ACOG Committee Opinion
Number 321, November 2005


Committee on Ethics
PDF Format

Maternal Decision Making, Ethics, and the Law

ABSTRACT: Recent legal actions and policies aimed at protecting the fetus as an entity separate from the woman have challenged the rights of pregnant women to make decisions about medical interventions and have criminalized maternal behavior that is believed to be associated with fetal harm or adverse perinatal outcomes. This opinion summarizes recent, notable legal cases; reviews the underlying, established ethical principles relevant to the highlighted issues; and considers six objections to punitive and coercive legal approaches to maternal decision making. These approaches 1) fail to recognize that pregnant women are entitled to informed consent and bodily integrity, 2) fail to recognize that medical knowledge and predictions of outcomes in obstetrics have limitations, 3) treat addiction and psychiatric illness as if they were moral failings, 4) threaten to dissuade women from prenatal care, 5) unjustly single out the most vulnerable women, and 6) create the potential for criminalization of otherwise legal maternal behavior. Efforts to use the legal system to protect the fetus by constraining pregnant women's decision making or punishing them erode a woman's basic rights to privacy and bodily integrity and are not justified. Physicians and policy makers should promote the health of women and their fetuses through advocacy of healthy behavior; referral for substance abuse treatment and mental health services when indicated; and development of safe, available, and efficacious services for women and families.

Ethical issues that arise in the care of pregnant women are challenging to physicians, politicians, lawyers, and ethicists alike. One of the fundamental goals of medicine and society is to optimize the outcome of pregnancy. Recently, some apparent attempts to foster this goal have been characterized by legal action and policies aimed at specifically protecting the fetus as an entity separate from the woman. These actions and policies have challenged the rights of pregnant women to make decisions about medical interventions and have criminalized maternal behavior that is believed to be associated with fetal harm or adverse perinatal outcomes.

Practitioners who care for pregnant women face particularly difficult dilemmas when their patients reject medical recommendations, use illegal drugs, or engage in a range of other behaviors that have the potential to cause fetal harm. In such situations, physicians, hospital representatives, and others have at times resorted to legal actions to impose their views about what these pregnant patients ought to do or to effect particular interventions or outcomes. Appellate courts have held, however, that a pregnant woman's decisions regarding medical treatment should take precedence regardless of the presumed fetal consequences of those decisions. In one notable 1990 decision, a District of Columbia appellate court vacated a lower court's decision to compel cesarean delivery in a critically ill woman at 26 weeks of gestation against her wishes, stating in its opinion 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" (1). Furthermore, the court stated that it could think of no "extremely rare and truly exceptional" case in which the state might have an interest sufficiently compelling to override a pregnant patient's wishes (2). Amid often vigorous debate, most ethicists also agree that a pregnant woman's informed refusal of medical intervention ought to prevail as long as she has the ability to make medical decisions (3, 4).

Recent legislation, criminal prosecutions, and legal cases much discussed in both courtrooms and newsrooms have challenged these precedents, raising the question of whether there are circumstances in which a woman who has become pregnant may have her rights to bodily integrity and informed consent overridden to protect her fetus. In Utah, a woman who had used cocaine was charged with homicide for refusing cesarean delivery of a fetus that was ultimately stillborn. In Pennsylvania, physicians obtained a court order for cesarean delivery in a patient with suspected fetal macrosomia. Across the country, pregnant women have been arrested and prosecuted for being pregnant and using drugs or alcohol. These cases and the publicity they have engendered suggest that it is time to revisit the ethical issues involved.

The ethics of caring for pregnant women and an approach to decision making in the context of the maternal–fetal relationship have been discussed in previous statements by the American College of Obstetricians and Gynecologists (ACOG) Committee on Ethics. After briefly reiterating those discussions, this opinion will summarize recent, notable cases; review the underlying, established ethical principles relevant to the highlighted issues; consider objections to punitive and coercive legal approaches to maternal decision making; and summarize recommendations for attending to future ethical matters that may arise.

Recent Cases

In March 2004, a 28-year-old woman was charged with first-degree murder for refusing to undergo an immediate cesarean delivery because of concerns about fetal well-being and later giving birth to a girl who tested positive for cocaine and a stillborn boy. According to press reports, the woman was mentally ill and intermittently homeless and had been brought to Utah by a Florida adoption agency to give birth to the infants and give them up. She ultimately pled guilty to two counts of child endangerment.

In January 2004, a woman who previously had given birth vaginally to six infants, some of whom weighed close to 12 pounds, refused a cesarean delivery that was recommended because of presumed macrosomia. A Pennsylvania hospital obtained a court order to perform the cesarean delivery and gain custody of the fetus before and after delivery, but the woman and her husband fled to another hospital, where she reportedly had an uncomplicated vaginal delivery of a healthy 11-pound infant.

