Policing Pregnancy

In the rush to protect children, are the rights of pregnant women being overlooked?

by Alison McCulloch

‘You must be a worthy vessel. No coffee or tea though, no alcohol. Studies have been done.’ – Margaret Atwood, The Handmaid’s Tale

In Margaret Atwood’s imaginary fascist Republic of Gilead, fertile women are a rare and valuable commodity, prized for their ability to reproduce. Inside their tightly controlled lives, they are forbidden anything that might endanger a pregnancy and punished for their transgressions. It’s a dystopic world of surveillance and control.

New Zealand is certainly no Gilead, but an array of initiatives in the health and justice sectors are combining to raise concern among women’s health and rights advocates of a trend toward increasing surveillance, monitoring and, in some cases, criminalisation of pregnant women.

It’s a trend that’s been well documented overseas, including in the United States where a new study by the National Advocates for Pregnant Women (NAPW) reported on more than 400 cases over 32 years where pregnant women were detained, incarcerated or subjected to other forced interventions in order to protect fetuses – or to punish women accused of not doing so themselves. In the American cases, NAPW found the common thread was a willingness by the authorities to treat fertilised eggs, embryos and fetuses as completely and legally separate from the pregnant woman carrying them.

In New Zealand, the impetus behind the increasing focus on fetal protection ranges from IT experts wanting to improve record keeping to child welfare advocates looking for ways to tackle our abysmal record of child abuse to judges acting, they say, to protect the unborn child. It’s a trend that isn’t confined to the official realm, either, with public scrutiny and judgement about women’s behaviour during pregnancy continuing to intensify.

Earlier this month, the police union in Queensland, Australia, made headlines when its president called for new powers to lock up pregnant women suspected of putting the health of their fetuses at risk by drinking or taking drugs. The request was part of the union’s submission to the state’s Commission of Inquiry into Child Protection, and included a call for the abolition of legislation that protects the rights and liberties of pregnant women. “The State must have the ability to intervene and protect the unborn child, when its mother either refuses to do so, or is incapable or unwilling to do so,” the union said. Under changes it would like to see, courts could order a pregnant woman into care, have her monitored and impose conditions on where she lives and who she has contact with.

Something eerily similar to the Queensland union’s proposal actually took place in New Plymouth just last year, when a 40-year-old pregnant woman, Tina Hotene, was sent to prison in a drink-driving case in order, the judge said, to protect her 5-month fetus. Hotene was facing her eighth such charge – though the seventh conviction had been nearly 8 years earlier – and was told by District Court judge Allan Roberts that she must be imprisoned “if only for the sake of enforcing abstinence on you so as to ensure the child you carry is not subject to ongoing excessive liquor intake and the consequences that must flow from that”. Home detention, the judge said, was not a viable option, and he sentenced her to 12 months in prison.

Hotene appealed the prison term to the High Court, with her lawyer Amy Dallison arguing, among other things, that “the sentence was inappropriately influenced by the Judge’s concern to protect the unborn child”, as the judge who heard the appeal, Justice Dobson, put it in his August 2012 decision. Dobson appeared to have some sympathy, expressing concern at both the justification for the sentence and its severity, but he was circumspect in some of his criticism. He was troubled, he said, by “the lack of consideration by the [District Court] Judge of the relative severity of a sentence of imprisonment on a woman who is pregnant”, and noted that Roberts had “focused more on protecting the unborn child than on any consideration of the relative hardship created for Ms. Hotene by virtue of her pregnancy”. Still, despite calling the sentence “manifestly excessive”, Dobson did not release Hotene, instead reducing her prison sentence from 12 to 8 months.

Cases like this, where judges have explicitly acted to protect fetuses, pop up surprisingly regularly in the court system, even though under New Zealand’s “born alive” rule, a fetus isn’t a legal person until birth. Each time it happens, there’s a brief flurry of media activity and the issue dies away. Taken together, however, these cases reveal an increasing willingness of the judiciary to push the boundaries of personhood, often at the expense of the autonomy of the mother.

Other notable examples in recent years include the so-called “Baby P” case from 1995, when the court took guardianship of a fetus away from its 15-year-old mother because she was considered unreliable and was in a violent relationship with the father; in 2002, in what became known as “Nikki’s Case”, the High Court made a fetus a ward of Court because its mother planned to allow the birth to be filmed as part of a pornographic movie; and in Invercargill in 2006, a pregnant teenager was remanded in custody for drug treatment to protect her and the fetus. According to a report in The Southland Times, the judge “cited several cases where orders protecting the rights of unborn babies had been made in New Zealand courts”.

Professor Nicola Peart of Otago University is a medical law expert who wrote the chapter in Medical Law in New Zealand on the status of the fetus under New Zealand law – a status she concluded was “in a mess, devoid of principle and logic”.

