Restricting the freedom of pregnant women

8
Restricting the freedom of pregnant women
Susan Bewley
Women’s Health Services, Guy’s and St. Thomas’ Hospitals Trust, London, UK
Introduction
In an aggressive response to the dangers of drug-taking in pregnancy, women
have been jailed during pregnancy for taking illicit drugs and immediately
following delivery if newborn drug tests prove positive (Paltrow, 1990;
Berger, 1991). Court judgments have claimed that ‘a child has a legal right to
begin life with a sound mind and body’ (Smith v Brennan, 1960). The
argument appears to be that pregnant drug addicts should stop, as it is wrong
to harm fetuses (who will become babies who have a right to be born of sound
mind and body). If mothers do not stop, other actions are justiWed on this
view – even those involving force or coercion (Logli, 1990; Nolan, 1990).
However, there are many ways in which mothers put fetuses at risk, apart
from taking illegal drugs (such as heroin or cocaine). Examples include
taking legal drugs (such as alcohol or cigarettes), failing to attend for ante-
natal care, inhaling environmental pollutants or even skiing. Actions against
pregnant drug takers are taking place within a wider programme of legal
enforcement of women’s ethical obligations to their fetuses (Kolder et al,
1987; Nelson and Milliken, 1989; Re S, 1992).
This chapter examines moral arguments used to justify society acting
against pregnant women on behalf of their unborn children. I have used the
drug-taker as a ‘hard case’ and constructed a framework to examine any
action against pregnant women (see Figure 8.1).
The moral relationship of mother and fetus
A necessary condition before limiting a pregnant woman’s freedom is that a
moral relationship exists between mother and fetus. The claims of those
wishing to limit pregnant women’s freedom are Wrstly, that a fetus has full
rights, and, secondly, that the right to life (Kluge, 1988) or prenatal care
(Keyserlingk, 1984) overrides the mother’s right to autonomy or inviol-

ability.
Although counter-arguments may be made that the unborn fetus has no
moral status (Harris, 1985), or that the right of a woman to control her body
131
All pregnant women
Do women have a moral relationship to their fetus?
Ye s
Are they free or unfree to stop harmful behaviour?
Free (M1) Unfree (M2)
What options are available to society?
Offer
1
Threat
2
Coerce
3
Offer
1
Threat
2
Coerce
3
Are options morally permissible?
Yes Yes No Yes Yes Yes?
Ye s Ye s Ye s N o N o
No Yes No
Will they be effective (especially in drug-takers)?
Are there extra conditions?
(a)
(b)

Key: (a) Offers should be tried first. Threats should only be used if offers fail.
A real and serious risk of harm to the fetus must exist; as restrictions on liberty increase, so must the
justification; there should be no less drastic method for achieving the same end; the harm prevented
should be less than that caused; and compensation might have to be considered for limits on
freedom.
(b) The existence of threats aimed at M1 (for whom they are effective) affects M2 (for whom they will
be ineffective or even counter-productive).
Figure 8.1. Limiting pregnant women’s freedom – the logic of the argument.
132
S. Bewley
is absolute (Thomson, 1974), these are derived from the abortion debate and
are inadequate. The issue is the harming of a future person rather than killing.
The moral status of the embryo (so important in the abortion debate) is
irrelevant to the existence of obligations with respect to harming a future
person who indisputably has moral status (Gillon, 1988).
I assume: (1) A fetus has some, even full, moral status; (2) A woman does
not have an absolute right to control her body; (3) In general, people have a
basic human right not to be interfered with (Hart, 1955); and (4) If a mother
has obligations to her fetus, then so has society.
Although (3) may be overridden by another moral consideration, the
existence of this right means that a powerful justiWcation must exist if a
pregnant woman’s freedom is to be limited. The existence of a duty of a
mother not to harm her fetus may provide a good reason to apply a restraint,
but the burden of proof is on those who wish to restrict freedom.
Do fetuses have rights? This question will be answered diVerently by
rights-based, duty-based or goal-based moralists (Dworkin, 1977). Rights-
based moralists who ground rights in autonomy would consider a right as
something that can only be enjoyed by autonomous agents, since rights, on
this view, protect choice (Hart, 1985). Hart conceives of rights as a kind of
property that can be possessed or owned by individuals, and, by analogy, can