In September 2003, a 22-year-old woman was prosecuted after her son tested positive for alcohol when he was born in Glens Falls, New York. A few days after the birth, the woman was arrested and charged with two counts of child endangerment for "knowingly feeding her blood," containing alcohol, to her fetus via the umbilical cord. Several months later, her lawyers successfully appealed her conviction.

In May 1999, a 22-year-old woman who was homeless regularly used cocaine while pregnant and gave birth to a stillborn infant in South Carolina. She became the first woman in the United States to be tried and convicted of homicide by child abuse based on her behavior during pregnancy and was given a 12-year prison sentence. The conviction was upheld in the South Carolina Supreme Court, and the U.S. Supreme Court recently refused to hear her appeal. At a postconviction relief hearing, expert testimony supported arguments that the woman had had inadequate representation, but the court held that there was no ineffective assistance of counsel and that she is not entitled to a new trial. This decision is being appealed.

Ethical Considerations

Framing Ethics in Perinatal Medicine

It is likely that the interventions described in the preceding cases were motivated by a shared concept—that a fetus can and should be treated as separable and legally, philosophically, and practically independent from the pregnant woman within whom it resides. This common method of framing ethical issues in perinatal medicine is not surprising given a number of developments in the past several decades. First, since the 1970s, the development of techniques for imaging, testing, and treating fetuses has led to the widespread endorsement of the notion that fetuses are independent patients, treatable apart from the pregnant women upon whom their existence depends (5). Similarly, some bioethical models now assert that physicians have moral obligations to fetal "patients" that are separate from their obligations to pregnant women (6). Finally, a number of civil laws, discussed later in this section, aim to create fetal rights separate from a pregnant woman's rights.

Although frameworks that treat the woman and fetus as separable and independent are meant to simplify and clarify complex issues that arise in obstetrics, many writers have noted that such frameworks tend to distort, rather than illuminate, ethical and policy debates (7). In particular, these approaches have been criticized for their tendency to emphasize the divergent rather than shared interests of the pregnant woman and fetus. This emphasis results in a view of the maternal–fetal relationship as paradigmatically adversarial, when in fact in the vast majority of cases, the interests of the pregnant woman and fetus actually converge.

In addition, these approaches tend to ignore the moral relevance of relationships, including the physically and emotionally intimate relationship between the woman and her fetus, as well as the relationships of the pregnant woman within her broader social and cultural networks. The cultural and policy context, for example, suggests a predominantly childcentered approach to maternal and child health, which has influenced current perspectives on the fetus. The prototype for the federal Maternal and Child Health Bureau dates back to 1912, when the first organization was called into existence by reformers such as Florence Kelley, who stated that "the U.S. should have a bureau to look after the child crop," and Julia Lathrop, who said that "the final purpose of the Bureau is to serve all children, to try to work out standards of care and protection which shall give to every child his fair chance in the world." The current home page of the Maternal and Child Health Bureau web site cites as its "vision" an equally child-centered goal (8).

At times, in the current clinical and policy contexts, when the woman and fetus are treated as separate individuals, the woman and her medical interests, health needs, and rights as moral agent, patient, and research subject fade from view. Consider, first, women's medical interests as patients. Researchers performing "fetal surgery"—novel interventions to correct fetal anatomic abnormalities— have been criticized recently not only for their tendency to exaggerate claims of success with regard to fetal and neonatal health, but also for their failure to assess the impact of surgery on pregnant women, who also undertake the risks of the major surgical procedures (9). As a result, several centers performing these techniques now use the term "maternal– fetal surgery" to explicitly recognize the fact that a woman's bodily integrity and health are at stake whenever interventions directed at her fetus are performed. Furthermore, a study sponsored by the National Institute of Child Health and Human Development comparing maternal–fetal surgery with postnatal repair of myelomeningocele (the Management of Myelomeningocele Study) is now assessing maternal as well as fetal outcomes, including measurement of reproductive and health outcomes, depression testing, and economic and family health outcomes in women who participate in the clinical trial.

Similarly, new civil laws that aim to treat the fetus as separate and independent have been criticized for their failure both to address the health needs of the woman within whose body the fetus resides and to recognize the converging interests of the woman and fetus. In November 2002, a revision of the state child health insurance program (sCHIP) that expanded coverage to "individual(s) under the age of 19 including the period from conception until birth" was signed into law. The program does not cover pregnant women older than 18 years except when medical interventions could directly affect the well-being of their fetuses. For example, under sCHIP, intrapartum anesthesia is covered, according to the U.S. Department of Health and Human Services, only because "if a woman's pain during a labor and delivery is not reduced or properly relieved, adverse and sometimes disastrous effects can occur for the unborn child" (10).

