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Volume 9, Number 3, December 1998
Case Commentary: Justice in Prenatal Care
Laura Shanner, PhD, Associate Professor Cases such as these raise deeply important ethical matters, and they are much more complicated than they may at first appear. I think all reasonable people desire that children have as healthy a start in life as possible. It also seems reasonable - indeed, perhaps morally required - that we respond with outrage when unnecessary injury is inflicted upon innocent persons. What concerns me about the public discussion of prenatal care, however, is that our moral outrage and commitment to well-being seem focused on a tiny fraction of the factors that shape a child's life. Our great concern for children during the fetal period far too often diminishes when children are born into poverty or discrimination, suffer abuse or violence, endure lifelong poor health with limited access to health care, and then grow into adolescents and adults who produce children themselves. Fetal injury due to maternal use of intoxicants is not an isolated incidence of cause-effect behavior by individuals, but is one of a set of much larger problems affecting the health of women, children and communities. Arresting or confining pregnant women does not begin to address the problems that contribute to prenatal injuries. When assessing justice in a situation, it is helpful to ask "who stands
to benefit from an intervention?" and "who stands to be harmed?". The
goal of confining pregnant women seems to be to protect offspring,
but we are far too late in our interventions if we wait until the pregnancy
is several months along; the future child will not benefit if the damage
from maternal solvent use has already been done in early pregnancy.
The baby in the Edmonton case was born in jail only a day after the
mother's arrest; what benefit was achieved for this child? Further, if women perceive that they may be forcefully confined or treated when they are pregnant, those who are most desperately in need of drug treatment and/or prenatal care will actively avoid it. In the long run, confining pregnant women seems likely to lead to worse pregnancy outcomes rather than better, as pregnant women will fear medical/legal coercion. It is therefore hard to see how children would reliably benefit from court-ordered maternal confinement. Further, it is certainly not clear that this limited benefit outweighs the obvious harms to women of violating bodily integrity with forced treatments, violating autonomy with jail terms, and attaching the stigma of criminality to otherwise-tolerated behavior when a woman happens to be pregnant. Part of our difficulty in this situation is that we tend to speak of prenatal injury in terms of a "maternal-fetal conflict," which leads to images of fetuses as somehow separated and distinct from the pregnant woman, and of a woman as somehow separated from her community. Presenting the case as a conflict of the rights or interests of autonomous individuals fails to address the common interests of women and offspring that are undermined by addiction as well as many other factors. The effects of intoxicants on fetuses are decried, for example, but we fail to provide adequate drug treatment facilities for addicted women (or men). It is a dangerous mistake to assume that addicts want to be addicted, or that the addiction is somehow in the woman's best interests. Addiction in pregnancy seems less a "conflict" of interests than a shared tragedy. When bad outcomes occur or seem likely, we often feel a need not just to understand the cause, but to assign blame. The "maternal-fetal conflict" limits us to two potentially blameworthy parties - mother and offspring - rather than a wider social network. Since fetuses are unable to choose whether to be conceived, let alone the conditions of their prenatal life, surely we cannot blame them for complications. Indeed, it is their very innocence and helplessness that inspire our outrage at prenatal injury. Accordingly, or so our logic tells us, we must blame the pregnant woman. However, the actions of many others, not just the pregnant woman, directly and indirectly affect pregnancy outcomes. We tend to scorn women who are addicted during pregnancy, but I have yet to hear any rebuke of the men who allowed themselves to impregnate women with obvious addictions. Those who fail to support their pregnant partners or family members, perhaps leaving them homeless or hungry, are similarly absent from our discussions. Notably, environmental polluters and smokers who expose children or pregnant women to second-hand smoke are rarely embroiled in the legal system for causing injury to offspring. Beyond a woman's local community is a much larger social network involving financial resources, access to corridors of power, and social discrimination in a national or global society. We should not ignore the fact that the women arrested in both cases were Native Canadians, not members of other, more privileged social groups. The United Nations Human Development rankings consistently place Canada at the top of the list overall; unfortunately, however, we fall to 6th when equality for women is factored in, and 10th if we consider the gap between rich and poor in the country. For Aboriginal Canadians living in urban areas, the quality of life rankings fall to 35th, and for those on reserves, the ranking drops to 63rd, below many developing nations.1 The women in both of these cases were addicted to