The Australian Medical Association and the Colleges of Paediatricians and Obstetricians have commissioned an "Inquiry into Foetal Welfare" by the Faculty of Law at the Australian National University. The primary aim is to determine guidelines of legal responsibility in decisions concerning the foetus from conception to birth. PAT BREWER discusses the implications.
What rights do women have over their own bodies? Can a pregnant woman be held legally responsible for foetal damage through contact with infection, substances consumed, dangers in her living and working environment or even her continued sex life? Is her life during the pregnancy to be forcibly limited if her activities can be construed as potentially dangerous to the foetus? It has even been suggested that genetic propensity to certain diseases could become the subject of state intervention on behalf of the foetus.
The ANU inquiry will consider such questions. It will also examine potential legal action by the child at any time after birth, or how, if and when to intervene on behalf of the foetus prior to birth.
The inquiry has two basic terms of reference:
1. to investigate behaviour harmful to the foetus at time of delivery to determine who bears responsibility for the decisions taken at the birth — the mother, father, doctor or attending medical practitioner. This would include questions of disregarding medical advice, choice of type of birth, place of birth.
2. how to deal with behaviours harmful to the foetus at early stages of pregnancy. This seeks particularly to deal with questions of drug and alcohol abuse by the mother and what steps could be taken, and by whom, to "protect" foetal welfare.
The context for such an inquiry comes from the situation in the United States. There, foetal rights are more and more taking precedence over the rights of women, restricting their choices about their lives.
Increasingly the foetus is being treated as the person and the woman as merely its container.
Women have been legally ordered to enter hospital for several months prior to giving birth because of a doctor's opinion that the woman would not bring the child to birth otherwise. Similar legal orders issued on medical statements have led to imposed Caesarean sections.
In Washington, a woman with cancer was given a court-ordered Caesarean against her wishes and those of her husband, her parents and her doctors following an application by hospital authorities, despite evidence that the procedure might be life threatening. Both mother and unviable foetus died as a result.
In California a woman was warned by her doctor not to have sex and to stay off street drugs. When she failed to follow this advice and gave birth to a child who then died, she was charged with failing to deliver support to a child.
In San Diego a battered woman was charged with having sex against her doctor's orders. The officer in charge wanted her tried for manslaughter at least, if not murder, stating he didn't see "any difference between born and unborn."
Susan Faludi in her book Backlash outlines the evolution of legal and medical opinion during the '80s, in which the foetus became "the primary patient in the antenatal operating room, the full citizen in the lawbooks, and the lead plaintiff in the courtroom" — so much so that by 1990 a foetus had more legal rights in some areas than a live child.
For the first time in US history, legislators and state courts began to define the foetus as a legally independent "person" rather than an entity whose interests are inseparable from those of its mother. One court went so far as to deem the foetus a household resident who could collect on a home owner's insurance policy.
Nearly two years ago, the Sydney Morning Herald reported that there had already been 60 criminal cases in the US against pregnant addicts; the charges
included child abuse, assault and manslaughter. In 1990 a Florida woman became the first mother convicted of drug supply with the method of "supply" being the umbilical cord.
Moreover, women are being judged unfit mothers on the basis of incidents which took place during pregnancy and having their babies taken from them at birth. Faludi cites the following examples:
- the Michigan mother of three, with no history of drug abuse or parental neglect, who had her newborn removed by a juvenile court because she took a few Valium pills while pregnant, to ease pain caused by injury in a car accident. It took more than a year to get her child returned.
- the Iowa woman whose baby was removed by the state because she had, among other alleged offences, "paid no attention to the nutritional value of the food she ate during her pregnancy". No real harm to the infant was evident despite her consumption of junk food.
- the Illinois woman, summoned to court after her husband accused her of damaging their daughter's intestine during her pregnancy in a car accident where she wasn't even the driver.
- a Michigan woman whose husband took her to court, accusing her of taking tetracycline during her pregnancy, which he alleged had discoloured their son's teeth. The drug had been prescribed by her doctor, yet the court ruled that the husband did have the right to sue for "prenatal negligence".
- the Maryland woman whose baby was taken by state officials at birth because she refused to transfer to a hospital in another city. Such a move would have meant stranding her 19-month-old son.
In the United States these rulings have followed from attacks on women's right to choose to control their fertility. This is taking place on several fronts.
With regard to abortion and reproduction choices, today there are only five US states where all women
have the right to control their own reproduction. In each of the other 45 states there is some form of restriction placed on a woman's right to abortion. There has been a huge increase in such restrictions since the Supreme Court, in the Webster case in July 1989, gave politicians and state governments an increased right to interfere in women's reproductive choices.
The very concept of rights has been subject to major distortion. Women's rights have been superseded by foetal rights — the right to choose to control fertility is distorted into the abstract right to life for a group of cells with no possibility of life independent of the womb in which it may eventually be embedded. The foetus suddenly becomes a "baby" at the moment of conception, with full citizenship rights, which are counterposed to those of the woman.
The second front of attack comes from developments in reproductive technology. Legal limitations on experimentation on embryos have begun to define notions of when "human life" begins, thus backing, deliberately or not, arguments by foetal rights crusaders.
The third push for foetal protection comes from "protective" industrial legislation which bans women from jobs in which hazardous substances might impair their fertility. These substances may be just as dangerous to men's fertility but no bans are imposed on them. In the US, the Equal Employment Opportunity Commission has estimated that as many as 20 million jobs could be closed to women through foetal protection policies.
