Resisting the Temptation to Turn Medical Recommendations into Judicial Orders: A Reconsideration of Court-Ordered Surgery for Pregnant Women

This Article reconsiders whether cases across the country which have compelled pregnant women to undergo unwanted surgery have been rightly decided. These are certainly hard cases which apparently pit the life and health of the fetus against the wishes and beliefs of its mother. The temptation to convert a doctor\u27s medical treatment recommendations into a judge\u27s order compelling submission to the recommended medical procedure is real and understandable. If the choice seems to be, on one hand, a vaginal delivery which doctors predict may result in a medical catastrophe posing high risks of harm or death to the fetus and possible danger to the mother, and on the other hand, a cesarean section delivery which doctors predict will virtually assure medical safety for both of them, why should not the courts and the medical profession choose, indeed insist upon, the latter? * When a judge orders a pregnant woman to undergo a cesarean section despite her objections, no doubt the judge is trying to resolve an apparent maternal-fetal conflict in a way that apparently maximizes maternal and fetal health and well-being. The apparent obviousness of the resolution to compel surgery reflects certain underlying assumptions about the nature of controversy: that the conflict to be resolved is between the mother and her fetus, rather than between the mother and her doctor; that the doctor is correct about the gravity of the potential harm to the fetus from a vaginal delivery; that the injury to the mother from a cesarean section is minor in comparison; and that the court has the legal power to convert a doctor\u27s medical recommendation into a judicial order compelling treatment on a patient. This article explores and challenges these assumptions