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Technology and the Legal Discourse of Fetal Autonomy

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Technology and the Legal Discourse of Fetal Autonomy ARTICLE TECHNOLOGY AND THE LEGAL DISCOURSE OF FETAL AUTONOMY Caroline Morris* ABSTRACT The relationship between society, medicine, and the law is multi-faceted and complex. This Article examines the process of, and the influences on, the construction of fetal personhood in the legal discourses in American and Commonwealth case law and statutes. It demonstrates how the physical and visual separation of the fetus, as made possible by medical advances, has influenced the development of legal doctrine relating to the rights of the fetus. TABLE OF CONTENTS I. INTRODUCTION ..................................... 48 II. LAW, LANGUAGE, AND TECHNOLOGY ............. 53 A. Persons, Autonomy, and the Law .............. 55 B. Scientific Imagery and Discourse as a Basis for Fetal R ights .................................... 56 1. Fetal Separation/Fetal Personification: the Role of Technology ........................ 58 2. Sexual Politics and the Control of Women: the Role of Technology in Fetal Rights A dvocacy .................................. 63 * Judicial Assistant at the Royal Courts of Justice, London, 1998. B.A., May 1996; LL.B. (Hons), Feb. 1997, Victoria University of Wellington, New Zealand/ Aotearoa; LL.M., May 1997, UCLA School of Law. This Article was originally sub- mitted in fulfillment of the LL.M. thesis requirement at UCLA. My thanks to my supervisor, Frances Olsen, and the staff of the UCLA Women's Law Journal for their insightful comments and help. UCLA WOMEN'S LAW JOURNAL [Vol. 8:47 3. Fetal Images: the Abortion Debate and Popular Culture ............................ 65 C. Individuality and Rights ......................... 67 III. THE FETUS IN LAW ................................... 69 A. Penalties for Causing the Death of a Fetus: Early Views .................................... 70 B. Anglo-American Common Law of Fetal Death. 73 C. Viability as the Criterionfor Fetal Separability 74 D. The Language of Fetal Separability in the Courts ......................................... 77 1. United States of America .................. 79 2. Commonwealth ............................ 82 a. A ustralia ............................... 84 b. Canada ................................ 86 c. Great Britain........................... 88 d. New Zealand .......................... 89 e. The Developing Commonwealth View.. 94 IV. RESPONDING TO THE ASSERTION OF FETAL RIGHTS ............................................... 94 V . CONCLUSION ......................................... 97 I. INTRODUCTION In the early 1980s, the United States experienced an unprec- edented rise in the number of cases in which judges, law-enforce- ment officers, and physicians sought to regulate and control the behavior of pregnant women.' Pregnant drug addicts were often charged with delivering drugs to a minor, and sometimes con- victed and detained for the sake of their fetuses.2 Women who refused medical procedures that their physicians thought would benefit their fetuses were subject to orders for forced surgery3 or 1. A number of fetal rights cases are detailed in Judith Rosen, A Legal Per- spective on the Status of the Fetus: Who will Guard the Guardians?, in ABORTION RIGHTS AND FETAL 'PERSONHOOD' 29-50 (Edd Doerr & James W. Prescott eds., 1990) [hereinafter FETAL 'PERSONHOOD']. See also Ruth Ann Strickland & Marcia Lynn Whicker, Fetal Endangerment Versus Fetal Welfare, in EXPECTING TROUBLE: SURROGACY, FETAL ABUSE AND NEW REPRODUCTIVE TECHNOLOGIES: DISCRE- TION OF PROSECUTORS IN DETERMINING CRIMINAL LIABILITY 55-84 (Patricia Boling ed., 1995) [hereinafter EXPECTING TROUBLE]. 2. Johnson v. Florida, 578 So. 2d 419 (Fla. Dist. Ct. App. 1991), rev'd 602 So. 2d 1288 (Fla. 1992); In re Baby X., 293 N.W.2d 736 (Mich. Ct. App. 1980). See also EXPECTING TROUBLE, supra note 1, at 58-63, and especially 70-71 (policies of State Attorneys General on fetal abuse prosecutions). 3. See In re A.C., 533 A.2d 611 (D.C. 1987), rev'd 573 A.2d 1235 (D.C. 1990); Jefferson v. Griffin Spalding County Hosp., 274 S.E.2d 457, 460 (Ga. 1981). Few 1997] TECHNOLOGY AND FETAL AUTONOMY 49 charged with fetal neglect. 4 In some cases, third party guardians were appointed for fetuses to advance their welfare.5 Historically, there is a long line of cases compensating the mother for prenatal death or injury of a wanted potential child due to a third party's actions. Recent cases differ, however, be- cause they punish the pregnant woman herself for acting as the fetus's adversary. 