Fetal rights - ruling from the family, not the court

THE rights of the unborn are taking a new twist in the courts. And the current controversy may dwarf even the ongoing debate over abortion. It concerns the role of the judiciary as a protector of the life of a fetus. Should judges order delivery of a child by Caesarean section over the objection of the pregnant mother?

A case now in the Washington, D.C., courts - which is probably eventually headed for the United States Supreme Court - raises this issue directly. It will also almost certainly shed light on the increasing use of such surgery.

A survey of deliveries reported earlier this year by the American Medical Association indicates that so-called C-sections account for nearly 2 of every 10 births in the United States today. This represents a 5 percent increase over a three-year period.

Some medical experts suggest that the threat of malpractice lawsuits has prodded many doctors toward C-sections when there are doubts about the health of an unborn child.

The current case - which is attracting worldwide attention - concerns a young woman who was forced by a hospital to undergo a Caesarean delivery against her will.

In this situation, medical officials believed that the baby would die if the operation was not performed. The mother had been diagnosed as terminally ill.

Sadly, neither the woman nor her unborn child survived.

This matter joins a persistent argument about fetal rights. It pits a woman's right of privacy against government responsibility to preserve the life of a newborn.

The mother had refused a Caesarean section - when such an operation was suggested as the only way to save the baby. The hospital, however, obtained a court order to authorize the surgery.

This legal move was not unprecedented. In fact, in at least 20 cases over the last five years, hospitals have sought such mandates. And in most cases - including the current one - they have been successful.

District of Columbia Superior Court Judge Richard A. Levie said it was ``one thing for an adult to gamble with nature regarding his or her own life; it is quite another when the gamble involves the life or death of an unborn infant.''

Now in the aftermath of the deaths of mother and child, a coalition of civil liberties groups, women's organizations, and medical associations is asking for a rehearing of the case.

Lawyers for the deceased mother say the court ruling ordering a Caesarean sets a dangerous precedent. They insist that it threatens the rights, not only of pregnant women with medical problems, but also of others who would refuse certain kinds of medical treatment. A pivotal issue is the constitutional guarantee of privacy.

This issue has come up, and will likely continue to arise, in connection with those who choose not to undergo surgery for reasons of religion or conscience.

A year ago, a young California woman was charged with criminal fetal neglect when she ignored her doctor's orders and took amphetamines and engaged in sex during a difficult pregnancy. Her child died shortly after birth.

The case was eventually dropped in the wake of strong public concern about ``Big Brother'' intrusion into family matters.

But the issue of public responsibility toward the fetus lingers. And it continues to raise both health issues and moral questions.

In related matters, US courts have generally acceded to the wishes of a responsible adult in so-called ``life-and-death'' cases. Respirators designed to prolong human life for comatose patients have been disconnected at the instruction of immediate families. State regulations requiring extraordinary life-support systems to keep alive a severely brain-damaged or physically handicapped infant have been invalidated by courts.

The choice is always a difficult one. But in situations medically diagnosed as terminal it would seem that the individuals involved - their families and medical and spiritual advisers - are the ones to make the ultimate decisions.

Courts are not best equipped to pronounce moral and ethical judgments. When they do so, they run a serious danger of treading on individual rights.

A Thursday column