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The Fetus as a Patient: Emerging Rights as a Person?

Published online by Cambridge University Press:  24 February 2021

Jeffrey L. Lenow
Jeffrey L. Lenow*
Affiliation:
Hahnemann Medical College, Temple University
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Abstract

Dramatic scientific breakthroughs in medical technology have revolutionized the physician’s diagnostic prowess in the art of obstetrics. Scientific procedures now reveal previously undetectable secrets about the womb’s tiny inhabitants. In the last few years, perinatologists have not only demonstrated the ability to discern fetal abnormalities of an extraordinary variety, but also have become increasingly successful in correcting many of these defects in utero. This article identifies the potential medicolegal conflicts that may arise as fetal surgery becomes an accepted medical practice. It begins by surveying the legal rights of unborn persons with a particular emphasis on the role of viability in determining those rights. The article will then examine the concept of viability as developed by the Supreme Court in Roe v. Wade and later abortion decisions and concludes that the current judicial deference to the medical community in determining viability is adequate for balancing rights in the abortion context. However, conflicts among physicians and between the mother and her unborn child that may arise in the fetal surgery context suggest that viability may be an inadequate benchmark for resolving such conflicts. The article concludes with a recommendation to reform the current method of resolving the critical question of when a fetus becomes viable.

Type
Articles
Information
American Journal of Law & Medicine , Volume 9 , Issue 1 , Spring 1983 , pp. 1 - 29
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1983

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Footnotes

The author is a staff physician and member of the Medical Affairs Committee of Planned Parenthood Association of Bucks County, Pennsylvania.

References

1 Adamsons, Fetal Surgery, 275 New Eng. J. Med. 204, 205 (1966)CrossRefGoogle ScholarPubMed.

2 Henig, Saving Babies Before Birth, N.Y. Times, February 28 , 1982, (Magazine), at 26Google Scholar.

3 “Ex utero" is defined as outside of the uterus.

4 This surgery was performed in April, 1981. See Harrison, Golbus, Filly, Callen, Katz, de Lorimier, Rosen, & Jonsen, Fetal Surgery for Congenital Hydronephrosis, 306 New Eng. J. Med. 591 (1982)CrossRefGoogle ScholarPubMed.

5 Bolognese, Medico-legal Aspects of a Human Life Amendment, 5 Pa. L. J.-Rep. 13 (1982)Google Scholar (conference sponsored by Philadelphia Bar Association, February 11, 1982) [hereinafter cited as Bolognese], Bolognese notes that perinatologists are the advocates of the fetus. Id.

6 See generally Barclay, McCormick, Sidbury, Michejda, & Hodgen, The Ethics of In Utero Surgery, 246 J.A.M.A. 1550 (1981)CrossRefGoogle ScholarPubMed. See also Henig, supra note 2, at 20. For a thorough discussion of the ethical issues in fetal therapy, see Fletcher, Emerging Ethical Issues In Fetal Therapy, article prepared for the Norwegian Academy of Sciences, Aug. 23-25, Oslo, Norway (available at Warren G. Magnuson Clinical Center, National Institutes of Health, Bethesda, Md.). See also Ruddick, & Wilcox, Operating On The Fetus, 12 Hastings Center Rep. 10 (Oct. 1982)CrossRefGoogle ScholarPubMed.

7 Pritchard, J. & Macdonald, P. Williams Obstetrics vii (16th ed. 1980)Google Scholar [hereinafter cited as Williams Obstetrics].

8 95 C.J.S. Wills, § 655 (1976): "The word ‘children’ includes those en ventre sa mere at the time of the testator’s death, especially where such intention is clear by reason of express provision in the will"; 39 C.J.S. Guardian and Ward § 10 (1976), noting in part, “[I]n contemplation of the common law, life begins when the child is able to stir in the mother’s womb, and at that time a guardian can be assigned to him in order to make available processes of the law for the protection and preservation of the properties belonging to the unborn child.” (footnotes omitted).

9 1. W. BLACKSTONE, Commentaries *139. See 26 C.J.S. Deeds § 13 (1976): "[A] child in [sic] ventre sa mere cannot take as donee by a common law conveyance."

10 French phrase meaning “in its mother’s womb,” Black’s Law Dictionary 479 (rev. 5th ed. 1976).

11 In re Peabody, 5 N.Y.2d 541, 547, 158 N.E.2d 841, 845 (1959).

12 Mich. Comp. Laws Ann. § 600.2045 (1981). This statute applies to any action or proceeding other than one in a probate court.

13 Id.

14 See generally Shaw, & Damme, Legal Status of the Fetus in Genetics and the Law I (1976)CrossRefGoogle Scholar [hereinafter cited as Genetics i].

15 People v. Greer, 79 Ill. 2d 103, 402 N.E.2d 203 (1980) (causing the death of a fetus is not murder unless the fetus is born alive and subsequently dies of the injuries inflicted). See generally 40 C.J.S. Persons Subject of Homicide § 2(b) (1944 & Supp. 1983).