Since that assessment, published in 2006, Peart says the situation has not improved. Decisions like that in the Invercargill case “effectively says to every pregnant woman, ‘your child’s interests are superior to yours, your freedom is now curtailed and law will enforce it’.” It’s an approach, she says, that “absolutely runs against principles of autonomy, self determination, the right to bodily integrity Where do you draw the line?”

It is not just judges who are pushing these kinds of boundaries. Health-care professionals and child protection advocates are doing the same. Most often, it’s for the best of reasons: to protect the health of future children and their mothers. Yet too often, some of the wider implications are either not considered, or are subsumed beneath an overarching goal of fetal protection.

New Zealand’s abysmal record on child abuse – and the pressure for effective action – is clearly a big driver in the increased monitoring and scrutiny of pregnancy. Alongside the continuing work on last year’s Green and White papers for Vulnerable Children, a special select committee inquiry on the issue was established last March that provides another good illustration of this shift in focus. Called the “Inquiry into preventing child abuse and improving children’s health outcomes”, it has six terms of reference, two of which focus on the period before a child is conceived (“the preconceptual period”), with a third zeroing in on the fetus in utero.

This focus on the child before conception and birth didn’t escaped the notice of the health promotion group Women’s Health Action (WHA), whose senior policy advisor, George Parker, has been closely tracking attitudes toward pregnancy. “I think what we’re seeing is pregnant women progressively side-lined, but, probably more so, turned into this potential threat – this idea that the mother and fetus are in conflict with each other, and the fetus is needing protection.”Of concern to WHA is the extent to which this is being played out in the policy environment: “The idea that the state needs to be in defence of the fetus, needs to protect the fetus; the idea that it’s at risk from the body that its housed in”.

That policy direction is also clear in the Government’s Children’s Action Plan, which includes myriad initiatives likely to increase the surveillance if not control of pregnancy. One part of the plan, which is scheduled to be implemented this year, is the introduction of Child Abuse Prevention Orders – new court powers targeting child abusers. While details of who the orders might affect and what conditions they would impose are still being finalised, pregnant women would not be excluded from their ambit. According to a spokeswoman from the Minister of Social Development’s office, the orders “could apply to anyone male or female and at any stage in life, which could include pregnant women”.

Hunua MP Dr. Paul Hutchison, a former obstetrician-gynaecologist, is chair of the select committee inquiry that’s looking into child abuse, and he says the focus on prenatal – indeed on preconceptual – health is justified by evidence showing how important it is to better outcomes for children. He acknowledges there’s a tension between maternal autonomy and child protection, and says finding a balance is crucial. “It is hugely important to ensure that mothers and dads are fully aware of the sort of monitoring that takes place and give informed consent for it.”

Tools, such as the Child Protection Alerts, which have so far been piloted in Hawkes Bay and Auckland, “need to be used with very great care to ensure that the parents are fully aware of what’s going on”, Hutchison says. “Let’s identify risk issues early so that, with the mother fully informed, one can do everything possible to have a good baby. It’s a universal wish of parents to have as healthy babies as possible.”

But those Child Protection Alerts (CPA) are another initiative of which women’s health advocates are wary. Under the CPA system, alerts linked to National Health Index numbers (NHIs) are put on a child’s District Health Board file when risks have been identified. The alerts, which are also entered into the National Medical Warning System, can be linked to the files of both pregnant women and fetuses. What’s more, under the Children’s Action Plan, this alert system is likely to be expanded into a new national Vulnerable Kids Information System, with more data able to be more widely shared.

Alison Eddy, Midwifery Advisor with the New Zealand College of Midwives says details are sketchy so far, but the new expanded system seemed likely to take in sectors beyond health such as education, housing and benefits provision. Like Parker, Eddy says monitoring and surveillance models risk disengaging people, and she too pointed to a growing fetus-centric view within which the pregnant woman “should be doing this and she shouldn’t be doing that”. She’s also concerned that the proposed database and associated risk assessments will focus on particular groups, for example women on benefits.

Parker says her organisation has no issue with Child Protection Alerts in terms of child safety issues, but was disturbed that in defining a child “from conception through to 16 years”, those behind the system hadn’t adequately considered some of the implications for the autonomy of pregnant women. “There hasn’t been anyone consulted right from the outset from the perspective of women’s sexual and reproductive rights,” Parker said, “and you can tell, because a child’s able to be defined in that way unproblematically, and of course anyone who has a lens around women’s sexual and reproductive rights knows there’s a whole set of problems there, and they’re not part of the discussion.”

Dr. Russell Wills [pictured left], a paediatrician in Hawkes Bay and the current Children’s Commissioner, has had a lot of experience with the Child Protection Alert system, which was pioneered at Hawkes Bay District Health Board. He, too, acknowledges the tension between maternal autonomy and the interests of the child, but says it’s not the case that one perspective is right and one is wrong. “Both are right…you can have both.” “I share the same concerns which is why we’ve gone about it with enormous care,” he says. “Criminalising people doesn’t help.”

