Thursday, January 28, 2021

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Maternal Rights Argument

Maternal rights advocates maintain that, although a pregnant woman may have a moral responsibility to protect the fetus, that obligation should not be translated into a legal responsibility. The maternal rights argument is basically centered around two major issues: control of maternal prenatal decision-making and protection of a woman's constitutional rights.

Control of maternal prenatal decision-making. Maternal rights advocates make several arguments for reserving absolute control of maternal prenatal decision-making to women. First, they argue that women are more affected by the consequences of prenatal decisions than anyone other than the fetus.' Second, women have better knowledge of their individual circumstances. Consequently, women, not the state, are in a better position to decide on appropriate prenatal conduct. Third, regulation of maternal prenatal conduct interferes with the rights of the parent to decide how to balance the interests of various family members.' Fourth, regulation of maternal prenatal conduct may subject the woman to the wishes of the father of the child.' Finally, regulation of maternal prenatal conduct "wrests from competent pregnant women the power to make decisions that affect their own bodies."

What concerns many maternal rights advocates is the potential unlimited expansion of fetal rights to cover "virtually every act of the pregnant woman." Articulated concerns about intrusions into the pregnancy include: "failing to eat properly, using prescription, nonprescription and illegal drugs, smoking, drinking alcohol, exposing herself to infectious disease or to work-place hazards, engaging in immoderate exercise or sexual intercourse, residing at high altitudes for prolonged periods, or using a general anesthetic or drugs to induce rapid labor during delivery.""I'' Maternal rights advocates see the pregnant woman in "constant fear. . . [of] a criminal prosecution by the state or a civil suit by a disenchanted husband or relative.

Protection of a woman's constitutional rights. Maternal rights advocates rely heavily on Roe v. Wade and cases such as Griswold v. Connecticut to assert that a pregnant woman has a right of personal autonomy, of bodily integrity,' and of parental autonomy." Furthermore, they maintain that constitutional guarantees of liberty and privacy limit a state's intervention in proscribing a pregnant woman's conduct."

Maternal rights advocates argue that fetal rights proponents cast women as nothing more than "incubators or containers" for their infants. Women, like men, are accorded constitutionally protected rights which a status, such as pregnancy, should not affect." According to maternal rights proponents, fetal rights arguments completely ignore the fact that a pregnant woman who abuses alcohol is not just potentially harming the fetus but is also harming herself. It appears that they fail to recognize the value of the woman's life. Maternal rights advocates ask why fetal rights advocates focus only on maternal behavior when it is only one factor which contributes to alcohol abuse by pregnant women. That is, why not focus on the social and economic conditions that contribute to alcohol abuse?

Maternal rights advocates see the granting of rights to fetuses as more of the same oppression, that is, a historical tradition of disadvantaging women on the basis of their reproductive capability." Thus, the state would not only restrict a pregnant women's autonomy, but also "define women in terms of their childbearing capacity, valuing the reproductive difference between women and men in such a way as to render it impossible for women to participate as full members of society.""

Maternal rights advocates argue that infringement on women's liberty would either discourage women from becoming pregnant or create an incentive for them to abort." Furthermore they maintain that granting rights to the fetus that can be asserted against the pregnant woman sets up an adversarial relationship between the woman and the fetus."

Slippery slope of regulation. Maternal rights advocates argue that because of Roe v. Wade," the fetus is not entitled to the constitutional rights of life and liberty." However, maternal rights advocates recognize that fetuses do have some rights under the law. It is the seemingly unlimited extension of rights against the pregnant woman that causes concern. For instance, some jurisdictions allow a child to have a cause of action against the child's parents for injuries that occurred prenatally; authorize the taking of custody of a child during pregnancy;" allow evidence of prenatal drug use to be considered during proceedings instituted by the state to take custody of a woman's newborn child; authorize a fetus to be considered a child under criminal child abuse statutes;" and require a pregnant woman to undergo refused medical treatment." Maternal rights advocates regard these existing intrusions against the mother as significant.

Judicial inadequacy in judging woman's circumstances. Maternal rights advocates also point out the inadequacy of the judicial response when addressing the problem of maternal alcohol abuse. As one commentator noted:

Although judges may order a pregnant woman to jail because her behavior may place her unborn infant at risk, judges do not order treatment centers to accept women and their children or Medicaid to cover the costs of treatment. Landlords are not ordered to keep them as tenants; obstetricians are not ordered to care for them; treatment centers are not designed with the needs of pregnant, addicted women and their children in mind; nor is the federal government ordered to fully fund maternal and infant health care and food programs.

A pregnant woman drinks because of "her economic status, her employment situation, her lack of access to prenatal care, her physical and mental condition prior to and during pregnancy, the demands of [family], whether her husband is supportive or abusive, and whether she was addicted to alcohol, drugs, or cigarettes prior to her pregnancy."' Given the many factors that contribute to a pregnant woman's behavior, some maternal rights advocates maintain that the judicial system cannot adequately evaluate the totality of the woman's circumstances." Thus, while maternal behavior may provide a credible basis for appearance of concern, in fact the government is unwilling to take effective and expensive efforts.

Interference with a woman's relationship with the health care system. Maternal rights advocates maintain that physicians cannot place the fetus' welfare above the woman's health. Nor can they be required to make "trade-offs" between a woman's health and the fetus' survival; giving fetuses rights to health will require just that.' In fact, maternal rights advocates argue that giving fetuses rights against the mother will turn doctors, nurses, and hospitals into "pregnancy police."' Fetal rights advocates counter that health care providers will no more become "pregnancy police" than pediatricians have become "child-rearing police" under statutes requiring the reporting of post-natal child abuse."

 

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