Judicial Intervention in Pregnancy & Birth

1. Judicial Interventionin Pregnancy & Birth Rels 300 / Nurs 330 February 2016

2. What does “judicial intervention” mean? Using laws and court decisions to control the behaviour and choices of a pregnant woman. Why would anyone want to take control over a pregnant woman’s choices using court orders? • to protect a fetus thought to be at risk as a result of the choices made by the woman What do we know about risk factors that adversely affect fetal development? 300/330 - appleby

3. Risks due to alcohol use Maternal use of alcohol during pregnancy • possibility of fetal alcohol syndrome What are some of the symptoms of fetal alcohol syndrome? Fetal Alcohol Syndrome American Academy of Pediatrics “A Minute for Kids” audio http://www.aap.org/en-us/about-the-aap/aap-press-room/aap-press-room-media-center/Pages/Fetal-Alcohol.aspx 300/330 - appleby

4. When does the damage occur? “Early in pregnancy, fetal malformations may occur while, later in pregnancy, it is the developing fetal brain that is more vulnerable to injury.” • http://www.aap.org/en-us/about-the-aap/aap-press-room/pages/AAP-Describes-Damaging-Effects-of-Substance-Abuse-on-the-Developing-Fetus.aspx “Alcohol is a known teratogen which can cause birth defects by affecting the growth and proper formation of the fetus's body and brain (Olson, 1992). Alcohol can damage the fetus throughout pregnancy, not just in the first trimester. ” • http://www.cps.ca/documents/position/fetal-alcohol-syndrome 300/330 - appleby

5. Risks due to drug use Maternal use of drugs during pregnancy: • thalidomide - physical deformities • crack-cocaine - addiction at birth; more severe mental disabilities • other drugs? • life-long medical costs • increased educational costs • social costs, e.g., courts & jail time; inabilities to get and keep jobs • personal costs for caregivers, parents, and children 300/330 - appleby

6. Why has society become increasinglyconcerned about fetal rights? What technologies do we now have that have changed the way we view fetal life? How do each of these factors influence our perceptions of the developing fetus? • prenatal testing • technological advances in neonatal care • age of viability • possibilities of in uterofetal therapy 300/330 - appleby

7. Case Study 300/330 - appleby Unconscious from sniffing paint thinner, Deborah Gregory, 21 years old, is rushed by ambulance to a Winnipeg hospital. A routine investigation reveals her to be pregnant. Discharged after a 10-day hospital rest, she resumed her old ways – chronic substance abuse, prostitution and transient living arrangements. Her sister says she shows up at her home dazed and reeking of solvent. Deborah goes for days without eating, is chronically stoned, incontinent and at times unable to walk. Her sister fears that she is killing herself. What can her sister do for Deborah?

8. In July 1996, Winnipeg Child and Family Services, fearing for the health of the fetus, forces Ms. Gregory, then in the fifth month of her pregnancy, to take treatment. The agency applies for a court order to confine her – involuntarily – to a medical facility for the duration of the pregnancy. The lawyer for Child and Family Services argues that Ms. Gregory is knowingly subjecting her unborn child to poison, and that this action breaches the standard of care Canadian law demands of prospective mothers-to-be. Her willful behaviour justifies a court order confining her to a treatment centre. How effective will this intervention be? 300/330 - appleby

9. The lawyer for Ms. Gregory argues that the fetus is legally a non-entity, and hence no person with legal rights is being harmed. The court therefore has no jurisdiction to confine the woman to a treatment centre. What should the Manitoba court judge decide in this case? Can you suggest any alternatives? 300/330 - appleby

10. Fetal and Maternal Rights;3 (of many possible) positions • Fetuses have a full range of moral rights and should be treated as persons: • medical and legal interventions to protect developing fetus • Maternal rights should always be considered as primary over fetal rights: • no medical interventions without consent • no legal interventions • Middle ground; if pregnancy is continued, woman has moral obligations to care for and not to harm fetus • otherwise, she should have an abortion 300/330 - appleby

