In re Fetus Brown v. Darlene Brown (689 N.E.2d 397) 1997

Appellate Court of Illinois, First District, Fifth Division

The issue before this court is whether a competent, pregnant woman's right to refuse medical treatment, which, in this case involves religiously offensive blood transfusions, may be overridden by the State's substantial interest in the welfare of the viable fetus.

The tensions present in this issue are palpable. Questions of morality and legality converge, requiring consideration of the obligations of a pregnant woman and of the State. As a court, we are asked to determine the proper balance of the mother's common law and constitutional interests in bodily self-determination as against the State's recognized interest in protecting the viable fetus. The facts of this difficult case are as follows.

On June 26, 1996, Darlene Brown, then 26 years old, was 34-3/7 weeks pregnant. After consulting with her treating physician, Dr. Robert Walsh, Brown was admitted into Ingalls Memorial Hospital in Harvey, Illinois, to have a cystoscopy and then to remove a urethral mass. Brown was anticipated to lose 100 cubic centimeters of blood due to the procedure. Before the surgery, Brown did not discuss with Dr. Walsh that she was a Jehovah's Witness.

During the surgery, Brown lost more blood than anticipated. After Brown lost approximately 700 cubic centimeters of blood, Dr. Walsh ordered three units of blood for transfusion. Once the blood arrived in the operating room, Brown, who was fully conscious and alert during the procedure, refused the blood, explaining that she was a Jehovah's Witness. The doctors believed Brown was competent to refuse the blood and they completed the surgery using other techniques to control her bleeding. By the end of the surgery, Brown had lost almost 1,500 cubic centimeters of blood.

After the surgery, Brown had a hemoglobin level of 4.4 grams per deciliter. A hemoglobin level of 9 to 11 or 12 grams per deciliter would be normal for a woman at this stage of pregnancy. Brown's hemoglobin level continued to drop. The morning of the court hearing, Brown's hemoglobin level was 3.4. Dr. Walsh explained that Brown's low hemoglobin level and the abrupt change in that level posed a significant, life-threatening risk both to Brown and to the fetus. After consulting with Brown and her husband, Lester Brown, as well as physicians at other hospitals, Dr. Walsh attempted to use alternative medical procedures, compatible with the beliefs of Jehovah's Witnesses, to raise Brown's hemoglobin level. Unfortunately, Brown's hemoglobin level continued to drop. Dr. Walsh spoke with numerous hematologists and oncologists. Dr. Walsh also spoke with a renowned researcher about other possible treatments. At the time of the hearing, it was Dr. Walsh's medical opinion that if Darlene Brown did not have a blood transfusion, her chances of survival, as well as those of the fetus, were only 5%.

On June 28, 1996, the State filed a petition for adjudication of wardship and a motion for temporary custody of Baby Doe, a fetus. Both were filed pursuant to the Illinois Juvenile Court Act of 1987. A hearing was held the same day. Although Brown contends that she was never served, the Browns were represented by counsel at the hearing and Lester Brown was present. The court began by appointing the public guardian of Cook County, over his objection, to represent the fetus (Fetus Brown). Next, uncertain as to jurisdiction under the Juvenile Court Act, the court found it inappropriate to proceed under the State's petition for adjudication of wardship. Thus, invoking the court's equitable powers, the State filed a "Petition for Hearing on Whether a Temporary Custodian can be Appointed to Consent to a Medical Procedure: To Wit Blood Transfusion."

At the hearing, the State called Dr. Robert Walsh, Darlene's treating physician, and Kurt Johnson, the hospital administrator. Dr. Walsh testified to the facts of Darlene Brown's condition as indicated above. Dr. Walsh also stated that, from the blood transfusion, Darlene Brown had a 1 in 1,000 risk of contracting hepatitis and a 1 in 5,000 or 10,000 risk of contracting HIV. Dr. Walsh explained that the blood transfusion was necessary, not to get blood to the fetus, but rather to get oxygen to the placenta via the mother's blood. Dr. Walsh explained that, while there were other methods of oxygenation, the problem was that the maternal blood was the only medium for transporting the oxygen to the placenta.

The State then called Kurt Johnson, the senior vice-president and chief operating officer of Ingalls Memorial Hospital. Johnson testified that he was aware of the situation and of Dr. Walsh's medical opinion. Johnson also testified that he was prepared to accept temporary custody of the fetus in order to consent to the blood transfusion.

The parties stipulated that, if called to testify, Lester Brown would confirm that Darlene Brown understood the risks to herself and the fetus if she did not accept the blood transfusion. The parties further stipulated that Lester Brown supported Darlene Brown's decision not to accept the blood transfusion. At the time of the hearing, the Browns had been married for two years and both worked to take care of Darlene's eight-year-old and three-year-old daughters. The parties also stipulated that, if anything happened to Darlene Brown, Lester would continue to take care of the two surviving children and both Darlene's and Lester's parents would be available for care and support of the children. The Browns then rested….

