While the state may have the right to enact such laws, whether doctors should comply, in situations where they are afforded discretion, is another matter entirely. Physicians must weigh the benefit that reporting individual drug abusers would achieve against the systematic damage that such disclosure would wreak upon overall physician-patient trust. Some doctors might decide that disclosure is never worth the cost—that reporting addicted mothers is simply one of those requests which with doctors should never comply. Others might fear for the welfare of the particular infant in front of them and decide to protect that child at all costs, no matter what the long-term consequences for confidence in the medical profession.
30
“We’re Waiting for a Sign from God”
The Purifiers are a small religious sect. They number roughly sixty and follow their spiritual leader, a former insurance salesman turned self-styled prophet, in all matters. Among the beliefs of their leader, whom they call “His Holy Eminence,” is the doctrine that newborn children should not be fed without a sign from God: Most infants are blessed with such a sign—which can range from a rainbow to a lightning storm—but some are not. Those who are not must not be fed.
In the recent past, three Purifier mothers have starved their infants to death; these women are currently awaiting trial. In all of these cases, the mothers went into hiding with their newborns shortly after giving birth to prevent the state from assuming custody. The state is concerned for the future babies of two Purifier women who are currently pregnant. One is six months pregnant; the other, seven months pregnant.
Should the authorities detain these women against their will in a prison hospital until they give birth in order to protect their future babies?
Reflection: Preemptive Detention
Americans are generally uncomfortable with the idea of detaining people preemptively for offenses they have not yet committed. Such preemptive or civil detentions are permitted only in rare circumstances and for compelling reasons. For instance, courts have upheld the decision not to grant bail to criminal defendants deemed likely to offend again—even if they pose no flight risk and have not yet been convicted of crimes. Some states continue to hold convicted sex offenders under civil commitment statutes after they have served their criminal sentences, on the grounds that they pose an ongoing danger to the public. In general, however, arresting suspects before they have committed offenses is anathema to US jurisprudence. Similarly, most ethicists and legal experts reject the idea of detaining a pregnant woman involuntarily to impose better prenatal care.
At least one US state has attempted to confine pregnant women who it believes pose a danger to their future babies. In a well-publicized Massachusetts case in 2000, prosecutors sought to detain Rebecca Corneau, a member of a religious sect known as “The Body” (and derisively, in the media, as “the Attleboro Cult”). Corneau had been implicated in the starvation of a previous newborn, purportedly at the behest of sect leader Roland Robidoux, and the district attorney’s office said it feared for the welfare of her fetus. A district court judge, Kenneth P. Nasif, ordered Corneau confined at a medical facility for the duration of her pregnancy. This decision prompted an outcry from women’s rights advocates. Lynn Paltrow, the founder of the National Advocates for Pregnant Women, told Salon, “We don’t arrest somebody because in the future they might commit some crime. We do not arrest or imprison people because a local prosecutor has a suspicion—without a trial and without enough evidence to even bring criminal charges. That’s not supposed to happen in our society.” Yet an appeal failed on technical grounds, and Corneau eventually gave birth in detention. The state immediately assumed custody of her newborn.
Clearly, the government should strive to impose the least restrictive means possible to protect Purifier children from neglect or injury. A case could be made for using tracking devices, like ankle monitors, to keep tabs on the whereabouts of these women prior to delivery. In light of the circumstantial evidence, the state might also consider monitoring these women carefully, after they give birth, to ensure their parenting is appropriate. Few ethicists would argue for outright detention as a first step, even if this approach proved easier and less costly than other measures. The sacrifice of liberty strikes many as too extreme. At the same time, at least one prominent judge, ruling in the most high-profile case to date on the subject, has determined that extreme circumstances do merit forcible confinement—so the future of such preventive detentions remains an open question.
31
“That Woman Stole My Sperm”
Joan is a nursing assistant in a fertility clinic. One afternoon, a man named Mr. Schroeder visits the clinic to provide sperm that will be used to inseminate eggs harvested from his wife for in vitro fertilization. Joan, who has a history of mental illness, sneaks into the storage locker later that evening and inseminates herself with a sample of Mr. Schroeder’s sperm. Several months afterward, when she is certain that she is pregnant, she writes a letter to Mr. Schroeder, explaining how she became pregnant with his child and asking him to leave his wife for her.
Mr. Schroeder is deeply upset by this situation and hires an attorney. Rather than suing for damages—which are not particularly important to him—he sues to compel Joan to obtain an abortion. “This is a unique case,” his lawyer informs the judge. “This is not a situation in which a man had sex and later regretted it. My client and this woman are total strangers. It is not reasonable for my client to be forced to become a biological parent under these circumstances.” Abortion is legal at this point in Joan’s pregnancy, but Joan, who is now under arrest, insists that abortion is immoral.
Do the unusual circumstances of this case justify ordering Joan to undergo an abortion?
