Journal Published Online: 01 September 1998
Volume 43, Issue 5

Forensic Implications and Medical-Legal Dilemmas of Maternal Versus Fetal Rights



The purpose of this paper is to review the issue of fetal rights from primarily a legal perspective, with consideration of morals and professional ethics. The practice of medicine is fraught with numerous bioethical dilemmas. These dilemmas often leave the physician wondering if he has made the correct decision. A physician's morals and professional ethics may influence his or her decision in resolving bioethical dilemmas.

The case example is a 34-year-old female with a 41-week intrauterine pregnancy. The mother was refusing induction of labor. Without the labor induction, the fetus may die. Despite this risk, the mother desired to pursue a vaginal delivery.

The AMA's ethics state that a competent, pregnant mother's wishes should prevail and the court should not be involved unless there are unusual circumstances. The mother in the case example was competent and informed consent was provided.

Case law does not specifically address the dilemma of the case example. However, there is case law regarding court-ordered cesarean sections which reveals different opinions. The difference in court opinion encompasses the relative degree of weight given to the fetus's right to be born healthy and alive versus the mother's privacy rights. Some courts describe this “balancing test,” whereas others state that the mother's privacy rights prevail unless there are exceptional circumstances, which will be extremely rare. The fetus has acquired rights in other areas of the law; for example, abolishment of the intra-family immunity doctrine and the definition of murder in most states. In considering the legal arena of fetal versus maternal rights, a decision tree is presented to assist physicians in assessing cases of a pregnant mother refusing medical treatment.

There is no precise demarcation in assessing fetal and maternal rights. The greater the degree of fetal viability, the greater degree of fetal rights. Consideration must also be given to the relative degree of invasiveness to the mother for the proposed procedure; the more invasive, the greater degree of maternal rights. Each case must be evaluated on an individual basis and the decision tree can assist a clinician with this process.

Author Information

Mohaupt, SM
Institute of Psychiatry, Law, and the Behavioral Sciences, University of Southern California, Los Angeles, CA
Sharma, KK
University of Southern California, Los Angeles, CA
Pages: 8
Price: $25.00
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Stock #: JFS14346J
ISSN: 0022-1198
DOI: 10.1520/JFS14346J