16 People v. Apodoca, 76 Cal. App. 3d 479, 142 Cal. Rptr. 830(1978) (defendant guilty of murder of a 22-24-week-old fetus after having repeatedly struck female with an avowed intent to kill the unborn fetus).

17 Commonwealth v. Edelin, 371 Mass. 497, 359 N.E.2d 4 (1976).

18 Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1955).

19 “Quickening" refers to the mother’s first awareness of fetal movement, usually occurring between 16 and 20 weeks gestation. Williams Obstetrics, supra note 7, at 270.

20 77 Cal. App. 2d 621, 176 P.2d 92 (1947).

21 Id., 77 Cal. App. 2d at 625-27, 176 P.2d at 93-95.

22 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970).

23 Id., 2 Cal. 3d at 644, 470 P.2d at 633, 87 Cal. Rptr. at 497.

24 Cal. Penal Code § 187 (West 1970 & Supp. 1983). The statute provides exceptions for abortions which are therapeutic or are performed to save the mother’s life.

25 Glantz, The Legal Aspects of Fetal Viability, in Genetics i, supra note 14, at 33.

26 Holder, A. Legal Issues in Pediatrics and Adolescent Medicine 68 (1977)Google Scholar.

27 Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality, 14 N.Y.L.F. 411, 420, 426-28 (1968)Google Scholar.

28 Id. at 441-53. Means states that because abortion was lethal due to unsophisticated medical techniques, the historical justification for the criminalization of aborting a pre-quick fetus was solely to protect maternal health. Id. at 418. But see Dellapenna, The History of Abortion: Technology, Morality and Law, 40 U. Pitt. L. Rev. 359 (1979)Google Scholar. Dellapenna rejects the premise that abortion prohibitions were designed for maternal protection. He claims that the purpose was to guard fetal right to life, citing as supporting evidence the coupling of concealment of infanticide statutes with abortion statutes in at least twenty states. Id. at 396-401.

29 For a definition of a “quick" fetus, see supra note 19.

30 Doudera, Fetal Rights? It Depends, 18 Trial 38, 40 (April 1982)Google ScholarPubMed.

31 410 U.S. 113 (1973).

32 Id. at 139.

33 Id. at 140, (citing ALI Model Penal Code § 230.3(2)), reprinted in Doe v. Bolton, 410 U.S. 179, 205 (1973). These exceptional circumstances include a physician’s judgment that continuation of the pregnancy would pose a “grave" risk to the mother’s health, that the child might be born with severe birth defects, or if the pregnancy resulted from “rape, incest or other felonious intercourse.” Id.

34 Roe, 410 U.S. at 140, n.37.

35 See 61 A.L.R.3d 906 (1975); 22 Am. Jur. 2d Death §§ 1-2 (1965).

36 Presley v. Newport Hospital, 117 R.I. 177, 181, 365 A.2d 748, 750(1976). A minority of states retain the live birth requirement. See Annot. 84 A.L.R.3d 411, 415 (1979). See generally Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981) (Larsen, J., dissenting):

The definite trend, and the overwhelming weight of authority (by a margin of more than two to one), recognizes the right of recovery for the wrongful death of an unborn child resulting from injuries sustained while in its mother’s womb. As I believe this trend to be the better reasoned position, and more attuned to the current state of medical knowledge regarding an unborn fetus, I would join the majority of the states which recognize such causes of action. . . .

Id., 494 Pa. at 492-94, 431 A.2d at 962-63 (footnotes omitted). The majority which Judge Larsen proposed to join included the following 26 states: Alabama, Connecticut, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Vermont, Washington, West Virginia and Wisconsin. Twelve states have specifically disallowed recovery in this context: Arizona, California, Florida, Iowa, Michigan, Missouri, Nebraska, New Jersey, New York, North Carolina, Pennsylvania and Virginia. Twelve states have not addressed the question: Alaska, Arkansas, Colorado, Hawaii, Idaho, Maine, Montana, North Dakota, South Dakota, Texas, Utah, and Wyoming. See also Note, Recovery for Tortious Death of the Unborn, 33 S.C.L. Rev. 797, 803-04, n.48 (1982)Google Scholar.

37 Duncan v. Flynn, 342 So.2d 123 (Fla. Dist. Ct. App. 1977), aff'd 358 So.2d 178(Fla.Dist. Ct. App. 1978).

38 138 Mass. 14, 17 (1884).

39 Id. at 17. Regarding the development of wrongful death case law, see Gordon, The Unborn Plaintiff, 63 Mich. L. Rev. 579, 582 (1965)CrossRefGoogle Scholar; Prosser, W. The Law of Torts 901-02 (4th ed. 1971)Google Scholar.

