who refused to give a kidney to a dying child, saying, "It's my body, and I do not feel like donating," would be rightly regarded as morally deficient.

What are the implications for women whose doctors advise a cesarean section for fetal indications? Most women, faced with the possibility of a stillbirth or having a baby born with cerebral palsy, readily consent to the treatment their doctors recommend. Occasionally, however, a woman rejects a physician's recommendation. The moral justifiability of her refusal depends largely on her reasons for refusing. Typically, women who refuse cesareans do so out of religious objections, concern for their own health, or belief that a vaginal birth is best for the baby, and they disagree with the doctors' assessment of the risk. These are not selfish or unimportant reasons. Refusing a cesarean for such reasons is not obviously immoral. By contrast, it would be immoral for a woman to refuse a cesarean, and risk having her nearly born child die or suffer permanent disability, for a trivial reason, such as wanting to avoid a scar in order to be able to wear a bikini. One can morally condemn such a refusal, even if one thinks that she should not be compelled to submit to a cesarean.

"Lifestyle cases," where the risk to the child comes from nonessential behavior, such as drinking alcohol, smoking tobacco, or using drugs, present a different situation. In lifestyle cases, the welfare of the future child appears paramount. If the woman forgoes these substances, the only harm done to her is loss of pleasure and choice—in fact, abstention is likely to benefit her physically—while the potential harm to the child is serious. On the other hand, when the risk to the fetus is slight, the obligation of the pregnant woman is less clear.

Consider, for example, drinking during pregnancy. Heavy drinking during pregnancy can cause fetal alcohol syndrome (FAS), which is typically marked by severe facial deformities and mental retardation. One study showed that even moderate drinking—defined as one to three drinks daily—during early pregnancy can result in a lowering of IQ by as much as five points (Streissguth et al.). Perhaps most important, there is no established "safe" level of alcohol consumption. While there is no evidence that a rare single drink during pregnancy does damage, there is no guarantee that it does not. The safest course is therefore total abstention. But is the safest course the morally obligatory one? We do not require this standard of parents regarding their already born children. Having a single drink occasionally in pregnancy is arguably morally permissible, primarily because the risk of causing harm is very low (perhaps nonexistent), but also because the nature of the harm (loss of a few IQ points) is not so serious as to justify moral condemnation.

For a child of normal intelligence, the loss of five IQ points is not devastating. (At the same time, five IQ points can mean the difference between a mildly and a severely retarded child.)

If the occasional drink should be considered a matter of individual discretion, binge drinking, which has a 35 percent chance of subjecting a baby to full-blown FAS, clearly qualifies as an unreasonable risk to the health of a baby. So does smoking crack cocaine. Whether women have a moral obligation not to drink heavily or smoke crack during pregnancy is profoundly complicated by the fact that these behaviors are often the product of addictions. They are less than fully voluntary—some would say they are not voluntary at all. If a woman cannot modify her behavior, then she cannot have a moral obligation to do so.

But is it true that someone who is addicted cannot modify his or her behavior? The distinction should be drawn between being able to stop doing something at will, and not being able to stop at all. Although it is difficult to get over addictions, many smokers, alcoholics, and drug users do manage to change their behaviors. We can recognize that it may be very difficult for some women to fulfill their moral obligations to the babies they intend to bear, and acknowledge that they will need help to do so, without denying that they have such obligations.

Should drug or alcohol treatment be imposed on addicted pregnant women? Perhaps—if it could be shown that coerced treatment works, and therefore protects babies from prenatal harm. However, discussion of the justifiability of coerced treatment seems premature when there are not enough treatment programs for pregnant addicts who want to get over their addictions. Many in-patient alcohol rehabilitation programs exclude pregnant women, largely due to a fear of liability. The situation is even worse for pregnant drug addicts (Chavkin); sudden withdrawal of drugs can be as damaging to the fetus as continued exposure. As a result, a few treatment programs are able or willing to treat pregnant addicts. Even in areas where there are such treatment programs, there are not nearly enough spaces for all who want help. The absence of treatment programs makes it virtually impossible for substance abusers to fulfill their moral obligations to the children they intend to bear, even with the best will in the world.

To summarize, all women who intend to bear children have moral obligations to protect those children from the serious risk of substantial harm. Heavy smoking, binge drinking, and use of drugs such as crack cocaine and heroin constitute such risks. However, the moral wrongness of engaging in such behaviors during pregnancy is affected by the woman's ability to stop. A woman who is not addicted to cocaine, but who goes on using it during her pregnancy (perhaps on the weekends, because she enjoys it), fully aware of the risks she imposes on her future child, acts very wrongly indeed, and is properly blamed. It would be inappropriate similarly to condemn the pregnant woman who wants what's best for her baby and tries to get help with her addiction, only to be turned away because of the dearth of drug programs. Such a woman is trying to do the right thing; blame properly belongs with society for failing to help her. Nevertheless, if her baby is born damaged due to her drug use, she will—and should—feel moral regret at the harm caused by her drug habit, even if she should not be blamed.

