Medical and Legal Treatment of the Fetus: a Growing Disjunction?
by Mary Joseph
The scientific, ethical and philosophical implications of new developments in medical knowledge and practice have posed challenges to the law in recent years and generated great interest and commentary. One vital area in which the relationship and problems arising between law and medicine demand further analysis is pre-natal care and treatment of the fetus. Advances in this area over the past twenty years have been recognised in medical and legal circles as bearing immense significance for the practice and ethics of medicine concerning the pregnant woman and her fetus:
"[Such advances] have led doctors to perceive the fetus as an individual patient with needs distinct from those of its mother. The implications of these developments for both the legal and medical professions are profound...".[1]
They have been welcomed as ushering in an exciting new era in pre-natal care — caring for a child even before birth, and using early intervention to heal fetal health problems as they emerge in utero:
"Dramatic scientific breakthroughs in medical technology have revolutionised the physician's diagnostic prowess in the art of obstetrics. Scientific procedures now reveal previously undetectable secrets about the womb's tiny inhabitants... perinatologists have not only demonstrated the ability to discern fetal abnormalities of an extraordinary variety, but also have become increasingly successful in correcting many of these defects in utero".[2]
This medical "revolution" in fetal treatment, however, has not been paralleled in the law. Indeed, the law in Australia has not developed in any significant way on this critical issue and the result is a disjunction between medical and legal treatment of the fetus, which threatens to grow wider as the latest discoveries and insights into the development and welfare of the fetus increasingly confirm her[3] as the second human individual in the pregnancy relationship.
What is the Nature of this Disjunction?
The key problem stems from the fact that the law does not reflect the medical reality of the two patient relationship in pregnancy, i.e. that pregnancy involves two individuals in the mother and her fetus, as established on a wide range of grounds. These grounds include diagnosis, treatment, physiology, sentience and pain, surgery, premature birth and survival, anaesthesia, and societal recognition of factors impairing the healthy development of the fetus (e.g. smoking — active and passive, drug use, alcohol, lack of folate, correct wearing of seatbelts). Because the law currently provides very limited protection to the fetus, there is no recognition in law of her individual needs or welfare, in striking contrast to the field of medicine, which has made substantial progress in this area of fetal health and welfare, mainly through pioneering research and medical practice in the United States and the United Kingdom.
The paucity of legal protection for the fetus, in Australia and in other common law countries, creates a substantial disjunction between the fetus's legal status — described by one commentator as effectively about "not prenatal protection, but postnatal compensation"[4] — and her status in medicine, which confirms her as one of two individual patients in pregnancy. Such a disjunction tends to highlight the arbitrary nature of the law's refusal to adjust to the new medical realities, i.e. a refusal without adequate justification or explanation. On an issue of such fundamental human significance and impact, such a distancing of the law from growing concern among medical professionals for the fetus and her individual welfare becomes even less desirable or defensible.
How the Fetus is Regarded in Medicine and in Law
Scientific advances furthering recognition of the fetus and of her distinctive needs have accrued rapidly in the medical landscape in the past twenty years and continue to do so. The heightened awareness in medicine of the child as an individual before birth, with the need for specific pre-natal care and treatment has confirmed the reality of the two patient relationship in pregnancy. For obstetricians,
"both of them [mother and fetus] are our patients...we evaluate and explain thoroughly the risks and benefits concerning both the mother and the fetus."[5]
The basic continuity between the child before and after birth has also been confirmed. Treatment administered by doctors to the child before birth affects the child after birth — its impact is made stunningly clear in cases of successful in utero fetal surgery. As one writer has perceptively described its human impact:
"the rapidly evolving advances in a variety of in utero treatments, including fetal surgery, accentuate a subtle but real shift toward recognising the independent self of the fetus".[6]
How would such recognition be reflected in the law? This would entail recognition of the health needs of the fetus which exist before birth, as established in medical practice, and recognition of her need for legal protection similar to the need of the newborn child, or the prematurely-born child. Currently, the fetus is strangely invisible to the law. The fetus does possess certain rights to seek a remedy for pre-natal injury, but in a Catch-22 situation, the exercise of those rights is contingent upon achieving birth,[7] which the law has refused to recognise as a right of the fetus.[8] The theoretical basis underlying this position has been explained as follows: the law regards the legal rights of the fetus as "crystallizing" or accruing at birth, but not at any time prior to birth.[9]
The disjunction between law and medicine becomes obvious, as the "crystallization" view has no medical meaning; it is simply a legal construct. To doctors, the fetus may suffer health problems at specific stages of pre-natal development that can be determined with a high degree of accuracy. Now that diagnosis and treatment can and increasingly does occur during gestation, medical recognition of health problems cannot be "suspended" until birth. Advances in fetal surgery demonstrate that doctors are not waiting for birth to commence treatment. Doctors do not defer pre-natal care until the legal "crystallization" of human rights, personhood and patient rights which birth is supposed to confer. The very nature of pre-natal medical care requires this
"since the unborn child has health needs and vulnerabilities analogous to those of children, and since between the child when unborn and after birth there is continuity in all essential respects...".[10]
Medical care of a child must begin prior to birth. From the moment that a pregnancy is confirmed, the doctor's treatment covers the baby from pre-natal to peri-natal stages and then to post-natal check-ups.
