Introduction
Her story: She comes to the birth center deep in her third trimester, heavy with twins, swollen, sore, and seeking a second opinion. According to her phone app, each twin is roughly the length of a Swiss chard; they have rudimentary startle reflexes and sensitive, attentive ears. According to their mother, they also share a keen, retaliatory sense of justice: when either twin is kicked by his brother, he kicks decisively back. She is a week away from full term.
Her doctors want her induced. It is hospital protocol, they tell her, to provoke labor in all twin pregnancies four weeks before the estimated due date. After all, twin pregnancies carry an increased risk of sudden and tragic complications. Wouldn’t it be better to preempt the potential emergency, her doctors ask her, to get the babies out before they can get into any trouble?
When she tells them no, that she wants to wait for labor to start on its own, that she wants her Swiss chard children to grow as long and as strong and as plump as they possibly can, the doctors balk.
“But we are responsible for those babies,” they say, fingers pointing at her suspicious belly.
“No. I am responsible for these babies,” she says.
“But we are the doctors,” they say, by which they mean, We know better/ more/ otherwise. “Think of it like this,” they offer. “The babies are cargo, and it is our job to get them safely to port.”
Later, when she is sharing her story with me and the other midwives, she asks, “If my babies are cargo, what does that make me?”
What does that make her? Is she the ship? Is she the violently indifferent sea? Is she there at all?
The symbolic construction of pregnancy matters. How we talk about the mother, the fetus, and the relationship between the two, matters. It informs when we provide obstetrical care, to whom we provide the care, and what that care looks like. Consider, for example, the maternal-fetal conflict (MFC) paradigm that has been in vogue in obstetrical moral reasoning since the late 1970s. Within the MFC paradigm, the mother and the fetus are perceived as separate individuals with separate needs and separate rights (Seymour, 195). According to this view of pregnancy, some degree of maternal-fetal give-and-take is expected. The mother’s right to bodily autonomy may be in conflict with the fetus’s right to beneficence. And, by the same token, the fetus’s right to beneficence may be in conflict with the mother’s right to non-maleficence (Cervenak and McCullough, 2-9).
By convention, ethicists usually divide MFCs into two types. In the first type, a pregnant woman is said to conflict with her fetus when she behaves in a risky manner. If, for example, she uses dangerous drugs, or she works in a high-risk workplace, or she fails to attend her prenatal appointments, she and her fetus are said to be at odds with one another. Her interests are no longer in alignment with the fetus’s interests. In the second type, a pregnant woman is considered to be in conflict with the fetus when she refuses a medically indicated treatment. If, for example, her doctors recommend a blood transfusion, an episiotomy, or a cesarean section in the interest of the fetus and she refuses to consent to the intervention, she has entered into conflict with her fetus. Her potential right to refuse the recommended treatment is at odds with the fetus’s potential right to receive the treatment (Farber Post, 765-766).
While many bioethicists and birth workers have attempted to “solve” the MFC—to reason out a method of balancing moral obligations to the mother with moral obligations to the fetus (Steinbock; Drigotas; Cherry) —far fewer have questioned the merits of the framework itself. Is a two-patient, conflict-based model really the most appropriate framework to apply to pregnancy? Assuming it is not, what other frameworks should we consider? Most importantly, how might the adoption of a new framework allow us to restructure maternity care for the better?
On Risky Maternal Behavior in Pregnancy
In the spring of 2018, I am a full-time student living an hour outside of Boston, and I have recently started volunteering as a labor doula at a local hospital. Every Saturday afternoon for a semester, I travel to the small community hospital for my weekly night shift. Officially, I am the responsibility of the charge nurse on the labor and delivery unit, but on quiet nights, when she is bogged down with paperwork and exhaustion, she sends me to the neonatal intensive care unit (NICU) to shadow the pediatric care team.