40 Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974), reh'g denied 268 Or. 272, 520 P.2d 361 (1974), appeal dismissed 269 Or. 543, 525 P.2d 1296 (1974). See also Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954). See generally Salazar v. St. Vincent Hosp., 95 N.M. 150, 619 P.2d 826 (N.M. Ct. App. 1980); Vaillancourt v. Medical Center Hosp. of Vt., 139 Vt. 138, 425 A.2d 92 (1980).

41 Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901, 301 N.Y.S.2d 65 (1969).

42 Id. See also Graf v. Taggert, 43 N.J. 303, 204 A.2d 140 (1964).

43 Graf v. Taggert, 43 N.J. 303, 204 A.2d 140 (1964).

44 Marko v. Philadelphia Transportation Co., 420 Pa. 124, 126, 216 A.2d 502, 503 (1966). See also Scott v. Kopp, 494 Pa. 487, 494, 431 A.2d 959, 963 (1981), (Larsen, J., dissenting) (suggesting overruling Marko and dismissing this rationale for denial of recovery as the “ ‘fallacious identity between evidentiary problems and a right of action’ ”) (citing Tufo, Del Recovery for Prenatal Torts; Actions for Wrongful Death, 15 Rut. L. Rev. 61, 78 (1960))Google Scholar.

45 Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368, 375, 304 N.E.2d 88, 92 (1973). See also Note, Damages for the Wrongful Death of a Fetus—Proof of Fetal Viability, 51 Chi. Kent L. Rev. 227 (1974)Google Scholar.

46 This was Blackstone’s argument relied upon by a Minnesota court to afford the fetus a remedy under a state wrongful death statute. See Verkennes v. Corniea, 229 Minn. 365, 369, 38 N.W.2d 838, 840 (1949). See also infra note 47 and accompanying text.

47 229 Minn. 365, 38 N.W.2d 838 (1949).

48 221 Miss. 269, 72 So.2d 434 (1954).

49 Id., 221 Miss. at 276, 72 So.2d at 436.

50 Id. See also Presley v. Newport Hospital, 117 R.I. 177, 184, 365 A.2d 748, 754 (1976).

51 See, e.g., Simmons v. Howard University, 323 F. Supp. 529 (D.D.C. 1971); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Moen v. Hanson, 85 Wash. 2d 597, 537 P.2d 266 (1975).

52 See also Gordon, supra note 39, at 589, stating that “[because] healthy fetal development may depend on factors existing at the time of, or even prior to, conception ... [a] viability limitation . .. presents a potential of working injustice."

53 Cf. Shirley v. Bacon, 154 Ga. App. 203, 267 S.E.2d 809 (1980)(wrongful death action contingent on the fetus being “quick" at the time of its death).

54 Doudera, supra note 30, at 43.

55 Roe, 410 U.S. at 162.

56 Comment, Wrongful Death and the Unborn: An Examination of Recovery After Roe v. Wade, 13 J. Fam. L. 99, 104-05 (1973-74)Google Scholar. See generally W. Prosser, supra note 39, at 101-02.

57 See Note, supra note 39, at 814-15 (emphasis added); Kader, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo. L. Rev. 639, 659-60 (1980)Google Scholar.

58 184 Ill. 359, 56 N.E. 638 (1900). A viable fetus was injured by the negligent operation of an elevator in which the mother was riding.

59 138 Mass. 14 (1884).

60 Allaire, 184 Ill. at 370, 56 N.E. at 641. Judge Boggs used the term viability to establish, for legal purposes, the fetus as an entity biologically independent from its mother in order to overcome foreseeability problems in fetal injury cases. The use of the term persisted in future prenatal injury cases and ultimately was incorporated into the abortion context. See also W. Prosser, supra note 39, at 337-38, regarding the arbitrariness of the viability concept.

61 65 F. Supp. 138 (D.D.C. 1946).

62 W. Prosser, supra note 39, at 336.

63 54 N.Y.2d 269, 429 N.E.2d 786 (1981).

64 303 N.V. 349, 102 N.E.2d 691 (1951).

65 54 N.Y.2d at 272, 429 N.E.2d at 787.

66 Hornbuckle v. Plantation Pipe Line, 212 Ga. 504, 93 S.E.2d 727 (1956).

67 Bennett v. Hymers, 101 N.H. 483, 485, 147 A.2d 108, 110 (1958). See also Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960) (difficulty of proving fact of prenatal injury renders the viability rule impractical).

68 67 Ill. 2d 348, 367 N.E.2d 1250 (1977).

69 See also Bergstreser v. Mitchell, 577 F.2d 22 (8th. Cir. 1978); Jorgensen v. Meade Johnson Laboratories, 483 F.2d 237 (10th Cir. 1973). Note that many of the wrongful life cases currently before the courts involve preconception torts. See, e.g., Turpin v. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982); Harbeson v. Parke-Davis, 98 Wash. 2d 460, 656 P.2d 483 (1983). See generally Shrager, Tort Aspects of a Human Life Amendment, 5 Pa. L.J.-Rep. 13 (1982)Google Scholar. In the context of the Human Life Amendment, the author outlines the “Pandora’s Box" effect of the wrongful life aspects of the Amendment.