The law, then, appears to sanction discrimination on grounds of birth. The child after birth and the child before birth are one and the same entity, at different points in time. She is the same child, the same individual, yet the law grants legal protection to one and not to the other. As medicine continues to illuminate the fundamental continuity of the child before and after birth and of her rights, interests and needs, the law will have to confront this discrimination with its tenuous basis in fact. Such discrimination violates a basic tenet of human rights: that they belong to all human beings, irrespective of age or birth status.[11]
Advances in Fetal Medicine and Their Impact
Illumination of the fetus as an individual human being has occurred through many different avenues. The increased use of sophisticated ultrasound technology, coupled with other developments in fetal care and medical treatment such as amniocentesis and fetoscopy, even surgery, have given dramatic visibility to the fetus. A new ultrasound machine, the Austrian-designed Kretztechnick Volusin scanner, which provides 3-Dimensional pictures of the fetus, has been hailed as a remarkable development for pre-natal diagnosis and treatment, giving doctors a far more clearly defined picture and thus greater accuracy in treatment.[12] In the eyes of doctors, this visibility is not a carefully constructed image or tool for social engineering;[13] it is an uncovering of the real physical growth and development of the fetus, leading to a more accurate, humane and effective practice of medicine. The significance and impact of such advances in medicine cannot be ignored; with regard to preventing health defects in newborn children, the old situation can no longer prevail, where once little could be done at crucial stages of development in utero, because the medical knowledge and skill were not accessible.
Recent fetal pain research conducted in the United Kingdom has further confirmed the fetus's status as individual patient, with new guidelines currently being considered by the British Government, that would "acknowledge growing scientific concern that a fetus can feel pain in the last months of pregnancy".[14] Scientific studies being reviewed by Health Minister Tessa Jowell indicate that the fetus can feel pain from as early as 18 weeks' gestation, and recommend anesthesia from this period.[15] This development follows the release in October 1997 of a Royal College of Obstetrics and Gynaecology report advising the use of analgesia and anesthetics in tests or surgery on fetuses older than 24 weeks.[16] Following the UK report, the California state legislature began consideration of a bill to require anesthesia for fetal patients in third trimester procedures.[17]
The increasingly positive prognosis for even the earliest premature infants similarly illustrates the gulf between the fetus's status as patient (together with her mother), and her position in law. Very young fetuses are receiving sophisticated care and treatment in utero and equally sophisticated treatment after birth. The Mayo Clinic report, based on a study of premature babies, found that an extraordinary 90% of the infants born at only 23 to 24 weeks survived.[18] In Florida recently, a baby girl, Michelle Martinez, was born prematurely at 26 weeks, weighing only 385 grams. She is believed to be one of the smallest babies in the U.S. to survive birth.[19] More widely, the number of premature babies surviving birth weighing less than 1000 grams has increased by 43% in just four years.[20]
The dramatic improvement in premature babies' survival rates demonstrates that birth, instead of being a relatively fixed point in time, has become more and more variable. Immediate problems arise for the current legal position on fetal rights — that these rights do not "crystallize" until birth. With birth occurring earlier and with increasingly healthy outcomes due to medical technology, this particular analysis becomes somewhat incoherent, savoring of a "luck of the draw" mentality; while the rights of one fetus apparently crystallize at 24 weeks, those of another do not until 40 weeks. In addition to the prima facie discrimination between infants on grounds of birth, there is an anomaly in that a doctor can administer highly sophisticated treatments to the fetus, as an individual patient prior to birth , yet the same fetus is not legally recognised as an individual until birth. To whom does the law regard fetal medical treatment (e.g. treatment for Rh incompatibility between the fetus and the mother) as being administered, if not to the specific patient? Such problems illustrate the growing disjunction between medical and legal treatment of the fetus, and the inadequacy of the legal explanation for such a difference.
