Privacy Law and Genetic Engineering under Article 21 and Maternal Foetal Conflicts

WOMEN’S WORLD

by Archana Ranka

I. Privacy Rights

The procreational right of privacy must extend its constitutional protection to non-traditional family units and alternative methods of reproduction.1 For example, legislation prohibiting artificial insemination or other reproductive techniques to unmarried women would violate fundamental freedoms. “The Constitution prevents government from standardising its children and its adults—by forcing all to live in certain narrowly defined family patterns.”2 And in Planned Parenthood versus Danforth, the US’ highest court opined that “constitutional rights do not mature and come into being magically only when one obtains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.”3

There are obviously severe limitations or restrictions on the right to privacy in the procreative field: consenting adults cannot publicly engage in homosexual conduct; parental freedom does not allow parents to place children at risk; and the right to abortion is limited by compelling state interest in protecting potential human life and preserving maternal health.4

The privacy law and its protection do not extend to homosexual conduct, according to the US Supreme Court’s 1986 decision in Bowers versus Hardwick. By a 5-4 vote the Court ruled that the US Constitution protects no “funda-mental right to engage in homosexual conduct…… proscriptions against that conduct have ancient roots…..the court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” The dissenters pointed out what the case only delineated.5

The most comprehensive of rights and the right most valued by the civilised man is the right to be let alone. In a variety of circumstances we have recognised that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. Depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation’s history than tolerance of non-conformity could ever do.6

It should be obvious that individual homo-sexual conduct involves such fundamental choices—among them, whether and whom to marry, whether to conceive a child, whether to carry a pregnancy to term. But the majority opinion contended that “none of the rights announced……bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case”.7 The Court looked to history for reasons that the constitutional boundary should be so immutable—why the zone of privacy should not be extended to intimate relations between persons of the same sex—and concluded that condemnation of homosexuality has “ancient roots”. The Georgia law at issue dated back to 1816, and all the original thirteen states outlawed homosexual acts, as did all the fifty states until 1961 (since then, either by legislation or court decisions, private homosexual acts between consenting adults are no longer criminal in twentysix states). The privacy of one’s home was delineated by the majority opinion:

The respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley versus Georgia (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of his home: “If the first amendment means anything, it means that a state has no business telling a man, sitting alone in his home, what books he may read or what films he may watch.”

Stanley did protect the conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon as here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amend-ment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunised whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognised that its holding offered no protection for the possession in the home of drugs, firearms or stolen goods. And if the respondent’s submission is limited to voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

II. US Law and Recent Trend in
Sexual Intimacy

The behaviour for which Hardwick faces prose-cution occurred in his own house, a place to which the Fourth Amendment attaches special significance. The Court’s treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitle-ments to engage in specific behaviour, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there.

The Court’s interpretation of the pivotal case of Stanley versus Georgia (1969) is entirely unconvincing. Stanley held that Georgia’s undoubted power to punish the public distribution of constitutionally unprotected, obscene material did not permit the state to punish the private possession of such material. According to the majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed, this sheds no light on cases not involving printed materials. But that is not what Stanley said. Rather, the Stanley Court accorded its holding in the Fourth Amendment’s special protection for the individual in his home. The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy. We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form a central part of an individual life.

Further, “marriage is an association that promotes a way of life not causes; a harmony in living not political faiths; a bilateral loyalty, not commercial or social projects.”—Griswold versus Connecticut. We protect the decision whether to have a child because of demographic considerations or the Bible’s command to be fruitful and multiply. And we protect the family because it contributes so powerfully to the happiness of individuals, not because of preference for the stereotypical household. Only the most wilful blindness could obscure the fact that sexual intimacy is “a sensitive, key relation-ship of human existence, central to family life, community welfare, and the development of human personality”.—Paris Adult Theatre (I) versus Slayion (1973) The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a nation as diverse as ours, that there may by many “right” ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.

