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Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts
This article reframes the contemporary legal and ethical debates generated by pregnant women who resist medical advice. Presently known as "maternal-fetal conflicts," these dilemmas arise in contexts ranging from religious refusals of blood transfusions to cocaine addiction. The vast literature discussing these conflicts focuses entirely on the competing rights of mothers and fetuses, and overwhelmingly concludes that the mother's rights prevail. Entirely absent from this analysis is one of the primary parties to these conflicts - the doctor. As a result, the doctor's role in generating these conflicts is eclipsed, and one scarcely notices that these scenarios all are linked by the fact that each instance of "maternal-fetal conflict" represents a dramatic violation of the legal and ethical norms that govern doctor-patient relationships. After resituating these conflicts to accurately reflect doctors' roles, this article uses principles of fiduciary law to evaluate the legality of their actions. Finally, this article articulates a set of legal strategies designed to prevent, or at least to remedy, the harms caused when doctors attempt to impose their will upon their pregnant patients. By proposing an alternative paradigm for the analysis of "maternal-fetal conflicts," this article casts new light on the regulation of pregnancy and motherhood. More importantly, it offers a pragmatic resolution to the medical, ethical and legal dilemmas that, over the course of the past two decades, have increasingly perplexed judges, lawyers, and scholars.