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467 Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines the Health of Women and Children Lynn M. Paltrow, J.D. INTRODUCTION For more than a decade, law enforcement personnel, judges, and elected officials nationwide have sought to punish women for their actions during pregnancy that may affect the fetuses they are carrying (Gallagher 1987). Women who are having children despite substance abuse problems have been a particular target, finding themselves pros- ecuted for such nonexistent crimes as “fetal abuse” and delivery of drugs through the umbilical cord. In addition, pregnant women are being civilly committed or jailed, and new mothers are losing custody of their children even when they would be capable parents. Meanwhile, State legislators have repeatedly introduced substance abuse and child welfare proposals that would penalize only pregnant women with addiction problems. Some proponents of these efforts are motivated by the misguided belief that they are promoting fetal health and protecting children (Johnsen 1986, 1989; Pollitt 1990; Hoffman 1990, p. 11). Others hope to gain legal recognition of “fetal rights”—the premise that a fetus has separate interests that are equal to or greater than those of a pregnant woman (Johnsen 1986, 1989; Pollitt 1990; Hoffman 1995, pp. 33, 57). Recognition of such rights would require women to subordinate their lives and health—including decisions about reproduction, medical care, and employment—to the fetus. 1 In fact, doctors and hospital officials have already relied on this theory to seek court orders to force pregnant women to undergo cesarean sections or other medical procedures for the alleged benefit of the fetus. 2 Some advocates of fetal rights have argued that children should be able to sue their mothers for “prenatal injuries.” 3 In some industries, employers have adopted “fetal protection” policies,
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468 which bar fertile women of childbearing age from certain high-paying, unionized jobs. 4 Women’s and children’s advocates agree that women should engage in behaviors that promote the birth of healthy children. Nevertheless, they recognize that a woman’s substance abuse involves complex factors that must be addressed in a constructive manner. 5 Punitive approaches fail to resolve addiction problems and ultimately undermine the health and well-being of women and their children. For this reason, public health groups and medical organizations uniformly oppose measures that treat pregnant women with substance abuse problems as criminals. Moreover, courts have repeatedly rejected attempts to prosecute women under existing criminal laws for their prenatal actions, impose restric- tions on women’s activities because they are fertile or pregnant, or coerce women to undergo medical procedures to benefit their fetuses. Some of these decisions have explicitly recognized that the fetal rights
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