Furthermore, for beneficiaries of sCHIP, many significant women's health issues, even those that are precipitated by pregnancy (eg, molar gestation, postpartum depression, or traumatic injury from intimate partner violence not impacting the fetus), are not covered as a part of routine antenatal care (11). This approach has been criticized not only for its failure to address the health needs of women, but also for its failure to achieve the narrow goal of improving child health because it ignores the fact that maternal and neonatal interests converge. For instance, postpartum depression is associated with adverse effects in infants, including impaired maternal–infant interaction, delayed cognitive and emotional development, increased anxiety, and decreased self-esteem (12, 13). Thus, the law ignores the fact that a critical component of ensuring the health of newborns is the provision of comprehensive care for their mothers.

Likewise, in April 2004, the Unborn Victims of Violence Act was signed into law, creating a separate federal offense if, during the commission of certain federal crimes, an individual causes the death of, or bodily injury to, a fetus at any stage of pregnancy. The law, however, does not categorize the death of or injury to a pregnant woman as a separate federal offense, or create sentence enhancement for those who assault or murder a woman while pregnant. The statute's sponsors explicitly rejected proposals that had virtually identical criminal penalties but recognized the pregnant woman as the victim, despite the fact that murder is responsible for more pregnancyassociated deaths in the United States than any other cause, including hemorrhage and thromboembolic events (14, 15).

Beyond its impact on maternal and child health, a failure to recognize the interconnectedness of the pregnant woman and fetus has important ethical and legal implications. Because an intervention on a fetus must be performed through the body of a pregnant woman, an assertion of fetal rights must be reconciled with the ethical and legal obligations toward pregnant women as women, persons in their own right. Discussions about rights of the unborn often have failed to address these obligations. Regardless of what is believed about fetal personhood, claims about fetal rights require an assessment of the rights of pregnant women, whose personhood within the legal and moral community is indisputable.

Furthermore, many writers have noted a moral injury that arises from abstracting the fetus from the pregnant woman, in its failing to recognize the pregnant woman herself as a patient, person, and rights-bearer. This approach disregards a fundamental moral principle that persons never be treated solely as means to an end, but as ends in themselves. Within the rhetoric of conflict and fetal rights, the pregnant woman has at times been reduced to a vessel— even a "fortress" holding the fetus "prisoner" (16). As George Annas aptly described, "Before birth, we can obtain access to the fetus only through its mother, and in the absence of her informed consent, can do so only by treating her as a fetal container, a nonperson without rights to bodily integrity" (3).

Some writers have argued that at the heart of the distorting influence of the "two-patient" model of the maternal–fetal dyad is the fact that, according to traditional theories that undergird medical ethics, the very notion of a person or a patient is someone who is physically separate from others. Pregnancy, however, is marked by a "particular and particularly thoroughgoing kind of intertwinement" (17). Thus, the pregnant woman and fetus fit awkwardly at best into what the term "patient" is understood to mean. They are neither physically separate, as persons are understood to be, nor indistinguishably fused. A framework that instead defines the professional ethical obligations with a deep sensitivity to relationships of interdependency may help to avoid the distorting influence of the two-patient model as traditionally understood (18). Although this opinion does not specifically articulate a novel comprehensive conceptual model for perinatal ethics, in the discussion that follows, the Committee on Ethics takes as morally central the essential connection between the pregnant woman and fetus.

Ethics Committee Opinions and the Maternal–Fetal Relationship

In the context of a framework that recognizes the interconnectedness of the pregnant woman and fetus and emphasizes their shared interests, certain opinions previously published by the ACOG Committee on Ethics are particularly relevant. These include:

  • "Informed Consent" (19)
  • "Patient Choice in the Maternal–Fetal Relationship" (20)
  • "At-Risk Drinking and Illicit Drug Use: Ethical Issues in Obstetric and Gynecologic Practice" (21)

One fundamental ethical obligation of health care professionals is to respect patients' autonomous decision making and to adhere to the requirement for informed consent for medical intervention. In January 2004, the Committee on Ethics published a revised edition of "Informed Consent" in which the following points are defended:

  • "Requiring informed consent is an expression of respect for the patient as a person; it particularly respects a patient's moral right to bodily integrity, to self-determination regarding sexuality and reproductive capacities, and to the support of the patient's freedom within caring relationships."
  • "The ethical requirement for informed consent need not conflict with physicians' overall ethical obligation to a principle of beneficence; that is, every effort should be made to incorporate a commitment to informed consent within a commitment to provide medical benefit to patients and thus respect them as whole and embodied persons."

