March 25, 2004 - Newsday Magazine (NY) M May Stand For Many Things, But Not Murder By Sheryl McCarthy

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Melissa Ann Rowland won't win any medals for Mother of the Year. But prosecuting her for her son's murder is a big mistake.

The 28-year-old Salt Lake City, Utah, woman has a history of mental illness, drug abuse and child abuse. She surrendered two children for adoption, and had two others taken away by the authorities.

Now she's accused of murder because, while pregnant with twins, she defied her doctor's advice that her twins were in grave danger unless she had a Caesarean section. When she did submit to surgery about two weeks later, her son was stillborn and her daughter tested positive for cocaine and alcohol.

Rowland may be messed up, negligent, a substance abuser and, quite possibly, mentally disturbed. But charging her with murder takes the criminal law to a place where it doesn't belong - the personal decision by a pregnant woman about whether she wants her body cut open.

If Melissa Ann Rowland was mentally ill, and incapable of making an informed decision, she certainly isn't liable for her son's death. And if she was competent, the law shouldn't punish her for making a decision that was hers alone.

I understand the emotions surrounding this case. It sits at the intersection of our desire to protect unborn children and our policy of letting individuals make informed decisions about their medical care. The big question is whether pregnant women lose the civil rights enjoyed by all - - because they're pregnant.

"People have very appropriate feelings about pregnancy and the value of fetal life," says Lynn Paltrow, executive director of National Advocates for Pregnant Women, a legal advocacy group. But, she says, "we have a problem with empowering doctors' advice with the force of criminal law."

Rowland's murder charge is based on her doctors' claim that her son would have survived if she'd had a c-section sooner. But doctors can be wrong. The same month that Rowland's doctors were urging her to have a Caesarean, so were the doctors for Amber Marlowe, a woman in Wilkes-Barre, PA.

Marlowe was told her child was too big to deliver vaginally, but she and her husband objected to surgery. So the hospital went to court and persuaded a judge to order that a c-section be performed. But Marlowe went to another hospital, where she gave birth, vaginally, to a healthy baby girl.

An even more compelling case involved Angela Carder, a Washington, D.C., woman who was 25 weeks pregnant in 1987 when she was diagnosed with terminal cancer. Her relatives and doctors agreed on a course of treatment that would extend her life for at least a few more weeks, but which involved an increased risk to the fetus. They rejected a recommendation that she have a c-section.

The hospital got a court order for a mandatory c-section. But shortly after it was performed, both the baby and Angela Carder died. If you follow the logic of the Rowland prosecution, the doctors and the hospital should have been charged with double homicide.

I don't know why Rowland ignored her doctors' advice - if she didn't trust them, if she feared physical harm to herself or if she was just mentally ill. But it was her choice to make, and not someone else's. We reach a slippery slope when we brand people as murderers based on the fallible opinions of doctors.

Even the venerable American College of Obstetricians and Gynecologists has declared that when a doctor believes a Caesarean is necessary to save the baby, the woman's decision should still rule.

"I've been frustrated many times by patients who didn't accept the voice of reason, which I always flattered myself I was, and wanted to go a different way, " says Dr. Howard Minkoff, chairman of obstetrics at Maimonides Hospital in Brooklyn. "But ultimately it is their choice. It is their body, their child."

We might wish that Rowland had made another choice. But no one was in a better position to make that decision. And unless we want all pregnant women to face the threat of criminal prosecution should they smoke, drink alcohol, neglect their own health or make medical decisions their doctors disagree with, we shouldn't allow cases like this one to make bad law.