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In utero in court.

In Utero in Court. Judges continue to wrestle with the unique relationship that exists between the fetus and the pregnant woman. Under a Charleston, South Carolina, law-enforcement policy, city police officers have been arresting pregnant-women who test positive for cocaine use. Local prosecutors have then sought criminal indictments against these women for the "distribution" of drugs to a minor. Last May, however, one South Carolina prosecutor dismissed charges against two women arrested and charged under the policy. He did so after legal papers were filed in support of the women by attorneys for the New York-based Center for Reproductive Law & Policy (Reproductive Freedom News, 7 May 1993). The prosecutor concluded that the South Carolina legislature never intended the drug "distribution" crime to apply to pregnant women with substance abuse problems. He also cited new scientific evidence concerning the effects of drug use during pregnancy.

In New York, the state's highest court reinstated a class action suit brought by pregnant, drug-addicted women against a Manhattan hospital (Elaine W.v. Joint Diseases North General Hospital, 6 May 1993). The women had claimed that the hospital's policy of excluding all pregnant women from its drug detoxification program violated state human rights laws against sexual discrimination. The hospital countered that its blanket exclusion was medically justified, mainly because the hospital did not have the obstetricians, equipment, or license needed to provide prenatal care. The court ruled that the policy did discriminate against pregnant women by treating them differently from others solely because they are pregnant. However, it also found that the policy could be legally valid if the hospital proved, after a trial, that no pregnant woman could be treated safely in its drug detoxification program, or that it could not determine "within a reasonable medical certainty" which women could be treated safely. The court found that the burden of proof lay with the hospital to demonstrate that all pregnant women would be at risk because of the lack of on-site obstetrical services.

Meanwhile, in Alabama, the state supreme court ruled that workers' compensation laws do not bar a child from suing a mother's employer for prenatal exposure to mercury (Namislo v. Akzo Chemicals Inc., 19 February 1993). While pregnant, the child's mother had been exposed to mercury at her workplace. In a tort action brought by the child against the company, lawyers argued that the company was responsible for injuries sustained by the child as a result of the mother's exposure--injuries allegedly caused while the child was in utero. The company tried to have the suit dismissed, claiming that the child's action was based on the mother's personal workplace injury and therefore barred by the Alabama workers' compensation statute. The court disagreed. It found that the child's claims were not subsumed by the mother's but were instead based on an independent fetal harm. Since the fetus could not be considered an "employee" within the meaning of the workers' compensation statute, the child's suit could go forward.
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Title Annotation:legal aspects of the relationship between the fetus and the pregnant woman
Author:Moskowitz, Ellen
Publication:The Hastings Center Report
Date:Nov 1, 1993
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