Reflection: Forced Abortion
Prospective fathers are generally permitted no decision-making authority in the United States with regard to the termination of pregnancies. As a result of the Supreme Court’s decision in Planned Parenthood v. Casey (1992), both “spousal notification” and “spousal consent” requirements have been declared “undue burdens” on women’s reproductive rights that violate the Constitution. This decision aligned US law with that of much of the developed world. (Some nations, including Japan and Turkey, still do require spousal authorization in most circumstances.) As Brooklyn Law School professor Marsha Garrison told the New York Times in 2005, “that embryo is in the woman’s body, it’s within her and can’t be separated from her, so it’s not just her decision-making about whether to bear a child, it’s about her body.” However, the fatherhood rights movement continues to advocate for a paternal role in abortion decisions, noting that men are often saddled with costs and responsibilities related to parenthood. In a controversial 1998 journal article, “The Male Abortion,” attorney Melanie G. McCulley contends that men deserve the equivalent of abortion—namely, the right not to parent. She argues for a father’s prerogative to sever all legal ties, including financial responsibilities, to a fetus prior to birth. An alternative variant of “male abortion” would allow for enforcement of preintercourse contracts that absolve men of financial obligations if they make their preference for abortion clear prior to the conception of any unwanted embryo. Critics note that such an approach might grant increased autonomy to men but would leave many children without adequate means of support.
In circumstances where men and women have had sex or sexual contact, courts have nearly uniformly refused to force abortions or to absolve men of parenting duties. In Salon, journalist Cathy Young catalogued several of these cases, which include: male victims of statutory rape, including a twelve-year-old boy molested by his babysitter; a man raped while intoxicated; and a man whose sperm was retrieved from a condom after oral sex and used for insemination with a syringe. In the words of Marsha Garrison, courts have taken the position that “if you engage in sexual intercourse, you assume the risk that a child will be born.” The scenario involving Joan and the stolen sperm raises the question of whether the same set of
rules should apply in cases where no sexual or social contact has occurred.
On rare occasions, courts do order abortions. For instance, cognitively impaired women may have abortions, even if they cannot meaningfully consent, if a judge determines that the termination is in their best interests. In 2014, a British family court did just that with a thirteen-year-old-girl who had an IQ of 54. In Massachusetts, probate judge Christina L. Harms ordered an abortion for thirty-two-year-old Mary Moe, a woman with schizophrenia, at the behest of her parents. (The decision was later overturned on appeal.) Surrogate motherhood contracts also often contain “abortion clauses,” requiring termination in cases of birth defects or on the say-so of the hiring couple. During the 2012 presidential campaign, candidate Mitt Romney’s son, Tagg, gained notoriety for including such a clause in his own surrogacy contract, despite his vocal antiabortion views—a decision Tagg’s lawyer later claimed was an error. However, it appears unlikely that these agreements are enforceable. A couple may be able to use such a clause to avoid payment but not to have a fetus terminated over the gestational carrier’s objections.
If one views all abortions as immoral, of course, Mr. Schroeder does not have a compelling case to demand an abortion. However, if one views only forced abortions as wrong, Joan’s case may be the rare exception to this general principle. One can compare the situation to another in which Joan stole Mr. Schroeder prized possession—maybe a priceless gemstone—and had the pilfered item surgically implanted beneath her skin. Would you allow forced surgery to retrieve this stolen item? If so, and you have no ethical objection to abortion per se, a strong argument can be made for forcing Joan to “turn over” the fetus she stole from Mr. Schroeder—Joan’s own purported ethical objections to the procedure notwithstanding.
32
“I Won’t Have a C-Section”
Amber, a single twenty-two-year-old woman, is a professional bikini model. She decides to have a baby on her own—and has a series of flings with various ex-boyfriends in order to conceive a child. She does not know which of these men is the father of the fetus and does not want to know; in fact, she does not tell any of them that she is pregnant.
Amber is clear with her obstetrician that she will absolutely not have a Cesarean section. When the obstetrician explains that some C-sections are medically necessary, she scoffs and says, “You cut me, and I’ll sue your pants off.” As a result, she is “fired” by a series of ob-gyns until she learns not to mention C-sections at the first meeting. She decides to wait to tell her new ob-gyn, Dr. Chandler, until she is ready to deliver.
Unfortunately, nine months into the pregnancy, and only days from Amber’s due date, the fetus develops severe complications. Without an immediate C-section, the fetus will likely die. Amber refuses to consent. “No baby is worth a scar,” she tells Dr. Chandler. There is not enough time to bring the matter to a court for adjudication.
Should Dr. Chandler perform the C-section without Amber’s consent?
Reflection: Involuntary Cesareans
Cases of women refusing medically indicated Cesarean sections are relatively rare. Most cognitively intact mothers want their babies to survive—and are usually willing to make sacrifices, such as undergoing surgery, to do so. Yet C-sections are not benign procedures: even in otherwise healthy women, the mortality rate (13.3 maternal deaths per 100,000 births) for such surgical deliveries is more than three times that for vaginal deliveries. In addition to cosmetic concerns, such as Amber’s, a prospective mother might have legitimate medical worries about what amounts to a major potentially life-threatening operation.