be given away. One characteristic of rights is that they are capable of being
waived. Thus the capacity to alienate or waive rights is central to having
them. A non-autonomous fetus cannot have rights, unless the rights it
possesses in the future impose duties on us now to care for it so as to ensure
that it may achieve this personhood later. But this would mean that the adult
physically disabled by thalidomide had a right not to be born of unsound
body, whereas the severely brain-damaged individual whose mother took
poisonous drugs did not. Taking drugs that inhibit autonomy might become
permissible if autonomy is the central moral value. Thus I would rather
consider maternal duties towards her fetus due to its intrinsic value.
It is possible to distinguish the claim that a fetus has a right to be born of
sound mind and body from the right not to be damaged (implying being
made worse oV than some previous state, for example by a pregnancy disease)
and from the right not to be deliberately or negligently harmed. If a concep-
tus with a serious chromosomal disorder implants and grows without inter-
ference, it will be born unhealthy (without a sound mind and body) but
undamaged or unharmed by anyone else.
If the maternal duty is to ensure that her fetus is born in good health, then a
mother fails in her duty if the fetus is not born in good health. She fails
whether her baby has a withdrawal syndrome or Down’s syndrome. Does this
mean that ensuring the fetus is not born at all would be a fulWlment of the
duty? If abortion is tolerated, then one way to fulWl the duty is to abort the
unhealthy fetus. Glover (1977: p. 146) states that, ‘If aborting the abnormal
133Restricting the freedom of pregnant women
fetus can be followed by having another, normal one, it will be wrong not to
do this’. If abortion is not tolerated, then a mother on drugs who stops can
fulWl her duty, whereas a woman carrying a Down’s syndrome baby auto-
matically fails. It would be an odd obligation that led to moral failure
following chromosomal accidents.
What about ensuring that a fetus is born in the best possible health?A

positive duty of this sort would entail doing everything possible to avoid
harms. However, a lapse or omission would be a failure even if it occurred
through ignorance. A mother who did not take all possible steps to read and
scan the Internet about dangers in pregnancy would be culpable if a harm
then resulted. With the ever-increasing knowledge of inXuences on preg-
nancy, such a positive duty is terribly onerous, and ultimately impossible to
fulWl. A pregnant woman’s life would become a nightmare, devoting herself
entirely to protecting her fetus’s well-being (Annas, 1986).
The maternal duty might be expressed as taking reasonable steps to ensure
her fetus is born in good health. A complex weighing is needed to assess what is
reasonable, including the size of beneWt expected (or harm avoided) and the
amount of discomfort the mother will endure. A comparison with the
expectation of behaviour judged reasonable in a parent of a small child might
be helpful. Parents do not have to be perfect, just ‘good enough’. For
example, it is not considered a moral failing (nor appropriate to take legal
action) if parents occasionally shout at children, leave them with child-
minders, or quieten them with chocolate, even if, in excess, these things are
harmful.
However, pregnant women have a unique disadvantage, compared to
parents, as they cannot be separated from their fetuses. Nobody can directly
help the fetus, or relieve the pregnant woman of her obligation, even tempor-
arily. Should this intimacy increase her obligation, if she is doing everything
reasonable by the standards of a parent of a newborn child? For example, if
smoking in the presence of a fetus or newborn had an identical risk of harm
to growth, should a pregnant mother suVer more discomfort for them both
to be acting equally reasonably? The addicted mother of a newborn has the
option to smoke in another room. She should not put cigarettes in the child’s
mouth, and would be commended if she did not smoke in the child’s
presence, but giving up entirely would not be the minimum reasonable
behaviour. These three actions are not separable in pregnancy. Pregnant

