Wednesday, April 22, 2009

Policing Pregnancy: Book Review

I recently finished reading an outstanding book about legal battles over pregnant women's rights to refuse treatment or to deviate from medical recommendations. It's called Policing Pregnancy: The Law and Ethics of Obstetric Conflict by Sheena Meredith (Ashgate Publishing, 2005). Meredith explores the legal and ethical implications of laws dealing with obstetric conflict--when pregnant women's wishes or behavior conflicts with medical recommendations. She focuses primarily on legal battles over pregnant women's autonomy in the U.S. and U.K. Although both countries theoretically uphold a person's legal right to consent to and refuse medical treatment, the two countries have seen cases of court-ordered obstetrical interventions, from cesarean section to blood transfusions to incarceration due to drug or alcohol use during pregnancy.

From the preface, Meredith explains the primary objectives of her book:
In the past two decades, a series of high-profile court cases in both the UK and the US have highlighted a novel problem for both medical law and society. In intervening in situations when pregnant women and those charged with their care do not agree on management options or appropriate behaviour, the law has been forced to try to reconcile the often competing demands made in the name of foetal "rights," maternal autonomy and medical authority. Society's interests, for instance in preserving life and safeguarding future citizens, may also be brought to bear.

This book examines the legal and ethical background to such cases and attempts to give an overview of the development of the law as it affects pregnant women; the current legal position, and potential future complications.

In addition to assessing those cases that have come before the courts, and the ensuing ramifications, it examines the legal principles underpinning such aspects as medical care in pregnancy and during childbirth, patient autonomy, foetal status and potential maternal liability, as well as the operation of these principles at the practical level of the doctor's office, clinic or obstetric ward. It discusses the varying ethical viewpoints about foetal rights and maternal duty, assesses the interaction between medicine and the law in this area, and examines those factors--medical, legal, ethical and social--that may in the coming years pose even further challenges within the already complex relationship between pregnant women and their health care providers....

[T]he book does not attempt to discuss the vast subject of abortion law per se, nor the enormous ethical questions it poses, except insofar as it relates, directly or indirectly, to issues arising when a pregnant woman and her medical advisers are in conflict over appropriate intervention or behaviour in pregnancy....
This book is a fascinating (and frightening) exploration of the various ways maternal autonomy has been undermined by law, social opinion, and medical practice. I was struck by the threat that right-to-life legislation in the US poses to maternal autonomy. Although unintended, laws attempting to grant fetuses personhood undermine pregnant women's ability to make crucial decisions about their health care and about their own bodily integrity.

Meredith has a both a medical degree and postgraduate education in law. Her approach is thorough and meticulous, but her writing always stays articulate and readable. I will be including several excerpts from her book in future posts. To end this post, I quote from a chapter section titled "Hijacking the Language of Debate," about her choice of the term "obstetric conflict" rather than "maternal-fetal conflict."
Without in-depth analysis of such issues, it is understandable that emotional entreaties to safeguard the welfare of 'unborn babies' against the actions of mothers presented as feckless and self-seeking find instinctive appeal, with both the courts and the public. The concept of 'foetal rights', which has both arisen from and perpetuated attempts to find legal solutions to problematic medical encounters, has contributed to a prevailing notion of pregnant women and foetuses as potential adversaries. In the wake of the Carder forced Caesarean case in the US (Re AC), it was recommended that all hospitals should have a 'maternal-fetal conflict' policy. Yet it has been argued that the very use of such language sets the woman up as a selfish, irresponsible being unwilling to do what is best for her baby.

This notion that there is an opposition between the interests of the woman and those of the foetus overlooks the fact that these interests are inextricably linked, and that the few women who do risk harming their foetuses are not usually seeking actively to cause such harm. It carries the implication not only that doctors possess superior knowledge but also that they have a greater claim to having the foetus's best interests at heart, and obscures the vital point that the conflict is actually between the mother and others who believe that they know best how to protect the foetus.

