Editor's Note: The issue is two-fold -- first, the dependability of obstetrical predictions of extreme medical complications, which are often wrong and second, the lack of accountability for physicians when inaccurate predictions trigger risky interventions that result in harm to mother and/or baby  -- unnecessary CS, disability or death. So far, the political system and public debate has been one-sided. It is restricted to forcing women to submit to non-consensual treatments and criminal prosecution of the mother when she refuses while ignoring bad outcomes that result from obstetrical excesses.  

Cases Revive Childbirth Rights Debate

By DAVID B. CARUSO
The Associated Press

PHILADELPHIA (AP) - Amber Marlowe was a seasoned pro at delivering big babies - her first six each weighed close to 12 pounds. So when she went into labor with her seventh last winter, she brushed off doctors who told her the 11-pound, 9-ounce girl could be delivered only by Caesarean section.

But the medical staff at Wilkes-Barre General Hospital wouldn't budge, not even with her track record. ``All my others, I've done naturally,'' Marlowe recalled telling her physicians. ``I know I can do it.''

So Marlowe checked herself out and went looking for a new doctor.

While she was on her search, Wilkes-Barre General's lawyers rushed to court to get legal guardianship of her unborn child, giving the hospital the ability to force Marlowe into surgery if she returned.

The case is one of several in recent months that have revived a debate about whether mothers have an absolute right to chose when, where and how they give birth - even if the health of their baby is at stake.

Marlowe ended up at another hospital, where she had a quick, natural birth she described as ``a piece of cake.'' She didn't know about the first hospital's action until her husband was told by a reporter.

``They don't know me from anything, and they're making decisions about my body?'' she said. ``It was terrifying.''

Officials with Wilkes-Barre General did not return calls seeking comment.

In Salt Lake City, an acknowledged cocaine addict with a history of mental health problems resisted having the operation for about two weeks before acquiescing. One of twins she was carrying died during the delay. The mother was charged with capital murder but ultimately pleaded guilty to a lesser charge of child endangerment and was sentenced to probation.

Last month, prosecutors in Pittsburgh charged an unlicensed midwife with involuntary manslaughter for failing to take a woman to the hospital when her baby began to be delivered feet-first. The child died two days later. The midwife said she had been trying to honor the mother's wishes to have the baby at home.

And in Rochester, N.Y., a judge in late March ordered a homeless woman who had lost custody of several neglected children not to get pregnant again without court approval.

Some women's advocates said the cases illustrate a newfound willingness by legal officials to interfere with women's choices about their pregnancies.

``My impression is that we have a political culture right now that falsely pits fetal rights against women's rights, and that you are seeing a kind of snowballing effect,'' said Lynn Paltrow, of the New York-based group National Advocates for Pregnant Women. ``We're at the point now where we're talking about arresting pregnant women for making choices about their own bodies, and that's not right.''

Legal experts and medical ethicists said attempts to prosecute women for pregnancy choices, or force them to undergo certain procedures for the benefit of their children, may be on shaky ground.

``There are 50 years of case law and bioethical writings that say that competent people can refuse care, and that includes pregnant women as well,'' said Art Caplan, chairman of medical ethics at the University of Pennsylvania.

In one influential case, a federal appeals court in Washington, D.C., ruled in 1990 that a judge was wrong to have granted a hospital permission to force a pregnant cancer patient to undergo a Caesarean in an attempt to save the life of her child. The mother and baby died within two days of the operation.

Doctors' opinions on forced care for pregnant mothers have changed, too.

A 2002 survey by researchers at the University of Chicago found only 4 percent of directors of maternal-fetal medicine fellowship programs believed pregnant women should be required to undergo potentially lifesaving treatment for the sake of their fetuses, down from 47 percent in 1987.

Dr. Michael Grodin, director of Medical Ethics at the Boston University School of Medicine, said doctors should seek court intervention when a mother refuses care only if the patient is mentally ill.

``Women have a right to refuse treatment. Women have a right to control their bodies. It is a dangerous slope. What's next? If someone doesn't seek prenatal care, what are we going to do, lock them up?''

The real debate is not whether "mothers have an absolute right to chose when, where and how they give birth - even if the health of their baby is at stake". Dire warning by obstetrical care providers are opinions. Predictions of doom are highly colored by the conventions of the medical model. Obstetricians assume that "defying" medical advise equates to a wonton disregard for the unborn baby. They never acknowledge the possibility that their advise is unsound or that the mother may a valid reason for declining extremely invasive procedures such as labor induction or cesarean delivery.

Unfortunately, the track record of obstetrical predictions is not great.  In this news paper account, the mother delivered an an 11 1/2 baby in a normal, uncomplicated vaginal birth she described as "a piece of cake". In one infamous and precedent-setting case of forced Cesarean, both mother and baby died within 48 hours of the non-consensual surgery. The obstetricians where not charged with a double homicide. 

Attorney George Annas, J.D., M. P H, Professor, Department of Health Law, Boston University School of Medicine and Public Health speaks to this issue in a popular obstetrical textbook "Obstetrics: Normal and Problem Pregnancies; Steven Gabbe et al (1991 &1994). In chapter 42, entitled "Legal and Ethical Issues in Perinatology" he address the issue of forced Cesarean sections (page 1336). In regard to the accuracy of obstetrical predictions he states: 

p. 1336: Forcing pregnant women to follow medical advice also places unwarranted faith in that advice. Physicians often disagree about the appropriateness of obstetrical interventions and they can be mistaken. In 3 of the first 5 cases in which court-ordered cesarean sections were sought, the women ultimately delivered vaginally and uneventfully.[2]  In the face of such uncertainty -- uncertainly compounded by decades of changing and conflicting expert opinion on the management of pregnancy and childbirth -- the moral and legal primacy of the competent, informed pregnancy woman in decision making is overwhelming. [17]

p. 1337: Extending notions of child abuse to "fetal abuse" simply brings governments into pregnancy with few, if any, benefits and with great potential for invasions of privacy and massive deprivations of liberty. It is not helpful to use the law to convert a woman' and society's moral responsibility to her fetus into the woman's legal responsibility  alone. [2] After birth, the fetus becomes a child and can and should thereafter be treated in its own right. Before birth however, we can obtain access to the fetus only through its mother and so only by treating her as a fetal container, a non-person without right to bodily integrity.