70 Williams Obstetrics, supra note 7, at 587 (emphasis added). The authors note that at Parkland Memorial Hospital between 1956 and 1980 (covering approximetly 160,000 deliveries), the smallest infant to survive weighed 580 grams and was delivered at 28 weeks gestational age. Id. at 588.

The fetuses’ chances for survival at various levels of development are listed as follows: 24 weeks (fetal weight 630 grams)—will attempt to breathe but usually dies soon after birth; 28 weeks (fetal weight 1100 grams)—some movement at birth, may survive with optimal care; 32 weeks—should survive with adequate care. Id. at 173-74.

Medical centers best equipped to handle premature births and maximize fetal survivability are specialty high risk centers combining perinatologists with neonatologists (pediatricians specializing in care of high risk neonates). Ronald Bolognese, director of high risk obstetrics at Pennsylvania Hospital in Philadelphia, suggests 26 weeks gestational age as the earliest reasonable point of medical viability. He notes that the fetus prior to this age may have fused eyelids and immature organ development. See supra note 5. But see Philadelphia Daily News, March 31, 1983, at 52 (premature infant born at 22 weeks gestation survived). This figure of 26 weeks is also adopted by Herschel, Kennedy, Kayne, Henery, & Cetrulo, Survival of Infants Bom 24-28 Weeks Gestation, 60 Obstetrics & Gynecology 154, 154 (1982)Google Scholar, where the authors note a 45% survival rate at 26 weeks gestation and a 92% rate at 28 weeks. Compare this to the rate at St. Christophers Hospital for Children in Philadelphia, where there is about a 50% survival rate of fetuses born at 25 weeks (750 grams). Address by Lenow, J. Trends in Abortion Law: The Pennsylvania Abortion Control Act and the Legal Impact of Fetal Surgery, St. Christophers Hospital for Children, (Nov. 4 , 1982)Google Scholar. Legally, viability is the term used to denote the power a newborn child possesses of continuing its independent existence. Black’s Law Dictionary 1404 (rev. 5th ed. 1979).

71 The choice of 26, 27, 28 or any other number of weeks as the point of medical viability by experts in the field is based on experience from observing thousands of premature births and the correlation of survivals with estimated fetal age. Vital to survival is adequate development of the major organ systems. See Bolognese, & Roberts, Amniotic Fluid in Perinatal Medicine: management of the high risk fetus and neonate 198-203, (2d ed. 1982)Google Scholar [hereinafter cited as Perinatal Medicine].

72 Id. at 588. See also Herschel, supra note 70, at 156 (suggesting gestational age as a better predictor for survivability than weight); Gestational Age Favored Over Weight For Preemies Prognosis, 18 Ob. & Gyn. News 13 (April 15-30 , 1983)Google Scholar.

73 Williams, Creasy, Cunningham, Hawes, Norris, & Tashiro, Fetal Growth and Perinatal Viability in California, 59 Obstetrics & Gynecology 624 (May 1982)Google ScholarPubMed, (concluding that mortality rates are more sensitive to birth weight than to gestational age).

74 Hohler, Multiple Ultrasound Measures of Fetus More Accurate, 18 Ob. & Gyn. News 50 (May 15-31 1983)Google Scholar. Ultrasound is a sound study which measures tissue densities for correlations of size to age. See also Grannum, Berkowitz & Hobbins, Ultrasonography In the Antepartum Patient in Perinatal Medicine, supra note 71, at 153-56. Use of fetal femur measurement in ultrasound is an emerging new area for accurate gestational aging. See e.g., Magil, Operating on the Fetus: The New Frontier in Perinatal Care, 1983 Cont. Ob. & Gyn. 216Google Scholar; O'Brien, Fetal Femur—A New Dimension of Growth, 1983 Cont. Ob. & Gyn. 186Google Scholar.

75 410 U.S. at 159: "[W]hen those trained in [the] discipline of medicine . . . are unable to . arrive at any consensus, the judiciary ... is not in a position to speculate [as to when viability occurs]."

76 428 U.S. 52 (1976).

77 12 Mo. Ann. Stat. § 188.015(6) (Vernon 1983)(emphasis added).

78 428 U.S. at 63.

79 Id.

80 Indeed, one might argue, as the appellees do, that the presence of the statute’s words “continued indefinitely" favor, rather than disfavor, the appellants, for, arguably, the point when life can be “continued indefinitely outside the womb" may well occur later in pregnancy than the point where the fetus is “potentially able to live outside the mother’s womb. . . .” Id.

81 Id. at 64.

82 Id. at 65.

83 Gunther, R. Cases and Materials in Constitutional Law 612 (10th ed. 1979)Google Scholar.

84 439 U.S. 379(1979).