The Intention to Bear a Child

Some people object to making the future child, rather than the fetus, the locus of moral obligation, on the grounds that the existence of the future child depends entirely on the pregnant woman's decision. These critics find it unacceptable that a woman can avoid her obligations to her not-yet-born child by ensuring that it not be born (that is, by aborting it). Moreover, a woman may decide to abort, but later change her mind and continue the pregnancy. During the period when she thought she would have an abortion, she may have continued to smoke and drink. As long as she did not intend to bring a child into the world, there was no one for whose sake she should abstain; continuing to smoke or drink seems morally acceptable in this light. Yet if she changes her mind and continues the pregnancy, she may have harmed the child she bears. Is she now morally blameworthy for the harm she causes?

Two responses can be made. The first is to recognize that moral responsibility for outcomes can extend beyond harms knowingly risked, to harms unintentionally caused. The fact that a woman did not intend to continue a pregnancy at the time she engaged in heavy drinking or used drugs does not entirely absolve her from blame. Even though she does not intend to have a baby at the time of the risky behavior, the failure to consider the possibility that she might change her mind may be negligent, and thus blameworthy. The second response concerns the futility of crying over spilt milk. It says that there is nothing a woman can do about her past behavior, and that if she changes her mind and decides to carry the pregnancy to term, she should focus on what she can do to ensure her baby's health. For example, giving up smoking in the second or third trimester gives the not-yet-born child a better chance than continuing to smoke throughout the pregnancy. If, despite her efforts, the baby is born damaged (a fairly unlikely result), the woman does not completely escape responsibility, but her blameworthiness is mitigated by the fact that she acted rightly once she decided to continue the pregnancy.

Another objection to making "the child she intends to bear" rather than the fetus the object of the pregnant woman's moral obligation is that often women do not "intend" to bear children. Drug addicts, in particular, may regard pregnancy as something that "happens" to them, often as a result of bartering their bodies for drugs, rather than something they intend. Nor do they necessarily choose to give birth: They may not be able to afford an abortion, or it may not be available in a particular geographical area. For some women, abortion is not a morally or culturally acceptable option. Do restrictions on the choice of whether to bear a child affect the woman's moral obligations to the child she bears? It can be argued that these restrictions do not affect how the woman ought to act, but they may affect how much she is to be blamed if she acts wrongly.

Consider a woman who deliberately gets pregnant, intending to have a baby. If she goes on drinking and smoking and using recreational drugs, knowing of the possible effects on her baby's health and making no effort to stop, she acts very wrongly indeed. By contrast, consider a woman who has no responsibility for becoming pregnant (she was raped), in a jurisdiction that prohibits abortion. She is the victim of two grave injustices, first in being raped and second in being denied an abortion. Still, that would not justify behavior likely to inflict severe damage on the child she will perforce bear. Ideally, she should behave as if the pregnancy were chosen, since she is prevented from terminating the pregnancy. That is, she should stop smoking, drink moderately or not at all, and so on. However, her failure to do so is certainly less blameworthy than the failure of a woman who has chosen to conceive and bear a child. Most cases will fall somewhere in between the extremes of deliberate conception and forced childbirth. In general, the fewer options a woman has regarding pregnancy and childbirth, the less she deserves blame for failing to fulfill her obligations to her future child. However, women are not relieved of moral responsibility simply because they do not see pregnancy as a choice.

Conclusion

Deciding to have a baby carries with it certain moral responsibilities. Children have a moral right to be protected from harm, whether inflicted post-or prenatally. This right to be free from harm imposes obligations on those in a position to protect children, including their mothers during pregnancy. Yet a single-minded focus on the risk of harm to the future child ignores the impact on the pregnant woman.

She is not a "fetal container" but an individual in her own right, one whose interests must be considered in determining morally permissible options.

Another factor in determining the moral obligations of pregnant women to their future children is the degree of risk and the nature of the harm. Just as parents are not morally required to avoid any and all risks to their born children, neither are pregnant women morally obligated to curtail their own interests to avoid even the slightest risk of harm.

Distinct from the question of the obligations women have to their future children is the issue of their blameworthiness for failing to fulfill those obligations. In general, blameworthiness is mitigated by the inability to have done otherwise. Such factors as addiction and the degree of control over reproductive ability must be considered in assessing morally the conduct of pregnant women.

bonnie steinbock (1995)

bibliography revised

SEE ALSO: Abortion; AIDS; Alcohol and Other Drugs in a Public Health Context; Autonomy; Beneficence; Care; Coercion; Embryo and Fetus; Feminism; Genetic Screening and Testing: Public Health Context; Life; Professional-Patient Relationship;Women, Historical and Cross-Cultural Perspectives; and other Maternal-Fetal subentries

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