On my first night in the NICU, the unit is five babies full. Four of them are sleeping peacefully in their glass chamber beds, but one of them is screaming. His face is an angry shade of red and his hands are balled into tight, pebble-sized fists. The NICU nurse introduces me to him, to the hospital’s newest Baby Doe. She explains that he is three days old and that he is withdrawing from synthetic opioids, his birth mother having been addicted to heroin throughout her pregnancy. Every hour, the nurse “scores” Baby Doe. She assesses him for shakes and sneezes and spit up—the classic signs of neonatal abstinence syndrome. Then, she makes tidy checkmarks on the score sheet attached to his medical chart. Twice, she asks aloud, “How could a mother—?” but the question is more statement than inquiry. Fury, not confusion.
I never meet Baby Doe’s birth mother. After delivery, she surrendered him to the state and discharged herself from the hospital against medical advice. In her absence, a simple narrative emerges of a mother’s moral failings. She made unethical decisions. She was unfit. The other babies in the NICU have jaundice or low blood sugars or missing chromosomes. Their illnesses have been caused by cosmic bad luck, not maternal recklessness. At the time, I am new to birthwork, and the term “maternal-fetal conflict” has not yet entered my vocabulary. Even so, as I peer down at the shaking Baby Doe and tally up a night’s worth of checkmarks, a moral philosophy rooted in fetal protection and maternal surveillance begins to take shape in my mind.
It is only later, after I have graduated from a direct-entry midwifery school and have accompanied hundreds of women across the threshold into motherhood, that I start to question my calculations. Baby Doe was born in Worcester County at the height of the third wave of the opioid crisis. In 2018, Worcester County suffered from an opioid addiction rate five times higher than the national average (Massachusetts Health Policy Commission, 46). At the same time, national wait times for substance abuse rehabilitation centers often spanned multiple months, and many of these centers refused to admit pregnant women out of fear of medical liability (Stone, 13). Twenty percent of Worcester residents lived below the poverty line and unemployment rates were some of the highest in the state of Massachusetes (Worcester County Insights).
I think now of Barbara Katz Rothman, and her analysis of a preterm birth awareness campaign that was published in New York City subway cars in the 1980s. The campaign ad showed two newborn footprints: the footprints of a healthy, term baby and the footprints of a scrawny, preterm baby. On different versions of the ad, the caption below the image variably read, “Guess which baby’s mother smoked while pregnant?” or “Guess which baby’s mother drank while pregnant?” or “Guess which baby’s mother didn’t get prenatal care?” In her book Recreating Motherhood, Katz Rothman criticizes this campaign for framing adverse fetal outcomes as a consequence of maternal immorality rather than a consequence of structural inequality. She writes, “I look in vain for the ad that says, ‘Guess which baby’s mother tried to get by on welfare?’ [or] ‘Guess which baby’s mother had to live on the streets?’” (Katz Rothman, 21).
The MFC paradigm is not designed to consider conflicts external to the maternal-fetal relationship. Within the MFC paradigm, mothers who engage in risky prenatal behavior are seen as morally problematic. The argument goes that these women have an ethical obligation to their fetuses to act responsibly. When they fail to do so, when they drink or abuse substances or miss prenatal appointments, they enter into conflict with their fetuses. Their right to bodily autonomy clashes with their fetus’s right to health. In Minnesota, a fetal alcohol syndrome awareness campaign was once launched which likened the fetus of a mother who uses alcohol in her pregnancy to “a victim of torture” (Roth, 1). The implication of this campaign is clear: if the fetus is a victim of torture, the mother is its torturer.
When we equate risky maternal behavior with violence against fetuses, certain public health solutions become obvious, while others are rendered absurd. If the mother is torturing her fetus—and the mother and her fetus are understood to be two separate, isolated entities—then she must be punished, and he must be saved. One solution to maternal substance abuse that has become increasingly popular under the MFC paradigm is the strategy of “preventative detention.” In preventative detention, women who commit misdemeanors while pregnant and who have histories of substance abuse disorders are assigned longer prison sentences than they would have received if they were not pregnant. The explicit goal of preventative detention is to protect the mother’s fetus by locking up the mother (Cherry, 176). The logic of this intervention, rooted as it is in the MFC paradigm, is faulty. How can fetal wellbeing realistically be achieved while maternal wellbeing is compromised? In the American prison system, incarcerated women often have easy access to illicit drugs. Nutritious food and quality healthcare are much harder to come by.
