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Mothers and Doctors' Orders: Unmasking the Doctor's Fiduciary Role in Maternal-Fetal Conflicts
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.
... Pueden ocurrir situaciones conflictivas cuando la gestante adopta cuidados de salud con base en sus propias elecciones, comportamientos y hábitos de vida o se expone a riesgo ocupacional. Dichos conflictos pueden surgir en cualquier momento del seguimiento prenatal y pueden afectar el bienestar fetal, por ejemplo, el consumo de drogas y alcohol, las prácticas sexuales de riesgo y la negativa a adherirse a las recomendaciones médicas [28][29][30][31] . ...
... Flagler, Baylis y Rodgers 28 afirman que, si bien los conflictos materno-fetales se restringen a la madre y el feto, el verdadero conflicto se da entre la gestante y el equipo de salud. Para Oberman 30 , el médico, al adoptar una conducta basada en el "interés fetal", asume una posición no neutral en el mantenimiento de la situación conflictiva y, con ello, pasa a desempeñar un papel central en este contexto. Según Beauchamp y Childress 32 , en la relación médico-paciente, los conflictos materno-fetales suelen establecer un contraste entre dos principios de la bioética: la autonomía de la gestante y la beneficencia del feto 33 . ...
Resumen La sífilis congénita es una enfermedad que aún sigue en la rutina del sistema de salud a pesar de los esfuerzos públicos. Aunque existen métodos de prevención efectivos y generalizados, los tratamientos con alto costo-beneficio y disponibles en el Sistema Único de Salud, además de la atención prenatal con alta cobertura, las tasas epidemiológicas de la enfermedad siguen siendo relevantes y preocupantes. Una de las barreras para su erradicación es el rechazo terapéutico de la madre. Por lo tanto, se plantean cuestiones importantes, como la responsabilidad médica con relación al rechazo, la responsabilidad de la mujer embarazada por el feto y las implicaciones legales que impregnan este problema. El propósito de este artículo es responder a estos interrogantes y sus repercusiones bioéticas y legales.
... 9 In compelled treatment cases, both the mother and the physician have the fetus' interests in mind, but they disagree about how to balance those interests against competing concerns. 10 As a matter of ethical principles, abortion and treatment refusal cases differ in both intent and effect. Some courts have relied on similar reasoning to reject the idea that abortion jurisprudence should impact their decisions. ...
This article argues that the Supreme Court’s decision in Dobbs is likely to impact medical decision-making by pregnant patients in a variety of contexts. Of particular concern are situations where a patient declines treatment recommended for its potential benefit to the fetus and situations where treatment is withheld due to potential risk to the fetus. The Court’s elevation of fetal interests, combined with a history of courts using abortion jurisprudence to guide their reasoning in compelled treatment cases, means that Dobbs has the potential to limit patient autonomy in a wide array of clinical settings. The article calls on professional medical associations to issue ethical guidance affirming the duty to respect the medical self-determination of pregnant patients.
... Conflicting situations can occur when pregnant women adopt health care conducts based on their own choices, behaviors and life habits or expose themselves to occupational risk. Such conflicts may arise at any time during prenatal care and affect fetal well-being-for example, drug and alcohol use, risky sexual practices, and refusal to adhere to medical recommendations [28][29][30][31] . ...
Resumo A infecção congênita pela sífilis é uma doença que, apesar dos esforços públicos, ainda se mantém na rotina do sistema de saúde. Embora haja métodos de prevenção efetivos e muito disseminados, tratamento com alto custo-benefício e disponível no Sistema Único de Saúde, além de assistência pré-natal com alta cobertura, as taxas epidemiológicas da enfermidade continuam relevantes e preocupantes. Umas das barreiras à erradicação desse cenário é a recusa terapêutica da genitora. Com isso, indagações importantes são levantadas, como a responsabilidade médica em relação à recusa, a responsabilidade da gestante para com o nascituro e as implicações jurídicas que perpassam essa problemática. O propósito deste artigo é responder a essas questões e suas repercussões bioéticas e jurídicas.
... Conflicting situations can occur when pregnant women adopt health care conducts based on their own choices, behaviors and life habits or expose themselves to occupational risk. Such conflicts may arise at any time during prenatal care and affect fetal well-being-for example, drug and alcohol use, risky sexual practices, and refusal to adhere to medical recommendations [28][29][30][31] . ...
Despite public policies, congenital syphilis infection remains a reality in the health system routine. Moreover, its epidemiological rates continue to be relevant and worrisome despite widespread and effective preventive methods, highly cost-effective treatments available in the Unified Health System, and high-coverage pre-natal care. A major obstacle to eradicating this scenario is treatment refusal by the progenitor. Important questions regarding medical responsibility in relation to refusal, the pregnant woman’s responsibility towards the unborn child, and the legal implications involved arise from this context. This article seeks to answer these questions and their legal and bioethical repercussions.
... 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). ...
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. ...
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 .
One of the best examples of the conflict between evidence‐based medicine and common clinical practice is the use of electronic fetal monitoring. Despite strong evidence and professional guidelines that argue against the use of EFM for healthy pregnancies, the practice persists. One of the main reasons for this is often assumed to be physicians’ concerns about liability .
... 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. ...
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.
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.
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.
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.