In a variety of circumstances we have recognised that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to the competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: “There can be no assumption that today’s majority is ‘right’ and the Amish and others like them are ‘wrong’. A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.”—Wisconsin versus Yoker (1972). The Court claims that its decision today merely refuses to recognise a fundamental right to engage in homosexual sodomy, what the Court has really refused to recognise is the fundamental interest all individuals have in controlling the nature of their intimate associations with others. This 1986 US Supreme Court decision took into consideration that eighteen states had heterosexual and homosexual sodomy laws,8 “twentyseven states had no sodomy laws”. Thus the 5-4 decision of the Court had the effect of significantly narrowing the conception of the right to privacy, despite the fact that more than half of the states had not concerned themselves with homosexuality and sodomy.9

The dissenting opinion of Mr Justice Blackman focused at length on the majority’s characterisation of previous privacy cases as simply protecting family values: “We protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition, not because of demographic considerations or the Bible’s command to be fruitful and multiply.” He reasoned that because intimate sexual conduct is a means through which “individuals define themselves in a significant way”, its protection is consistent with the Court’s prior cases construing the right to privacy.10 He argued that there is a spatial aspect to the right to privacy and thus that “the right of an individual to conduct intimate relationships in the intimacy of his or her own home is the hear of the Constitution’s protection of privacy”. The majority view in Bowers versus Hardwick11 indicated that rather than protecting an individual’s freedom to make decisions fundamental to herself or himself. The right to privacy is limited to particular, traditional categories of private life. The decision is also significant in that it amounted to a symbolic rejection of the homosexual life-style in 1986.12

Privacy in Family Court is another fascinating aspect of the constitutional protection of family privacy. Proceedings in Family Court are generally closed to the public and almost always conducted beyond media scrutiny. In New York, for example, a 1986 court rule, entitled “privacy of proceedings in the Family Court”, strictly limits the presence of media representatives, agency officials, researchers, and attorneys who do not have a direct interest in the case, and it bars attendance by the general public.13 Such exclusion, it is submitted, is built upon vulne-rable underpinnings in that court proceedings are presumed to be open.14 Discretionary court-imposed exclusion would appear to be imper-missible, at least in quasi-criminal action such as delinquency.15 The Sixth Amendment to the Constitution does state that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”.16 In the case of interest of Dino, the Louisiana Supreme Court pointed out that a statute providing that the general public shall be excluded from juvenile adjudicatory hearings was “unconstitutional insofar as it prohibits a juvenile from electing a public trial in adjudicatory proceedings based on criminal charges which would entitle an adult accused to have his trial conducted in public”.17 A similar holding was seen in a 1971 decision of the Alaska Supreme Court. 18

Beyond questions of propriety and good manners, legal protection of personal privacy is of biblical origin.19 In Jewish law the right to privacy is a vested right protected by injunction, restoration of the status quo, and the award of damages from the civil law. Interference with the right to privacy also has its criminal law character, to be countered by penal sanctions.20

III. A Patentable New Organism

In the growing field of modern reproductive techniques and genetic engineering, it is of interest to note that the US Supreme Court authorised the patentability of genetically engineered micro-organisms.21 According to the Court, “Respondent’s micro-organism plainly qualifies as patentable subject matter. His claim is not to a hitherto unknown natural phenomenon but to a non naturally occurring manu-facture of composition of matter-a product of human ingenuity ‘having a distinctive name, character and use’ ….it is a new bacterium with markedly different characteristics from any found in nature and one having potential for significant utility. His discovery is not nature’s handiwork, but his own; accordingly, it is patentable subject matter.”22

A California company recently obtained a patent application for the catheter used in the lavage in embryonic transfers.23

Clearly these and other patentable products must aid scientific progress with respect to the biological present and future. The drawback is commercialisation, which can adversely affect the reproductive techniques, but the price of progress is sometimes expensive.

IV. Refusal of Interventions to Protect the Life of the Viable Foetus—A Case-based Transatlantic Overview

It is rare for a pregnant woman to refuse a recommended intervention to protect the life of her viable fetus, and few obstetricians have ever come across the problem. Nevertheless, a number of cases of such a refusal have gone to court for resolutions, and some have even reached the Supreme Court of the United States. In England such disputes have always been resolved at or below the court of appeal.