Yet women too may be acting according to their view of their baby's best interests in avoiding unnecessary interventions and the hazards and sequelae thereof - and, in some instances at least, they may be right. In practice, the mother's autonomy is not actually to be subordinated to her baby, but to the medical profession - the issue might be more accurately termed 'obstetric conflict'. It is interesting that in the UK, as Douglas points out, such issues of judicial compulsion surfaced just when women had begun to reassert some control over pregnancy and childbirth. Obstetric conflict may have reached the courts in the attempt to maintain medical paternalism in the face of patients increasingly questioning doctors' natural authority; such tactics also serve to discount women's experiences of their own bodies and previous birth experiences, instead elevating medical knowledge and technological interpretation to a superior position, to demonstrate the need for 'professional' intervention and control.

A further criticism of the notion of 'maternal-foetal conflict' is that such language obscures the fact that it is not only maternal actions which may harm the developing foetus — the father (vide infra), doctors (thalidomide) and the wider society (chemical contamination) may also be 'hostile' agents. In one study that demonstrated 'substantial exposure of neonates to xenobiotic agents' (foreign substances), 82.7 per cent had positive tests, of which only 11 per cent were accounted for by illicit drugs, compared with 30 per cent for local anaesthetics, 25 per cent for food additives and 10 per cent for medical analgesics. Moreover, state intervention that primarily attacks women's behaviour and choices is arguably hypocritical given widespread tolerance for the unacceptable and sometimes dangerous living conditions of many mothers and children. Court cases utilise disproportionate resources in terms of both time and cost; arguably attention would be more productively directed to measures that improve the status and well-being of all women and children.

It could also be argued that much of the language of everyday obstetrics is designed, consciously or otherwise, to reinforce medical control of the birthing process and to negate or deny women's collective experiences - for example, most women (or 'standard nullipara', etcetera) now are generally passively 'delivered' of their babies rather than actively giving birth to them, yet even then the medical profession judges the woman's 'obstetric performance,' as well as her 'reproductive success'.

Many of those women at greatest risk of forced interventions have been described (often scathingly) by medical staff as having had little or no pre-natal care - yet there is evidence, at least in the West, that input by obstetricians (as against midwives) into the antenatal care of women with normal pregnancies offers little or no clinical or social benefit. Moreover, the word 'care' in this context 'masks domination as well as self-deception among medical workers', according to anthropologists Irwin and Jordan. There has been little attention paid to medicine's role as an agent of social control and the arbiter of reproductive behaviour, according to Stephenson and Wagner. They suggest that the medical profession makes arbitrary decisions in individual cases and attempts to intervene in problems that are essentially social in nature. In cases of forced intervention, criminal sanctions for foetal abuse and attempts to limit the practice of midwifery, home birth, or the operation of alternative birth centres, 'medicine has been complicit or proactive in attempts to control the behavior or health care options of pregnant women.'


  1. Oh wow, someone wrote a whole book on it?!? I'm totally getting it! If I had been in graduate school, this is exactly what I would have wanted to write for a thesis.

  2. I just wanted to say I love your blog - you always have something thought-provoking to say!

  3. I just read a similar book called "The Political Geographies of Pregnancy" by Laura Woliver. As an incredibly independent person it frightens me to think that women are automatically forced to give up a portion of their self determination when they become pregnant. I will be checking out the book you just read. I'm still trying to decide if the maternal/fetal conflict is inherent or if it is a product of a more sinister, anti-woman undercurrent in modern society.

  4. Sounds like a good book. I will have to put that on my reading list. The list is getting longer and longer. The more I delve into my statistics course. Still on Ina May. Which is an easy relaxed read. Compared to Pearsons product momnet correlation coefficient.

  5. $120,-????? Is that a typo?
    256 pages...
    I'd love to read it, but even used it is over $60,-
    Will wait till the library has it.

  6. Thanks for posting this - I just checked and our library has it, so I'm going to go check it out. It fits in extremely neatly to what I'm going to be writing about next semester, which I think at this point is about notions of authority in child birth.

