Do HIV-positive pregnant women who plan on carryingtheirchildren to term ...

[RJLipkin at aol.com]

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,  
breathing,
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.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware

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