Public Health Law Map - Beta 5 - Medical and Public Health Law Site

part of the patient’s birth plan, with contingent consent for a Cesarean section
obtained early in the woman’s pregnancy. The woman must sign the consent form
herself; her husband should not be asked to sign it. At the time the Cesarean section
becomes necessary, the woman should be asked to re-sign the original consent form,
indicating that the conditions for needing a Cesarean section have now occurred. The
fact that the mother may have had some pain- relieving drugs does not render her
legally incompetent to acknowledge the need for the procedure. Her husband has no
authority to sign the consent to her surgery unless she has given him this right in a
power of attorney. If the mother is medically unable to consent because she is
mentally incompetent, the surgery may go forward based on the consent signed as
part of the birth plan.
The standard of care for pregnant women who have had a previous Cesarean section
has changed rapidly in the last few years. Many obstetricians encourage women to
attempt labor if the reason for the original operation is not likely to be repeated. On
the other hand, some highly respected obstetricians believe that vaginal delivery
should never be attempted by these patients. Physicians should be careful to inform
the patient of all her options. The consent to surgical delivery or to vaginal delivery
must be well informed. If the patient wants a trial of labor and the physician does not
believe that it is advisable, he or she should help the patient find another doctor who
will accept her decision. The consent to a trial of labor should be discussed as part of
the patient’s birth plan.
Disagreements over the advisability of a trial of labor are different from a refusal of a
Cesarean section in all circumstances. A woman has a right to refuse surgical
delivery without regard for the risk to the fetus. She may refuse a Cesarean section
for reasons that have no medical basis, even if her decision endangers the life or
health of her fetus. Neither the pregnant woman’s husband nor her physician has the
right to force her compliance by physical force or chemical restraint. The only way to
challenge a woman’s refusal of a Cesarean section is to obtain a court order. General
medical- ethical thinking opposes the involuntary treatment of pregnant women who
make a knowing decision to refuse medical care.
The strongest case for seeking to overturn a competent woman’s decision is when the
care is necessary for her own survival rather than the survival of the fetus. In
analogous cases involving nonpregnant patients, the courts have expressed reluctance
to allow an otherwise healthy person to refuse acute lifesaving care. The physician’s
ethical duty is difficult to determine in such situations. Ethicists who hold autonomy
as the highest value argue that the patient should be allowed to die without attempts
at legal intervention. Those who stress beneficence and the right of the state to act as
parens patria for its citizens argue that the physician has an ethical duty to seek a
judicial determination.
If this refusal is made during the first patient encounter, it presents the physician with
the dilemma of whether to continue treating the woman. Most of the ethical debates
have centered on the right of the state to force women to undergo unwanted medical
care for the sake of the fetus. There has been much less attention to the right of the
physician to refuse to treat a patient who prospectively refuses potentially
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