Fetal Personhood and Advance Healthcare Directives

Health Policy & Management

Fetal Personhood and Advance Healthcare Directives

SPA professor and graduate student expose unseen legal and health consequences of recent attacks on reproductive rights.

On February 16, the Alabama Supreme Court ruled that embryos created through in vitro fertilization (IVF) should be considered children, reinvigorating the national post-Dobbs v. Jackson debate on reproductive rights. As part of this dialogue, SPA Professor Jessica Waters, J.D. has partnered with SPA graduate student Madelyn Adams (MPA, `25) to publish an article in The Conversation on the issue of advance healthcare directives (AD) and pregnancy.

“All of these issues are tied together,” said Waters. “Post-Dobbs, we are seeing increasing attacks on reproductive healthcare rights, with efforts to not only recognize fetal personhood, but, in the case of Alabama, embryo personhood. Any decision like that of the Alabama Supreme Court impacts every other realm of decision-making.”

Waters’ research, which focuses on reproductive rights law and policy, has been published widely, including in the Harvard Journal of Law and Gender, and she is a frequent media expert and commentator. At SPA, she currently teaches a course on reproduction and the law, as well as SPA-075 Changemakers Series: Reproductive Justice.

Adams was assigned to be Waters’s research assistant at the beginning of fall semester 2023, based on the former’s interest in reproductive rights law and policy. As an undergraduate at Hunter College in New York City, Adams interned with the Center for Reproductive Rights and National Advocates for Pregnant Women (now Pregnancy Justice) and was deeply involved in local New York City abortion advocacy, including volunteering as a clinic escort for multiple providers.

“I think of reproductive rights as a matrix of abortion care, birth control, sex education, and pregnancy and postpartum care,” said Adams. “All of these things interact so intimately. We need comprehensive and humane policies in each of those areas to ensure that women, children, and families are being taken care of.”

Based on these research interests, Waters asked Adams to think about applications of the fetal personhood concept to other areas of law. Adams worked with Olivia Ivy, the public affairs librarian at AU, to survey scholarship on the topic, particularly the law review articles of Joan Krause and Shea Flanagan. The issue of advance healthcare directives and pregnancy exclusions came to light.

“I had never heard that a pregnant patient with a healthcare directive, in certain states, may have their wishes disrespected if they threaten the pregnancy,” said Adams. “No reproductive rights organizations seem to be talking about advance directives, which is just terrifying because pregnancy is so common . . . You have no clue about the implications until you're in that position.”

“In about half of states, advance directives are invalidated if you're pregnant,” said Waters. “Most people don't know that. I’ve been in this field for 25 years and I certainly didn't know that. What if a woman with an advance directive is two weeks pregnant? Does the state have an obligation? Does the hospital have an obligation to keep her on life support, essentially as a human incubator, for the remainder of her pregnancy? I think tying those pieces together helps our work be impactful.”

Adams researched the topic further and surveyed the relevant laws in all 50 states. Following work by Joan Krause, she sorted states into one of four categories depending on the relationship between advance directives and pregnancy.

“The state laws are pretty murky,” said Adams. “We had to look through a patchwork of different state laws and codes to come up with these definitions.”

For example, Maryland makes no mention of pregnancy in their state AD code, but there is related language on the state attorney general’s website. Oklahoma permits pregnancy wishes in an advanced directive but maintains a total abortion ban.

“What is a doctor to do in that situation, and how might a judge rule?” asked Adams. “We see a lot of inconsistencies in that realm.”

In addition, though advanced directives are legally recognized, they are not necessarily legally binding.

“Medical ethics state that doctors should be following patient wishes, but they don't necessarily have to,” said Adams. “AD laws, specifically when it comes to pregnancy exclusions, are putting patients and medical providers in really precarious situations, making decisions in real time while facing so many legal bounds. We are seeing an increasing hesitance when it comes to entering OB/GYN work for these reasons.”

Waters and Adams worked together to craft arguments for the piece, and successfully pitched it to nonprofit media outlet The Conversation.

“Peer-reviewed publications are really important,” said Waters. “But the public media pieces are also important, because they reach a wider and different audience. We want the average person to read and be thinking about this.”

“Anybody who wants to become pregnant, is pregnant, or has the ability to become pregnant should read the piece,” added Adams. “We are trying to take our research and that inspired by scholars like Joan Krause and Shea Flanagan and create something that's a lot more digestible and accessible.”

She referenced the 2014 Texas case of Marlise Munoz, who was 14 weeks pregnant when declared brain-dead after a pulmonary embolism. Though she had articulated clear wishes to be removed from life-sustaining treatment, and her husband advocated for those wishes, the hospital refused to comply, based on a Texas statute that invalidates a pregnant woman’s advance directive. Her husband litigated, and finally, three months later, Munoz was taken off life support.

“What a grueling and inhumane situation to put Marlise and her family through, in the name of this law,” said Adams. “We suspect this is probably widely underreported. If you're in that situation, with your spouse incapacitated and pregnant, how many people will want to go through [reporting and litigation] while experiencing that grief, heartache, and confusion?”

Waters and Adams recommend that everyone have an advanced directive, which is relatively easy to put together, sign, witness, and notarize, even without legal representation.

“Even if you are in a state that doesn't recognize pregnancy wishes, just go ahead and put them in there anyway,” said Waters. “You never know how a judge might rule.”

Earlier this spring, Adams guest-lectured in Waters’ Changemakers series course on reproductive rights.

“She put together a remarkable presentation,” said Waters. “I think it was the first time she's ever taught, and you would have no idea. The students loved her. They asked great questions, and she had answers. It's always great when your research is so cutting-edge, but Madelyn brought it into the classroom. She, a grad student, had the opportunity to teach based on the research she was doing. The students had the opportunity to see a grad student doing that type of research and the opportunities it could bring. I was in the corner doing a happy dance because I was so proud of her. It's why we teach.”

“Jessica is so absolutely brilliant as a legal scholar and fellow reproductive health rights advocate,” said Adams. “I'm really grateful that we got to connect.”

Adams is looking to specialize in health policy and leverage her MPA into a career in government affairs or nonprofit advocacy within the realm of reproductive rights.

“My core courses have certainly been fulfilling understanding how nonprofits and government systems operate, how to manage those systems, and how to implement policies and ensure their success,” she said. “But just being at SPA, a very forward-thinking, progress-driven program, surrounded by brilliant and accomplished professors, students, and colleagues, has been really inspiring.”

Though Adams considers herself an advocate rather than a scholar, she has developed an appreciation for identifying the unexplored health implications of state and federal laws and addressing those consequences using policy.

“Pregnancy, as a whole, seems to be the one medical area that the government is just insistent on infringing on,” said Adams. “Even if you are somebody who does not agree with the right to abortion, I think that you need to think through the consequences of banning abortions; we see how that can play out in miscarriage care and advanced directive care.”

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