In the United States, federal and state laws are not unanimous on whether the mother’s refusal to accept treatment should always prevail whenever there is a maternal-foetal conflict of interest. By contrast in English law the matter is at present firmly settled in favour of a competent mother’s right to refuse, on the grounds that respecting her autonomy must always trump the protection of any foetal interest.

The question of whether a mother’s refusal to undergo a recommended treatment should be overridden in favour of her viable foetus is fundamentally one of balancing maternal rights against any foetal rights that are recognised by law, recognised in ethics. But here it is most important to recognise that what may be required or allowed by law may not be required or allowed in an ethical context.

The question of foetal rights vis-a-vis maternal rights remains unsettled in law and ethics. Over the recent years obstetricians have undergone a considerable change of mind as to whether it may be appropriate to override a pregnant woman’s objections, and to impost treatment on her forcibly, in order to protect the life of her viable foetus.

In 1987 Kolder et al.24 carried out a US national survey in which they asked the opinion of leading obstetricians on the enforced treatment of pregnant women against their wishes. They found that court orders had been obtained for Caesarean sections in eleven states, for hospital detention in two states, and for intra-uterine transfusion in one state. In those cases where court orders were sought, they were obtained in 86 per cent of cases; and in these cases 88 per cent were obtained within six hours; of the women involved 81 per cent were Black, Asian or Hispanic, 44 per cent were unmarried, and 24 per cent did not speak English as their primary language. Of the heads of fellowship programmes in maternal-foetal medicine 46 per cent believed that women who refused medical advice, and so endangered the life of their foetus, should be detained; 47 per cent supported court orders for procedures such as intra–uterine transfusion; and 26 per cent approved of state surveillance of those who remained outside the hospital system during the third trimester of pregnancy.

After an interval of 16 years, in 2003 Adams et al.25 carried out a similar survey of heads of maternal-foetal medicine fellowship programmes. They found nine cases in which a pregnant woman’s wishes had been over-ridden. Six women had refused a Caesarean section, three had placenta praevia, one had cephalo-peivic diportion, and two had foetal distress requiring urgent surgical delivery. In all cases court orders were obtained, within minutes of hours for all but one case. All then underwent immediate Caesarean section, and all foetuses were born in good condition. In two other cases court orders were obtained for blood transfusion, one for maternal anemia and one for Rhesus is immunisation, although neither was actually given. The first foetus was delivered in good condition, but the second fetus died. As for the attitude of heads of fellowship programmes, only eight per cent approved of the detention of women who substance abused during preg-nancy; and only four per cent approved of the detention of non-compliant diabetics, or of coercive maternal-foetal surgery, including intra-uterine transfusion. Thus within 16 years, since Kolder et al.’s survey, there has been a considerable shift towards obstetricians accepting the stand-point of pregnant women in their care.

From the numbers in these surveys, it seems that such maternal-foetal conflict is rare. Never-theless, it is clear that such cases do occur from time to time, and so obstetricians and lawyers need to be aware of the relevant case law.

V. Maternal Foetal Conflict (Types):

The cases of maternal-foetal conflict that have come before the courts fall into four principal categories:

1. Caesarean sections

2. Blood transfusions

3. HIV treatment

4. Durg and alcohol abuse.

Both in the United States and England, the common law that determines whether a compe-tent pregnant women should have control over her own body when she is carrying a viable foetus has its origin in the 1913 New York (non-pregnant) case of Schloendorff,26 in which Cardozo J said:

“Every human being of adult years and mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault…..”

