Fetal Rights

Because of improvements in fetal monitoring and surgical techniques, physicians increasingly recommend that women give birth by cesarean section, a surgical technique that involves removing the fetus through an incision in the woman's abdomen. In many cases, cesarean section improves the chance that the fetus will be delivered safely. By 1990, cesarean sections accounted for almost 23 percent of U.S. childbirths.

Some women choose not to undergo a physician-recommended cesarean section. They may do so for a variety of reasons, including a concern about their own risk of harm, including death, from the surgery; a desire to avoid repeated cesarean sections; or sincere religious, cultural, or moral beliefs. This situation has led to a number of legal questions, such as should a woman be forced to undergo a cesarean section or other surgery in the interest of the health of the fetus? To what extent is a woman obligated to follow the advice of her physician regarding the medical care of her fetus?

The 1980s saw an increasing number of cases in which hospitals and physicians sought court orders to force women to give birth by cesarean section. From 1981 to 1986, fifteen such cases were reported, and in thirteen of them, courts decided to require cesarean section. In a 1981 case, Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457, the Georgia Supreme Court held that an expectant mother in her last weeks of pregnancy did not have the right to refuse surgery or other medical treatment if the life of the unborn child was at stake. As has happened in a number of other instances, the pregnant woman named in the case avoided the procedure and later delivered a healthy child by natural birth.

Later court decisions, however, increasingly recognized a pregnant woman's right to refuse medical treatment. In a 1990 case, In re A. C., 573 A.2d 1235, the District of Columbia Court of Appeals ruled that a physician must honor the wishes of a competent woman regarding a cesarean section. The court's opinion was written after the woman involved in the case, Angela Carder, and her fetus died following a cesarean section forced by a lower court.

A 1994 Illinois case, Doe v. Doe, 260 Ill. App. 3d 392, 198 Ill. Dec. 267, 632 N.E.2d 326, involved a woman (called Doe to protect her anonymity) who was thirty-five weeks pregnant. Her doctor conducted tests that indicated her fetus was not receiving adequate oxygen. He therefore recommended that the fetus be delivered by cesarean section. Doe objected to the surgical procedure on the basis of her religious beliefs. The doctor and his hospital then contacted the Cook County state's attorney, who petitioned for a court order requiring the woman to undergo the cesarean procedure.

The case eventually reached the Illinois Appellate Court, which upheld Doe's right to refuse the cesarean section. The court held that a physician must recognize a woman's right to refuse a cesarean section. It found no statute or Illinois case to support the state's request to force a cesarean on a competent person. It also dismissed the state's argument that Roe's protections of a viable fetus authorized a forced cesarean.

The court also noted the position of the AMERICAN MEDICAL ASSOCIATION (AMA) on the issue. The AMA has reminded physicians that their duty is to ensure that a pregnant woman is provided with the necessary and appropriate information to enable her to make an informed decision about her fetus and that that duty does not extend to attempting to influence her decision or attempting to force a recommended procedure upon her. The court assessed the action of the physicians in the Doecase to be in direct opposition to the AMA's clear edict.

Shortly after the court's decision, Doe gave birth to a healthy baby boy. The Supreme Court later declined to review the case. New types of fetal surgery now made possible by medical science promise to raise questions very similar to those found with forced cesarean sections.