Pregnancy does not obviate or limit the requirement to obtain informed consent. Intervention on behalf of the fetus must be undertaken through the body and within the context of the life of the pregnant woman, and therefore her consent for medical treatment is required, regardless of the treatment indication. However, pregnancy presents a special set of issues. The issues associated with informed refusal of care by pregnant women are addressed in the January 2004 opinion "Patient Choice in the Maternal–Fetal Relationship" (20). This opinion states that in cases of maternal refusal of treatment for the sake of the fetus, "court-ordered intervention against the wishes of a pregnant woman is rarely if ever acceptable." The document presents a review of general ethical considerations applicable to pregnant women who do not follow the advice of their physicians or do not seem to make decisions in the best interest of their fetuses. Although the possibility of a justifiable court-ordered intervention is not completely ruled out, the document presents several recommendations that strongly discourage coercive measures:

  • "The obstetrician's response to a patient's unwillingness to cooperate with medical advice . . . should be to convey clearly the reasons for the recommendations to the pregnant woman, examine the barriers to change along with her, and encourage the development of health-promoting behavior."
  • "[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 pregnant woman, and not intervene against the patient's wishes, regardless of the consequences."
  • "The obstetrician must keep in mind that medical knowledge has limitations and medical judgment is fallible" and should therefore take great care "to present a balanced evaluation of expected outcomes for both [the woman and the fetus]."
  • "Obstetricians should consider the social and cultural context in which these decisions are made and question whether their ethical judgments reinforce gender, class, or racial inequality."

In addition to revisiting questions of how practitioners should address refusal of treatment in the clinic and delivery room, the four cases outlined previously illustrate punitive and coercive policies aimed at pregnant women who engage in behaviors that may adversely affect fetal well-being. The 2004 opinion "At-Risk Drinking and Illicit Drug Use: Ethical Issues in Obstetric and Gynecologic Practice" (21) specifically addresses addiction and the prosecution of women who use drugs and alcohol during pregnancy and recommends strongly against punitive policies:

  • "Addiction is not primarily a moral weakness, as it has been viewed in the past, but a 'brain disease' that should be included in a review of systems just like any other biologic disease process."
  • "Recommended screening . . . connected with legally mandated testing or reporting . . . endanger[ s] the relationship of trust between physician and patient, place[s] the obstetrician in an adversarial relationship with the patient, and possibly conflict[s] with the therapeutic obligation."
  • Punitive policies "are unjust in that they indict the woman for failing to seek treatment that actually may not be available to her" and in that they "are not applied evenly across sex, race, and socioeconomic status."
  • Physicians must make a substantial effort to "treat the patient with a substance abuse problem with dignity and respect in order to form a therapeutic alliance."

Finally, recent legal decisions affirm that physicians have neither an obligation nor a right to perform prenatal testing for alcohol or drug use without a pregnant woman's consent (22, 23). This includes consent to testing of the woman that could lead to any form of reporting, both to legal authorities for purposes of criminal prosecution and to civil child welfare authorities.

Against Coercive and Punitive Legal Approaches to the Maternal–Fetal Relationship

This section addresses specifically the ethical issues associated with the cases outlined previously and delineates six reasons why restricting patients' liberty and punishing pregnant women for their actions during pregnancy that may affect their fetuses is neither wise nor justifiable. Each raises important objections to punishing pregnant women for actions during pregnancy; together they provide an overwhelming rationale for avoiding such approaches.

1. Coercive and punitive legal approaches to pregnant women who refuse medical advice fail to recognize that all competent adults are entitled to informed consent and bodily integrity.

A fundamental tenet of contemporary medical ethics is the requirement for informed consent, including the right of competent adults to refuse medical intervention. The Committee on Ethics affirms that informed consent for medical treatment is an ethical requirement and is an expression of respect for the patient as a person with a moral right to bodily integrity (19).

The crucial difference between pregnant and nonpregnant individuals, though, is that a fetus is involved whose health interests could arguably be served by overriding the pregnant woman's wishes. However, in the United States, even in the case of two completely separate individuals, constitutional law and common law have historically recognized the rights of all adults, pregnant or not, to informed consent and bodily integrity, regardless of the impact of that person's decision on others. For instance, in 1978, a man suffering from aplastic anemia sought a court order to force his cousin, who was the only compatible donor available, to submit to bone marrow harvest. The court declined, explaining in its opinion:

For our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits. . . . For a society that respects the rights of one individual, to sink its teeth into the jugular vein or neck of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissues causes revulsion to the judicial mind. Such would raise the specter of the swastika and the Inquisition, reminiscent of the horrors this portends. (24)

Justice requires that a pregnant woman, like any other individual, retain the basic right to refuse medical intervention, even if the intervention is in the best interest of her fetus. This principle was challenged unsuccessfully in June 1987 with the case of a 27-year-old woman who was at 25 weeks of gestation when she became critically ill with cancer. Against the wishes of the woman, her family, and her physicians, the hospital obtained a court order for a cesarean delivery, claiming independent rights of the fetus. Both mother and infant died shortly after the cesarean delivery was performed. Three years later, the District of Columbia Court of Appeals vacated the court-ordered cesarean delivery and held that the woman had the right to make health care decisions for herself and her fetus, arguing that the lower court had "erred in subordinating her right to bodily integrity in favor of the state's interest in potential life" (1).

