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The Impact of Medical Technology on the Pregnant Woman’s Right to Privacy

Published online by Cambridge University Press:  24 February 2021

George J. Annas
George J. Annas*
Affiliation:
Edward R. Utley Professor of Health Law, Boston University Schools of Medicine and Public Health. Copyright 1988 by George J. Annas.
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Extract

In the context of the bicentennial of the Constitution and science's relationship to society, it has been argued that “the advance of science and technology in the West has changed not only the relation of man to nature but of man to man.“ This seemingly immodest statement may soon prove an understatement. In the arena of human reproduction, the marriage of science and technology in medicine may change not only the relationship of man to nature and man to man, but more significantly, the very concept of what it means to be human. This, in turn, will directly affect how we define the “rights” this “new human” may properly claim.

This article begins to explore developing reproductive medical technology with a view toward examining the way it might change our concept of humanness, and how this change might be accommodated, encouraged, or truncated by the relationship between the government and its pregnant citizens as defined by the United States Constitution and the “right to privacy.”

Type
Articles
Information
American Journal of Law & Medicine , Volume 13 , Issue 2-3: Justice Harry A. Blackmun: The Supreme Court and the Limits of Medical Privacy , 1987 , pp. 213 - 232
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1987

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Footnotes

*

This article is adapted from an essay originally prepared for the United States Congress, Office of Technology Assessment, as part of its project on “Technology and the Constitution” for the Bicentennial. Contract No. H3-3020.0 (1987).

References

1 Piel, , Natural Philosophy in the Constitution, 233 SCIENCE 1056, 1057 (1986)CrossRefGoogle Scholar.

2 G. ORWELL, 1984 (1949).

3 A. HUXLEY, BRAVE NEW WORLD (1931). See also A. HUXLEY, BRAVE NEW WORLD REVISITED at 26 (1958).

4 M. ATWOOD, THE HANDMAID's TALE (1986).

5 Id.

6 P. THEROUX, O-ZONE. (1986).

7 These technologies include AID, IVF, the use of frozen embryos, surrogate embryo transfer (SET), gamete intrafallopian transfer (GIFT), and more extreme possibilities such as cross-species fertilization, total extracorporeal gestation, and cloning. See Elias, & Annas, , Social Policy Considerations in Noncoital Reproduction, 255 JAMA 62 (1986)CrossRefGoogle Scholar.

8 274 U.S. 200(1927).

9 Id. at 205.

10 Id. at 207 (1927).

11 316 U.S. 535, 541 (1942).

12 Id. at 536-37.

13 Id. at 541.

14 Id. (emphasis added).

15 See e.g.. In re Grady, 85 N.J. 235, 426 A.2d 467 (1981); Baron, Involuntary Sterilization of the Mentally Retarded in GENETICS AND THE LAW (A. Milunsky & G. Annas eds. 1976).

16 Roe v. Wade, 410 U.S. 113, 138-41 (1973).

17 Griswold v. Connecticut, 381 U.S. 479 (1965).

18 Id.

19 Id. at 484. The statute had been upheld as a valid exercise of the state's police powers (to “preserve arid protect the public morals“) as recently as 1940. State v. Nelson, 126 Conn. 412, 425(1940).

20 405 U.S. 438 (1972).

21 Id. at 453.

22 410 U.S. 113 (1973).

23 Id. at 153 (emphasis added).

24 Id. at 160 (emphasis added).

25 Ely, , The Wages of Crying Wolf: A Commentary on Roe v. Wade, 82 YALE L.J. 920, 924 (1973)CrossRefGoogle Scholar.

26 Roe v. Wade, 410 U.S. at 163.

27 Id.

28 Id. at 149.

29 Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 456 (1983) (O'Connor, J., dissenting).

30 Id. at 437.

31 Id. at 458 (O'Connor, J., dissenting).

32 KASS, L., TOWARD A MORE NATURAL SCIENCE: BIOLOGY AND HUMAN AFFAIRS 48 (1985)Google Scholar(emphasis added);

33 ELIAS, S. & ANNAS, G., REPRODUCTIVE GENETICS AND THE LAW 224 (1987)Google Scholar.

34 Annas, & Elias, , In Vitro Fertilization and Embryo Transfer: Medicolegal Aspects of a New Technique to Create a Family, 17 FAM. L.Q. 199 (1983)Google Scholar.

35 Robertson, , Embryos, Families and Promotive Liberty: The Legal Structure of the New Reproduction, 59 So. CAL. L. REV. 939, 977 (1986)Google Scholar.

36 Id; Annas, , The Ethics of Embryo Research: Not as Easy as it Sounds, 14 L., MED. & HEALTH CARE 138 (1986)CrossRefGoogle Scholar.

37 See e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972).

38 See Roe v. Wade, supra note 22.

39 Note, Rumpelstilskin Revisited: The Inalienable Rights of Surrogate Mothers, 99 HARV. L. REV. 1936 (1986)CrossRefGoogle Scholar. Even the lower court judge in the Baby M. case recognized that a woman could not irrevocably waive her right to terminate her pregnancy under the United States Constitution because judicial enforcement of such an agreement would be an intolerable burden on the woman. 217 N.J. Super. 313. 525 A.2d 1128 (1987).

40 Planned Parenthood of Mo. v. Danforth, 428 U.S. 52 (1976).

41 Id. at 93 (White, J., dissenting).

42 Id. at 71.

43 Annas, , Making Babies Without Sex: The Law and The Profits, 74 AM. J. PUB. HEALTH 1415 (1984)CrossRefGoogle Scholar; ELIAS & ANNAS, supra note 7.

