Reconciling Fetal/Maternal Conflicts
![handle is hein.journals/idlr27 and id is 233 raw text is: RECONCILING FETAL/MATERNAL
CONFLICTS
ROSA H. KIM*
In a much-awaited opinion, the District of Columbia Court of Ap-
peals recently held that a trial judge had erred in ordering a terminally
ill cancer patient to deliver her twenty-seven-week-old fetus by
Cesarean operation.1 The court stated that in virtually all cases the
question of what is to be done is to be decided by the patient-the
pregnant woman-on behalf of herself and the fetus.' This decision
represents a marked departure from the general trend of courts grant-
ing orders compelling pregnant women to submit to Cesarean opera-
tions for the benefit of their fetuses.8
In spite of the opinion's firm tone, many important questions re-
main unanswered. For instance, it is unclear whether a similar holding
would be appropriate if the Cesarean operation would also benefit the
mother.4 Notably, the court did not overrule its previous holding in In
re Madyun5 where the Cesarean operation was deemed beneficial to
both the mother and the fetus. Moreover, the court did not address the
appropriateness of court orders compelling less invasive procedures,
such as ultrasounds. Therefore, the underlying question in fetal/mater-
nal conflicts remains: Under what circumstances should fetal interests
be asserted against the mother?
Fetal/maternal conflict cases result, in part, from the recent trend
toward expanding the legal rights of the fetus.6 The emergence of fetal
rights consequently raises the complex legal and moral question of how
! Associate, Stoel, Rives, Boley, Jones, & Grey, Portland, Oregon. A.B., University
of California at Berkeley, 1986; J.D., Yale Law School, 1989. I am grateful to Dr. J. Katz
for his helpful comments and to Dr. B. Wang for his support and encouragement.
1. See In re A.C., 573 A.2d 1235 (D.C. App. 1990).
2. Id. at 1237.
3. As of May 1987, courts had granted eighty-six percent of the petitions seeking to
compel the mother to submit to a Cesarean operation. See Kolder, Gallagher & Parsons,
Court-Ordered Obstetrical Interventions, 316 NEw ENG. J. MED. 1192 (May 7, 1987)
[hereinafter Kolder Report].
4. It is likely that A.C.'s own death was hastened because of the operation.
5. 114 Daily Wash. L. Rptr. 2233 (1986), afrd by the District of Columbia Court of
Appeals in an unpublished order.
6. See infra at notes 25 - 36.](ViewImageLocal?handle=hein.journals/idlr27&div=20&collection=&method=preview&ext=.png&size=3)
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Reconciling Fetal/Maternal Conflicts
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