In only the past few years, the breakthrough treatment of open fetal surgery has been developed and refined to the point of being able to treat the fetus for spina bifida as early as 23 weeks' gestation. The case of Noah Kipfmiller, whose abnormal spinal growth was diagnosed at 20 weeks, and was successfully operated on 3 weeks later by surgeons at the Philadelphia Children's Hospital in the USA, has shown dramatically the impact of early medical intervention on the fetus. According to Dr Joseph Bruner, director of fetal diagnosis and therapy at Vanderbilt University Medical Center, early medical treatment for the fetus is critical. Seven other fetal patients had also undergone the surgery, but at 28 weeks: "Conducting the surgery sooner [as in Noah Kipfmiller's case] can reduce the chance of spinal damage".[21] Noah was born healthy, although two months prematurely, in May, 1998.[22]
The Legal Response
The Australian Medical Association-sponsored Inquiry into Fetal Welfare and the Law rejected the need for a necessary correspondence between the medical and legal status of the fetus, on the grounds that the fetus has a "unique status", a "special nature", which gives her diminished rights in comparison with the child after birth.[23] This is termed the "not-one-but-not-two" entities model of pregnancy.[24] While the special relationship between a woman and her fetus can and must be recognised, it in no way implies that the two are not equal in dignity and rights. Inter-dependence per se does not imply this, for at no other stage in human life does the law hold that dependency deprives an individual of her human rights. Seymour does not explain why adoption of the "separate but indivisibly linked" model of the mother-fetus relationship requires a diminution of the fetus's rights. Why not acknowledge rights that are separate, equal and indivisibly linked?
The argument Seymour and others raise is not conclusive. It ignores other relationships of acute dependency where the dependant is not denied legal recognition and human rights, such as the relationship between a carer and a person such as a spouse suffering Alzheimers disease or quadriplegia, or other debilitating condition, which in its purely physical impact on the carer exceeds that of pregnancy (nine months maximum), because it is permanent, to be endured for an indeterminate number of years.
Natasha Cica, arguing that advances in pre-natal treatment should have no impact on the legal position of the fetus, cites British courts which have taken an approach to fetal protection based on a test of capacity to be born alive.[25] The interpretations of this test are narrow, based on natural breathing abilities, and thus, according to Cica, "inbuilt biological limits" would operate to deny the fetus legal protection prior to the stage at which fetal lung development permits breathing, which she claims is set at 24 weeks.[26] Belinda Bennett espouses a somewhat similar view, arguing that fetal rights cannot be established because rights presuppose "a minimal degree of bodily autonomy", which cannot be achieved before birth.[27] Such an approach ignores the realities of fetal medical treatment which does establish a "minimal degree of bodily autonomy", as individual fetal treatment (such as treatment for Rh incompatibility) would not be physically possible without this. If Bennett is referring, rather, to the fetus's dependency in the womb, her analysis raises the same problems as Seymour's does.
As medical evidence such as the Mayo Clinic study of prematurely born children demonstrates, Cica's analysis is also problematic. The Mayo clinic infants would be granted legal protection, but such protection would be withheld from fetuses of exactly the same age. The arbitrariness of the point of birth is made manifestly clear: in the eyes of the neonatologist there is no biological difference between the breathing capacity of the child in the neo-natal ward who is born prematurely at 23 weeks and that of the fetus in utero at 23 weeks' gestation, whom the law deems not capable of being born alive — yet one is alive. Significantly for Cica's analysis, the right to health is now being interpreted in light of the International Covenant on Economic, Social and Cultural Rights, article 15 (1(b)) to specifically include "the right to enjoy the benefits of scientific progress".[28]
Furthermore, the analyses offered by Seymour and Cica are not consistent with the law if followed to their logical conclusions. Food and water are as essential to sustain life as is breathing; a newborn child is physically incapable of feeding herself, yet the law does not deny her legal recognition because of this limitation, nor because of the fact that her life rests in an acute state of dependency on adults.
Some Legal Developments
Recent cases in the United States suggest that a more accurate legal position on the fetus is emerging. In addition to the move for fetal pain legislation in California,[29] legislation passed in states such as Michigan, Wisconsin and South Dakota addressing feticide[30] and fetal alcohol syndrome,[31] among other issues, has achieved greater legal recognition of the fetus as an individual, and of medical developments in pre-natal care and diagnosis. The fetus as an individual has also gained some improved legal recognition in the courts. On May 27, 1998, the U.S. Supreme Court denied certiorari in a case of prosecution for fetal abuse under child-endangerment laws, letting stand a state Supreme Court ruling that an unborn viable fetus is a "child" for the purposes of the law.[32] A court in the US state of Alabama which recently appointed an attorney to represent the fetus' life and health interests, as a guardian ad litem, has sparked a test case on legal representation for the fetus.[33]
Conclusion
It is unclear how long the law can continue to distance itself from the implications of fetal medical treatment. As sophisticated pre-natal treatment becomes increasingly common and successful, medicine and scientific research will continue to foster greater recognition of the individuality and health rights of the fetus. Continuing to restrict legal recognition until birth appears to be logically incompatible with the insights gained from these developments in fetal medicine. In particular, the assumption on which the "not-one-but-not-two" entities model is based, viz. that the special dependency of the fetus diminishes her legal rights, is not substantiated by any objective evidence. The assumption remains theoretical and is contrary to the fundamental principle of equality before the law.
