“SHOULD A PREGNANT WOMAN BE PUNISHED FOR EXPOSING HER FETUS TO RISK?”
HEALTH RIGHTS AND RESPONSIBILITY (HS542)
JANURARY 23, 2011
In my opinion, pregnant women should be punished for partaking in legal behaviors such as taking fertility medication, smoking, and drinking, all of which can cause harm to the fetus. I think a woman should subordinate her right to control her life when she decides to become pregnant or does become pregnant. Anything which might possibly harm the developing fetus should be prohibited and all things which might positively affect the developing fetus should be mandated under penalty of law, be it criminal or civil. Since anything which a pregnant woman does or does not do may have an impact, either positive or negative, on her developing fetus, any act or omission on her part could render her liable to her subsequently born child. While such a view is consistent with the recognition of a fetus' having rights which are superior to those of its mother, such is not and cannot be the law of this state. A legal right of a fetus to begin life with a sound mind and body assertable against a mother would make a pregnant woman the guarantor of the mind and body of her child at birth. A legal duty to guarantee the mental and physical health of another has never before been recognized in law. Any action which negatively impacted on fetal development would be a breach of the pregnant woman's duty to her developing fetus, Mother and child would be legal adversaries from the moment of conception until birth.
If a legally cognizable duty on the part of mothers were recognized, then a judicially defined standard of conduct would have to be met. It must be asked, by what judicially defined standard would a mother have her every act or omission while pregnant subjected to state scrutiny? By what objective standard should a jury be guided in...
References: 1. Center on Addiction and Substance Abuse at Columbia University, Substance Abuse and the American Woman (1997); Joseph R. DiFranza, Robert A. Lew, "Effect of Maternal Cigarette Smoking on Pregnancy Complications and Sudden Death Syndrome," Journal of Family Practice 40 (1995): 385. Cigarette smoking has been linked to as many as 141,000 miscarriages and 4,800 deaths resulting from perinatal disorders, as well as 2,200 deaths from Sudden Infant Death Syndrome, nationwide.
2. Lynn Paltrow, Punishing Women for their Behavior During Pregnancy, National Institute on Drug Abuse (1997).
3. Sheigla Murphy and Marsha Rosenbaum, "Pregnant Women on Drugs, Combatting Sterotypes and Stigma" (New Brunswick, N.J.: Rutgers University Press, 1999).
4. Wendy Chavkin, "Drug Addiction and Pregnancy: Policy Crossroads," American Journal of Public Health, 80, no. 4 (April 1990): 483-487.
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