85 Id. at 387-89.

86 Pa. Stat. Ann., tit. 35, § 6605 (a) (Purdon 1977).

87 Id. (emphasis added).

88 Colautti, 439 U.S. at 391-94. The Court recognized the ambiguities here, but never attempted to suggest that viability might need some form of community standard to establish a fair and reasonably practical definition to suit the legal and medical communities.

89 Id. at 392-94.

90 Glantz, Recent Developments in Abortion Law, in Genetics and the Law II 213, 214 (1979)Google Scholar (referring to Danforth, 428 U.S. at 63-65).

91 439 U.S. at 388-89.

92 As noted by some commentators, the ability to keep younger and younger fetuses alive may eventually mean that viability will operate to deny women the right to abort. “Roe v. Wade would become an anti-abortion decision within a few decades.” Chudwin, Fost & Wikler, The Limited Moral Significance of ‘Fetal Viability', 10 Hastings Center Rep. 10, 13 (Dec. 1980)Google Scholar.

93 Curran, W. & Shapiro, E. law, Medicine, and Forensic Science 902 (3d ed. 1982)Google Scholar.

94 National Center for Disease Control, Abortion Surveillance Report 1978, (Nov. 1980)Google Scholar. Of the approximately 1.2 million abortions performed in 1978, the breakdown as to abortions performed by gestational age is as follows:

In 1979, the number of legal abortions performed was 1,238,987 with estimates for 1980 and 1981 at about 1.4 million. Id.

95 For a discussion of second trimester abortion techniques and their potential complications, see Grimes, & Cates, The Comparative Efficacy and Safety of Intraamniotic Prostaglandin F2-alpha and Hypertonic Saline for Second Trimester Abortion, 22 J. Reprod. Med. 248 (1979)Google ScholarPubMed.

96 Stroh, & Hinman, Reported Live Births Following Induced Abortion: Two and One-Half Years’ Experience in Upstate New York, 126 Am. J. Obstet. Gynecol. 83 (1976)CrossRefGoogle ScholarPubMed. Authors describe 35 live births between July 1, 1970 and Dec. 31, 1972. In spite of 87% getting maximal neonatal care, all but two died within 24 hours. One infant ultimately survived.

97 See e.g., Commonwealth v. Edelin, 371 Mass. 497, 359 N.E.2d 4 (1976).

98 Harrison, Unborn: Historical Perspective of the Fetus as a Patient, 1982 The Pharos 19 (Winter)Google ScholarPubMed.

99 Id.; see Address by Golbus, Medical Implications of Bestowing Personhood on the Unborn, Human Life Symposium, (March 11-13 , 1982)Google Scholar (unpublished proceedings available at the Sagall Library of Law and Medicine, Boston University School of Law).

100 Henig, supra note 2, at 22-31. Amniotic fluid is instinctively swallowed by the fetus and recirculated through the fetal reno-vascular system. Medical treatment of the fetus has only been undertaken seriously in the last decade, predominantly in the last 6-8 years. There are several examples of oral therapy of the mother. See Ampola, Mahoney, Nakamura, & Tanaka, Prenatal Therapy of a Patient With Vitamin-B-12-Responsive Methylmalonic Acidemia, 293 New Eng. J. Med. 313 (1975)CrossRefGoogle ScholarPubMed, involving treatment of fetal acidemia by giving the mother large doses of vitamin B-12.See also Harrigan, Kangos, Sikka, Spisso, Natarajan, Rosenfeld, Leiman, & Korn, Successful Treatment of Fetal Congestive Heart Failure Secondary to Tachycardia, 304 New Eng. J. Med. 1527 (1981)CrossRefGoogle ScholarPubMed, involving in utero therapy of a cardiac arrhythmia by dosing the mother with digoxin.

A more direct approach, short of actual in utero surgery, is the injection of medication directly into the amniotic sac by passing a needle through the maternal abdomen under ultrasound guidance. See Weiner, Scharf, Bolognese & Librizzi, Antenatal Diagnosis and Treatment of a Fetal Goiter, 24 J. Reprod. med. 39 (1980).

101 Henig, supra note 2, at 20. Henig notes approximately 20 patients, but the number is increasing rapidly.

102 Clewell, Johnson, Meier, Mewkirk, Zide, Hendee, Bowes, Hecht, O'Keefe, Henry, & Shikes, A Surgical Approach To The Treatment of Fetal Hydrocephalus, 306 New Eng. J. Med. 1320 (1982)CrossRefGoogle ScholarPubMed. This was the follow-up and formal reporting of the case, supra note 2. The authors report additional cases have been done with long term predictions impossible at this early stage.

