Should Pregnant Women Be Prosecuted for Endangering Their Child?

Introduction

Lately, the question of abortion and the reproductive rights of women has been brought to the fore again due to a recent leaked draft opinion of the United States Supreme Court regarding a review of the landmark Roe v Wade case which granted all women in the US the right to have an abortion.

It seems an appropriate time to publish this essay I wrote for a Medical Ethics philosophy class that approaches one small area in the regard. If, as the majority opinion draft says, abortion as a right is removed in the US, women who have an abortion would suddenly be open to criminal prosecution in some states (where laws criminalising abortions are already on the books). This article addresses the question: Should Pregnant Women be Prosecuted for Endangering their Child (before birth)?

In order to answer this question, I will shortly present some common arguments both for and against abortion and the associated perspectives, and generally the rights of women/mother and foetus/child.

Sanctity of Life View

The Sanctity of Life view holds that all human life has intrinsic value from conception, and that it is impermissible to take human life. Thus, abortion or any other action that would bring about the end of a pregnancy is impermissible. It would then follow that a person who takes a human life would be open to prosecution. The main counterargument here is that a foetus is not a human being in a post-birth sense.

Argument from Potential

The argument from potential view says that it is wrong to kill a potential human being and holds that the human foetus is a potential human being. It is therefore wrong to kill a foetus (human being). As a potential human being, a foetus too has fundamental rights, like the right to life, which would be violated, should a pregnancy be terminated.

Right to Bodily Autonomy — aka the Feminist Argument

There is also the (feminist) argument, which is that a woman has the right to decide over her own body. It has been firmly established in certain jurisdictions that a woman has the right to decide what happens to her, without special consideration for the foetus she may be carrying. Nobody, according to proponents of this argument, can take away this right. A little more on Autonomy in the concluding discussion.

Now, on to the cases.

Case 1 — Angela Carder

In this case, the main question that is meant to be answered is: should Angela be (potentially) punished for indirectly causing the death of her unborn child? Angela, a lifelong cancer patient, got pregnant which entailed risks for her and the foetus she was carrying. She got pregnant at a time when she was declared free of cancer.

At 25-weeks pregnant, Angela was again diagnosed with cancer. The options open to her were wait until after the birth to start with cancer treatment, which may lead to deterioration of her condition, or to get started with the treatment right away. While Angela had been told of additional risks to the baby arising from radiation and chemo treatment, but she chose that path, consistently prioritising her own life.

First things first, can she even be held responsible for not having a premature child? Her doctors had told her rather explicitly that there would be almost no chance for the foetus to survive if they intervened at that stage (25-weeks of gestation). The doctors themselves had ruled out surgery (caesarean section), as that would almost certainly be guaranteed to kill her. The doctors attending to Angela agreed that the best path would be to institute her chemotherapy and monitor the foetus.

The position of the hospital, and the court, was that it was not for Angela to decide if she should have that child at that point but rather, a premature birth was a natural course, and any other position would have to be ordered or endorsed by a court of law. It is therefore on that point that the question of punishment for Angela can be raised.

It can be argued that Angela did in fact want to have an abortion as soon as she found out she was pregnant, as she explicitly told doctors that she wanted to prioritise her own well-being over that of this embryo, that would eventually be born. She was expressing that very soon after conception. This is meant to show that she was always following medical advice with the explicit understanding that her life would always be prioritised.

But on to a more practical view here. What crime has Angela committed for which she ought to be punished? There are several philosophical arguments surrounding this topic (primarily in the context of abortion) which I look at here, as presented by Singer (1993), to answer the question posed. The arguments I will look at are the sanctity of life view or argument, as well as the argument from potential, while also briefly touching upon the feminist argument as well.

Did Angela kill a human being? My answer, expanded upon below, is that she did not kill a human being, and therefore committed no crime, moral or legal, for which she should be punished.

Angela explicitly told doctors that she wanted to prioritise her own well-being over that of the embryo, that would eventually be born. She was expressing very soon after conception that she was very much interested in preserving her own life, which could be seen to be asking for advice as to whether she should terminate the pregnancy right then and there. This problem, to me, is better addressed by the trolley problem. A better analogy to approach this case would be the trolley problem.

In the trolley dilemma, the choices a person is confronted with are to do nothing and watch someone potentially die or intervene and know for certain that you caused the death of a person. (In the classic version it is a question of no intervention and watching multiple people die or intervene and kill a single person by your actions).

My position on this dilemma is that passivity cannot be labelled the cause of the ‘natural course of action’. I do not subscribe to the view that moral obligation would compel a person to perform an action where they would verifiably be complicit in a moral wrong.

Angela, by deciding to prioritise her life, did not kill the child even if it were implied that passivity might lead to that result. She was not morally obligated to save the foetus at the cost of her own life.

Another question to be answered, is whether the foetus was killed or whether it just died. If there was killing involved, I would argue that it was the courts that ultimately caused the death of the foetus, rather than Angela or her doctors. After all, they caused the death of both the foetus and Angela by intervening whereas non-intervention would have likely resulted in no deaths or only the death of the foetus.

Thus, I conclude that Angela did not commit any moral or legal crimes and should not have been punished for her decision to prioritise her own life over that of her child, had she survived the treatment.

Case 2 — Jessica Marie Clyburn

Jessica attempted to commit suicide when she was 8 months pregnant. She survived the fall herself, but the baby died. Jessica was known to have mental health problems which may have manifested themselves in this situation. Police are seeking to prosecute her since “anything you do to a child is homicide by child neglect” and that she’s “ultimately responsible for that child” and thus responsible for the death of the child.