The law will be left in a position of trying to continue the artifice that the child with all her human rights (including the right to medical care) suddenly appears at birth. In the late twentieth century world of 3-D ultrasound technology, such a denial of medical reality will verge on the absurd. As the fetus becomes more and more visible in the field of medicine and research, and her status as a patient emerges earlier and earlier in pregnancy, her legal invisibility before birth will become increasingly difficult to sustain. Dramatic advances in medical practice, especially in fetal surgery and in the survival and care of extremely premature infants, attest to the basic continuity between fetal and infant welfare. The depth of evidence of this continuity exposes the artificiality of the law's current distinctions between the child before and after birth. There will be a growing disjunction between medical and legal treatment of the fetus unless and until the law recognises this evidence; only then can a real and coherent framework of human rights, duties and responsibilities concerning pregnancy be achieved.
Mary Joseph
ENDNOTES
1 Developments in the Law, "Medical Technology and the Law" (1990) 103 Harvard Law Review 1519 at 1556.
2 Lenow, J.L. "The Fetus as a Patient: Emerging Rights as a Person?" (1983) 9 American Journal of Law and Medicine 1 at 1.
3 In the interests of biological accuracy, I have used the pronouns "she" and "her" throughout this essay, but they of course apply to the male fetus as well. The sex of the fetus is one of the earliest characteristics that can be ascertained: at nine weeks' gestation, using chorionic villus sampling (CVS).
4 Keyserlingk, E.W., The Unborn Child's Right to Prenatal Care: A Comparative Law Perspective, McGill University, Montreal, 1984, at 51.
5 Professor Mitchell Golbus, quoted in Shaw and Doudera (ed.), Defining Human Life: Medical, Legal and Ethical Implications, AUPHA Press, Washington DC, 1983, at 95.
6 Blank, Robert H., Mother and Fetus: Changing Notions of Maternal Responsibility, Greenwood Press, New York, 1992, at 105.
7 See Watt v Rama [1972] VR 353.
8 K v T [1983] 1 Qd R 396; Marriage of F and F (1989) FLC 92-031.
9 Bennett, Belinda, Law and Medicine, LBC, Sydney, 1997 at 116.
10 Keyserlingk, op cit n 3, at 103.
11 Universal Declaration of Human Rights, Article 2.
12 Crisis Pregnancy Centers Online News Service, 29 May, 1998.
13 See, e.g., Bennett, Belinda "Pregnant Women and the Duty to Rescue: A Feminist Response to the Fetal Rights Debate" (1991) 9 Law in Context 70 at 71.
14 UK News Electronic Telegraph, 9 August, 1998.
15 Ibid.
16 Ibid.
17 Los Angeles Times, 4 January, 1998.
18 Pediatric Academic Societies' Annual Conference (New Orleans, USA), news release, May 14, 1998.
19 Reuters, 1 October, 1998. The smallest fetus to survive birth in the U.S. was born in Chicago in 1989, weighing 280 grams. She is now a healthy nine-year-old girl.
20 MacDonald, Emma, "Unusually Qualified Expertise", The Canberra Times, September 30, 1998, p.12.
21 Crisis Pregnancy Centers Online News Service, 13 July, 1998.
22 Ibid.
23 Seymour, John, Fetal Welfare and the Law, AMA, at 51.
24 Ibid, at 55.
25 Cica, Natasha "The Inadequacies of Australian Abortion Law" 5 Australian Journal of Family Law (1991) 37 at 53.
26 Ibid.
27 Bennett, Belinda "Pregnant Women and the Duty to Rescue: A Feminist Response to the Fetal Rights Debate", (1991) 9 Law in Context 70 at 86.
28 Round Table of Human Rights Treaty Bodies on Human Rights Approaches to Women's Health, United Nations High Commissioner for Human Rights, New York, 1998 at 18.
29 n 15.
30 Oakland Press, Pontiac MI, 11 June, 1998; Milwaukee Journal-Sentinel (Wisconsin), 21 August, 1998.
31 Crisis Pregnancy Centers Online News Service, 26 May, 1998.
32 Whitner vs South Carolina, 97-1562.
33 American Family Association news release, 20 July, 1998.
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