2. Court-ordered interventions in cases of informed refusal, as well as punishment of pregnant women for their behavior that may put a fetus at risk, neglect the fact that medical knowledge and predictions of outcomes in obstetrics have limitations.

Beyond its importance as a means to protect the right of individuals to bodily integrity, the doctrine of informed consent recognizes the right of individuals to weigh risks and benefits for themselves. Women almost always are best situated to understand the importance of risks and benefits in the context of their own values, circumstances, and concerns. Furthermore, medical judgment in obstetrics itself has limitations in its ability to predict outcomes. In this document, the Committee on Ethics has argued that overriding a woman's autonomous choice, whatever its potential consequences, is neither ethically nor legally justified, given her fundamental rights to bodily integrity. Even those who challenge these fundamental rights in favor of protecting the fetus, however, must recognize and communicate that medical judgments in obstetrics are fallible (25). And fallibility—present to various degrees in all medical encounters—is sufficiently high in obstetric decision making to warrant wariness in imposing legal coercion. Levels of certainty underlying medical recommendations to pregnant women are unlikely to be adequate to justify legal coercion and the tremendous impact on the lives and civil liberties of pregnant women that such intervention would entail (26). Some have argued that court-ordered intervention might plausibly be justified only when certainty is especially robust and the stakes are especially high. However, in many cases of courtordered obstetric intervention, the latter criterion has been met but not the former. Furthermore, evidencebased medicine has revealed limitations in the ability to concretely describe the relationship of maternal behavior to perinatal outcome. Criminalizing women in the face of such scientific and clinical uncertainty is morally dubious. Not only do these approaches fail to take into account the standards of evidence-based medical practice, but they are also unjust, and their application is likely to be informed by bias and opinion rather than objective assessment of risk.

Consider, first, the limitations of medical judgment in predicting birth outcomes based on mode of childbirth. A study of court-ordered obstetric interventions suggested that in almost one third of cases in which court orders were sought, the medical judgment was incorrect in retrospect (27). One clear example of the challenges of predicting outcome is in the management of risk associated with shoulder dystocia in the setting of fetal macrosomia—which is, and should be, of great concern for all practitioners. When making recommendations to patients, however, practitioners have an ethical obligation to recognize and communicate that accurate diagnosis of macrosomia is imprecise (20). Furthermore, although macrosomia increases the risk of shoulder dystocia, it is certainly not absolutely predictive; in fact, most cases of shoulder dystocia occur unpredictably among infants of normal birthweight. Given this uncertainty, ACOG makes recommendations about when cesarean delivery may be considered, not about when it is absolutely indicated. Because of the inability to determine with certainty when a situation is harmful to the fetus or pregnant woman and the inability to guarantee that the pregnant woman will not be harmed by the medical intervention, great care should be exercised to present a balanced evaluation of expected outcomes for both parties (20). The decision about weighing risks and benefits in the setting of uncertainty should remain the pregnant woman's to make in the setting of supportive, informative medical care.

Medical judgment also has limitations in that the relationship of maternal behavior to pregnancy outcome is poorly understood and may be exaggerated in realms often mistaken to be of moral rather than medical concern, such as drug use. For instance, recent child development research has not found the effects of prenatal cocaine exposure that earlier uncontrolled studies reported (28). It is now understood that poverty and its concomitants—poor nutrition and inadequate health care—can account for many of the effects popularly attributed to cocaine. Before these data emerged, the criminal justice approach to drug addiction during pregnancy was fueled to a great degree by what is now understood to be the distorting image of the "crack baby." Such an image served as a "convenient symbol for an aggressive war on drug users [that] makes it easier to advocate a simplistic punitive response than to address the complex causes of drug use" (29). The findings questioning the impact of cocaine on perinatal outcome are among many considerations that bring sharply into question any possible justification for a criminal justice approach, rather than a public health approach, to drug use during pregnancy. Given the incomplete understanding of factors underlying perinatal outcomes in general and the contribution of individual behavioral and socioeconomic factors in particular, to identify homeless and addicted women as personally, morally, and legally culpable for perinatal outcomes is inaccurate, misleading, and unjust.

3. Coercive and punitive policies treat medical problems such as addiction and psychiatric illness as if they were moral failings.

Regardless of the strength of the link between an individual's behaviors and pregnancy outcome, punitive policies directed at women who use drugs are not justified, because these policies are, in effect, punishing women for having a medical problem. Although once considered a sign of moral weakness, addiction is now, according to evidence-based medicine, considered a disease—a compulsive disorder requiring medical attention (30). Pregnancy should not change how clinicians understand the medical nature of addictive behavior. In fact, studies overwhelmingly show that pregnant drug users are very concerned about the consequences of their drug use for their fetuses and are particularly eager to obtain treatment once they find out they are pregnant (31, 32). Despite evidence-based medical recommendations that support treatment approaches to drug use and addiction (21), appropriate treatment is particularly difficult to obtain for pregnant and parenting women and the incarcerated (29). Thus, a disease process exacerbated by social circumstance— not personal, legal, or moral culpability— is at the heart of substance abuse and pregnancy. Punitive policies unfairly make pregnant women scapegoats for medical problems whose cause is often beyond their control.