11. Maternal / Fetal Relationships • Most women welcome and are able and willing to nurture fetal life • avoidable harms are avoided • efforts are taken to protect the fetus • Nurturing care for the pregnant woman enhances the well-being of fetal life • Some believe that efforts to designate fetuses as persons with legal rights in contradiction to maternal rights may be misguided 300/330 - appleby

12. Maternal / Fetal Unit • Prior to birth, the pregnant woman and fetus is a complex or composite unit • structurally and qualitatively unique • no comparable human relationship • organic unity • organic functioning of one inseparable from other Physicians cannot treat a fetus independent of the pregnant woman within whose body it exists – this is a factual rather than a moral statement 300/330 - appleby

13. Prosecuting Pregnant Women:What are the results? If a pregnant woman who is a substance user goes for prenatal care to a doctor, and the doctor initiates judicial proceedings against her: • What will be the immediate results? • For her? For her fetus? • What will be the long term results for her? • What will be the long term results for other pregnant women? 300/330 - appleby

14. Respect & Dignity Treating a pregnant women against her will for the sake of the fetus treats her as a means to an end • Is it therefore immoral? or can it be justified? Do pregnant women have a right to be treated as ends in themselves? • Or only if they are compliant with prenatal health measures? 300/330 - appleby

15. How should pregnant women who are substance users be treated? Are there better ways of treating substance abuse among pregnant women that would also protect fetuses in utero? • drug & alcohol abuse is more prevalent among poor, less educated, unemployed • pregnant women need social services, adequate financial resources, accessible medical care, prenatal care, counselling, rehabilitation programmes • can these supports be imposed on a pregnant woman who chooses not to receive them? 300/330 - appleby

16. ROYAL COMMISSION ONNEW REPRODUCTIVE TECHNOLOGIES Recommends that an ethic of care be used in providing for pregnant women and fetuses: • rather than placing maternal rights in opposition to fetal rights, attempt to prevent conflicts • offer protection to fetuses by promoting the prenatal health of pregnant women, and women who are socially & economically vulnerable 300/330 - appleby

17. Case Study 300/330 - appleby Excerpted from Reproductive Health Issues. Medical College of Georgia. http://www.mcg.edu/gpi/Ethics/ph2syllabus/lessons/Lesson5.htm In 1987, Angela Carder was diagnosed as having terminal cancer of the lung. She was 25 weekspregnant and it was expected that she would only survive for a week. Angela had lived under the shadow of cancer since she was thirteen, but had thought herself to be in remission when she planned her pregnancy. Whilst insisting that her own comfort must be the primary consideration, she agreed in principle to consent to any treatment which might enhance survival prospects once her fetus reached 28 weeks. Her husband, parents and physician were in full agreement with these wishes.

18. Almost a week later, in considerable pain that might be relieved by radiation therapy or chemotherapy, she refused her consent for a caesarean section and the hospital decided to seek legal advice. Angela believed that it was unlikely that such an immature fetus would survive, and that if it did, it would be likely to suffer multiple disabilities. Should the hospital seek a court order to proceed with a caesarean birth against Angela’s wishes and without her consent? 300/330 - appleby

19. Rights of Pregnant Women Should a woman have to waive her constitutional rights and protections when she becomes pregnant? Court ordered interventions: disproportionate #s of women who are poor, Aboriginal, racial or ethnic minorities; not middle-class white Constitutionally, pregnant women retain their rights to equality, liberty and security of their persons Medically, capacity and informed consent are not normally waived due to pregnancy 300/330 - appleby

