ArticlePDF Available

Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts

Authors:

Abstract

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.
A preview of the PDF is not available
... The most complex ethical question for IRBs in considering fetal therapies is the conflict between the asymmetrically distributed risks and benefits to the fetus and pregnant woman (Ashcroft 2016;Mattingly 1992;McMann, Carter, and Lantos 2014;Oerlemans et al. 2010). The ethical injunction against harming one patient to benefit another is widely recognized (Mattingly 1992;Oberman 1999). However, exceptions exist, for example, in obstetrics and living organ donation (Macklin 1984). ...
Article
New fetal therapies offer important prospects for improving health. However, having to consider both the fetus and the pregnant woman makes the risk–benefit analysis of fetal therapy trials challenging. Regulatory guidance is limited, and proposed ethical frameworks are overly restrictive or permissive. We propose a new ethical framework for fetal therapy research. First, we argue that considering only biomedical benefits fails to capture all relevant interests. Thus, we endorse expanding the considered benefits to include evidence-based psychosocial effects of fetal therapies. Second, we reject the commonly proposed categorical risk and/or benefit thresholds for assessing fetal therapy research (e.g., only for life-threatening conditions). Instead, we propose that the individual risks for the pregnant woman and the fetus should be justified by the benefits for them and the study’s social value. Studies that meet this overall proportionality criterion but have mildly unfavorable risk–benefit ratios for pregnant women and/or fetuses may be acceptable.
... Some ethicists and clinicians have adopted the term 'maternal-fetal conflict' to describe situations in which pregnant women decline recommended care (Scott, 2007). However, this term misrepresents the conflict as being between the woman and the fetus, concealing the role of the care provider (Oberman, 2000). It constructs the pregnant woman as a threat to her fetus, underpinning a perceived need for paternalistic clinicians to rescue the fetus (McLean, 2009). ...
... 58 Doctors' believing that they may justifiably overrule a woman's preferences during childbirth is a "startling exception" to the modern conceptions of consent and autonomy in clinical care. 59 Just as applying the legal informed-consent standards in practice is complex, establishing in court that a practitioner failed to meet them is hard as well. While a tort generally requires an injury that was caused by a breach of a duty of care, courts rarely recognize the lack of informed consent as an injury in and of itself. ...
Article
The “best interests of the patient” standard—a complex balance between the principles of beneficence and autonomy—is the driving force of ethical clinical care. Clinicians’ fear of litigation is a challenge to that ethical paradigm. But is it ever ethically appropriate for clinicians to undertake a procedure with the primary goal of protecting themselves from potential legal action? Complicating that question is the fact that tort liability is adjudicated based on what most clinicians are doing, not the scientific basis of whether they should be doing it in the first place. In a court of law, clinicians are generally judged based on the “reasonably prudent” standard: what a reasonably prudent practitioner in a similar situation would do. But this legal standard can have the effect of shifting the medical standard of care—enabling a standard-of-care sprawl where actions undertaken for the primary purpose of avoiding liability reset the standard of care against which clinicians will be adjudicated. While this problem has been recognized in the legal literature, neither current ethical models of care nor legal theory offer workable solutions.
... The debate about supporting informed choice is therefore challenging, particularly in the absence of a clear understanding of what it means for women. That said, there is also a lack of conceptual clarity within midwifery and obstetric literature about informed choice (Goldberg, 2009;Oberman, 2000). As described by Marteau et al. (2009Marteau et al. ( , 2001, many different terms are used, often interchangeably, to encompass informed choice. ...
Article
Objective: to explore women's understandings and definitions of the concept of informed choice during pregnancy and childbirth. Methods: a three-phase action research approach. In the first phase of the study (reported in this paper), fifteen women were interviewed to establish their understandings and experiences of informed choice. Setting: Dublin, Ireland in a large maternity hospital. Participants: fifteen postnatal women who gave birth to a live healthy infant, women attended obstetric or midwifery-led care. Findings: we found that multiple factors influence how women define informed choice including; their expectations of exercising choice, their sense of responsibility towards their infant, their sense of self and the quality of their relationships with maternity care professionals. The interdependence of the mother-baby relationship deems that in the context of pregnancy and childbirth, women's definitions, perceptions and experiences of informed choice should be considered to be relational. Women consider that informed choice means more than just the provision of information; rather it requires an in-depth discussion with a professional who is known to them. Women's understandings reveal that informed choice, is not only defined by but contingent on the quality of women's relationships with their caregiver and their ability to engage in a process of shared decision-making with them. Key conclusion: Informed choice is defined and experienced as a relational construct, the support provided by maternity care professionals to women in contemporary maternity care must reflect this.