In most states, governmental responses to pregnant women who use drugs have upheld medical characterizations of addiction. Consistent with longstanding U.S. Supreme Court decisions recognizing that addiction is an illness and that criminalizing it violates the Constitution's Eighth Amendment prohibitions against cruel and unusual punishment, no state has adopted a law that specifically creates unique criminal penalties for pregnant women who use drugs (33). However, in South Carolina, using drugs or being addicted to drugs was effectively criminalized when the state supreme court interpreted the word "child" in the state's criminal child endangerment statute to include viable fetuses, making the child endangerment statute applicable to pregnant women whose actions risk harm to a viable fetus (23). In all states, women retain their Fourth Amendment freedom from unreasonable searches, so that pregnant women may not be subject to nonconsensual drug testing for the purpose of criminal prosecution.

Partly on the basis of the understanding of addiction as a compulsive disorder requiring medical attention, medical professionals, U.S. state laws, and the vast majority of courts do not support unique criminal penalties for pregnant women who use drugs.

4. Coercive and punitive policies are potentially counterproductive in that they are likely to discourage prenatal care and successful treatment, adversely affect infant mortality rates, and undermine the physician–patient relationship.

Even if the aforementioned ethical concerns could be addressed, punitive policies would not be justifiable on utilitarian grounds, because they would likely result in more harm than good for maternal and child health, broadly construed. Various studies have suggested that attempts to criminalize pregnant women's behavior discourage women from seeking prenatal care (34, 35). Furthermore, an increased infant mortality rate was observed in South Carolina in the years following the Whitner v State decision (36), in which the state supreme court concluded that anything a pregnant woman does that might endanger a viable fetus (including, but not limited to, drug use) could result in either charges of child abuse and a jail sentence of up to 10 years or homicide and a 20-year sentence if a stillbirth coincides with a positive drug test (23). As documented previously (21), threats and incarceration have been ineffective in reducing the incidence of alcohol and drug abuse among pregnant women, and removing children from the home of an addicted mother may subject them to worse risks in the foster care system. In fact, women who have custody of their children complete substance abuse treatment at a higher rate (37–39).

These data suggest that punishment of pregnant women might not result in women receiving the desired message about the dangers of prenatal substance abuse; such measures might instead send an unintended message about the dangers of prenatal care. Ultimately, fear surrounding prenatal care would likely undermine, rather than enhance, maternal and child health. Likewise, court-ordered interventions and other coercive measures may result in fear about whether one's wishes in the delivery room will be respected and ultimately could discourage pregnant patients from seeking care. Encouraging prenatal care and treatment in a supportive environment will advance maternal and child health most effectively.

5. Coercive and punitive policies directed toward pregnant women unjustly single out the most vulnerable women.

Evidence suggests that punitive and coercive policies not only are ethically problematic in and of themselves, but also unfairly burden the most vulnerable women. In cases of court-ordered cesarean deliveries, for instance, the vast majority of court orders have been obtained against poor women of color (27, 40).

Similarly, decisions about detection and management of substance abuse in pregnancy are fraught with bias, unfairly burdening the most vulnerable despite the fact that addiction occurs consistently across race and socioeconomic status (41). In the landmark case of Ferguson v City of Charleston, which involved selective screening and arrest of pregnant women who tested positive for drugs, 29 of 30 women arrested were African American. Studies suggest that affluent women are less likely to be tested for use of illicit drugs than poor women of color, perhaps because of stereotyped but demonstrably inaccurate assumptions about drug use. One study found that despite similar rates of substance abuse across racial and socioeconomic status, African–American women were 10 times more likely than white women to be reported to public health authorities for substance abuse during pregnancy (42). These data suggest that, as implemented, many punitive policies centered on maternal behaviors, including substance use, are deeply unjust in that they reinforce social and racial inequality.

6. Coercive and punitive policies create the potential for criminalization of many types of otherwise legal maternal behavior.