Now imagine what would happen if we rejected the construction of the MFC. After all, how we define the problem informs how we identify the solution. What solutions might emerge if we reframed the conflict to exist not on opposite ends of the umbilical cord, not between mother and fetus, but between mother-baby and the system? How might we intervene differently if we focused more on the moral obligations of social institutions to support pregnant women living in precarity, and focused less on the moral obligations of vulnerable women? The MFC paradigm says that pregnant women who engage in risky behaviors are in conflict with their fetuses. But this is not so. Consuming illicit drugs or routinely missing prenatal appointments is no more in the interest of the pregnant woman than it is in the interest of her fetus; far from the two parties being in conflict, the mother’s interests and the fetus’s interests are actually in alignment when the mother engages in risky prenatal behavior. Both the fetus and the mother would benefit from her achieving sustainable sobriety, from her accessing quality prenatal care, and from her eating healthfully. When we step out of the MFC paradigm, with all its emphasis on whom to sacrifice and whom to save, new solutions become self-evident — solutions that prioritize accessible, non-judgmental, non-punitive care for pregnant women.
On Maternal Refusal of Recommended Medical Treatment
Another story: This time, I am in Los Angeles. I am a few years out of midwifery school, working as a resident midwife in a private home birth practice managed by Dr. Wendland*, a self-proclaimed “maverick obstetrician.” It is 2022, and there are probably fewer than five obstetricians in California who attend births outside of the hospital, Dr. Wendland being the only one willing to oversee planned home births for women with breeched fetuses, twins, or a history of multiple prior cesarean sections. In the American maternity care system, the vast majority of women presenting with such complications are automatically scheduled for cesarean sections due to a belief among providers (and their patients) that cesarean deliveries are less risky to the fetus than complex vaginal deliveries. Even though this belief is not backed by sound medical evidence–in fact, a growing body of evidence suggests that planned vaginal deliveries with skilled attendants are safer for the fetus–hospitals around the country have developed mandatory cesarean section policies for nearly all pregnancies south of “normal.” Women who disagree with these policies and who wish to attempt vaginal deliveries are often pushed to seek care outside of the mainstream hospital setting. Consequently, every month, between six and eight women make their way to southern California to deliver with the maverick obstetrician and his rotating team of midwives.
In March of my residency year, a woman living in Kansas forwards Dr. Wendland her medical records. She is thirty-eight weeks pregnant and has had two prior cesarean sections. Her first cesarean was for suspected fetal oxygen deprivation, a diagnosis which was proven wrong during the surgery when her baby was delivered pink and wailing. “It is better to be safe than to be sorry,” her obstetrician had told her afterward. Her second cesarean had been a by-product of the first. The attending had worried that the scar from her original cesarean would tear if she attempted a vaginal delivery, so he had wheeled her into the operating theater a week before her due date for a second operation. “Once a cesarean, always a cesarean,” he had said.
And now, the woman is pregnant for a third time and facing a third surgical birth. Her new obstetrician has submitted her information into the “VBAC Risk Calculator,” a computer algorithm that estimates a patient’s likelihood of a successful vaginal birth after cesarean section (“VBAC”) based on the patient’s demographic background and medical history. The calculator has assigned her a 58.59% chance of a successful vaginal birth. “Too low to be worth the risk,” her obstetrician has concluded. “We have to consider what’s best for the baby.” He has penciled her in for a third cesarean section in two weeks’ time.
The woman is writing to us to verify her doctor’s evaluation. Is her doctor right? Is a vaginal birth really too risky for her fetus? She explains that following the first two operations, she found it difficult to connect with her newborns, that she struggled to care for them while also tending to the wound in her belly. For months after the deliveries, her milk supply remained low, and her mood ran erratic. She has since read that a normal vaginal birth is associated with higher rates of exclusive breastfeeding and lower rates of neonatal respiratory distress, childhood asthma, and adult obesity. She regrets that her two older children were denied these benefits, especially because she no longer believes that their cesarean deliveries were medically necessary. After all, her first cesarean was performed following a faulty diagnosis, and her second cesarean was performed based on a committee opinion from the country’s professional association of obstetricians which was ultimately withdrawn two years later due to a lack of quality evidence. So, she wants to know: Is she really putting her fetus at risk by advocating for a VBAC, or is her obstetrician putting her fetus at risk by refusing her one?
