Moral status of the fetus: Fetal rights or maternal autonomy?

The moral status of the fetus bears special consideration, because it could come into conflict with a pregnant woman's right to decide what happens to her body. If this should occur, which should take precedence? There are three major ways of viewing the moral status of the fetus: that a fetus has the same rights as a live child; that a fetus has no rights; or that a fetus has increasing moral status with advancing gestation. If the fetus has full moral rights, the fetus is treated as a separate entity from the mother, and the pregnant woman as being effectively two patients. Because of the fetus's dependence, this potentially leads to serious conflict between maternal and fetal rights. The concept of a person's autonomy is one of choice. A person's right to autonomy is their right to choose how to live their own life. If a woman wishes to smoke tobacco, we would say she has the right to do so even if it harms her health. But smoking can also harm the fetus, albeit only to a relatively moderate extent. No society forbids women from smoking during pregnancy, although we might disapprove. Alcohol, however, and particularly binge drinking, can cause brain damage to the fetus. Cocaine can damage the blood supply to the fetal brain and cause intra-uterine stroke and fetal death. If the fetus has full rights, this could encourage legislation against maternal activities that might damage the fetus, such as excessive alcohol, or cocaine consumption. Indeed, in the USA, women who have damaged their babies through cocaine addiction have received lengthy prison sentences (12 years in one recent case). Assigning full rights to the fetus might infringe a mother's autonomy and is likely to lead to a coercive and punitive approach to pregnant women. It seems unjust for society to imprison a woman for accidentally killing her fetus through cocaine addiction, while permitting another woman to abort her viable fetus because it has Down syndrome. Another problem with maternal coercion is that there is no clear dividing line as to what is deemed harmful to the fetus. The degree of control of maternal diabetes is known to affect fetal outcome: should we force diabetic mothers to take their insulin? Religious beliefs can be over-ridden. A Jehovah's Witness adult's autonomy dictates that they can refuse a blood transfusion, but in the USA a pregnant mother who was a Jehovah's Witness and was bleeding was forced to have a transfusion to save her fetus.1 Mary Warren holds that a fetus has no moral status independent of its mother, but that the fetus acquires moral status at birth.2 When asked what the instant moral significance of birth is, she replies that infants, unlike fetuses, are part of a social world. It is emergence into the social world that confers the moral status. One implication of this position is that it would give a pregnant woman the moral right to abort a viable fetus, but not to kill her newborn infant. If she were to decide, late in pregnancy, that she did not want her (normal) baby, she could morally terminate the viable fetus, whereas if she were to go into labour and deliver the baby that day she could not, legally or morally, kill the newborn baby. There is a great difference, however, between an early abortion and a late termination of a viable fetus, which would have survived unless actively prevented from breathing. Feminists often act as if the fetus is an encumbrance, that it is only there to prey on the mother. The fetus has been likened to a parasite or even a tumour. Judith Jarvis Thomson uses a rather charming analogy of the fetus as a dying violinist: one night a woman is kidnapped and the violinist is plugged into her body to use her kidneys to extract toxins.3 Thomson also uses an even more touching analogy, in which she likens fetuses to people-seeds drifting about in the air. A woman might try to keep them out of her house, but one might accidentally land in the carpet and start to grow into a person-plant. However, later in the same article, Thomson also likens the fetus to a burglar.3 The attribution of malignant characteristics to the fetus is harsh. Making the fetus into the villain looks suspiciously like transferring blame or guilt for terminating a pregnancy. The third choice is that the fetus acquires increasing moral status with advancing gestation. The moral difference perceived by many between an early abortion and termination of a viable full-term fetus implies that we consider that the moral status of the fetus does indeed increase with gestation. If we assign the fetus full rights, then we are implying that society must guarantee those rights, as society does with a live baby. As already stated, however, the fetus's rights might conflict with the mother's autonomy to decide what happens to her own body. If the fetus has no rights, then even a viable fetus is unprotected if the mother jeopardizes its existence. If the moral status of the fetus increases with gestation, then a viable fetus has greater moral status than a newly fertilized ovum, and it might be reasonable to intervene if the mother's behaviour jeopardizes the fetus near term. The fetus is not a separate biological entity to the mother, but is totally dependent on her body until near term. This would seem to give the mother important ‘rights’ in deciding what happens to the fetus if it also affects what happens to her body. In general, there is little conflict. The mother is the fetus's moral guardian in a symbiotic, not a parasitic, relationship. If significant differences arise in the interests of the mother and fetus, the mother has a responsibility to consider the interests of both, and make an informed decision for both of them. If conflicts arise, the competent mother's rights to personal autonomy should prevail over the lesser rights of the fetus early in gestation, but as the fetus matures and acquires greater moral status, the situation becomes less clear-cut. What happens in current practice? The risk that the baby of an HIV-positive pregnant woman will catch HIV without intervention is approximately 25%. If the mother is given anti­retroviral drugs for the last few weeks of pregnancy, a Caesarean section is performed, the baby is given antiretroviral drugs and is bottle-fed, the risk falls to less than 5%. If a pregnant, HIV-positive woman who was well-informed and competent were to decline antiretroviral drugs or Caesarean section, should we allow the mother's autonomy to override the fetus's rights? A newborn baby who develops AIDS will die untreated, so if such a baby's mother declined treatment, normal practice would be to take the baby into care and give treatment. Societal protection of the newborn baby is sometimes necessary to prevent child neglect and child physical and sexual abuse, so it is hard to argue with this approach to the newborn with life-threatening HIV infection. If we allow the pregnant HIV-positive mother near term to refuse treatment, but not the mother of a live baby, we are behaving as if birth confers instant moral status. In the USA, an HIV-positive pregnant woman is felt to have a moral obligation to comply with antiretroviral drugs and Caesarean section, and this obligation has been prosecuted legally. A similar legal judgement, obliging an HIV-positive woman to have a Caesarean section and to bottle-feed, was made recently in Australia.4 In these legal judgements, the fetus's rights override the mother's autonomy. The problem is that the mother also has rights to decide what happens to her body. She might decide she does not want a Caesarean section, and prefer to take the increased risk that her baby will be HIV-infected. To deny her that right is to go against her autonomy. My personal view is that the interdependence between a pregnant woman and her fetus is a special relationship, which sometimes brings special ethical dilemmas. I prefer to live in a society that does not force a woman to undergo operations or behave against her own free will. Thus, I believe a pregnant woman's autonomy should always override the rights of her fetus, provided the woman is fully informed and is competent to make a decision. The only exceptions would be if the mother were incompetent, as a result of, for example, dementia or coma. My reason for this view is the importance of granting the mother's autonomy, and not because of Mary Warren's concept of the newborn baby's newly found societal relations. This will result in apparently anachronistic situations, such as in the HIV-positive pregnancy, where the baby acquires moral status miraculously at birth. But the alternative, of allowing the fetus's rights to carry more weight than the mother's autonomy, debases the concept of autonomy, and ignores the guardianship status of the mother for her fetus.