He speaks in some detail about his district health board’s Vulnerable Pregnant Women programme, which takes an informed-consent, multi-disciplinary approach to dealing with at-risk pregnancies and children. It’s been a great success, Wills says, with children notified to Child Youth and Family (CYF) falling by 50 percent.

While there are some cases where Child Protection Alerts and care plans are undertaken without the woman’s consent, he says those are rare. And Wills sees no possibility of a slippery slope whereby pregnant women are unnecessarily monitored or constrained for endangering fetuses. One reason is the workload. “We simply don’t have time to talk about someone who is a bit depressed or drinking a few times a week.”

Asked about mandatory treatment, Dr. Wills said that was only available under the Mental Health Act, and he’d never heard of it being applied for risk to the fetus. “There are times when I wish we could,” he said, adding that it was an issue that “should be discussed”.

Another initiative that has raised some eyebrows is a proposal from within the health sector to assign National Health Index numbers to some fetuses. NHIs are unique identifiers assigned to every person who uses health and disability support services in New Zealand and, prompted by the needs of doctors working in maternal fetal medicine to keep fetal records separate from those of the mother, it was suggested to the Ministry of Health’s Health Identity Programme that a solution would be to formally assign such fetuses their own NHIs. The initial legal opinion on the idea apparently raised no red flags, and the proposal looked like it was headed toward implementation when groups with an interest in reproductive rights issues, including WHA, were alerted.

“We didn’t take issue with the idea that there might be some clinical safety issues why fetuses and pregnant women’s blood results needed to be recorded separately,” Parker said. “However the National Health Index number system assigns a unique identifier at birth for persons.” Again, consideration of the implications for women’s health and reproductive rights appears to have been absent. After WHA and others registered their concerns, the policy was paused with the Ministry committing to wider consultation. “To date, we haven’t been invited back to the table,” Parker said, “so we haven’t at this stage been able to contribute our on-going perspective. I don’t know if that’s still coming and hopefully it is.”

At this point, it remains unclear just where this proposal stands. Asked about the matter, the Ministry’s chief advisor for child health, Dr. Pat Tuohy, said that if it was progressed, the Ministry would “test the approach with key groups” and NHIs would only be used in a “limited number of very high risk pregnancies”.

It’s a given that society has strong moral and social reasons for making the care and protection of children a priority. Dr. Russell Wills, the Children’s Commissioner, cites the principle of primacy outlined in the United Nations Convention on the Rights of the Child, which stipulates that the best interests of children be the primary concern in any decisions that affect them.

And who doesn’t want to protect children? By the end of 2014, under another Children’s Action Plan proposal, we may all get more opportunity to do just that with the establishment of a free “Child Protect” line “for the public to report concerns by phone, email, text or online”.

Again, just what that might mean in practice remains to be seen, but it’s likely that this initiative, too, will intensify the scrutiny not just of children and those who mistreat them, but of pregnant women and their behaviour.

There’s been little local research on public surveillance of pregnancy, but overseas studies and anecdotal evidence suggest it’s intense. Again, Australia provided a recent telling example of the attitudes toward pregnant women seen as not behaving as they should. Reported in the New Zealand Herald under the headline “Pregnant Star Busted Smoking”, the story told of Australian TV personality Chrissie Swan [pictured left] breaking down on air after being outed by Woman’s Day magazine for smoking while pregnant. According to the editor of the magazine, “Chrissie herself has admitted how grateful she is the photos were taken as they not only stopped her smoking but have sparked one of the most significant debates for women’s health in years.” The Herald article included a helpful link where readers could “watch Chrissie Swan’s tearful confession”.

Public health campaigns that advise of the dangers of smoking or drinking while pregnant are important, but as Parker says, they aren’t developed in a vacuum.

“It’s a real challenge for public health in an age of emphasis on the individual to think very critically about what a worthy public health message is,” she says. Like some other critics of last year’s White Paper, she points to impacts on maternal and fetal health that are much bigger than any single woman’s individual behaviour – like poverty, homelessness, insecurity and violence.

In many ways, it’s easier to focus policy attention on the vulnerable fetus and to target badly behaving women, particularly when the public often seems eager to join in and point the accusing finger. But such policies can backfire. In lengthy remarks on the issue of criminalising pregnancy, the special Rapporteur on health for the UN Human Rights Council, Anand Grover, has warned against shifting the burden away from states onto pregnant women, and argues that criminalising conduct during pregnancy may simply deter women from seeking help.

Perhaps, as Commissioner Wills suggests, we can both protect the wanted pregnancy and the rights of the pregnant woman. But in the headlong rush to do something, anything about how poorly we treat children, what won’t work is treating women poorly instead.