Reconceiving pregnancy: expressive choice and legal reasoning.

• Author: Nelson, Erin

The author discusses the issue of medical intervention in pregnancy, and suggests that what is missing from the present discourse on pregnancy and the law is a theoretical framework for choice or decision-making in pregnancy. It is suggested that the inability to formulate an adequate mode of reasoning about the problem of medical intervention in pregnancy has to do with the way in which decision-making in pregnancy is characterized. The author provides an overview of contributions made to the legal academic literature by feminist theorists of varying persuasions and notes that the debate, as framed by feminist writing on the issue, is largely about choices, rather than choice. The author outlines the underpinnings of a new approach to the question of choice in pregnancy, based on an expressive theory of choice, and considers the contribution that such a theory might make to the complex legal and ethical dilemmas that can arise when a pregnant woman refuses medical treatment proposed for the benefit of the fetus.

L'auteure discute de la question de l'intervention medicale durant la grossesse, et suggere qu'il manque, dans le discours actuel sur la grossesse et le droit, un cadre theorique pour analyser le choix et la prise de decision durant la grossesse. Selon l'auteure, l'incapacite a formuler un cadre de reflexion adapte au probleme de l'intervention medicale durant la grossesse resulte de la maniere dont est caracterisee la prise de decision durant la grossesse. L'auteure propose une revue des litteratures juridiques feministes de toutes allegeances sur la question, et constate qu'elles ont tendance a parler de plusieurs choix plutot que du choix en general. D'apres l'auteure, la conception liberale traditionnelle, qui sous-tend ces discours, doit etre revue. L'auteure trace les lineaments d'une nouvelle approche a la question du choix dans la grossesse, fondee sur une theorie expressive. Elle examine ensuite la contribution que cette theorie pourrait offrir a la resolution de dilemmes juridiques et ethiques complexes auxquels peuvent donner lieu la decision d'une femme enceinte de refuser un traitement potentiellement benefique au foetus.

Introduction I. Intervention in Pregnancy II. Characterizing Decision-Making in Pregnancy: The Contradictory Legal Language of Choice A. The abortion Choice B. Choice and Medical Knowledge C. Pregnancy Analogized III. Choice and Theoretical Commitments A. Feminist Legal Theory and Choice 1. Framing a Feminist Response B. Reconceiving Choice: Imagining Alternative Ways of Reasoning About Decision-Making in Pregnancy 1. The Role of Norms: Pregnancy and Motherhood 2. Expressive Choice in Pregnancy Conclusion Angela Carder was twenty-seven when she died. She had had osteosarcoma as an adolescent but was in remission when she married and became pregnant. When she was twenty-five weeks pregnant, she began to have trouble breathing. Angela's oncologists discovered that she had developed a large tumor in one of her lungs. Angela's doctors felt that her chances of survival were remote, but if she could live until her fetus reached twenty-eight weeks of gestation, it would have a better chance of survival. Angela emphasized to her doctors that her main priority was her own comfort and agreed to a course of palliative treatment. Angela's condition deteriorated rapidly, much more rapidly than the doctors had expected. At twenty-six weeks into her pregnancy, she was sedated and put on a ventilator to assist her breathing, interventions that seriously impaired her ability to communicate. The hospital administrators, without telling her, sought an order to permit delivery of the twenty-six-week-old fetus by Caesarean section. When Angela was told of the court order, she initially agreed to the surgery. She revoked her consent half an hour later, mouthing the words "I don't want it done. I don't want it done." The Caesarean section was performed. Angela's "baby girl weighed 1.7 pounds and had fingers the size of matchsticks. Her lungs were so underdeveloped the doctors could not even ventilate them artificially." (1) The baby died two-and-a-half hours later. Angela "cried when they told her." (2) She died two days later.