44 Id. See also In the Matter of Baby M., 537 A.2d 1227 (N.J. 1988).

45 Radin, , Market Inalienability, 100 HARV. L. REV. 1849, 1930 (1987)Google Scholar.

46 S. ELIAS & G. J. ANNAS, supra note 33, at 243-50.

47 Kolder, Gallagher & Parsons, , Court-Ordered Obstetric Interventions, 316 NEW ENG. J. MED. 1192 (1987)Google Scholar; see Rhoden, , The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans, 74 CAL. L. REV. 1951 (1986)CrossRefGoogle Scholar. .

48 247 Ga. 86, 274 S.E.2d 457 (1981). See G. ANNAS, JUDGING MEDICINE 119-25 (1988).

49 Jefferson, 247 Ga. at 89, 247 S.E.2d 457 at 460.

50 Id.

51 In re A.C., 533 A.2d 611 (D.C. App. 1987), vacated, 529 A.2d 203 (D.C. App. 1988).

52 533 A.2d at 613.

53 Id. at 612

54 Id. at 611.

55 Id.

56 Id. at 613.

57 Id. at 614.

58 Id. at 616.

59 Id. at 616-17. The court actually wound up forcing Angela C. to have an abortion prior to her death, since her fetus was not viable.

60 Id. at 616.

61 Annas, , She's Going to Die: The Case of Angela C., 18 HASTINGS CENTER REP. 23 (Feb. 1988)CrossRefGoogle Scholar.

62 42 N.J. 421, 201 A:2d 537 (1964).

63 Id. at 423, 201 A.2d at 538.

64 Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).

65 Id. at 662-64. See also Annas, , Forced Cesareans: The Most Unkindest Cut of All, 12 HASTINGS CENTER REP. 16 (June 1982)CrossRefGoogle Scholar.

66 A legally analogous situation occurs when a court authorizes a “search and seizure” of a substance that is inside the body of a criminal suspect. In the most famous “search and seizure” case, the U.S. Supreme Court ruled that having a physician take blood in a hospital to determine whether an individual is under the influence of alcohol is “reasonable” under the fourth amendment protection against unjustified searches and seizures because of the strong interest the community had in fairly and accurately determining guilt or innocence, the inability of determining intoxication by other means, and the very minor invasion of the body involved in drawing blood which, “for most people involves virtually no risk, trauma, or pain.” Schmerber v. California, 384 U.S. 757, 771 (1966). In an earlier case the Court found a search unreasonable when police broke into a suspect's room, attempted to extract narcotics capsules he had put in his mouth, and then rushed him to the hospital and insisted that an emetic, be administered to induce vomiting. This violated the suspect's interests in “human dignity.” Rochin v. California, 342 U.S. 165, 174 (1952). Even closer to the cesarean section cases is a case in which the Court upheld a lower court ruling that it would be unreasonable under the fourth amendment to order surgery to remove a bullet from an accused armed robber who shot his victim and was in turn shot by him. The Court held, consistent with Schmerber and Rochin, that the interests of the accused had to be balanced against the interests of the state. The accused's primary interests were in maintaining “personal privacy and bodily integrity.” Removal of the bullet would require, among other things, general anesthesia. In the Court's words:

When conduced with the consent of the patient, surgery requiring general anesthesia is not necessarily demeaning or intrusive. In such a case, the surgeon is carrying out the patient's own will concerning the patient's body and the patient's right to privacy is therefore preserved. In this case, however…the Commonwealth proposes to take control of respondent's body, to “drug this citizen—not yet convicted of a criminal offense— with narcotics and barbiturates into a state of unconsciousness” and then to search beneath his skin for evidence of a crime. This kind of surgery involves a virtually total divestment of respondent's ordinary control over surgical probing beneath his skin. Winston v. Lee, 470 U.S. 753, 765 (1985)(quoting Lee v. Winston, 717 F.2d 888, 901)(emphasis added).

Not only was the burden on the citizen great, the state had other evidence available to make its case, so the search was not “reasonable.” Id. Analogously, a forced cesarean section is a much more intrusive and dangerous surgical procedure than the bullet removal, and much more demeaning to the patient because it treats her simply as a container. On the other hand, the potential state interest in the life of the fetus (soon-to-be-child) is very high.

67 Johnsen, , The Creation of Fetal Rights: Conflicts With Women's Constitutional Rights to Liberty, Privacy and Equal Protection, 95 YALE L.J. 599 (1986)CrossRefGoogle Scholar.

68 Miller, Rights in Conflict? The Pregnant Woman vs. The Fetus at Risk, MASS. MED. 17-18 (Sept. - Oct. 1986).

69 Placenta previa is the condition in which the placenta is in the lower segment of the uterus, extending to the margin of the internal os of the cervix or partially or completely obstructing the os.

70 CAL. PENAL CODE § 270 (West 1986)(emphasis added).

71 Annas, supra note 48, at 96. See also Note, Maternal Rights and Fetal Wrongs: The Case Against the Criminalization of “Fetal Abuse”, 101 HARV. L. REV. 994 (1988)CrossRefGoogle Scholar.

72 Id.

73 Law, , Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 1009 (1984)Google Scholar.

74 ELIAS & ANNAS, supra note 33, at 262.

75 M. ATWOOD, supra note 4.

76 THE LEWIS MUMFORD READER (D. Miller ed. 1986).

77 L. WINNER, THE WHALE AND THE REACTOR: A SEARCH FOR LIMITS IN AN AGE OF HIGH TECHNOLOGY 155-63 (1986). See also R. DRINAN, CRY OF THE OPPRESSED: THE HISTORY OF THE HUMAN RIGHTS REVOLUTION (1987).

78 Holton, , The Advance of Science and Its Burdens in Art and Science, 115 DAEDALUS 75 (No. 3 1986)Google Scholar

79 Thornburgh v. ACOG, 476 U.S. 747 772 (1986)(emphasis added).