Dr. Wendland reviews the woman’s records. In an email we send her the following week, he writes, “It is my professional opinion that a VBAC in your specific case is not an unreasonable treatment plan. If you are unable to find a care team in Kansas willing to support you in a trial of labor, you are welcome to transfer care into our practice.”
Ten days later, a little after midnight, the mother pushes out a howling baby boy in the living room of a rented Airbnb somewhere on the outskirts of Los Angeles. I assign him APGAR scores of 9 and 10.
***
Here lies the conundrum: An MFC is said to exist when maternal interests, which are defined by the mother, stand at odds with fetal interests, which are defined by her obstetrician. But a mother’s obstetrician can change. The woman from Kansas was told by her local obstetrician that to be a good mother, she would have to consent to a repeat cesarean section. Then, that same woman was told by an obstetrician in California that a planned VBAC was a reasonable treatment option for both her and her fetus and that she should come to Los Angeles to attempt a vaginal delivery. But how can this be? How can a conflict between a mother and her fetus cease to exist simply by the mother transferring her prenatal care to a new physician? If her medical decisions have not changed, how can the morality of those decisions change?
The MFC paradigm does not hold up to scrutiny because it is rooted in flawed cultural assumptions about mothers and medical expertise. Popular culture loves to decry the unfit mother, particularly the unfit pregnant mother who puts her unborn child at risk. There is the “welfare queen” who gives birth to the “crack baby” (Krauthammer). There is the wealthy celebrity mother who is “too posh to push,” who demands that her physician perform an unnecessary cesarean section, even though a cesarean without medical indication is more dangerous for the baby (Song). There is the home birther who eschews modern medicine, who values her birth experience over her infant’s health (Ellen). Despite the existence of these mothers in the public psyche, researchers have found no evidence that these mothers exist to any significant degree in the real world. Instead, they have found that the “crack baby crisis” was little more than a dog whistle disparaging black motherhood, that obstetricians, not socialites, are behind the rise in unnecessary cesarean sections, and that women who choose home birth do so because they have evaluated it to be the safest option for their children. (Wilson; Weaver and Magill-Cuerde; Sperlich and Gabriel). Our preoccupation with spiteful, selfish pregnant women is nothing more than a red herring.
And then there is the issue with the cultural authority of biomedicine. At the same time that society is overly skeptical of pregnant women’s intentions, we are oftentimes insufficiently skeptical of doctor’s judgments, even though biomedicine is rarely purely objective or evidence-based. Take, for example, the VBAC Risk Calculator that calculated to the second decimal place the Kansas mother’s probability of a successful vaginal delivery. The Calculator’s computation included the mother’s race and ethnicity as one of the predictive factors, awarding higher probabilities of success to white mothers and lower probabilities of success to Black and Hispanic mothers (Rubashkin). Had the Kansas mother been non-Latina white instead of white Latina, the Calculator would have assigned her a 72.33% chance of a successful vaginal birth rather than a 58.59% chance. This, despite the fact that we know that racial and ethnic differences in obstetric outcomes are due to systematic racism and structural inequalities rather than to a biological deficiency in the ability of non-white women to give birth. Assuming that biomedical knowledge is apolitical or acultural is problematic; it stands to reason that a paradigm constructed in a patriarchal and racist setting will reproduce patriarchal and racist ideologies.
The simultaneous cultural suspicion of pregnant women and cultural valorization of medical experts has led to the social phenomenon of court-compelled medical treatments on non-consenting pregnant women. Since the 1970s, physicians have periodically brought cases of supposed MFCs in front of judges in an effort to receive legal permission to override their pregnant patient’s informed refusals of treatment, so as to treat their “fetal patients” (Steinbeck, 183). The court-compelled treatments have included everything from bed rest (Wevers), to cervical cerclage (Massachusetts Supreme Judicial Court), to cesarean sections (Roth, 96). Unsurprisingly, the majority of court cases have involved low income, non-white mothers, because these mothers are preconceived to be deviant and unfit (Harris, 788).