Turning to the merits, on appeal, Darlene Brown challenges the propriety of the trial court's order appointing a temporary custodian to consent, on her behalf, to blood transfusions for the benefit of her viable fetus, Fetus Brown. Darlene Brown contends that, under federal and Illinois law, as a competent adult, she has an absolute right to refuse medical advice and treatment. In contrast, the State urges that its substantial interest in the viable fetus outweighs the minimal invasion presented by the blood transfusion. The public guardian also appeals, seeking guidance regarding its role as protector of fetal rights, in light of prior Illinois decisions, including In re Baby Boy Doe.

The springboard for this case is the appellate decision in In re Baby Boy Doe, the appellate court was asked to decide whether the circuit court should balance the rights of the unborn but viable fetus against the right of the competent woman to choose the type of medical care she deemed appropriate, based in part on personal religious considerations….

Following the reasoning of Stallman, the Baby Boy Doe court held that Illinois courts should not engage in a balancing of the maternal and fetal rights such that "a woman's competent choice in refusing medical treatment as invasive as a cesarean section during her pregnancy must be honored, even in circumstances where the choice may be harmful to her fetus." In reaching this decision, the Baby Boy Doecourt applied the rationale of Stallman to determine: "[A] woman's right to refuse invasive medical treatment, derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during pregnancy. The woman retains the same right to refuse invasive treatment, even of lifesaving or other beneficial nature, that she can exercise when she is not pregnant. The potential impact upon the fetus is not legally relevant; to the contrary, the Stallman court explicitly rejected the view that the woman's rights can be subordinated to fetal rights."…

The stage being set, the issue presented in this case is somewhat different from that presented in Baby Boy Doe. In Baby Boy Doe, both the State and the public guardian urged a balancing of the mother's rights against the putative rights of the viable fetus. Based on Stallman, the court in Baby Boy Doe refused to engage in such a balancing. In this case, the State urges, not that we balance the mother's interests against those of the fetus, but rather the State's interests in the viable fetus as against the mother's expressed desire to forego a blood transfusion.

In contrast, Darlene Brown urges that she holds an absolute right to refuse medical treatment grounded in Illinois common and statutory law, and based on the Illinois and United States Constitutions. Brown also argues that the Baby Boy Doecourt's determination that blood transfusions are "minimally invasive" is not a valid legal basis for divining when a patient's right to refuse treatment will be followed. Specifically, Brown argues that to qualify the patient's choice in refusing treatment undermines the patient's authority to make a competent treatment decision.

Illinois recognizes a common law right of competent adults to refuse medical treatment. The right to refuse such treatment is based on the doctrine of informed consent, which requires physicians to obtain consent before performing any medical surgery or procedure upon a patient. The right to refuse treatment anticipates all forms of medical treatment, including life-saving and life-sustaining procedures, and includes the refusal of blood transfusions….

The United States Supreme Court has stated that a person's interest in refusing medical treatment has constitutional underpinnings in the due process clause of the fourteenth amendment to the United States Constitution….

The Illinois Supreme Court has declined to construe the right of privacy under the Illinois Constitution to include a right to refuse medical treatment. In re C.E. , (1994). The supreme court, however, has indicated that religious-based objections to medical treatment find constitutional protection under the first amendment to the United States Constitution.

The right to refuse medical treatment, however, is not absolute. The State may intervene in a given case if the State's interests outweigh the interests of the patient in refusing medical treatment. This is true whether the refusal is based on common law or constitutional principles. Generally, courts consider four State interests--the preservation of life, the prevention of suicide, the protection of third parties, and the ethical integrity of the medical profession--when deciding whether to override competent treatment decisions…..

In this case, the circuit court considered the four state interests set forth above and determined: (1) the transfusion was necessary to preserve the life of Darlene and the fetus; (2) the prevention of suicide was not at issue because Darlene had clearly stated her desire to accept medical treatment, other than a blood transfusion; (3) the State's interest in protecting third parties was strong because Darlene has two minor children, ages three and eight, who would be orphaned if she did not receive the transfusion; and (4) the transfusion procedure would be minimally invasive and could "be administered without additional pain or intrusion because Darlene already [had] two intravenous sites."

We agree with the circuit court that prevention of suicide is not at issue… "The next factor is the State's interest in preservation of life. The circuit court found that the State had an interest in preserving both the life of the mother and the fetus. Typically, however, this factor concerns only preservation of the life of the decision maker. As one court noted: "The State's concern is weakened when the decision maker (the individual who refuses to consent to the treatment) is also the patient 'because the life that the state is seeking to protect in such a situation is the life of the same person who has competently decided to forgo the medical intervention; it is not some other actual or potential life that cannot adequately protect itself." Norwood Hospital v. Munoz.