women would have to achieve supreme control over their behaviour, which is
not expected of new parents.
It seems unjust to have a minimum standard of behaviour that is markedly
diVerent to that expected of parents of newborns, especially when it is only
applicable to the mother. However, it might be argued that extra duties
(beyond reasonable steps) are incurred because a pregnant woman has a
diVerent relationship from that of a mother of a newborn, though both are in a
special relationship with their oVspring.
134 S. Bewley
Do pregnant women have a diVerent special relationship? For example,
kidney donations between mother and child are not enforced. Why should a
mother-to-be have more obligations than the mother-that-is? Most special
relationships are entered into willingly. Although many people choose to
have children, this is not always so – for example, when unplanned or the
result of rape. In such a case, either the maternal obligation is less (which
seems unjust to the unplanned fetus, who is less protected by maternal duty
than the planned one), or we accept that special relationships thrust more
than reasonable obligations even upon raped women, against their will.
Interestingly, the only special relationship which is never chosen is that of a
child to its parents! Maybe a pregnant woman’s duty, without being as much
as doing everything possible, is still more than doing what is reasonable?
Because the relationship of one inside another is unique, so there is a unique
special relationship and extra duties are incurred. But is one being inside the
other actually morally relevant? What is at stake is the way the fetus is
dependent on the mother and can be damaged by her actions. Conversely, the
mother alone shoulders these obligations and the burdens of pregnancy.
Special relationships do not usually demand an unreasonable sacriWce, or
supererogatory behaviour, as the minimum required to have fulWlled the
duty. For example, no one else has an obligation to have their bodily integrity
violated to save the life of another (McFall v Shimp, 1978), and yet this was

the basis for enforced Caesarean section orders before their legal validity was
overturned (Kluge, 1988). Philippa Foot draws a powerful distinction be-
tween justice and charity in cases of failure to save life (Foot, 1977). A mother
might not have an obligation to have her bodily integrity violated (or to take
more than reasonable steps) for her fetus, but she would be uncharitable if
she did not. A parallel can be drawn with the pregnancy cases where the
mother fails to protect her baby from harm (rather than fails to save its life by
Caesarean section). It would seem unjust that pregnant women have a
diVerent standard by which to measure fulWlment of the obligation to fetuses
than is found in any other special relationship.
In addition, being unique (the situation of one inside another) does not
adequately explain why maternal duties should be uniquely onerous. It
cannot be just because the fetus is particularly vulnerable, as a parent’s
obligation to a child does not change when the vulnerability changes. Parents
of a sick child may be expected to do more than when the child is well, but the
standard, of doing what is reasonable (given the situation), does not change.
Pregnant women are discomforted by pregnancy and undergo direct risks
to their health and life. Treatments in pregnancy vary in discomfort. Some
might require taking a short course of drugs (for example antibiotics); others
might require long hospital admission for rest, and separation from other
children who might also suVer (for example, for recurrent stillbirth). Few
parents die through caring for their small infants (although it may make
them exhausted) though many women become ill and die in pregnancy. As
135Restricting the freedom of pregnant women
many as one per cent of UK women have a ‘near-miss’ life-threatening event
in childbirth, and half a million women worldwide die annually in childbirth.
Even in the developed world one woman in 10 000 dies as a direct result of
pregnancy. Perhaps this illuminates how much pregnant women generally do
beyond the reasonable minimum. By giving up smoking, alcohol, sports or
certain foods, attending frequently for health checks, or classes, evincing

