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
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.
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.
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
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"
- "At-Risk Drinking and Illicit Drug Use: Ethical
Issues in Obstetric and Gynecologic Practice"
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
- "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
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
- "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
- "[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
- "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
- "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
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
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
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.
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,
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
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
5. Coercive and punitive policies directed toward
pregnant women unjustly single out the most vulnerable
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.
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
- 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
- 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.
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