In addition to raising concerns about race and socioeconomic status, punitive and coercive policies may have even broader implications for justice for women. Because many maternal behaviors are associated with adverse pregnancy outcome, these policies could result in a society in which simply being a woman of reproductive potential could put an individual at risk for criminal prosecution. For instance, poorly controlled diabetes is associated with numerous congenital malformations and an excessive rate of fetal death. Periconceptional folic acid deficiency is associated with an increased risk of neural tube defects. Obesity has been associated in recent studies with adverse pregnancy outcomes, including preeclampsia, shoulder dystocia, and antepartum stillbirth (43, 44). Prenatal exposure to certain medications that may be essential to maintaining a pregnant woman's health status is associated with congenital abnormalities. If states were to consistently adopt policies of punishing women whose behavior (ranging from substance abuse to poor nutrition to informed decisions about prescription drugs) has the potential to lead to adverse perinatal outcomes, at what point would they draw the line? Punitive policies, therefore, threaten the privacy and autonomy not only of all pregnant women, but also of all women of reproductive potential.

Recommendations

In light of these six considerations, the Committee on Ethics strongly opposes the criminal prosecution of pregnant women whose activities may appear to cause harm to their fetuses. Efforts to use the legal system specifically to protect the fetus by constraining women's decision making or punishing them for their behavior erode a woman's basic rights to privacy and bodily integrity and are neither legally nor morally justified. The ACOG Committee on Ethics therefore makes the following recommendations:

  • In caring for pregnant women, practitioners should recognize that in the majority of cases, the interests of the pregnant woman and her fetus converge rather than diverge. Promoting pregnant women's health through advocacy of healthy behavior, referral for substance abuse treatment and mental health services when necessary, and maintenance of a good physician–patient relationship is always in the best interest of both the woman and her fetus.
  • Pregnant women's autonomous decisions should be respected. Concerns about the impact of maternal decisions on fetal well-being should be discussed in the context of medical evidence and understood within the context of each woman's broad social network, cultural beliefs, and values. In the absence of extraordinary circumstances, circumstances that, in fact, the Committee on Ethics cannot currently imagine, judicial authority should not be used to implement treatment regimens aimed at protecting the fetus, for such actions violate the pregnant woman's autonomy.
  • Pregnant women should not be punished for adverse perinatal outcomes. The relationship between maternal behavior and perinatal outcome is not fully understood, and punitive approaches threaten to dissuade pregnant women from seeking health care and ultimately undermine the health of pregnant women and their fetuses.
  • Policy makers, legislators, and physicians should work together to find constructive and evidence-based ways to address the needs of women with alcohol and other substance abuse problems. This should include the development of safe, available, and efficacious services for women and families.

