With Child, Without Rights?: Restoring a Pregnant Woman’s Right to Refuse Medical Treatment through the HIV Lens, Michael Ulrich, Yale Journal of Law & Feminism (2012)

Research and Journal Articles

This Yale Journal of Law & Feminism article explores whether a state may compel an HIV positive pregnant woman to undergo treatment that might reduce the chances of mother-to-child transmission (MTCT). The author uses case law surrounding the right to refuse medical treatment, the right to receive an abortion, and state-mandated medical care to argue that the forced administration of antiretroviral therapy does not improve public health, and in fact, impairs it.  

The author begins by discussing the deeply ingrained tradition in this country of allowing all competent people to choose whether or not to accept life-saving medical treatment. Then, he addresses the oft-cited comparison between the limits on an HIV positive mother's rights and the state's ability to control certain types of abortions. He dispels the legitimacy of this analogy by explaining that AZT treatments are highly invasive, have negative side effects for the mother, and are not always effective in preventing transmission. Moreover, he notes, comparing the small chance that a mother will transmit HIV to her child to the act of terminating a pregnancy ignores the conclusive evidence that HIV is not a death sentence, and adds to the unfounded stigma already surrounding the disease. 
 
A more apt comparison, the author posits, is to other forms of compelled medical treatment. He examines cases involving mothers forced to have cesarean sections and blood transfusions in the name of the health of their children. These precedents are troubling for pregnant women, but even these decisions did not trample on the rights of mothers so much as to directly compel treatment. Furthermore, these cases dealt with a higher, much more established risk of death to the child than the tenuous connection between a mother's refusal to take AZT and her child's survival. The article finds that public health could be a legitimate state interest in preventing MTCT. However, based on scientific evidence and the analysis of many courts, it is clear that forcing expectant mothers to undergo this invasive procedure causes them undue anxiety, deters the people from receiving medical care who need it most, and continues the disturbing trend of treating pregnant women like second class citizens. Instead, the author suggests, MTCT can be more effectively prevented by proper education and counseling.
 
For more information on the rights of pregnant women living with HIV, you can check out two additional publications by The Center for HIV Law and Policy: HIV and Pregnancy: Medical and Legal Considerations for Women and Their Advocates (CHLP Dec. 2009), and a useful fact sheet summarizing women's rights on the issue, Know Your Rights: HIV and Pregnancy (CHLP Jan. 2010).