Often when people think about issues of autonomy (the right to make decisions for one’s self) for pregnant women, they think about access to abortion. Other than having the decision to keep or terminate a pregnancy constrained by lack of abortion access, there are other ways that pregnant women lose decision-making rights.
In most of the USA people are allowed to make “living wills” or issue “advance directives” in order to indicate what medical treatment they would like to receive (or not receive) under particular circumstances. The point of the advance directives is to allow people to retain decision-making rights (that is, autonomy) even in the event that they are unconscious when they encounter the medical system. These “advance directives” can be very specific, or they can be very general, such as simply appointing someone to make decisions on one’s behalf in the event that one is unconscious or otherwise incompetent to make one’s own decisions.
Well, most people are allowed that right. But in 35 states pregnant women are not allowed that right. A partial list of these states can be found here. In these states if a woman is pregnant her living will is no longer considered valid and her advance directives for how she would like to receive (or refuse) care are ignored. If she has named someone to make decisions on her behalf, this too is ignored. Instead the doctors are required to make decisions about her treatment in the “best interests of the fetus.”
This is just one more example of how women’s autonomy is precarious. It is only respected if women are not pregnant, but if a woman becomes pregnant her rights to autonomy seem to become limited. Doctors will actually administer pregnancy tests to women (of childbearing age) before honouring (or ignoring, depending on the results) their living wills.
What Could be Done?
I have been trying to think of ways that a pregnant woman could retain the right to have her advance directives followed. One idea I had was that perhaps women should include a “no pregnancy test” clause in their advance directives. Alternatively, women could also include detailed instructions about which treatments they would accept or refuse if they were pregnant and unconscious or otherwise incompetent. This might not mean that the directive would be honoured, but I think it might provide the basis for legal action if the directive were ignored.
What about Men?
This is definitely not a case where men’s autonomy is being violated. A man who has a pregnant partner will still have his advance directives honoured. Nevertheless, there are ways that men are affected by this policy.
First, if the reasoning behind the policy was that women might make different decisions if they knew they were pregnant, then this kind of reasoning should apply to men, too. Perhaps some men would choose differently if they thought they were about to become fathers. This issue would also apply to non-pregnant lesbian partners of pregnant women.
Second, men could find themselves becoming fathers in cases where this would be against the wishes of both the pregnant woman and the genetic father of the child. For example, imagine a case where a heterosexual couple has decided against having children and both the man and woman agree with this decision. If the woman is pregnant and finds herself in the hospital unconscious or otherwise incompetent, her advance directives will not be honoured, and this includes the decisions made by her appointed surrogate decision-maker (in this case the man in the couple).