While most cases have involved the hydrocephalic fetal patient, Harrison and Golbus report the first case of in utero surgery for urinary tract malformations. Golbus, Harrison, Filly, Callen & Katz, In Utero Treatment of Urinary Obstruction, 142 Am. J. Obstet. gynecol. 383 (1982). See Golbus, supra note 99. See also Harrison, Filly, Parer, Faer, Jacobson & de Lorimer, Management of the Fetus With A Urinary Tract Malformation, 246 J.A.M.A. 635 (1981).

103 Harrison, supra note 4, at 591-93. The procedure involved lifting the lower portion of the fetus through the uterine incision, thus exposing the flanks for the open surgical drainage procedure. Recovery was uneventful and the mother resumed full activity. Due to advanced developmental abnormalities for which the surgery was too late to correct, the infant survived only nine hours, even with maximum support.

The great problem in the past with premature invasion of the maternal uterus was the inevitable complication of premature labor. See Liley, Intrauterine Transfusion of Foetus in Haemolytic Disease, 2 Br. Med. J. 1107 (1963)CrossRefGoogle ScholarPubMed. This has only recently been overcome with the development of drugs called tocolytics, which serve to inhibit premature contractions. See Queenan, Ritrodrine Makes Its U.S. Debut, 16 Contemp. Ob. Gyn. 13 (1980)Google Scholar. See also Barden, Premature Labor in Perinatal Medicine, supra note 71, at 293-300; Harrison, supra note 4, at 592. The technical aspects of this procedure were a definitive success. However, the authors do note, “We must learn how to assess more accurately the severity of renal impairment and the point at which the impairment can be reversed by decompression.” Such surgery is not without its critics. See Henig, supra note 2, at 48. For general information on fetal surgery, see Surgical Miracles Inside the Womb, Life Magazine (April, 1983).

104 See supra notes 94-97 and accompanying text. Given the inherent flexibility of the viability determination, physicians have adopted conflicting standards for predicting viability. See, e.g., Colautti, 439 U.S. at 396 (three physicians equate 5, 10 and better than 10 percent probability of survival, respectively, as indicating a viable fetus, with a fourth dismissing reliance on any paticular percentage figure). Given this, it is likely that the characterization of a borderline fetus as viable or nonviable would not typically be controversial.

105 This assumes, of course, that viability will continue to be the point at which fetal surgery may be performed against the mother’s wishes. For a discussion of this point, see infra notes 124-132 and accompanying text.

106 Lenow, The Fetal Patient, Impact on the Future Obstetric Practitioner, case presented at Allentown General Hospital, (Sept. 23 , 1982)Google Scholar.

107 In discussions with the attending physicians after the decision had been made, some stated that had they been aware of the possibility of having a guardian appointed for the fetus, they might have proceeded with legal action. Id.

108 Ruddick & Wilcox, supra note 6. Ruddick and Wilcox conclude that physicians will not face any moral dilemmas in the context of fetal surgery. As is evident from this article, this author respectfully disagrees with their observation.

109 Harrison, Golbus, & Filly, Management of the Fetus With a Correctable Congenital Defect, 246 J.A.M.A. 774, 777 (1981)CrossRefGoogle ScholarPubMed; Ellis, Letting Defective Babies Die: Who Decides? 7 Am. J.L. & Med. 393 (1982)Google ScholarPubMed; Golbus, supra note 99.

110 Leaders in perinatal treatment from around the world met in Santa Ynez Valley, California in July, 1982 to establish such guidelines. Harrison, Filly, & Golbus, Fetal Treatment 1982, 307 New Eng. J. Med. 1651 (1982)CrossRefGoogle ScholarPubMed.

111 445 S.W.2d 145 (Ky. 1969).

112 Id. at 148. The doctrine of substituted judgment has been used to authorize treatment on behalf of an incompetent individual. In theory, the doctrine results in the surrogate making a decision that the incompetent would have made were that person able to express himself or herself. See, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Carson, 39 Misc. 2d 544, 241 N.Y.S.2d 288 (1962) (court must “don the mental mantle of the incompetent”); City Bank v. McGowan, 323 U.S. 594 (1944) (court must “substitute itself as nearly as may be for the incompetent, and to act upon the same motives and considerations as would have moved her.”); Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.2d 517(1980).

113 445 S.W.2d 145, 146 (Ky. 1969).

114 29 Conn. Supp. 368, 289 A.2d 386 (Conn. Super. Ct. 1972).

115 The use of the benefits rationale to authorize transplants for incompetents has not been unanimously adopted. See, e.g., Lausier v. Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975). See generally Robertson, Organ Donations by Incompetents and the Substituted Judgement Doctrine, 76 Colum. L. Rev. 48 (1976)CrossRefGoogle ScholarPubMed.

116 See, e.g., Saikewicz, 373 Mass. 728, 370 N.E.2d 717 (1977). See generally 93 A.L.R.3d 67 § 3 (1979).

117 67 N.J. Super. 517, 171 A.2d 140 (1961). The Hoener court noted that the State had a right and a duty to protect children in its jurisdiction, including unborn children, in spite of the parental interests. Id., 67 N.J. Super. at 521, 171 A.2d at 142.

