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Originally published in Synapse on November 19, 1987. At least a fifth of American obstetricians surveyed would seek a court order forcing pregnant women — especially poor, minority women — to comply with recommended treatment such as Caesarean section, according to studies by UCSF’s Dr. Nancy Milliken and researchers at the University of Illinois.

One fourth of responding obstetricians also favored detaining mothers whose refusal of medical advice may endanger the fetus.

In the past five years doctors have sought court orders in 26 states with success in 11 states, according to the Illinois study, published in the May 7 New England Journal of Medicine.

In two states, courts ordered that pregnant women who would not follow doctors’ advice be detained in the hospital.

All the women in this study were medically indigent. Eighty-one percent were black, Asian or Hispanic, and 24 percent did not speak English as their first language.

“My concern is that this happens exclusively to poor women, and primarily to minority women,” said co-investigator Dr. Veronika E.B. Kolder of Chicago’s Illinois Masonic Hospital.

Because survey responses came primarily from large teaching institutions which have many poor and minority patients, the numbers might be skewed, Kolder speculated. But, she added, “it is likely that most of these cases occur at these institutions, not at private institutions where physicians might hesitate to go to court against their patients.”

In addition to reported cases, there are probably many more in which women agree to caesarean sections after steps toward court action begin, according to co-author Dr. Michael T. Parsons of the University of Illinois College of Medicine.

Responding to concern over these court-ordered medical interventions, the American College of Obstetrics and Gynecology recently told physicians that “resort to court order was almost never justified.”

It urged obstetricians to “be aware of the destructive effect of court orders on a pregnant woman’s autonomy and on the physician-patient relationship.”

Inappropriate reliance on judicial authority, it warned, might have the undesired consequence of making criminals of those women who refuse to comply with medical recommendations.

The College’s statement should reduce the increasing tendency of some obstetricians to intervene on behalf of the fetus despite the pregnant woman’s refusal of treatment.

One patient or two?

Medical advances that make fetal life accessible to direct intervention have led to a perception in some quarters of the fetus as an individual separate from the mother.

Many physicians now view the fetus as “the doctor’s second patient,” with rights that can conflict with the rights of the mother, says Milliken.

But to others, particularly women, the tendency of some doctors to distinguish between mother and baby is misguided.

“I see one woman in the process of becoming two, not two people locked in a closet somehow in what may very well be an adversarial relationship,” said Barbara Katz Rothman, author of The Tentative Pregnancy, at a recent conference on maternal-fetal conflict.

The problem with the “two patient” view, according to George J. Annas, professor of health law at Boston University and a leading expert on patients’ rights, is that “we can obtain access to the fetus only through its mother. And in the absence of her informed consent, we can do so only by treating her as fetal container, a non-person without rights to bodily integrity. After birth, the fetus becomes a child and can thereafter be treated in its own right.”

Doctors may ultimately find themselves confronted with cases where their decisions to go against the mother’s own judgment backfire and burden them with moral responsibility for error and legal liability for their actions.

Medical history is replete with prescribed treatments that turned out to have devastating consequences.