Murder?

An AP story reports:

A pregnant woman who allegedly ignored medical warnings to have a Caesarean section to save her twins was charged Thursday with murder after one of the babies was stillborn.

Prosecutors said Melissa Ann Rowland, 28, didn’t want the scars that accompany the surgery.

An autopsy found that the baby died two days before its Jan. 13 delivery and that it would have survived if Rowland had had a C-section when her doctors urged her to, between Christmas and Jan. 9. The other baby is alive, but authorities had no further information.

The doctors had warned that without a C-section, the twins would probably die, authorities said. A nurse told police that Rowland said [the doctor wanted to cut her “from breast bone to pubic bone,” a procedure that would “ruin her life,”] and she would rather “lose one of the babies than be cut like that.”

“We are unable to find any reason other than the cosmetic motivations by the mother” for her decision, said Kent Morgan, spokesman for the district attorney. . . .

The charges carry five years to life in prison. She was jailed on $250,000 bail. . . .

     A really tough issue: On the one hand, I’m skittish about any legal requirement that someone get surgery, even to save her child’s life. On the other hand, parents do rightly have a legal obligation to take care of their children, and it may well be that this obligation does extend even to going under the knife. Thought experiment: Should the law be able to force a parent — on pain of a murder conviction — to donate bone marrow to save a child’s life? Should it be able to do so, but only on pain of conviction of a lesser offense, such as involuntary manslaughter or child neglect?

     Incidentally, while this naturally brings up an analogy to the constitutional right to an abortion, the analogy is complex. U.S. constitutional law actually recognizes two different rights to an abortion: A categorical right pre-viability, and a right post-viability when the abortion is needed to preserve the mother’s life or health. The first right is surely not implicated here; the baby (and I feel quite comfortable calling it a baby) died at gestational age 9 months. The second right, though, is potentially implicated; the argument would be that it is potentially harmful to a woman’s health to have a caesarean section.

     I suspect that most (though not all) people would hesitate to find a woman guilty of murder when she aborts a child at gestational age 9 months because carrying the child (or having a caesarean) would cause her to, say, be permanently paralyzed, or would involve even a 25% chance of her dying. The question is whether the same should apply when we’re dealing with a caesarean, a serious surgical procedure and one that sometimes does lead to death and always leads to a nontrivial and somewhat painful recovery, but nonetheless one that in the overwhelming majority of all cases doesn’t cause death or serious permanent injury.

     Finally, does it matter that medicine is an inexact science, and that a woman may well sincerely distrust her doctors’ assurances that (1) a caesarean is needed to save the child’s life, and (2) a caesarean would be safe for her? Is that another reason to leave the issue entirely up to the mother? Or would we say what the law often says as to parents’ other duties: Even if you sincerely believe that your child will get better if you just pray over him, instead of taking him to surgery, you may still be held liable at least for involuntary manslaughter (negligent homicide) even if not murder (reckless, knowing, or intentional homicide)? (I vaguely recall that some jurisdictions may exempt from prosecution parents who take this view, but even if that’s so, I think that that’s the exception, not the rule.)