20. Bioethics for clinicians: 12. Ethical dilemmas that arise in the care of pregnant women: Rethinking “maternal–fetal conflicts”Elizabeth Flagler, MD; Françoise Baylis, PhD; Sanda Rodgers, LLB/BCL, LLM “When a pregnant woman makes a decision or acts in a manner that may be detrimental to the health and well-being of her fetus, her physician may be faced with an ethical dilemma. Is the physician’s primary duty to respect the woman’s autonomy, or to promote behaviour that may be in the best interest of the fetus?” http://www.cmaj.ca/cgi/reprint/156/12/1729(full series at: http://www.cmaj.ca/cgi/collection/bioethics_for_clinicians_series 300/330 - appleby

21. The controversial concept of “fetal rights” or the “fetus as a patient” contributes to the notion that the pregnant woman and her fetus are potential adversaries. However, Canadian lawhas upheld women’s right to life, liberty and security of the person and has not recognized fetal rights. If a woman is competent and refuses medical advice, her decision must be respected even if the physician believes that her fetus will suffer as a result. Coercion of the woman is not permissible no matter what appears to be in the best interest of the fetus.” http://www.cmaj.ca/cgi/reprint/156/12/1729(full series at: http://www.cmaj.ca/cgi/collection/bioethics_for_clinicians_series 300/330 - appleby

22. IN CONFLICT WHOSE RIGHTS SHOULD PREVAIL? Jewish, Muslim, many Christian, many non-religious people believe that women are already persons: • thinking, self-aware, interactive, social beings • fetuses are “not yet” persons • late-term (maybe viable?) fetuses may have substantial moral rights • with agreement of pregnant woman, fetuses may be cared for even at her expense • but the legal choice is hers • the fetus has no legal right to prenatal treatment independent of the pregnant woman’s legal rights 300/330 - appleby

23. Moral & Legal Personhood • Pregnant women have a right to autonomy, physical integrity, and life • Forcibly treating a woman and/or her fetus without her consent amounts to assault “There is room for only one person with full and equal rights inside a single human skin.” Mary Anne Warren in “The Moral Significance of Birth” • In Canada, birth marks the beginning of legal personhood 300/330 - appleby

24. Complex Calculations: How Drug Use During Pregnancy Becomes A Barrier To Prenatal CareSarah C. M. Roberts, Cheri Pies; maternal Child Health J. 2011;15(3):333-341 “Pregnant women who use drugs are over-represented among women who receive late, limited, and no prenatal care…women who use drugs and receive adequate prenatal care generally have better pregnancy outcomes than women who use drugs and do not receive adequate care.” 300/330 - appleby

25. Imagine that you are setting up a prenatal clinic for pregnant adolescents in Pictou & Antigonish counties. List 10 services that you will provide to promote maternal and fetal well-being. 300/330 - appleby

26. SOGC No. 245, August 2010Alcohol Use and Pregnancy ConsensusClinical Guidelines Summary Statement • There is evidence that alcohol consumption in pregnancy can cause fetal harm. There is insufficient evidence regarding fetal safety or harm at low levels of alcohol consumption in pregnancy. • There is insufficient evidence to define any threshold for low-level drinking in pregnancy. • Abstinence is the prudent choice for a woman who is or might become pregnant. • Intensive culture-, gender-, and family-appropriate interventions need to be available and accessible for women with problematic drinking and/or alcohol dependence. 300/330 - appleby

27. Recommendations • Universal screening for alcohol consumption should be done periodically for all pregnant women and women of child-bearing age. Ideally, at-risk drinking could be identified before pregnancy, allowing for change. • Health care providers should create a safe environment for women to report alcohol consumption. • The public should be informed that alcohol screening and support for women at risk is part of routine women’s health care. • Health care providers should be aware of the risk factors associated with alcohol use in women of reproductive age. • Brief interventions are effective and should be provided by health care providers for women with at-risk drinking. • If a woman continues to use alcohol during pregnancy, harm reduction/treatment strategies should be encouraged. • Pregnant women should be given priority access to withdrawal management and treatment. • Health care providers should advise women that low-level consumption of alcohol in early pregnancy is not an indication for termination of pregnancy. 300/330 - appleby http://sogc.org/wp-content/uploads/2013/01/gui245CPG1008E.pdf