According to the logic of the MFC, the obstetrician, as the biomedical expert, is the undisputed authority on the fetus’s interests. When the mother consents to the obstetrician’s proposed treatment plan, she is said to be acting in the fetus’s best interests. But when she disagrees with the proposed treatment plan, she is accused of prioritizing her own interests and of putting her fetus at risk. She has become an unfit mother. The MFC paradigm labels a difference of opinion between a mother and an obstetrician as a “maternal-fetal conflict.” But, as the Kansas mother’s case highlights, maternal medical decisions do not necessarily compromise fetal wellbeing, and physician medical recommendations do not necessarily promote fetal wellbeing. Rather than a “maternal-fetal conflict,” the more accurate label is a “maternal-physician conflict.”
Conclusion
A final story, this one shared at New York University’s first annual reproductive law conference in 2014. The conference’s theme is “Where Is the Woman?” and the keynote speaker is Carol Gilligan, author of the 1982 book, In a Different Voice. Gilligan tells the audience about the research project that made her famous, a project conducted in 1973 in the months following the legalization of abortion in the United States due to the Supreme Court’s ruling in Roe v. Wade. Gilligan’s research project involved the recruitment of twenty-nine women with first-trimester pregnancies who were considering pregnancy termination. Her goal was to analyze how these women thought about the “moral dilemma” of abortion. What options were the women considering? What concerns did they have? How did they know what was right and what was wrong?
In speaking with these women, Gilligan realized that the traditional Western ways of problematizing ethical decision-making did not map onto the women’s thought processes. These women did not talk about justice, or obligations, or principles—the main signposts of traditional moral reasoning—nor did they frame abortion as an issue of fetal rights versus maternal rights. Instead, they talked about care and mutuality and making tough decisions in a web of interconnected relationships. Gilligan soon theorized that the standard model of ethical problem-solving, the model responsible for the MFC paradigm, was insufficient for these women, in part because it did not reflect the realities of pregnancy. Traditional moral reasoning is based on the rights and needs of separate, unrelated individuals, but pregnancy is a time of connectedness; the mother is connected inwardly to her fetus and outwardly to her larger social network. As Gilligan would later explain in a lecture hall at NYU, “pregnancy is a dilemma of relationship,” so moral quandaries pertaining to pregnancy are best solved with an “ethic of relationship” rather than an “ethic of separateness.”
***
I wonder now what would happen if we full-heartedly embraced Gilligan’s ethic of relationship, if we applied her framework not just to abortion care, but to all maternity care. For the last sixty years, we’ve allowed the MFC paradigm to be the dominant way of thinking about morality in pregnancy. This framework has contributed to the criminalization of maternal drug use, the over-medicalization of pregnancy, the hyper-surveillance of pregnant women, and the emergence of court-ordered cesarean sections, but it has not improved fetal outcomes.
Of course it hasn’t.
Once we recognize that what affects the mother directly affects the fetus indirectly, and vice versa, we will stop endorsing policies that promote maternal sacrifice in the name of fetal rescue. We will realize that such policies don’t work. Instead of subscribing to the cultural fallacy of the unfit mother in constant conflict with her vulnerable fetus, we will begin to appreciate pregnancy for what it is—a state of being where maternal and fetal needs overlap and intermingle. I think often of the mother in Boston who was addicted to heroin. She never attended prenatal care because she was scared that her physician would send her to jail for her substance use disorder. I think, too, about the mother from Kansas who had to drive 1,500 miles away from her support system to find a physician willing to spare her and her fetus the scalpel. I think of the mother with twins, who felt unseen by the medical experts whose job it was to take care of her. Mostly, I think about how different their experiences of pregnancy and motherhood could have been had these women received care under an ethic of relationship framework. Maybe then, the Boston mother would have been referred to a low-cost, non-punitive rehabilitation center, the Kansas mother would have been cared for by a local physician supportive of vaginal birth, and the twin mother would have felt empowered to decline a medical intervention she did not want.
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