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January 29, 2013 | Posted By Lisa Campo-Engelstein, PhD

An article published this week documents the “criminalization of pregnancy” in the US over the last four decades. The main reason used to support the arrests of and forced interventions on pregnant women is that these women are causing fetal harm through their poor choices (e.g. using drugs, denying medical treatment, and engaging in risky behavior). The 413 cases described in this article highlight the common social belief that women cannot be trusted to make good decisions for their fetuses and that infringing upon these women’s rights is justified for the sake of the fetus. 

This social distrust toward pregnant women to prevent harm to their fetuses is found in various aspects of life. For example, warnings on alcoholic beverages caution only against pregnant women drinking. There is no similar warning for men seeking to become fathers even though alcohol use in men increases the chance of birth defects and low birth weight. Nor are there any warnings about all the other harms that occur due to alcohol consumption, harms that often cause more overall damage and affect more people, such as drunk driving and crime. Similarly, warnings on cigarettes only mention the harms women can cause to fetuses, even though secondhand smoke from male partners is also bad for fetuses and men who smoke are more likely to have children with birth defects and low birth weight. While such warnings are generally good and useful for the public, what I find problematic is that they ignore paternal fetal harm on only focus on maternal fetal harm.

Although we as a society continue to distrust pregnant women, we have made progress in the last couple of decades towards enhancing women’s autonomy by allowing women to participate in activities that might cause fetal harm. In 1977, the FDA issued a guideline that recommended prohibiting women of childbearing age from the early phases of clinical trials, except for life-threatening diseases. The reason behind this recommendation was to prevent harm to potential fetuses of potentially pregnant women. It was assumed that information discovered in men would generally be the same for women. However, in the 1990s, there was a new movement was to better understand sex differences in medicine and so in 1993 the FDA removed the 1977 guideline. That the potential for women to become pregnant—the idea that women are constantly in a state of pre-pregnancy—was a legitimate reason for women’s exclusion from biomedical research for sixteen years shows how deep the fear runs that women will (perhaps unintentionally) harm their fetuses. 

Another example of limiting women’s participation in certain activities that may lead to fetal harm is that of preventing women from entering certain occupations. Thanks to the 1991 unanimous Supreme Court decision International Union versus Johnson Controls Inc. it is no longer legal for employers to exclude women from certain jobs if there is potential harm to potential fetuses. However, in some other countries, such as the UK, employers are permitted to hire only men to avoid fetal harm. What is troubling about the laws like the one in the UK is that the solution to preventing fetal harm is to remove women rather than the harmful chemical.  No workplace chemical has been outlawed because of its effects on women’s reproduction, yet there is a double standard: the pesticide dibromodichloropropane was banned because of its harmful effects on male reproduction.

Although women in the US today are able to participate in activities that could cause fetal harm, such as clinical trials and certain types of jobs, there remains a cultural perception that women are likely, intentionally or inadvertently, to cause harm to their fetuses. There is no equivalent cultural perception about men despite the fact that science has shown that men’s actions can and do lead to fetal harm. As previously mentioned, both alcohol use and smoking in men increases the chance of birth defects and low birth weight. Furthermore, illegal drug use, such as cocaine, hashish, opium, and heroin, often results in abnormal sperm. It is not only a justice issue, but also a public health matter that we recognize the ways in which men’s actions can also lead to fetal harm.

The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI's online graduate programs, please visit our website.

0 comments | Topics: Gender Disparities, Patient Autonomy, Reproductive Medicine, Women's Reproductive Rights


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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.
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