Do HIV-positive pregnant women who plan on
carryingtheirchildren to term ...
RJLipkin at aol.com
RJLipkin at aol.com
Wed Jan 4 18:08:07 PST 2006
In a message dated 1/4/2006 7:57:12 PM Eastern Standard Time,
VOLOKH at law.ucla.edu writes:
The concern is that once the child is born -- once it's a clearly living,
rights-bearing human being -- it will have been harmed by the preexisting
communication of the disease from the mother to the child.
If a woman cannot be legally compelled to bear to term a fetus/child--or an
individual that clearly becomes on everyone's view a rights-bearing
person--on the grounds that the state cannot compel her to use her body in a certain
manner, then it is difficult to see how she can be compelled to receive
certain medical treatment the absence of which will harm the eventual (or present)
rights-bearing person. Surely, on the theory that my rights must sometimes
yield to the rights of others, the mother should be disallowed to abort the
fetus or reject the medical treatment. If this paradigm--yielding one's rights
to prevent harm to others--does not require the mother to carry the fetus to
term, it's difficult to see precisely why the state can compel her to use her
body in any fashion in the pregnancy context.
The judicially supported regulations--informed consent, and so
forth--go to the state's prerogative to make sure the woman makes the appropriate
kind of choice given the state's prerogative to value the life of the fetus.
Thus, the vaccination example, in my view, is inapposite. Yes, one can be
compelled to be vaccinated given that the relationship is between oneself and
the rest of society. Eugene seems to say that the fetus/child once born is part
of the rest of society. And while true, this is irrelevant. The question
is not whether person A must acquiesce to medical treatment to protect persons
B, C, & D. That's precisely the paradigm that I contend doesn't capture the
relationship between the mother and the fetus/child. It is simply circular
to insist that what I contend--and I thought Eugene agreed--is a unique
relationship can be subsumed under the ordinary paradigm--rights yielding to
protect others--just because the effects of the compelled medical treatment
flourish once the unique relationship between mother and child has been severed and
the child has taken his or her place as a member of the rest of society.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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