118 A condition in which the mother creates antibodies against the blood cells of subsequent babies with type Rh-positive blood.

119 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964). The judge noted that the unborn child was entitled to the protection of the law. The controversy surrounding this issue is seen in the letter written by the mother’s attorney, Glen How, to the National Council on Crime and Delinquency. Letter to Nat'l Council on Crime and Delinquency (May 16, 1967), reprinted in Council of Judges, Nat'l Council on Crime and Delinquency, Guides to the Judge in Medical Orders Affecting Children, 14 Crime and Delinq. 107, 110 n.8 (1968)Google Scholar. (“In point of fact, an order was made against this woman when there was no serious problem at all. Two young resident doctors imagined that something might happen. A one-pint blood transfusion for an adult person is never justified. It is simply placing her in a state of risk with no correlative value”).

120 247 Ga. 86, 274 S.E.2d 457 (1981). See generally Annas, Forced Cesarians: The Most Unkindest Cut of All, 12 Hastings Center Rep. 16 (June 1982)CrossRefGoogle Scholar. See also Berg, Georgia Supreme Court Orders Caesarian Section—Mother Nature Reverses on Appeal, 70 J. Med. Assoc. Ga 451-53 (1981)Google Scholar; Bowes, & Selgestad, Fetal Versus Maternal Rights: Medical and Legal Perspectives, 58 Obstetrics & Gynecology 209 (1981)Google ScholarPubMed.

121 A condition where the placenta (afterbirth) lies too low in the uterus and over the internal cervical os (opening to the birth canal). This is one of the major obstetrical complications of the latter half of pregnancy and can be the cause of fetal or maternal demise if not quickly and properly treated. Death results when the placenta separates partially from the wall of the uterus and causes hemorrhage. Treatment usually involves strict bedrest, blood re placement if indicated, serial ultrasound exams and often cesarian section. See Williams Obstetrics, supra note 7, at 508.

122 410 U.S. 113(1973).

123 274 S.E.2d at 460 (Hill, J., concurring). Ultimately, a subsequent ultrasound examination revealed an extremely rare shift of the placenta which enabled the mother to vaginally deliver a healthy girl. The cynical obstetrician or ultrasonographer wonders if a “complete" previa truly existed in the first place.

124 Other cases have implicated the rights at issue inJefferson. In In re Boyd, 403 A.2d 744 (App. D.C. 1979), the court noted that a “competent individual has a First Amendment religious right to refuse medical treatment unless the state can demonstrate a compelling interest that would justify overriding individual’s choice.” Id. at 748. Seven years earlier, the same court had held in In re Osborne, 294 A.2d 372, 375 (1972), that even in a life-or-death situation, the government cannot force unwanted medical treatment on a competent individual who has made an informed decision to reject such treatment on religious grounds. In a similar case, a Colorado court ordered a cesarian section to protect an unborn fetus absent a mother’s freedom of religion claim. Bowes & Selgestad, supra note 120. The court presided in the delivery room and used similar case rationale to force the patient to undergo surgery. The patient relented and voluntarily allowed the cesarian section, despite her avowed fear of surgery. An interesting development recently reported which is related to the Jefferson case involved the cesarian delivery of an infant born to a mother kept alive by life support systems after she had been legally dead for two months. See Philadelphia Daily News, March 31, 1983, at 4.

125 Roe, 410 U.S. at 154, 159, 163.

126 388 Mass. 331, 446 N.E.2d 395 (1983).

127 Id., 388 Mass. at 332, 446 N.E.2d at 396.

128 Id., 388 Mass. at 332 n.2, 446 N.E.2d at 396 n.2.

129 Id., 388 Mass. at 334 n.4, 446 N.E.2d at 397 n.4.

130 Id., 388 Mass. at 334, 446 N.E.2d at 397.

131 The Court stated that:

The record is devoid of facts that support the judgment ordering the wife to submit to an operation against her consent. We have no findings, based on expert testimony, describing the operative procedure, stating the nature of any risks to the wife and to the unborn child, or setting forth whether the operation is merely desirable or is believed to be necessary as a life saving procedure. We have no showing of the degree of likelihood that the pregnancy will be carried to term without the operation.

Id., 388 Mass at 335, 446 N.E.2d at 397.

132 Id., 388 Mass. at 334-35, 446 N.E.2d at 397.

133 In addition to the Taft decision, language in some wrongful death decisions regarding unborn persons also speaks of the rights of the pre-viable fetus. In Presley v. Newport Hosp., 117 R.I. 177, 365 A.2d 748 (1976), the Rhode Island Supreme Court stated that:

[V]iability is a concept bearing no relation to the attempts of the law to provide remedies for civil wrongs. If we profess allegiance to reason, it would be seditious to adopt so arbitrary and uncertain a concept as viability as a dividing line between those persons who shall enjoy the protection of our remedial laws and those who shall become, for most intents and purposes, nonentities.

