Fetal Abuse: An Exploration of Emerging Philosophic, Legal, and Policy Issues
| Author | Joseph Losco |
| Published date | 01 June 1989 |
| Date | 01 June 1989 |
| DOI | http://doi.org/10.1177/106591298904200206 |
| Subject Matter | Articles |
FETAL
ABUSE:
AN
EXPLORATION
OF
EMERGING
PHILOSOPHIC,
LEGAL,
AND
POLICY
ISSUES
JOSEPH
LOSCO
Ball
State
University
Received:
January
4,
1988
Revision
Received:
July
9,
1988
Accepted
for
Publication:
August
9,
1988
NOTE:
I
thank
David
Annis,
professor
of
philosophy
at
Ball
State
University,
for
heightening
my
interest
in
this
topic
by
a
paper
he
presented
(1987)
and
for
subsequent
discussions
with
me.
I
also
thank
the
reviewers
for
this
journal
for their
insights
and
direction.
1
The
facts
of
this
case,
sketchy
as
they
are,
have been
compiled
from
news
accounts
in
the
New
York
Times
(Chambers
1987),
Newsweek
(December
1986),
American
Medical
News,
and
In
These
Times
(Weingerter
1987).
N
APRIL
1987,
a
judge
in
a
San
Diego
court
heard
a
case
against
a
t
woman,
Pamela
Stewart
Monson,
whose
baby
was
born
brain-
dead
after
she
ignored
her
doctor’s
warnings
about
her
behavior
and
its
potential
effects
on
the
fetus.
Her
doctor
had
warned
her
to
refrain
from
street
drugs
and
sex
and
to
seek
medical
care
in
case
of
vaginal
bleeding.
But
prosecutors
charged
that
on
the
day
she
deliv-
ered,
she
took
amphetamines,
had
sex
with
her
husband,
and
didn’t
call
paramedics
until
twelve
hours
after
bleeding
began.
Her
son
was
born
brain-dead
with
amphetamines
in
his
system.
The
judge’s
deci-
sion
to
throw
out
the
case
is
perhaps
less
significant
than
the
fact
that
criminal
charges
were
brought
against
the
mother
in
the
first
plaice.
1
Cases
like this
raise
important
ethical,
legal,
and
medical
questions
about
personal
responsibility
in
an
era
of
increasing
knowledge
con-
cerning
health
risks,
about
the
moral
and
legal
liability
of
parents
who
ignore
the
advice
of
their
doctors
when
their
actions
result
in
death
or
serious
deformities
for
their
newborns,
and
about
the
duties
of
doctors
toward
patients
who
ignore
their
advice.
Ultimately,
lawmakers
must
design
policy
which
confronts
questions
about
the
kinds
of
protection
to
which
the
fetus
is
entitled,
if
any,
and
the
means
for
reconciling
the
interests
of
mother
and
fetus
when
they
clash.
In
the
Roe
v.
Wade
decision,
the
Court
avoided
direct
confronta-
tion
with
some
of
the
most
difficult
issues
surrounding
fetal
responsibil-
ity.
It
provided
a
time
frame,
specified
by
viability,
which
limits
the
extent
of
state
interference
with
the
maternal
right
to
privacy.
But
the
Court
did
not - and
could
not - address
a
host
of
related
policy
issues.
For
example,
it
did
not
specify
exactly
what
constitutes
compelling
state
interest
in
the
rights
of
the
fetus.
It
did
not
indicate
the
obliga-
tions
the
mother
has,
if
any,
to
the
fetus
if
she
chooses
not
to
abort.
266
Some
states
have
initiated
action
to
fill
these
gaps.
For
example,
at
least
two
states
include
the
fetus
within
their
homicide
laws.
Some
states
recognize
the
fetus
for
purposes
of
suing
for
damages
against
those
who
have
contributed
to
some
handicap
by
failure
to
treat
it
with
proper
care.
Some
states,
like
California
in
the
Monson
case,
have
ex-
tended
protection
against
abuse
to
the
unborn.
Most,
however,
have
taken
token
action
in
this
area,
such
as
urging
Congress
to
mount
a
constitutional
challenge
to
Roe,
or
altering
the
requirements
for
medical
treatment
of
the
mother
or
fetus
in
efforts
to
placate
par-
ticular
constituencies.
For
the
most
part,
policy
making
in
the
area
of
fetal
abuse
has
been
handled
by
the
courts.
One
of
the
reasons
for
the
scarcity
of
explicit
policy
in
this
area
has
been
the
intensity
of
the
political
interests
which
seek
accom-
modation.
Another
reason
just
as
daunting
is
the
ethical
thicket
which
surrounds
discussions
of
policy
options
and
the
corresponding
lack
of
consensus
characterizing
this
debate.
Nevertheless,
continued
inatten-
tion
or
piecemeal
solutions
will
only
intensify
conflicts
among
inter-
ested
parties,
especially
as
biological
knowledge
yields
more
insights
into
the
consequences
of
maternal
behavior
for
the
fetus
and
as
bio-
medical
technology
advances
fetal
viability.
The
goal
in
this
paper
is
to
survey
and
assess
ethical
and
legal
dimensions
regarding
fetal
abuse
policy
in
America.
Section
I
explores
the
wide
scope
of
ethical
and
legal
issues
of
import
to
policymakers
as
they
confront
fetal
abuse.
These
include
concerns
over
the
status
of
the
fetus,
the
assessment
of
harm,
and
conflicts
over
rights
claims.
Section
II
summarizes
and
assesses
current
judicial
policy
in
the
area.
Finally,
Section
III
offers
suggestions
about
future
directions
for
policy
with
regard
to
the
most
immediate
issues
surrounding
fetal
abuse.
While
fetal
abuse
cases
have
dealt
almost
exclusively
with
maternal
duties
and
rights,
there
is
no
reason
why
similar
claims
cannot
be
brought
against
others,
including
fathers,
health
care
providers,
and
society
at
large.
For
example,
what
is
the
moral
and
legal
responsibility
of
a
male
exposed
to
toxins
like
Agent
Orange
or
viruses
like
AIDS
to
abstain
from
procreation
when
the
likelihood
of
a
severely
deformed
child
is
high?
Nevertheless,
the
case
of
female
rights
and
responsibili-
ties
poses
special
problems
because
the
assertion
of
claims
to
privacy
and
bodily
self-determination
on
the
part
of
the
mother
may
simul-
taneously
entail
a
diminution
of
the
health
and
welfare
claims
of
the
fetus.
The
way
in
which
a
woman
treats
her
own
body
by
ingesting
alcohol,
drugs,
caffeine,
etc.
after
conception
(and
in
many
cases
prior
2
We
will
not
discuss
interest
group
politics
here.
For
a
consideration
of
these
factors
in
the
related
case
of
the
abortion
controversy,
see,
for
example,
Tatalovich
et
al.
1981;
Rubin
1982.
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