The law and ethics of selective reduction of pregnancy have been dominated by a conse-quentiality perspective. In the medical literature, emphasis has been placed on the plight of the pregnant woman and the range of alternatives available to her. Not surprisingly, the prospect of complete abortion of all foetuses or alter-natively allowing the pregnancy to proceed to term knowing that the probability of having any live healthy infant is extremely small, is particularly poignant given that a significant proportion of the women who have received infertility treatment have been trying to have children for many years and a multiple pregnancy may represent their final chance to achieve this dream. The clear responsibility for the prevention of multiple pregnancies in women undergoing fertility treatment lies with the medical profession. In the absence of an effective means of ensuring that multiple pregnancies will not be caused by the drugs used to treat infertility, ethical considerations such as respect for autonomy require that women must be thoroughly counselled prior to treatment about the probability of having a multiple pregnancy arising, it is far from clear that selective reduction is a justifiable and legal treatment in all cases.

The law regulating selective reduction is contained in four separate statutes, (a) the Offences Against the Person Act 1861 (OAPA), (b) the Infant Life Preservation Act 1929 (ILPA), (c) the Abortion Act 1967 and the Human Fertilisation and Embryology Act, 1990 section 37(5) of which amended the provisions of the Abortion Act ostensibly to legalise the practices of selective reduction. With the exception of the HFEA 1990 Act, when these laws were framed, it was impossible to imagine that one or more foetuses might be destroyed, allowing others to survive to term. Section 58 of the OAPA prohibits the doing of an act “with intent to procure the miscarriage of a woman with child”. Doubts have been raised about the meaning of the word “miscarriage”, and particularly whether it requires immediate or ultimate expulsion of the foetus from the uterus. If the morally and legally significant element of “miscarriage” is the proximate expulsion of the embryo from the uterus, rather than its destruction, selective reduction will not be capable of being regulated by the OAPA since selective reduction (if successful) does not result in the immediate expulsion of the embryo from the woman’s body.

Despite the reforms of the Abortion Act engendered by the 1990 Act and inelegant attempts to justify the technique under the OAPA by semantic argument, the disparity between statue and current medical practice suggests that our continued reliance on the OAPA is anachronistic, and that a thorough overhaul of the legislation dealing with abortion is overdue. Quite apart from the confusion surrounding the definitions of “miscarriage”, “pregnancy” and “termination” at the heart of the statutory framework in this country, the balancing of risk required by the amended Abortion Act suggests that in cases of twins, triplets and even quadruplets, the medical justification for proceeding with selective reduction may be absent. Furthermore, from an ethical standpoint, if such actions can only be justified on the basis that they enhance maternal autonomy, then unless society accepts that autonomy should trump other ethical principles such as beneficence and justice, selective reduction will be ethically unsound.

VI. Conclusion and Suggestions

To sum up, the complexities of the issues in pre- natal sex-determination are enlisted in the following words.

(i) Feminists are loath to confer the right to life on the foetus, and the women’s movement the world over has fought for a woman’s right to control her own body. Unconditional access to safe, legal abortion is a non-negotiable demand to ensure some measures of reproductive autonomy in a situation where women are not in a position to refuse sex, especially in the marital context, where men to not shoulder the responsibility of contraception, where sexual abuse is rampant and safe contraceptives are neither freely accessible nor fool-proof. Yet, feminists also fight against patriarchal notions, which by down that a female has no place in the society, and the campaign against sex-determination and sex-pre-selection is but one aspect of this battle. Pre-selection is even more complicated—a sanitised and less messy way of eliminating the female. There is no “life” to content with, no ‘murder’, no blood and gore. Yet, the violence is in no way diminished. If anything, this is extreme form of misogyny unimagined until a couple of decades ago.

(ii) The women’s right to choice should not be defined in the abstract, but must be founded in cultural, social and political conditions. For choice to have any meaning, the conditions have to exist for women to be able to choose to have children, as well as to choose not to have them. For women to be able to choose means that it should be possible to have supports and services necessary for termination of pregnancy, and/or rear children.27

(iii) As far as the ‘right of foetus’ debate is concerned, the intermediate position is that the relationship between a woman and her unborn child is both non-transferable and original. The child comes into existence in and through the women, and the question of its rights and welfare cannot be considered in complete isolation from the question of the right and welfare of its mother.28

(iv) Technology is not neutral in value. It can be used to serve society and it can also be used to perpetuate biases, exploit society and help in its extermination. The misuse of medical technology for sex determination and female foeticide is one such example. In a social context, where there are deep-rooted biases against a girl child, gender discrimination becomes a deeper ‘male fixation’. Any technology that prevents the birth of a girl child finds a big market. Similarly, technology that claims to promote the birth of a boy child would find an even greater market.29

(v) Does it mean that new reproductive technologies will only unleash havoc in an already gender-biased system? Not really. Technology is only an instrument. Female foeticide has its roots in social attitudes and blaming technology is not the answer. The technology should however, be regulated well and be used only for the purpose for which it was evolved.

