Sunday, May 16, 2021

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Inadequacy of Both Fetal Rights and Maternal Rights Model for the Prevention of FAS

Both the fetal rights and maternal rights approaches are inadequate to prevent fetal alcohol syndrome. Both approaches ignore the cumulative impact that individual decisions have on the ability of a community to survive. Every community is dependent on the presence of a minimal level of functional adults. If individual decision-making diminishes the number of available functional adults in a community, the community will slip into dysfunctionality or die. Under such circumstances, it is hard to argue that over the long term the individual is impacted more significantly. Furthermore, the rights model ignores the fact that humans are communal beings and that communities, not individuals, are the cornerstone of society. As such the survival of communities cannot be left to individual decision-making.

Some persons may argue that it is the individual that has the most knowledge about her circumstances and, thus, is in the best position to make decisions for herself, the child, and the community. However, this argument assumes too much. Knowledge about individual circumstances does not necessarily translate into ability or motivation to act appropriately to protect herself, the child, or the community. Michael Dorris, in his testimony before the Senate in 1990, gave a perfect analogy:

A blind woman has a child by the hand, and in her attempt to cross a busy street, misjudges the traffic. The child is hit by a car and killed. We, the community, watch this tragedy and then move on, minding our own business. The next year, the woman does the same thing, and again, the child is hit and dies. Again, we look on, watch this happen for a second time, and continue to remain detached from the situation. We avoid getting involved to help her and her child by not even telling her when the light is green. How many women and children will be injured or die before help is offered? It does not solve the situation to blame the woman because she too is a victim—do we punish her for being blind? The answer is obviously no. Instead, assistance, support, and treatment are vitally needed to save her and her child.' (emphasis added)

No doubt efforts to "protect the community" will be disproportionately applied to poor women and women of color."' In a class-conscious and racist society, women with resources (white middle-class women) are able to buy their way out of having to conform. And in a racist society women of color are always a suspect class. Yet, this argument is disingenuous. In a racist society, it is the community that ends up supporting and caring for disenfranchised women. Yet, the maternal/fetal rights analysis would not only pit the woman against the fetus but the woman against her own interest and the interest of her community. A community health approach avoids having to make a choice based on rights and thus, minimizes, if not avoids, the whole adversarial relations entailed by a rights analysis.

Certainly, both fetal rights advocates' and maternal rights advocates' proposals contain components of a community health approach. The maternal rights advocate would focus on early prevention and the fetal rights approach would be more likely to deal with the recalcitrant woman. Nevertheless, both approaches are incomplete and therefore inadequate." The primary problem is that both approaches pit the mother and fetus against each other." Such an approach is not only negative, it is essentially unresolvable.20 As one commentator noted, "To present pregnancy as a conflict of rights between a woman and her fetus is entirely inappropriate. A fetus is as much a part of a woman as any part of her body, and to view them as being in conflict serves only to ignore this organic unity."" Constitutional law cannot truly protect a woman or the fetus by pitting them as adversaries.' If there is to be an effective protection of the woman, the fetus and the community, the legal analysis must shift from "an assumption of conflict to an acknowledgment of the interdependence of the maternal-fetal relationship."' The conflict model undermines the development of effective policy alternatives.'

Not only is a community health approach nonadversarial, it explicitly recognizes the inter-connectedness not only between the woman and the fetus but between the woman, the fetus, and the community.' A community health approach also resolves the resolution of the problem in the context of the unique socio-cultural needs of different communities.'

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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