Id., 117 R.I. at 188, 365 A.2d at 753-54.

In Danos v. St. Pierre, 383 So.2d 1019 (1980), Judge Lottinger’s concurring opinion echoed the same reasoning:

Just as live birth is an arbitrary cutoff point for wrongful death purposes, viability is equally arbitrary in deciding whether the fetus is a ‘person’ whose wrongful killing is compensable. Instead, viability is one of the factors to which courts should look in determining the nature and extent of damages in each paticular case.

Id., 383 So.2d at 1029. In spite of their being derivative rights of action, the interpretation of wrongful death statutes as bestowing rights on the pre-viable fetus was forecast as early as ‘ 1965. See Gordon, supra note 39, at 590.

Like Taft, these wrongful death cases are easily distinguished as inapplicable to the question of whether the pre-viable fetus possesses rights sufficient to require a mother to consent to prenatal surgery for its benefit. As revealed by Justice Blackmun’s language reconciling Roe with wrongful death recovery for the pre-viable fetus, see supra note 55 and accompanying text, these are cases construing the word “person" contained in a state wrongful death statute whose purpose is to compensate beneficiaries for the death of a relative. At most, Taft, interpretations of wrongful death statutes such as those adopted in Presley and Danos, and other developments (i.e., the recognition of wrongful life actions) may begin to ascribe more and more rights to the previable fetus, which in turn may begin to cast a shadow on the holding in Roe v. Wade.

134 Instances when twins, triplets, etc. are conceived.

135 See supra note 103 and accompanying text.

136 Golbus & Harrison, supra note 102, at 386-87.

137 Id. at 387.

138 See Bolognese, supra note 5. For a detailed definition of growth retardation, see Perinatal Med., supra note 71, at 501.

139 See Kerenyi, & Chitkara, Selective Birth in Twin Pregnancy With Discordancy for Down’s Syndrome, 304 New Eng. J. Med. 1525 (1981)CrossRefGoogle ScholarPubMed.

140 Aberg, Mitelman, Cantz, & Gehler, Cardiac Puncture of Fetus with Hurler’s Disease Avoid ing Abortion of Unaffected Co-Twin, 2 Lancet 990 (1978)CrossRefGoogle Scholar.

141 A bleeding disorder known as D.I.C. (dissemiated intravascular coagulopathy) which could disrupt the normal clotting mechanisms. Bithell, & Wintrobe, Disorders of Blood Coagulation, in Harrison’s Principles of Internal Med., 1654, 1660-61, (7th ed. 1974)Google Scholar.

142 See Melnick, Brain Damage in Survivor After In Utero Death of Monozygous Co-twin, 2 Lancet 1287 (1977)CrossRefGoogle ScholarPubMed.

143 Telephone interview with John Bower, co-counsel for the physicians. The procedure was successful and a single normal infant was delivered. It is interesting to note that all legal documents in this case have been permanently locked away. No explanation was given and these documents are currently inaccessable. See also Surgical Death, N.Y.Times, April 11 , 1982 at 37Google Scholar, where it is noted that both twins were lost in a later procedure of the same nature.

144 See, e.g., In Re Phillip B, 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (Cal. Ct. App. 1979).

145 Id. See also Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213 (1975)CrossRefGoogle ScholarPubMed.

146 Address by Robertson, Medicolegal Ramifications of Bestowing Personhood Status on the Unborn, Human Life Symposium, (March 11-13 , 1982)Google Scholar (unpublished proceedings available in the Sagall Library of Law and Medicine, Boston University School of Law). Cf. Robertson, The Right to Procreate and in Utero Therapy, 3 J. Legal Med. 333 (1982)CrossRefGoogle Scholar (acknowledging the unique nature of multiple gestation conflicts, but arguing that a healthy fetus could, in some circumstances, be placed at risk to benefit an affected fetus).

147 To imply the consent of the normal fetuses, the rationale of Strunk and Hart, supra notes 111 and 114, is particularly inapposite. A substitute judgment standard would be inappropriate because the unaffected fetus derives no benefit from this procedure. The court instead would use a best interest standard.

Perhaps underscoring the complexity of the multiple gestation cases, the recent interdisciplinary conference at Santa Ynez, California, see supra note 110, at 1651, adopted a guideline which stated that in utero surgery was only to be performed in cases of single gestation.

148 Glantz, supra note 25, at 40.

149 Harrison, supra note 110, at 1652. There is now a fetal-treatment case registry in Room S115, Women’s Hospital, Health Science Center, Winnipeg, Canada M.B.R. 320Z3.

150 Annas, Forced Cesareans: The Most Unkindest Cut of All, 12 Hastings Center Rep. 16 (June 1982)CrossRefGoogle ScholarPubMed.