Does a foetus have more rights than its mother?
In the US, women are regularly prosecuted for endangering their unborn children - some have even been convicted of murder. Now women's groups are fighting back. Diane Taylor reports
Friday April 23, 2004
Hundreds of thousands of American women are expected to converge on Washington DC this Sunday for a march the organisers claim will be the biggest in the history of women's rights - The March For Women's Lives.
Banners will call for the protection in law of a woman's right to abortion, which George Bush and his chums on the Christian right have energetically been trying to erode. The right to abortion is an issue that attracts a large consensus across different groups of women, and Uma Thurman, Charlize Theron, Cindy Crawford and Jennifer Aniston are just some of its high-profile supporters. Heavyweight liberal groups such as the National Organisation of Women and the American Civil Liberties Union will be marching alongside small local groups.
The battle between the pro-choice and anti-abortionist lobbies is well known, but another row about the foetus has been less well publicised: state prosecutors are telling American women exactly what they can and can't do when they are pregnant - and those who disobey are ending up in jail.
In the name of foetal rights, women across the US have been dragged bleeding from hospitals into prison cells hours after giving birth, charged with homicide following stillbirths, pinned to hospital beds and forced to have Caesareans against their will, or had their babies removed at birth after a single positive test for alcohol or drugs. Since the mid-70s around 300 women have been arrested for these transgressions, and 30 states now have foetal homicide laws.
Each new law that empowers the foetus correspondingly disempowers the mother. The new Unborn Victims of Violence Act that Bush signed into law earlier this month gives the foetus separate legal rights from its mother in the event of an attack on the mother that kills or injures the foetus.
Pro-choicers have described it as a threat to a woman's right to choose but Lynn Paltrow, executive director of National Advocates for Pregnant Women, argues that it will adversely affect pregnant women far more. "Under state Unborn Victims of Violence laws, the pregnant woman often becomes little more than collateral damage. This act will not increase funding for battered women's shelters nor launch a campaign to address the violence against women and girls which abounds in our country."
According to anti-abortionists, pregnancy is sacred and mustn't be tampered with, but many of their opponents have overlooked the wedge that this drives between a mother and her foetus. Paltrow, who will be marching on Sunday, says that it is not only women who don't want to be pregnant who are targeted by the "pregnancy police", but also those who do want to be, a disproportionate number of whom are poor and black.
The most recent case of criminalising a mother for her conduct during pregnancy is that of 28-year-old Melissa Ann Rowland in Utah, who was charged with murder after one of the twins she was carrying was stillborn. She had a Caesarean section but prosecutors argued that her insistence on delaying the surgery had led to the stillbirth. Rowland, a drug user, was sent to prison the day after her Caesarean was carried out. She said from her cell: "I've never refused a C-section. I've already had two prior C-sections." The first-degree murder charge was later reduced to two counts of child endangerment, to which she pleaded guilty.
Paltrow argues that the murder charge violated Rowland's constitutional and common law right to refuse medical advice. "This is not only a clear misuse of the law, it is dangerous to children and fundamentally dehumanising to pregnant women and their families," she says.
Angela Carder, 27, was seriously ill with cancer in 1987 when she was 25 weeks pregnant. Against her will and that of her family, a Caesarean was performed to protect the legal rights of the foetus, despite medical evidence to a court that surgery could kill her. In fact, it resulted in her death and that of the foetus.
Stacey Gilligan, 22, was prosecuted after her son tested positive for alcohol when he was born in Glens Falls, New York last September. A few days after the birth she was arrested and charged with two counts of child endangerment for "knowingly feeding her blood" containing alcohol to her foetus via the umbilical cord. Earlier this month her lawyers appealed successfully against her conviction.
There is no organisation devoted to lobbying against mothers who "commit crimes" against their foetuses. The moves against these women all come from state prosecutors, often working hand in hand with medical staff who care for pregnant women. Because laws vary from state to state, women have dramatically different experiences depending on their postcode, the colour of their skin and the health of their bank balances.
The National Right to Life Committee - the main opponent to abortion in the US - is against criminalising pregnant women. "Rather than putting more punishment into women's lives we want to see dignity in both the mother and the child's life," says Olivia Gans. "There are certain risks like drug abuse for some population groups when they are pregnant. We need to identify these women and work within communities, establishing better programmes which find out what the difficulties are in these women's lives."
The debate about the effects of cocaine on the foetus is inconclusive. In the late 1980s, after a spate of media stories about an epidemic of "crack babies", a policy was established to remove all babies from mothers who used crack during their pregnancies. When hospitals found themselves with nurseries full of healthy newborns, the policy was quietly shelved.
In South Carolina, where foetal rights enjoy an especially elevated status in law, Regina McKnight, 27, a homeless drug user who was addicted to crack during her pregnancy, was given a 12-year sentence for homicide after her third child was stillborn in May 1999. Despite the American Nurses Association, the Association of Maternal and Child Health Programs and the South Carolina Medical Association all filing briefs supporting McKnight in her court case and arguing that there was no medical proof that cocaine had caused the stillbirth, the conviction stands.
In 2001, 10 women from South Carolina won a case at the US supreme court claiming that their federal rights were violated under the fourth amendment which protects against unreasonable searches. These women had been covertly tested for drugs while receiving antenatal care at the Medical University of South Carolina, a policy the hospital no longer practises.
Laverne Singleton, 47, one of the 10, tested positive for cocaine while in labour at the hospital in 1989. Hours after giving birth to a healthy baby she was arrested by police in her hospital room and charged with unlawful neglect of a child. Handcuffed and wearing only a hospital gown she was taken out of hospital in a wheelchair and detained for a week. "By the time I got to the cell my gown was covered in blood because I was haemorrhaging," she says.
"But the staff had no sympathy and no remorse for what they did to me. As soon as I gave birth they took my baby away. I never even got to look at his face. He was put into foster care and I had to fight through the courts to get him back."
What comes across is these women's passionate love for their children, often the only positive force in their lives. Crystal Ferguson, who took part in the case and was arrested at the hospital after giving birth to a healthy baby, says: "People think this is the land of rights but it isn't for people like me. I took this action for my children so that they will be able to make better choices than I ever had the opportunity to make."
"The South Carolina case was never about protecting children," says Paltrow. "It was all about punishing the women."
While US law increasingly treats foetuses as cherished royalty, it is a different story once they take their first breath. "The US has a phenomenal disregard for the well-being of families. Almost every problem is seen as one of personal responsibility rather than social or community responsibility," says Paltrow.
"Eleven million children have no health insurance and 25% of them are living below the poverty line. Foetal rights are being used as weapons of maternal destruction. Women have achieved rights in the US but now these rights are hanging by a thread."
- National Advocates for Pregnant Women: www.advocatesforpregnantwomen.org