Most cases concern competent adults who are not pregnant. Of the cases concerning a pregnant woman, most concern the woman's refusal of medical treatment after the birth of the child, and, thus, the woman's wishes are respected. Although Baby Boy Doe was a pregnancy case, the court found the preservation-of-life factor irrelevant as the cesarean section procedure, although necessary for the health of the fetus, was not necessary to preserve the mother's life or health. In fact, the court found that the procedure posed a greater risk to the mother's health. Only in the instant case are we confronted with a situation in which both the pregnant mother and the viable fetus were to benefit from the proposed blood transfusions. We determine that the State's interest in preservation of life continues to concern the life of the decision maker…


[T]he final State interest is the impact upon third parties. Most cases have considered this interest in the context of the impact upon the minor children of a woman refusing medical treatment….

Some courts have found that the state's interest in the welfare of third parties cannot be determinative of the patient's right to refuse medical treatment. Other courts have declined to go so far, instead holding that where there is no evidence of the minor children's abandonment, such an interest will not override the patient's competent refusal.

Here, the record does not indicate evidence of abandonment of the minor children. Lester Brown, the natural father of the three-year-old, supported Darlene's decision to refuse consent. While there is no evidence in the record regarding the eight-year-old's natural father, Lester Brown as well as his and Darlene's parents all were willing to help support both minor children. Thus, the State's interest in protecting the living minor children is not determinative.

We therefore encounter the ultimate issue, the State's interest in protecting the viable fetus. In Roe v. Wade, the United States Supreme Court explained that the state maintains an "important and legitimate interest in preserving and protecting the health of the pregnant woman … [and] the potentiality of human life." Roe v. Wade. In fact, the State maintains "a substantial interest in potential life throughout pregnancy." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). In the abortion context, the state's important and legitimate interest becomes compelling at viability. At that point, the state may restrict abortion, except when necessary to preserve the life or health of the mother.

In Illinois, the Illinois Constitution and Illinois Supreme Court have both been silent regarding the State's interest in a viable fetus. Under the Illinois Abortion Law of 1975: "Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion … [an] unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State." 720 ILCS 510/1.

The Act defines viability as "that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support."

To date, a fetus is not considered a minor for purposes of the Illinois Juvenile Court Act. Illinois courts have, however, found viable fetuses to be persons with regard to wrongs caused by third parties, but they have distinguished such injuries from those caused by the mother. See Cullotta v. Cullotta (1997).

In examining the State's interest in the viable fetus, we note the distinct circumstances of this case. This is not an abortion case in which a pregnant woman seeks to terminate an unwanted pregnancy. Likewise, this case does not involve substance abuse or other abuse by a pregnant woman. And while refusal to consent to a blood transfusion for an infant would constitute neglect (see Labrenz), without a determination by the Illinois legislature that a fetus is a minor for purposes of the Juvenile Court Act, we cannot separate the mother's valid treatment refusal from the potential adverse consequences to the viable fetus.

Consequently, following the lead of Baby Boy Doe and Stallman, and in this case balancing the mother's right to refuse medical treatment against the State's substantial interest in the viable fetus, we hold that the State may not override a pregnant woman's competent treatment decision, including refusal of recommended invasive medical procedures, to potentially save the life of the viable fetus. We disagree with the Baby Boy Doe court's suggestion that a blood transfusion constitutes a "relatively noninvasive and risk-free procedure", and find that a blood transfusion is an invasive medical procedure that interrupts a competent adult's bodily integrity. We thus determine that the circuit court erred in ordering Brown to undergo the transfusion on behalf of the viable fetus.

In reaching this difficult conclusion, we note the mother's apparent disparate ethical and legal obligations. Under the law of this State, however, we cannot impose a legal obligation upon a pregnant woman to consent to an invasive medical procedure for the benefit of her viable fetus. As noted by the United States Supreme Court in Planned Parenthood v. Casey: "The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."…

As a final matter, the public guardian's appeal argues that, in light of In re Baby Boy Doe, the circuit court erred in appointing a guardian ad litem to represent the alleged interests of the viable fetus in opposition to the express wishes of its mother. Invoking the provision in the Illinois Abortion Law of 1975 stating that an unborn child is a human being from the time of conception and a legal person, the circuit court determined that it had authority to appoint a guardian ad litem for Fetus Brown.

Although the public guardian is correct that Baby Boy Doe held that the mother's rights and the fetus' rights may not be balanced, this case did not involve such a balancing. Instead, the issue as framed in this case involved the mother's right to refuse medical treatment as considered against the State's interest in the viable fetus. The asserted legal interests did not require the public guardian's representation of the separate, putative interests of the viable fetus. Thus, the circuit court erred in appointing the public guardian to represent the interests of the viable fetus in this case.

In conclusion, the circuit court erred in appointing a temporary custodian for Fetus Brown with the authority to consent to blood transfusions for Darlene Brown and erred in appointing the public guardian as guardian ad litem for Fetus Brown.

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