... Oberman 22 theorizes that the overmastering of a birthing woman's will is a breach of a fiduciary duty, (given the imbalance of information and power between the physician and the patient) driven by "divided loyalties" when physicians rationalize the foetus as a "second patient". This is certainly so, but a survey conducted by Samuels et al 23 also points to underlying beliefs about women's reproductive autonomy as a significant factor in perpetration of obstetric violence. ...
Article
In recent years, there has been growing public attention to a problem many US health institutions and providers disclaim: bullying and coercion of pregnant women during birth by health care personnel, known as obstetric violence. Through a series of real case studies, this article provides a legal practitioner’s perspective on a systemic problem of institutionalized gender-based violence with only individual tort litigation as an avenue for redress, and even that largely out of reach for women. It provides an overview of the limitations of the civil justice system in addressing obstetric violence, and compares alternatives from Latin American jurisdictions. Finally, the article posits policy solutions for the legal system and health care systems.
Article
Pregnant women with a prior cesarean delivery face challenges in accessing a vaginal birth due to both hospital and provider preferences and practices. Although the doctrine of informed consent secures women's reproductive rights, it is not a viable legal remedy. Instead, women should champion increased maternity-related education and transparency as well as medical malpractice reform to increase the desired access.
Article
Stakeholders in law, medicine, and religion are unable to reach consensus as to how best to address conflicts between physicians’ religious objections to treatment and patients’ rights to access medically indicated care. Conscience laws that protect objecting health care providers from liability are criticized as too broad by patient advocates, and as too narrow by defenders of religious freedom. This Article posits that some of the tension between these stakeholders could be mediated by statutory recognition of a duty to disclose religiously-motivated limitations on practice. Imposition of such a limited disclosure duty has foundations in consumer protection law, fiduciary law, and informed consent law. While this solution would not guarantee a patient’s access to treatment, referral, or information from any given provider, it would prevent some of the more egregious cases of denial of treatment – those where patients are not made aware that a medically-indicated treatment is excluded from a provider’s (or institution’s) scope of practice, and so have no opportunity to seek care elsewhere.
Article
There has been a shift in healthcare philosophy in recent decades beyond simple requirement of client consent to treatment towards a more intricate notion of informed choice. Debate continues as to whether advocacy of shared decision-making in maternity care is more rhetoric or reality. In the context of management of so-called 'prolonged' pregnancy, the scope and authenticity of informed choice withers under scrutiny. It is considered that induction of labour at this juncture in pregnancy has become routinised, affecting an illusion of safety and depressing maternal stimulus to exercise choice. The offer of induction for advanced gestation has thus acquired normative power. Observation during clinical practice has revealed that there may be ethical failings in risk communication, manifested in data manipulation and scaremongering. However, a culture of powerlessness constrains midwives and compels them to seize the risk agenda and adopt the 'medical standard' for this common intervention.
Article
With the development of a free enterprise system based on an unheardof division of labor, capitalistic society needed a highly elastic legal institution to safeguard the exchange of goods and services on the market. Common law lawyers, responding to this social need, transformed "contract" from the clumsy institution that it was in the sixteenth century into a tool of almost unlimited usefulness and pliability. Contract thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way. Rational behavior within the context of our culture is only possible if agreements will be respected. It requires that reasonable expectations created by promises receive the protection of the law or else we will suffer the fate of Montesquieu's Troglodytes, who perished because they did not fulfill their promises. This idea permeates our whole law of contracts, the doctrines dealing with their formation, performance, impossibility and damages.
Article
Synopsis This paper presents a review of the literature on the effects of maternal narcotic addictions upon the foetus and newborn infant. Six children born to ‘registered’ narcotic addicts were studied, and particular attention was paid to any signs of narcotic withdrawal that might occur after birth. Although all the mothers took heroin or methadone regularly up to the time of delivery, minor physical signs which might have been considered part of the withdrawal syndrome occurred in only one baby. The absence of major withdrawal signs found in this study contrasts with previous findings. The reasons for these differences are discussed, and the implications of these observations for the management of the pregnant narcotic addict and her newborn infant are considered.