In 1984, a Nigerian woman in Chicago was admitted to hospital for the remainder of her pregnancy with triplets. The doctors advised that a Caesarean section was necessary for a safe birth. The woman and her husband refused, as they believed that a natural delivery would be safe. They also "planned to return to Africa, to an area where a cesarean delivery might not be possible should they have children later. They wanted to prevent future complications caused by use of cesarean section." (3) As the due date approached, the hospital sought and obtained a court order "granting the hospital administrator temporary custody of the triplets and authorizing a cesarean section as soon as the woman went into labor." (4) The woman was not informed of the court order and was not given an opportunity to seek care elsewhere. When told of the intended delivery by Caesarean section,

the woman and her husband became irate. The husband was asked to leave, refused, and was forcedly removed from the hospital by seven security officers. The woman became combative and was placed in full leathers, a term that refers to leather wrist and ankle cuffs that are attached to the four comers of a bed to prevent the patient from moving ... the woman continued to scream for help and bit through her intravenous tubing in an attempt to get free. (5) Introduction

These are stories of anguish and of rage. They may be among the most shocking accounts of forced obstetrical intervention, or they may be typical of reports about intervention in pregnancy. (6) They are narratives about intervention in pregnancy but they are also stories about how it might feel to be a competent, autonomous adult and to surfer bodily invasion at the hands of health care providers whom you had trusted to respect your wishes.

The past two decades can be thought of as an upswing (on the autonomy side) of the pendulum that oscillates between the values of autonomy and beneficence as paramount in health care ethics. (7) Despite the apparent ascendance of autonomy in health care ethics and law, (8) we continue to see instances of medical intervention in pregnancy. (9) This is a problem that resides at the intersection of astonishing progress in medical technology (10) on the one hand, and regressive attitudes about the rights and responsibilites of pregnant women on the other. (11)

There is a wealth of legal commentary concerning intervention in pregnancy, (12) but no clear answer to the problem that is consistent with the values our liberal society purports to hold, such as autonomy and respect for bodily integrity, and with women's equality. In particular, what is missing from the extensive body of writing about pregnancy and the law is a theoretical framework for choice, or decision-making, in pregnancy. (13) I suggest that, in part, the inability to discover an adequate mode of reasoning about the problem of intervention in pregnancy has to do with the way in which decision-making in pregnancy is characterized.

After defining intervention in pregnancy for the purposes of this article (Part I), I examine some themes that emerge in choice-based reasoning about intervention in pregnancy (Part II). The unhelpful legal constructs that animate such reasoning require a feminist response that re-examines a defining feature of legal thinking about pregnancy intervention: the notion of choice.

The difficulty lies in framing a feminist response, which is discussed more fully in Part III. The topic of intervention in pregnancy has been thoroughly canvassed in the legal academic literature, and notable contributions to this effort have been made by feminist theorists of varying persuasions, as is elaborated on in Part III. Characteristic of feminist writing on the issue, however, is that the debate is largely about choices, rather than about choice. I argue here that what is needed at this time is not further debate about whether women have choices, which ones they have, or which they ought to have but do not. Instead, the very understanding of choice that epitomizes traditional liberal ideals requires re-evaluation. In suggesting that decision-making in pregnancy needs to be reconceived, and in proposing a starting point for that task, I hope to lay a foundation upon which questions of boundaries may be answered.

I start from the point of view that intervention in pregnancy, as currently practiced, is bad public policy. There may be arguments, however, depending heavily on what is meant by intervention, that intervention might sometimes be desirable. If we take intervention to mean, for example, the positive involvement of the state in the lives of pregnant women in seeking out and helping those who need assistance with prenatal care, addiction treatment, nutrition, care of other children, or protection from a violent spouse, then there is clearly an important role for intervention. If, on the other hand, we take it to mean what it seems to mean now--forced obstetrical treatment, incarceration, detention, or other forms of punishment--my position is that intervention in pregnancy is misguided and unlikely to further the alleged goal of healthy mothers and healthy children. (14)

1. Intervention in Pregnancy

   State intervention in pregnant women's lives can take a variety of forms, including: barring women of child-bearing age (pregnant or potentially pregnant women) from certain occupations due to potential risks to the fetus; restricting or prohibiting access to contraceptives, abortion or both; and imposing medical care or other treatment aimed at protecting the fetus where the behaviour of a pregnant woman is perceived to be adverse to the interests of her fetus. (15) It is this latter form of intervention that I explore...