(vi) It is necessary to control the application of biomedical science by various actions of society, including legislation, not only because application often, if not always, involves profit for someone but also because application with-out adequate planning may cause considerable harm.30

(vii) I have to suggest as a researcher that to reduce the rigour of foeticide in India, we must have uniform law of adoption that is intra-country adoption policy. Also the abortion law and prenatal diagnostic law should be declared as criminal offences of groups, that is, families pressuring women to abort or to have divorced for replacing other women to get a male child, escaping bigamy despite no fault of the first originally married wife.

Footnotes

1. See generally 1 Berk. Women’s L.J.(1986), at 147 and 4 Harv. Women’s L.J.1(1981) at 39.

2. 431 US 494 (1977), at 506.

3. 428 US 56(1977), at 74. See 17 Column J.L. and Soc. Probs. 287. (1982), at 300.

4. Dronenburg versus Zech, 741 F.2d 1388 (D.C.Cir., 1984), for example.

5. 106 S.Ct. 2841 (1986).

6. New York Times (July 1, 1986) at 1, A 19.

7. The Georgia law defined sodomy as “any sex act involving the sex organs of one person and the mouth or anus of another. (Bowers vs Hordwick).

8. New York Times (July 1, 1986) at A19. Ibid. as FN 6 above.

9. For lower court opinion that was reversed, see 760 F. 2d 1211 (11th Cir., 1985).

10. 100 Harv. L. Rev. 120(1986). At 213-14.

11. 106 S. Ct. 2841 (1986).

12. 100 Harv, L.Rev. 120 (1986), at 216.

13. Rule 205.04 of the Uniform Rules for the Family Court, office of Court Administration, off. January 1, 1986.

14. Section 341.1 of the New York Family Court Act.

15. Generally Warren Freedman, Press and Media Access to the Criminal Court-room (1988).

16. Ibid. as FN 15 above.

17. 359 So. 2d 586 (La.,1979), at 594-97.

18. RLR versus State of Alaska, 487 p.2d 27(Alas.,1971)

19. Gavison, “Should we have a General Right of Privacy in Israel?” 12 Israel L. Rev. 49 (1980).

20. Rakover, The Protection of Privacy in Jewish Law (1970) see also 15 Israel L.Rev. 49 (1980).

21. Prince versus Massachusetts, 321 US 158 (1944).

22. Ibid.

23. 22 San Diego L. Rev. 1193 (1985), pointing out at 1201 that no state statute requires genetic screening of a sperm donor, for example.

24. V.E. Kolder, J. Gallagher, M.T. Parsons, “Court-Ordered Obstetrical Interventions”, NEJM 1987; 316: 1192-1196 (survey)

25. S.F. Adams, M.B. Mahowald, J Gallagher, “Refusal of Treatment During Pregnancy”. Clin Perinatol 2003; 30: 127-147 (survey)

26. Schloendorff versus Society of New York Hospital 211 NY 125 at 126 (1914)

27. S.C. Singh, Supra pp. 148-149

28. Ibid.

29. “Darkness at Noon: Female Foeticide in India” Voluntary Health Association of India, available at http://www.indiafemalefoeticide.org

30. The foetus from Pre-natal Diagnostic Techniques Act, 1994 to Pre-Conception and Pre=natal Diagnostic Techniques Act, 2002 to CEHAT (2003), AIR Journal (2004), quoting A.G. Steinberg, “The Social Control of Science”.

Dr Archana Ranka is the Head, School of Law, Devi Ahilya Vishwavidyalaya, Indore.