Although forced C-section cases raise issues similar to those that arise when discussing elective abortion, many commentators have noted several distinctions between the two. While the burden of carrying a fetus to term may be significant, it is arguably not nearly as weighty as undergoing major surgery against one’s wishes. In cases like Roe v. Wade, the mother’s intent is generally to terminate fetal life. In contrast, many involuntary C-section disputes involve mothers who very much want their babies to survive—they just disagree with medical opinions or have a more elevated threshold for risk. In fact, in several high-profile cases during which doctors fought in court for C-sections and lost, the mothers eventually delivered healthy babies. In Amber’s case, one might ask whether “the fetus will likely die” means a 60 percent chance or a 99 percent chance of demise. Assuming one believes society has some stake in fetal life beyond a certain point of development, one must decide at what point the risk to the full-term fetus becomes elevated enough that the decision-making power should be transferred from the mother to the state. One might also ask whether Amber’s motivation matters. If she objected on medical or religious grounds, rather than cosmetic ones, would that change the case?
Many bioethicists are uncomfortable with the idea of forcing a competent patient to undergo surgery, no matter how compelling the reason. Howard Minkoff, OB-GYN chair at Maimonides Medical Center in Brooklyn, gave voice to these concerns regarding the case of Rinat Dray, who claimed that doctors at Staten Island University Hospital forced her into a C-section. Minkoff told the New York Times, “In my worldview, the right to refuse is uncircumscribed. I don’t have a right to put a knife in your belly ever.” Major professional organizations, including the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists, generally discourage forced surgery, except under extraordinary conditions. No legal consensus yet exists regarding how to handle these challenging cases, and courts in different states have reached highly divergent opinions. For example, judges in Georgia and Florida have upheld forced C-sections, while Illinois’s courts have proven unwilling to do so.
33
“Whose Fetus Is This?”
Perry and Patricia are a happily married couple. The one misfortune they have experienced is that Patricia suffers from a rare blood-clotting disorder that would make it dangerous for her to give birth. Since they desperately want to have children, the couple hires a surrogate mother, Thelma, who agrees to gestate the embryo they create via in vitro fertilization in return for a small cash payment and coverage of her healthcare costs. This arrangement is perfectly legal in their state.
Shortly before the baby is born, Perry and Patricia are murdered by the Zodiac Strangler. They have not made arrangements regarding who is to care for the child after their death. The reality is that Patricia’s family lives overseas and is not interested in raising this child. However, Perry’s mother, Beatrice, is very much interested in adopting the child. When a healthy baby boy is born, Beatrice demands that Thelma surrender the child to her. Thelma refuses. “I didn’t have any agreement with you,” she says. “I gave birth to him, and since Perry and Patricia are dead, he’s mine.” The two parties refuse to agree to a joint custody arrangement.
Assuming both Beatrice and Thelma would be excellent parents, who has a better claim to the child?
Reflection: Surrogacy after a Homicide
Traditional surrogate motherhood involves artificially inseminating the surrogate with the prospective father’s sperm. Gestational surrogacy, which has become far more common in the United States, entails implanting a previously conceived embryo in the surrogate’s womb. This embryo may be the biological product of the intended parents, or the parents may use a donor for sperm, egg or both. In traditional surrogacy, the surrogate is both the genetic and biological mother of the child. In gestational surrogacy, which is the method that Perry and Patricia have chosen in the scenario, Thelma is not the genetic mother. Which form of surrogacy a couple uses may have significant legal consequences and ethical implications.
The first traditional-surrogacy contract in the United States was written by attorney Noel Keane in 1976, while the first gestational surrogacy occurred in 1985. Around the same time, the issue gained national prominence when a legal controversy erupted around a newborn known to the public as Baby M. This case originated from a traditional surrogacy contract betwee
n a New Jersey woman, Mary Beth Whitehead, and prospective parents Bill and Betsy Stern. Shortly after giving birth to a baby girl—whom Whitehead named Sara and the Sterns called Melissa—Whitehead asserted her intention to keep the child. A two-year legal battle led the New Jersey Supreme Court to overturn the surrogacy contract on public policy grounds. (The Sterns were awarded custody anyway, under the “best interest of the child” standard.)
Over the following decades, states have diverged greatly in their approaches to surrogate motherhood. California and New Hampshire, known as surrogacy-friendly states, permit commercial contracts, while New York allows only altruistic (uncompensated) surrogacy. Michigan—among the least surrogacy-friendly states—not only refuses to enforce such contracts, but provides significant criminal penalties for entering into one. Many foreign countries also forbid surrogacy contracts, leading to a rise in so called “fertility tourism” to nations with surrogacy-friendly laws. India and Thailand were leading destinations for Western couples until those nations banned commercial surrogacy to foreigners in 2015.
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