tremendous interest and concern, and submitting themselves to invasive
tests, procedures and hospitalization, women perform daily acts on behalf of
their fetuses that are well beyond the reasonable minimum (thus beyond the
call of duty, or supererogatory) (Department of Health, 1998).
Society’s response and the permissibility of different
strategies to stop a mother harming her fetus
If children are not their parents’ property, but rather future members of
society, then society has a legitimate interest in their welfare. If pregnant
women fail to fulWl their obligations, and serious harms occur, society must
respond on behalf of the unborn, as it too has an obligation to its future
members to take reasonable steps to ensure that they are born in good health.
A variety of strategies are available to inXuence a pregnant woman’s behav-
iour, voluntarily or by force.
Let us compare in two parts methods of inXuencing and encouraging
people to fulWl their moral obligations. What is eVective (with regard to
stopping the harmful behaviour and damaged babies)? And what is permis-
sible? Society’s aim could be: (1) to stop drug-taking in pregnancy; (2) to
make women fulWl their obligations; or (3) to minimize preventable harms to
babies. If the three outcomes were indistinguishable, it would not matter; but
(3) must be the aim. If the goals overlapped but were not identical, society
would be able to tolerate a situation where babies were healthy despite the
persistence of drug-taking and mothers who failed to fulWl their obligations.
Offers and threats
The diVerence between a proposal that contains an oVer or a threat is that, in
the former, the receiver is no worse oV than before by rejecting the oVer,
whereas, in the latter, she is worse oV if she does not comply with the threat.
Many proposals are bipolar, containing both an oVer and a threat. Whereas
oVers do not usually require justiWcation, as there is no proposal to harm
anyone (by making their situation worse), threats do. To illustrate this, a
simple unipolar oVer might be ‘If you get oV drugs, you will be given a

medal’. This incentive does not require justiWcation (although it may not be
eVective). A unipolar threat would be ‘If you do not get oV drugs, your name
136 S. Bewley
will be published for public condemnation’. By contrast with the oVer, this
threat requires a justiWcation (such as the beneWt of preventing fetal damage
outweighing the humiliation and harm caused to women). If the two uni-
polar strategies are equally eVective, the choice of the threat strategy rather
than the oVer one is not justiWable, because nothing now weighs against the
harms caused through threatening people. OVers are thus morally preferable
to threats when they are equally eVective. To opt for a threat, if an oVer is
available, requires Wrstly, that it is more eVective and secondly, that the
diVerence in eVectiveness is itself justiWed. If 1000 drug addicts stop before or
after having their names publicized, as opposed to 999 with the medal option,
it has to be argued that the one extra drug-free baby justiWes 1000 women
being threatened with ostracism by their neighbours.
DiVerent types of threat to pregnant women can be identiWed: to imprison
during pregnancy; to punish after delivery; or to separate the mother and
baby after birth (by imprisoning the mother or taking the baby away). Some
threats materialize immediately, some materialize later. OVers can be made
without needing a justiWcation, whereas threats cannot. It is worth noting
that both are pointless if women are not free to respond.
Let us examine the speciWc threat to separate mother and baby if she
continues to take drugs. If women know that they will be jailed or their babies
taken away on the basis of a blood or urine test on the newborn, this is a
threat operating during the antenatal period to persuade them to stop drugs.
It relies on an assumption that the woman wants to keep her baby (which
may be correct in most cases). But if a woman did not care for her baby, it
might have the opposite eVect, and become an incentive to continue drugs.
Secondly, the baby has become an instrument of society’s will towards its
mother’s behaviour. It is used as a means to threaten its mother rather than

being treated as an end in itself, which seems inconsistent with the concern
for fetal and neonatal well-being from which the threat sprang. Enactment of
the threat is inherently an admission of its failure or ineVectiveness. If
drug-taking during pregnancy is a form of ‘fetal abuse’ (Landwith, 1987),
once the baby is born the abuse stops, as the drug no longer crosses the
placenta. Birth corrects the abuse. In addition, the intention of a drug addict
is not necessarily to hurt the fetus. Once her baby is born the identical action,
of injecting herself, would not count as child abuse. If society wanted to
prevent so-called ‘fetal abuse’ to an individual fetus, taking the post-birth
action against the mother is too late. A post-birth action is appropriate for
punishment but not prevention, except that it might deter the next woman.
EVective threats should be preferred. Separation has now taken on the
character of punishment, with the newborn baby being used as a means to
punish its mother. The threat to separate a mother from her baby merely
because there is evidence she continued to take drugs during pregnancy is not
morally justiWable.
137Restricting the freedom of pregnant women