6 A number of reasons have been posited for this shift from compensating the mother to protecting the fetus. This Article focuses on the reason most often articulated by the courts and legislatures: the fetus is a person 7 and therefore has cases have been reported, but see Janet Gallagher, Prenatal Invasions & Interven- tions: What's Wrong with Fetal Rights, 10 HARV. WOMEN'S L.J. 9 (1987); Veronica E.B. Kolder, et al., Court-OrderedObstetrical Interventions, 316 NEW ENG. J. MED. 1192 (1987); Nancy K. Rhoden, The Judge in the Delivery Room: The Emergence of Court-OrderedCesareans, 74 CAL. L. REV..1951 (1986), for discussions of cases that have not made it into the law reports. 4. Grodin v. Grodin, 301 N.W.2d 869 (Mich. 1980); Matter of Smith, 492 N.Y.S.2d 331 (Fam. Ct. 1985); C. v. C., 476 N.Y.S.2d 991 (Fam. Ct. 1984). 5. Raleigh Fitkin-Paul Morgan Mem'l Hosp. v. Anderson, 201 A.2d 537, 538 (N.J. 1964) ("the unborn child is entitled to the law's protection..."); In re Jamaica Hosp., 491 N.Y.S.2d 898, 900 (Sup. Ct. 1985) ("the state has a highly significant interest in protecting the life of a mid-term [i.e. non-viable] fetus, which outweighs the patient's right to refuse a blood transfusion on religious grounds"); Crouse Ir- ving Mem'l Hosp. v. Paddock, 485 N.Y.S.2d 443 (App. Div. 1985); Wisconsin ex rel. Angela M.W. v. Kruzicki, 541 N.W.2d 482 (Wis. Ct. App. 1995), rev'd 561 N.W.2d 729 (Wis. 1997); Susan Goldberg, Of Games and Guardians:The Impropriety of Ap- pointing GuardiansAd Litem for Fetuses and Embryos, 66 WASH. L. REV. 503, 523- 24 (1991); Lawrence J. Nelson et al., Forced Medical Treatment of Pregnant Women: Compelling Each to Live as Seems Good to the Rest, 37 HASTINGS L.J. 703, 727 n.86- 87 (1986). 6. There is still considerable conflict in cases asserting fetal rights, a conflict which I consider to be sourced in whether the law-makers and enforcers value the pregnant woman and the choices she makes with regard to her fetus. Particularly where harm to the fetus occurs at the hands of a third party (for example, the wo- man is beaten by her partner or injured in a car accident) and the fetus was wanted by the woman, the courts are more likely to compensate the woman for her loss. However, when the woman acts independently, and smokes, drinks, lives in "inap- propriate" conditions or undertakes some other course of undesirable action, courts seem more willing to punish the woman for her behavior and use the rhetoric of fetal rights to do so. 7. See Danos v. St. Pierre, 402 So. 2d 633, 638 (La. 1981) ("A human being exists from the moment of fertilization and implantation"); Baldwin v. Butcher, 184 S.E.2d 428, 432 (W. Va. 1971) (holding that a fetus is a person under West Virginia's wrongful death statute, since "'biologically speaking' such a child is, in fact, a pres- ently existing person, a living human being"). See also Farley v. Sartin, 466 S.E.2d 522 (W. Va. 1995); UK comments during debate on the Alton Bill in Deborah L. Steinberg, AdversarialPolitics: The Legal Construction of Abortion, in OFF-CErRE: FEMINISM AND CULTURAL STUDIES (Sarah Franklin et al. eds., 1991) [hereinafter OFF-CENTRE]. UCLA WOMEN'S LAW JOURNAL [Vol. 8:47 the right to be free from harm, the right to be born healthy,8 and the right to life.9 Underlying this notion of fetal rights, less often articulated but just as often present, was a concealed expression of hostility toward women who defied social norms and preferred their own judgment to that of medical and legal authority figures. Typical of this fetal-protective, woman-hostile stance are the following comments, the first made by a Michigan narcotics officer in- volved in prosecuting women for drug use during pregnancy, and the second by a director of a fetal alcohol syndrome program on a Native American reservation: If the mother wants to smoke crack and kill herself, I don't care.... Let her die, but don't take that poor baby with her. 10 If a woman is pregnant, and if she is going to drink alcohol, then, in very simple language, she should be jailed.1" As the 1990s come to a close, and the tide may be turning against fetal rights claimants, 12 this Article reflects on the source of the rise of fetal rights. What enabled the judiciary, law-en- forcement officers, and physicians to champion the cause of fetal rights to such effect? The rise in fetal rights cases may well have been unprecedented, but it was certainly not unheralded. An in- vestigation of law considering fetal status provides one of the clues to understanding the source of the concept of fetal rights. The law currently cannot envision and address the pregnant woman as a uniquely constituted entity. The fetus and the preg- nant woman provide a dilemma for the law: one person or two? Case law and statutes regarding fetal personality reveal that the law's conception of the pregnant woman is like a gestalt picture. As the fetus comes into view, the woman disappears. Look 8. See Grodin v. Grodin, 301 N.W.2d 869 (Mich. 1980); Smith v. Brennan, 157 A.2d 497 (N.J. 1960); Matter of Smith, 492 N.Y.S.2d 331 (Fam Ct. 1985); C. v. C., 476 N.Y.S.2d 991 (Fain. Ct.
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