References

  1. In re A.C., 573 A.2d 1235 (D.C. 1990).
  2. Annas GJ. Foreclosing the use of force: A.C. reversed. Hastings Cent Rep 1990;20(4):27–9.
  3. Annas GJ. Protecting the liberty of pregnant patients [editorial]. N Engl J Med 1987;316:1213–4.
  4. Rhoden NK. The judge in the delivery room: the emergence of court-ordered cesareans. Calif Law Rev 1986; 74:1951–2030.
  5. Bianchi DW, Crombleholme TM, D'Alton ME. Fetology: diagnosis and management of the fetal patient. New York (NY): McGraw-Hill; 2000.
  6. McCullough LB, Chervenak FA. Ethics in obstetrics and gynecology. New York (NY): Oxford University Press; 1994.
  7. Harris LH. Rethinking maternal-fetal conflict: gender and equality in perinatal ethics. Obstet Gynecol 2000;96: 786–91.
  8. Maternal and Child Health Bureau. Mission statement. Rockville (MD): MCHB; 2005. Available at: http://www.mchb.hrsa.gov/about/default.htm. Retrieved June 17, 2005.
  9. Lyerly AD, Gates EA, Cefalo RC, Sugarman J. Toward the ethical evaluation and use of maternal-fetal surgery. Obstet Gynecol 2001;98:689–97.
  10. State Children's Health Insurance Program; eligibility for prenatal care and other health services for unborn children. Final rule. Centers for Medicare & Medicaid Services (CMS), HHS. Fed Regist 2002;67:61955–74.
  11. Steinbock B. Health care coverage for not-yet-born children. Hastings Cent Rep 2003;33(1):49.
  12. Murray L, Cooper P. Effects of postnatal depression on infant development. Arch Dis Child 1997;77:99–101.
  13. Murray L, Fiori-Cowley A, Hooper R, Cooper P. The impact of postnatal depression and associated adversity on early mother-infant interactions and later infant outcome. Child Dev 1996;67:2512–26.
  14. Horon IL, Cheng D. Enhanced surveillance for pregnancy- associated mortality—Maryland, 1993–1998. JAMA 2001;285:1455–9.
  15. Frye V. Examining homicide's contribution to pregnancyassociated deaths [editorial]. JAMA 2001;285:1510–1.
  16. Phelan JP. The maternal abdominal wall: a fortress against fetal health care? South Calif Law Rev 1991;65:461–90.
  17. Little MO. Abortion, intimacy, and the duty to gestate. Ethical Theory Moral Pract 1999;2:295–312.
  18. Mattingly SS. The maternal-fetal dyad. Exploring the two-patient obstetric model. Hastings Cent Rep 1992;22: 13–8.
  19. Informed consent. In: American College of Obstetricians and Gynecologists. Ethics in obstetrics and gynecology. 2nd ed. Washington, DC: ACOG; 2004. p. 9–17.
  20. Patient choice in the maternal–fetal relationship. In: American College of Obstetricians and Gynecologists. Ethics in obstetrics and gynecology. 2nd ed. Washington, DC: ACOG; 2004. p. 34–6.
  21. At-risk drinking and illicit drug use: ethical issues in obstetric and gynecologic practice. ACOG Committee Opinion No. 294. American College of Obstetricians and Gynecologists. Obstet Gynecol 2004;103:1021–31.
  22. Ferguson v. City of Charleston, 532 U.S. 67 (2001).
  23. Whitner v. State, 328 S.C. 1, 492 S.E.2n 777 (1997).
  24. McFall v. Shimp, 10 Pa. D. & C.3d (C.P. 1978).
  25. Rhoden NK. Informed consent in obstetrics: some special problems. West N Engl Law Rev 1987;9:67–88.
  26. Nelson LJ, Milliken N. Compelled medical treatment of pregnant women. Life, liberty, and law in conflict. JAMA 1988;259:1060–6.
  27. Kolder VE, Gallagher J, Parsons MT. Court-ordered obstetrical interventions. N Engl J Med 1987;316:1192–6.
  28. Frank DA, Augustyn M, Knight WG, Pell T, Zuckerman B. Growth, development, and behavior in early childhood following prenatal cocaine exposure: a systematic review. JAMA 2001;285:1613–25.
  29. Chavkin W. Cocaine and pregnancy—time to look at the evidence [editorial]. JAMA 2001;285:1626–8.
  30. Marwick C. Physician leadership on National Drug Policy finds that addiction treatment works. JAMA 1998;279: 1149–50.
  31. Murphy S, Rosenbaum M. Pregnant women on drugs: combating stereotypes and stigma. New Brunswick (NJ): Rutgers University Press; 1999.
  32. Kearney MH, Murphy S, Rosenbaum M. Mothering on crack cocaine: a grounded theory analysis. Soc Sci Med 1994;38:351–61.
  33. Harris LH, Paltrow L. MSJAMA. The status of pregnant women and fetuses in US criminal law. JAMA 2003; 289:1697–9.
  34. Poland ML, Dombrowski MP, Ager JW, Sokol RJ. Punishing pregnant drug users: enhancing the flight from care. Drug Alcohol Depend 1993;31:199–203.
  35. United States. General Accounting Office. Drug exposed infants: a generation at risk: report to the chairman, Committee on Finance, U.S. Senate. Washington, DC: U.S. General Accounting Office; 1990.
  36. The Annie E. Casey Foundation. 2004 kids count data book: moving youth from risk to opportunity. Baltimore (MD): AECF; 2004. Available at: http://www.aecf.org/publications/data/kc2004_e.pdf. Retrieved June 17, 2005.
  37. Haller DL, Knisely JS, Elswick RK Jr, Dawson KS, Schnoll SH. Perinatal substance abusers: factors influencing treatment retention. J Subst Abuse Treat 1997;14: 513–9.
  38. Hohman MM, Shillington AM, Baxter HG. A comparison of pregnant women presenting for alcohol and other drug treatment by CPS status. Child Abuse Negl 2003;27: 303–17.
  39. Kissin WB, Svikis DS, Morgan GD, Haug NA. Characterizing pregnant drug-dependent women in treatment and their children. J Subst Abuse Treat 2001;21: 27–34.
  40. Nelson LJ, Marshall MF. Ethical and legal analyses of three coercive policies aimed at substance abuse by pregnant women. Charleston (SC): Medical University of South Carolina, Program in Bioethics; 1998.
  41. Mathias R. NIDA survey provides first national data on drug use during pregnancy. NIDA Notes 1995;10(1). Available at: http://www.nida.nih.gov/NIDA_Notes/NNVol10N1/NIDASurvey.html. Retrieved June 17, 2005.
  42. Chasnoff IJ, Landress HJ, Barrett ME. The prevalence of illicit-drug or alcohol use during pregnancy and discrepancies in mandatory reporting in Pinellas County, Florida. N Engl J Med 1990;321:1202–6.
  43. Cedergren MI. Maternal morbid obesity and the risk of adverse pregnancy outcome. Obstet Gynecol 2004;103: 219–24.
  44. Cnattingius S, Bergstrom R, Lipworth L, Kramer MS. Prepregnancy weight and the risk of adverse pregnancy outcomes. N Engl J Med 1998;338:147–52.

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Maternal decision making, ethics, and the law. ACOG Committee Opinion No. 321. American College of Obstetricians and Gynecologists. Obstet Gynecol 2005;106:1127–37.