Faludi points out that, in reality, the jobs affected by these policies are those to which 1.4 million women have only just gained entry — the better paid, traditionally male, areas of work. She describes five women so driven by economic necessity that they chose to be sterilised in order to keep their jobs in the chemical industry — only to be made redundant by the company in the following few years. The Reagan government thwarted investigations into the threat that VDU work might pose to the health of the 11 million women who work in this traditionally area.
Does the US experience point the direction for foetal rights in Australia? While our the legal system is different from that of the US, foetal rights issues are being raised here in similar ways.
Until August 2, 1991, all Australian legal authorities established that a foetus has no legal personality and is not a legal entity with legal rights. A decision handed down by the Supreme Court of NSW on that date puts these propositions into question.
The decision in Lynch v Lynch found a mother guilty of negligent driving, causing a car accident which led to cerebral palsy in her unborn child. In awarding $2.85 million damages, Justice Groves was reported as having said that a foetus had legal personality.
Previous legal decisions had held that, once born, a child can sue for injuries caused by negligence before birth. But this did not suggest that the foetus had legal rights or legal entitlements.
The Lynch decision opens the way for a plethora of foetal rights issues.
It is in this context that the current Inquiry into Foetal Welfare takes place. Its very title assumes legal personhood for the foetus, and its terms of reference open the way for the Australian legal and medical professions to follow the path taken in the US.
It opens the possibility of pregnant women being criminally charged, as in the US, for contact with dangerous substances or endangering behaviour, in however these may be defined.
The principle may also be extended to diseases transmitted in pregnancy, and presumably inherited genetic defects, according to the foetal rights logic. So pregnant women with drug dependencies, or those with HIV become even more vulnerable than they already are under the law. In NSW there already exists a precedent of criminal charges for knowingly passing on the AIDS virus. It could easily be applied to the foetus.
It also potentially allows for birthing decisions to be removed from the pregnant woman. Home births, choice of midwife over doctor, women-centred birthing processes may now be at risk from anti-women foetal rights crusaders.
Until now, legal efforts by others to prevent abortion on behalf of the foetus have failed in Australia because of lack of legal definition of foetal rights or the start of human personhood in utero.
Yet women have had to fight continuously to keep access to abortion available here: from attacks on doctors and women seeking abortions, from attempts to remove abortion from the Medicare schedule, from individual persecution by medical and hospital staff.
The question of foetal protection on the job is still under dispute. Pregnancy or its potential has a long history as the excuse to deny women access to jobs. In the past just to be married excluded women from many jobs.
Feminists have fought against this "protection" with some success over the last 20 years, arguing that it should either be done away with or applied regardless of sex. At present a draft national standard on health and safety is under appeal in the Federal Court after more than six years of negotiation over the lead standard and the exclusion of women of child-bearing age from sectors of the lead industry. Attempts by Worksafe Australia to impose safe practices for workers regardless of sex brought threats from the lead industry to close down and move offshore.
Some consider even the potential for pregnancy as reason enough to ban women. Ken Parks, general manager of the biggest lead factory in the world, the BHAS lead plant in Port Pirie, argues that the percentage of unplanned pregnancies is too high to allow women to work exposed to lead, so the ban must extend to all fertile women.
Developments in reproductive technology could be misused by foetal rights advocates as well. Progress in mapping the human genetic structure bring
predictions that genetic potential for disease will be known in the not too distant future. The ability to estimate each individual's probabilities for illnesses like cancer, asthma and allergies could open up questions of maternal or parental responsibility in a whole new way, particularly if combined with the primacy of foetal rights.
Whose rights should be protected? The issues here are quite complex. The argument advanced by the foetal rights advocates is that they are defending the basic human rights of the unborn. This ignores the rights of women and the social context in which such rights operate. It assumes a human potential for the foetus which is not real in independent existence until after birth.
The whole foetal rights approach goes astray by focusing on the individual rather than the social situation.
This is particularly obvious on questions like working with hazardous materials. What about living in harmful conditions? What about people who have inadvertently lived on top of toxic waste dumps? What about air pollution and the emission of noxious gases? Is the individual who breathed to be held responsible for the effects?
More than a diversion, the focus on the individual is often a case of blaming the victim. In a sexist and discriminatory society, this will reinforce existing inequalities based on gender, race, class etc. The questions addressed in the foetal rights debate should be tackled at a social level by improving the living and working conditions of the existing generation.
It would not be possible, even if it were desirable, to make the world safe for future generations but deadly for the present one.
Reproduction is a societal responsibility which individuals may choose to exercise. The basis for real choice can only be guaranteed socially. That means access to information, medical alternatives, cheap quality services, support systems and much else. Women's choices about their fertility have to be situated in this context, not at the level of
individual penalties through social, legal or economic necessity. Unless they are seen as human social needs, distortion and confusion will continue to cloud these issues.
The foetal rights crusade is an attempt to drive back the gains that women have made over the last 20 years. It has to be seen in that light as it impacts on the individual woman, and then located in the broader context of social and ecological responsibilities.
The current Inquiry into Foetal Welfare is an opening for the next phase of attacks on women's rights. It will take the form primarily of library research, to be completed early in 1994, but submissions are welcomed by the researcher in charge. Views can be sent to Dr John Seymour, Inquiry into Foetal Welfare, Faculty of Law, ANU, ACT 0200.