Minnesota Law Review
cesarean sections, maternal rights, fetal rights, maternal health
When, if ever, may a pregnant woman be compelled to undergo a cesarean section to save the life of a viable, verge-of-birth fetus? Courts and scholars have increasingly addressed the constitutional and ethical problems presented when a woman about to give birth requires a cesarean section to prevent the death of or severe harm to her fetus, and the woman refuses to have the surgery. Nationally, over a five year period, courts have heard twenty-one cases in which a court-ordered cesarean was being sought. Under what circumstances, if any, is it legally and ethically appropriate to compel a woman to undergo such surgery in order to save the life or essential health of the fetus, and perhaps the mother's own life as well? Part I of this Article discusses the developing law in the area of compelled cesarean sections. Part II presents an argument for compelle cesarean sections in general, as far as the law, logic, and medicine reasonably take it, and Part III discusses the countervailing arguments for the right to refuse an unwanted cesarean section. Part IV describes the medical conditions for which cesareans are indicated, and discusses associated surgical mortality and morbidity risks. Finally, Part V presents the Article's main thesis and details the factors which are, or should be, met before maternal autonomy may be overcome. Part VI concludes by stressing the need for dialogue between doctor and patient.
Joel J. Finer, Toward Guidelines for Compelling Cesarean Surgery: Of Rights, Responsibility and Decisional Authenticity, 76 Minnesota Law Review 239 (December 1991)