solvents, which are associated with poverty; middle-class women who drink alcohol, smoke cigarettes or snort cocaine have not been targeted for arrest in the same way, even though their drug use may be at least equally damaging to their offspring. Not every fetus exposed to intoxicants or other chemicals will suffer significant injury, and there is evidence that poverty and poor nutrition substantially increase the likelihood of injury occurring to the exposed offspring. If we are to allocate blame justly, we clearly must widen our scope of attention beyond the pregnant woman herself. These larger questions of social and economic justice are resoundingly important when we consider the reasons that the women were sniffing intoxicants in the first place. Intoxicants are most attractive to us when we are trying to mask pain or cope with hopelessness, not when we are happy, healthy, and able to pursue our dreams. It is not an accident that people who suffer discrimination, violence, sexual abuse, poverty, and other systematic injustices or abuses of power tend to have very high rates of substance abuse and addiction. In this light, the pattern of confining pregnant, intoxicated women
from disadvantaged social groups seems less a step toward better birth
outcomes than it is yet another element of systematic discrimination
against certain populations within our community. If we insist on using
courts to address prenatal injury, then at minimum we must employ this
mechanism fairly across all economic and social groups, not just against
impoverished ethnic minorities. The effects of legal intervention may
not be the same across different groups, however. Women who have already
suffered abuses of power over them are very likely to be re-traumatized
by arrest, confinement or forced treatment. On one view, temporary
confinement may seem a minimal harm compared to lifelong injury from
intoxicant exposure; from the perspective of someone already injured
in a discriminatory society, however, the harms of confinement may
be devastating. The judge's comments in the Edmonton case raise further questions about fairness in the application of legal mechanisms to prevent prenatal injury. A six-month jail term after the birth of the child was justified as an attempt to save the woman's life; the arrest, however, was motivated primarily by the risks posed to the offspring, not the health risks to the woman herself. If imprisonment is an appropriate lifesaving measure, then one would expect that non-pregnant addicts (both female and male) should routinely be arrested on the same grounds. Similarly, one would expect that persons who are homeless in a harsh Canadian winter ought to be jailed until the spring thaw. Although trafficking in drugs is a criminal offense, we clearly do not condone the use of legal coercion in matters of personal drug use or addiction, homelessness, most untreated mental illnesses, dangerous recreational mountain-climbing and other known threats to health and life. Once again, middle-class smokers or alcoholics are not arrested to prevent their deaths; we target only certain segments of the socio-economic spectrum of the community. Gender bias is also apparent, as we target women who are pregnant rather than all persons posing risk to themselves and others. What, then, are we to do to reduce prenatal injury to offspring? The proper answer is that we must work toward building a truly just society, not one that allows the world's top standard of living for some lucky residents while others muddle through amid poverty and discrimination. We should emphasize the community's role in promoting healthy births through a healthy environment, economy and standard of living, as well as promoting the individual responsibility of pregnant women, since poverty and environmental toxins are at least as dangerous as intoxicant exposure. We must find ways to provide needed assistance on terms that those in need are able and willing to use, not to force limited ranges of solutions upon people who may be injured or frightened by exactly the intervention that we thought would be helpful. We must also reconsider our notions of "responsibility" in pregnancy, as currently we emphasize blame but rarely note when a woman is acting responsibly or reward her for doing so. In the Winnipeg case, the intoxicated woman sought drug rehabilitation, but no treatment facilities were available; she behaved as responsibly as was possible for her in the circumstance of profound physical addiction. We should note that when DG did finally undergo detoxification, both she and the fetus suffered seizures; one cannot simply decide to end genuine addiction on one's own. Why is so little attention paid to what she did (or tried to do) that was right? Why is she blamed for her continued addiction when we failed to provide the help that she responsibly sought? This seems unfair. By using the force of law to address prenatal exposure to intoxicants, we are focused on the very good and reasonable goal of preventing injury to children. Unfortunately, however, forced confinement of pregnant women usually fails to provide genuine and lasting benefit to children, and it tends to cause rather than prevent injuries to women. More fundamentally, we are failing to address deeply ingrained discrimination, poverty, and other forms of social injustice that harm both mothers and offspring. For children and the adults they will become, we can - and must - do better.
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