Do Pregnant Women Have Rights?

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http://www.alternet.org/story.html?StoryID=18493

 

 

Do Pregnant Women Have Rights?

 

By Lynn M. Paltrow, AlterNet

April 22, 2004

 

Imagine a law declaring that upon becoming pregnant a woman loses her right to

bodily integrity, life and liberty. Such a law would undoubtedly result in

strong opposition across party lines. But in fact such laws are being passed –

though rather than presented as an attack on women's fundamental rights, they

are advanced as fetal rights measures such as the Unborn Victims of Violence Act

recently signed into law by President Bush. Increasingly, fetal rights are being

used to undermine the legal status of pregnant women.

 

 

 

In America, both constitutional and common law recognizes the rights of all

adults to informed consent and bodily integrity. While individuals may be

required to submit to immunizations to protect the public health in general, our

courts are not permitted to balance the health interests of one person against

those of another. In 1978 Robert McFall, suffering from a rare bone marrow

disease sought a court order to force his cousin David Shimp, the only

compatible donor, to submit to a transplant. The court declined explaining: " 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. " Forcibly restraining someone to make them submit to surgery for

the benefit of another would " raise the specter of the swastika and the

Inquisition, reminiscent of the horrors this portends. "

 

 

 

In the name of fetal rights however, pregnant women are being forcibly

restrained. In 1984, for example, a Nigerian woman pregnant and hospitalized in

Chicago was forced to have a C-section. She refused the surgery because she

planned to return to Nigeria where she would be unable to access C-sections for

future births. The hospital obtained a court order and forced her to undergo the

procedure. Hospital staff tied her down with leather wrist and ankle cuffs while

she screamed for help.

 

Another hospital obtained a court order to force a pregnant woman to undergo a

blood transfusion. Doctors " yelled at and forcibly restrained, overpowered and

sedated " the woman in order to carry out the order.

 

 

 

In Washington, DC, doctors sought a court order to force Ayesha Madyun to have a

C-section. The doctors asserted that the fetus faced a 50-75 percent chance of

infection if not delivered surgically. The court, apparently viewing the

pregnant woman as having no more rights than a slab of meat, said, " [a]ll that

stood between the Madyun fetus and its independent existence, separate from its

mother, was put simply, a doctor's scalpel. " With that, the court granted the

order and the scalpel sliced through Ms. Madyun's flesh, the muscles of her

abdominal wall, and her uterus. When the procedure was done, there was no

evidence of infection.

 

 

 

All of these women were denied the right to bodily integrity and physical

liberty and their fetuses were granted more rights than any legal person under

law.

 

 

 

Angela Carder at 27 years old and 25 weeks pregnant became critically ill. She,

her family and her attending physicians all agreed on treatment designed to keep

her alive for as long as possible. The hospital however called an emergency

hearing to determine the rights of the fetus. Despite testimony that a Cesarean

section could kill Ms. Carder, the court ordered the surgery because the fetus

had independent legal rights. As a result, Ms. Carder not only lost her right to

informed consent and bodily integrity; she lost her life. The surgery resulted

in the death of both Angela and her fetus.

 

 

 

While courts since the Carder case have uniformly held that such interventions

are inappropriate and leading medical groups oppose such actions, legislators

are forging ahead with a wide range of fetal rights legislation. Thirty-one

states now have fetal homicide laws. Recently, Utah relying on such a law

charged a woman for murder because she delayed having a C-section causing, they

alleged, the stillbirth of one of her twins. This pregnant woman was not only

deprived of the constitutional rights all other medical patients have – the

right to consider a medical recommendation and the right to refuse surgery – she

is deemed a criminal for exercising those rights.

 

 

 

In another case, lawyers asserted that without the Caesarean " almost assuredly

the baby will be born dead or brain damaged " and that " if not for the mother's

primitive [religious] beliefs, " the fetus would have been delivered rather than

" kept prisoner in a mother's womb. " The court refused to grant the order, and

the mother gave birth to a healthy baby. Fetal rights, however, provided the

legal argument to override her religious beliefs and to treat her as a jail cell

– a building, not a person.

 

 

 

The court in the McFall case condemned Mr. Shimp's refusal to help his cousin as

" morally indefensible. " While people may be justified in moral condemnation of

some pregnant women, they are not justified in denying them civil rights that

other adults enjoy. The overwhelming majority of pregnant women do all they can

to protect the health of their fetuses. In many of the reported cases, the

doctors' dire predictions turned out to be wrong. Performing unnecessary surgery

and deterring women from trusting their doctors does nothing to promote fetal

well being.

 

 

 

To oppose the recognition of fetal personhood as a matter of law is not to deny

the value of potential life as matter of religious belief, emotional conviction

or personal experience. Rather, it is to recognize that such a legal construct

effectively removes pregnant women from the protections of the constitution and

civil law.

 

 

 

Lynn Paltrow is Executive Director of National Advocates for Pregnant Women.

 

 

 

 

 

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