  7. The price is likely because it's published in the UK. But yeah, it's expensive. I interlibrary loaned it. So definitely do that, or put in a purchase request for the book at your local library.

  8. This is an extremely interesting topic. I've only heard of one case of a forced CS here in the UK, and The Court of Appeal later awarded her damages for false imprisonment and trespass to the person. Apparently this is due to a lot of clarifications in our law in recent time. (I've just checked the HB ref site and there are more, but this was a landmark case)

    A friend of mine spoke to me about how when we become pregnant we become vessels for the baby. Sure, but I'm still a human being, and I expect to be treated like one, not just a mobile incubator... I am a part of the process and I have promptings on what is right for me and my baby, not to mention it being ME bearing the child 24hours a day for 9mths. I know how we're doing.

    When I found out about how widespread the foetal protection laws were in the US and how they seemed to be used to control women, I was worried. I thought about how I felt about it, and whether it fitted in with my religious beliefs, and I wasn't sure... in theory protecting a foetus is something I agree with, but surely damaging a mother is damaging to the child in the long run, pro-choice vs pro-life in a way, but don't we all have a right to choice? The conclusion I came to was similar - that this is not a mother-baby issue, it's a OB control thing. If it was used reasonably and in necessary circumstances, it would work. But it doesn't seem to be imo.

    Thanks again Rixa for a great post.

  9. How very interesting. It can be a sticky situation at times, making sure the baby is being taken care of, but at the same time making sure both of the parents have rights also (and imo fathers should have just as much say in a pregnancy as the mothers do). I have to say, I have no problem with a mother who is an alcoholic or a drug addict being locked up at all. But things like that can lead to other things that someone *thinks* is dangerous (home birth for instance), but in reality perfectly safe. It's one of those catch 22s to me...making sure the babies are safe and the parents rights are intact.

  10. Ideally, there would be no "conflict" between mother and child. Mothers -- and fathers -- should want what is best for their children, and should not have to have anyone force them into that. However, we do not live in a perfect world, and just as we have laws that prevent and punish people from doing stupid and immoral things (like driving drunk, using hallucinogens, raping kids, etc.), we also have laws designed to protect children from selfish parents -- whether these parents are just neglectful (even criminally so, such as one case I heard of a few months back of parents who didn't even realize their infant son was dead because they were so addicted to a stupid computer game) or downright abusive. I can conceive of no greater abuse against a child than his intentional murder in the form of abortion, which is why I support the Personhood amendment. No, it's not perfect because there may be some women who will undergo unnecessary surgeries or harassment by well-meaning but overbearing and over-reaching authority figures (doctors, judges, police, etc.). But it's already happening even without the codified protection of the unborn. Frankly, I'm a little irritated that the feminists and liberals of the country are all up in arms about the potential for women to face unwanted and ultimately unnecessary surgeries should the Personhood Amendments pass, when they don't say diddly-squat about the unwanted and ultimately unnecessary surgeries women are currently facing by overbearing and over-reaching authority figures (the kindly OBGYN) who play the dead baby card and stand up en masse against legalizing CPMs, etc. It makes me suspect that they don't really care too much about whether women are cut open unnecessarily to safely give birth, as they are about keeping the precious "right" to kill the unborn safe.



  12. Of course, it's pretty much impossible to avoid abortion when talking about any state involvement in pregnancy (as commenters have shown). Certainly simplifies things if you are prochoice, I have found, in that freedom from state interference doesn't need any tests/judgements on a woman's fitness. I think the model I mostly embrace is actually one some midwives do (Ina May? Can't remember) that treat mom+baby as one unit, legally speaking, with mom as the decider, obviously, but basically recognizing that as builder of the baby and taker of the risks of pregnancy/birth, the mom has to be the one to make the relevant decisions. Such is her awesome responsibility. But then many people are still uneasy at letting women have that kind of power, even over their own bodies...sorry, just thinking aloud, not trying to derail. Books look fascinating.


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