So, does the police argument hold water? I will analyse this using the same arguments as above: sanctity of life, argument from potential and the feminist argument. The trolley dilemma does not concern us here since Jessica took action which directly led to the death of the baby, meaning causality is clearly established.

In Jessica’s case, the argument can hardly be made that foetus was not a real human and thus the sanctity of human life was not violated. An 8-month-old foetus can be said to be rather like any child immediately after birth and the fact that the baby is not yet born does not change much about how human the baby is. It is alive and kicking and has very good chances of survival after a premature birth, even without the latest medical equipment. It is thus clear that we cannot employ the argument from potential since Jessica’s baby was not only a potential human but an actual human being (albeit inside the uterus). For example, if Jessica would have had a fatal heart attack or something similarly unexpected, it would still be possible to save the baby if medical care was provided within a reasonable amount of time.

Thus, the only possible argument I have left here for non-punishment of Jessica is the feminist argument that she oversees her own body and that she did not, per se, kill the child. She only sought to kill herself and that this baby by virtue of being physically attached to her was also going to lose its life.

Has she committed a crime, and should she be punished for that crime? Technically, suicide is a crime in some jurisdictions so that is a crime she can be pursued for. I could not argue that Jessica committed murder even if the baby died as a consequence of her action. Here, we should also account for Jessica’s mental conditions which could also impair her abilities and thus reduce criminal culpability.

Case 3 — Melissa Ann Rowland

Melissa is a woman who had a difficult upbringing and a generally difficult life. She had mental issues, had twins at the age of 14, was confined to a mental hospital at age 12, estranged from her family and periodically homeless. After becoming pregnant again with twins, Melissa was advised by doctors to get an immediate C-section to save the babies. For several mostly frivolous reasons (my interpretation), Melissa refused to get it done and eventually had a C-section 9 days later at which point only one of the twins could be saved. Can she be held responsible for the still-born child?

In my view, that would depend on whether the gravity of the matter, the need for a caesarean section, was sufficiently impressed upon her. Otherwise, her argument that she was looking for a different physician might be accepted as plausible. After all, she had intended to carry the children to term so she cannot realistically be said to have wilfully murdered one of them. At best, this is a case of negligence, criminal or otherwise. Negligence when it leads to death is a punishable offence in most cases and in my opinion, there is no reason why such a judgement cannot be passed against Melissa.

It came to light after the C-section that Melissa was using drugs and alcohol during her pregnancy which may have contributed to the situation that necessitated the emergency Caesarean section. Can she be held responsible for that? Despite having mental illnesses, it should be assumed that Melissa must have been told that drugs and alcohol are bad for the babies and that she should not have continued taking them.

Therefore, she can be punished for endangering the life of her foetuses, especially since she had intended to carry the children to term and was not compelled to resort to those actions due to restrictive laws (asymmetry of burdens argument). Here too, my position is that this is negligent behaviour which should be punished.

Finally, I would like to consider her mental illness which could have been the reason behind her negligence. A mentally ill person who is also a substance abuser has mitigating circumstances which should be taken into consideration when deciding on the actual punishment. I firmly believe there were extenuating circumstances in this case (without having too many details).

So, while I conclude in this case that Melissa should be subject to care and therapy rather than punishment per se, the general argument I have demonstrated is that punishment can be meted out to a pregnant woman for endangering her child and that the punishment should be commensurate with the circumstances of each individual/case.

A concluding discussion on this question

All these cases included caveats which lead to case-specific conclusions. Here, I would briefly like to answer the question as a whole and present several scenarios where punishment may be meted out to pregnant women for endangering their children.

Amber was a woman with a history of physical illness which made her body rather fragile, including the removal of an entire leg and section of hips. In her case, the foetus itself was a danger to the life of the mother. Jessica, by all accounts, had a normal pregnancy and the child was due for natural birth soon after. However, she was neither being passive nor active in trying to harm the child, but rather Jessica was trying to kill herself, because of her circumstances in life and potentially her mental illnesses. Melissa, the third woman, also had mental health issues, was a substance abuser and was leading a rather difficult life. It cannot directly be concluded that she was actively trying to harm her child through the refusal to have a C-section but given that she was also using drugs and alcohol during her pregnancy, she can be held at least partially responsible and thus exposes herself to criminal prosecution.

In all these cases, there were extenuating circumstances that led to the loss of the foetus that the women were raising, although the pregnant women were shown to be culpable in two of those cases. In none of these cases were the women attempting to have an abortion or otherwise terminate an undesired pregnancy.

So, should a woman be punished/prosecuted for endangering her child?

Yes, a woman may be prosecuted for endangering her child if it happens for any other reason than to (passively) preserve her own life. As with all other laws, we should look at the circumstances when passing legal judgement. But a moral argument has been established that some pregnant women may be held responsible for wilfully endangering their child. If the child has a clear chance to survive without the mother, then the woman may be held responsible for preventing that outcome. If a woman uses drugs and alcohol knowing they would harm the child, then the woman may be held responsible for endangering the child.

Final thoughts on the matter

Anyone who acknowledged exceptions when it comes to right to autonomy or right to life is being inconsistent. Most people except the extreme fundamentalists fall within this category.

Here, the main problem is that we do not respect neither the right to autonomy, nor the right to life. There are plenty of morally and legally sanctioned situations where the right to life and the right to autonomy are considered fair game, depending on legal jurisdiction. For example, the death penalty is applied in many countries around the world and people are, not rarely, confined to institutions against their express will.

I find it interesting that those who are anti-violation of the right to life of living human beings are also the most liberal regarding abortion. On the other hand, those screaming “pro-life” when opposing abortion are also the ones who are pro death penalty — taking away a human life.

Unless we have a discussion on these obvious contradictions, we will not be able to arrive at a mutually satisfactory position in this matter.