Can the state force prenatal care? When does baby get protection from possible mom harm?

You often hear about fetal rights versus women’s rights in terms of abortion cases but there’s a new case being heard in Florida where the woman wasn’t trying to terminate a pregnancy but she didn’t want the suggested prenatal care.  She’s now appealing a judge’s order she stop smoking and stay on bedrest in a hospital when she wanted to go home or even to another hospital, she said.

Here’s the story from The Associated Press:

“TALLAHASSEE, Fla. – Samantha Burton wanted to leave the hospital. Her doctor strongly disagreed, enough to go to court to keep her there.

“She smoked cigarettes during the first six months of her pregnancy and was admitted on a false alarm of premature labor. Her doctor argued she was risking a miscarriage if she didn’t quit smoking immediately and stay on bed rest in the hospital, and a judge agreed.”

“Three days after the judge ordered her not to leave the hospital, Burton delivered a stillborn fetus by cesarean section.”

“And six months after the pregnancy ended, the dispute over the legal move to keep her in the hospital continues, raising questions about where a mother’s right to decide her own medical treatment ends and where the priority of protecting a fetus begins.”

” ‘The entire experience was horrible and I am still very upset about it,’ Burton said through her lawyer. ‘I hope nobody else has to go through what I went through.’ ”

“Burton, who declined to be interviewed, is appealing the judge’s order. She isn’t asking for money but hopes to keep her case from setting a precedent for legal control over women with problem pregnancies. She also worries it could prevent women from seeking prenatal care.”

“State Attorney Willie Meggs stands by his decision to seek the court order after being contacted by the hospital. ‘This is good people trying to do things in a right fashion to save lives,’ he said, ‘whether some people want them saved or not.’ ”

….. “But she didn’t like the care she received at Tallahassee Memorial Hospital. She said her doctor, Jana Bures-Foresthoefel, was brusque and overbearing. Her lawyer said bed rest for difficult pregnancies is a controversial issue because it can cause some complications like blood clots. Abrams said smoking by itself doesn’t cause miscarriages.”

“The mother said she wanted the option to seek care at another hospital or to go home so she could care for her two daughters.”

” ‘I was desperately hoping to receive the care I needed to save my baby,” Burton wrote in her statement. “However, after a few days there, I did not feel I was receiving the care I needed, and instead of being allowed to leave or go to another hospital, I found myself being ordered by a judge to stay at Tallahassee Memorial and submit to all medical care from its hospital staff, whether I agreed or not.’ ”

“The doctor and hospital officials declined to comment, referring calls to the state prosecutor.”

“American Civil Liberties Union lawyer Diana Kasdan said if the ruling stands it could lead to the state virtually taking over the lives of pregnant women, including telling them what they should or should not eat and drink and what medications they must take.”

” ‘It would be a horrible precedent,’ Kasdan said.”

Very interesting questions here: When should the state step in a force a mother to care for herself or the unborn child inside of her? Should a judge have ordered her to stay at the hospital on bedrest? (Essentially also making her quit smoking because you can’t smoke in a hospital bed. I was amazed at the number of people stepping out to smoke dragging IV bags behind them at Emory this summer when I was there with my brother.)

Should she have been allowed to go home for bedrest or switch hospitals?

When does the baby get protection from any harm a mother may be doing it?

41 comments Add your comment


January 26th, 2010
4:14 pm

While this story had a tragic outcome, I don’t think that the state had any right in this case. Obviously, smoking is so dangerous and I am not arguing that it is not. I think this mother had her rights infringed upon. Think about what could be next – an obese mom-to-be forced to stay at a hospital because her food choices are endangering her unborn child? I smoked for a long time and I know it is difficult to quit – the way she was “forced” to quit at the hospital was dangerous as well. Again, I think smoking is awful, but I think most of our moms probably smoked and drank! Still, a terrible outcome.


January 26th, 2010
4:30 pm

This one is touchy…..and IMO, prenatal care is extremely important. I too smoked before I became pregnant with both my kids, but never smoked or drank while they were in utero. Of course, those were just my choices. My thoughts were that I wouldn’t want to cause damage to my offspring because they are the ones who would suffer for it. If you want to abort, abort (before 3 months is up) BUT.. don’t be selfish and do things that could cause that child to lead half a life.

I am not sure though that the state interfering is going to make a total difference with that sort of situation. There are crack heads who get high and geeked up every minute of every day while they are pregnant, and they would be extremely hard to catch up with in time to stop any damage to the fetus.

Now, if she wanted to switch hospitals or doctors then that should be her right. What really sucks is that the fetus died anyway. And the doctors, nurses, and the judge had good intentions, but in the end the decision was hers. What I find contradictory though.. is that there is no law that protects a fetus while in the uterus… but if you are a drug abuser with a child, your children can be taken away from you. I dunno… I am stumped and confused on this one and will have to revisit it tonight.


January 26th, 2010
4:43 pm

While I want to smack the mom upside the head, no, the state should not have interefered with the woman’s right to make medical decisions for herself.

Dr. Ortho

January 26th, 2010
4:45 pm

Not only can they force it. They can do it.


January 26th, 2010
4:57 pm

My God, people, we’re talking about CHILD ABUSE here! The state SHOULD force prenatal care! Touchy-feely talk about “rights” is just pie-in-the-sky. Condemning an innocent baby to a life of birth defects & poor health is cold, hard reality!


January 26th, 2010
4:59 pm

You have to take test to get a drivers license, but any idiot can have a child..

Yes, she should of been given the choice to go somewhere else if that was what she wanted..


January 26th, 2010
5:11 pm

If the mama didn’t want a child, she should have used reliable birth control. If she had wanted an abortion, she should have had it during the first 12 weeks. That decision not having been made, the state was appropriate in stepping in to keep her from “aborting” the fetus by way of slow death. Apparently they were right. If she had truly wanted to go to a different hospital, she should have been allowed, her ambulance escorted by police to be sure she made it there and stayed there.

Had the child lived and been severely handicapped, you can be sure it would not have been a violation of her “rights” to accept federal assistance in raising the child, including special ed, financial support, and special doctors.

I get tired of people who claim their rights but won’t exercise any good judgement. She had been warned, to the point of being taken to court, that the matter was serious.


January 26th, 2010
5:16 pm

Too bad the Mom didn’t want to kill her baby by abortion. Then the judge would have ordered the hospital to comply with her wishes.


January 26th, 2010
5:18 pm

How can prenatal care be forced while it is legal to kill a child in utero? One thing I miss about living in Europe is that there is a national morality. Even children who were neglected in the home were allowed to be raised in the school because of the continuity of religious belief and lack of laws aimed at not “offending” anyone. Here we are so afraid to step on toes that some grow up with no moral guidance or manners, class, etc. at all. It is a breeding ground for evil. I’ve been thinking about this a lot lately and how it affected me to move to the U.S.


January 26th, 2010
5:22 pm

I have a problem with this on a lot of levels, the first being that she was forced period. I am sure I was a victim of my mother smoking in utero (I was preemie). In the 70s they didn’t know better. Of course, she should have stopped smoking as soon as she found out she was pregnant but that is her decision AND if she does have a sick child, SHE will be the one tending to that child. Second, the judge clearly did not consider the mother’s other responsibilities, namely her other daughters. Folks on here complain that they cannot get childcare for an occasional weekend away so imagine having to quickly get childcare for 2 kids (ages?) that is full time and for however long. Judge “I’m tending to your business” sure didn’t take them! Neither did Doctor “I know best”. Third, if she wasn’t getting the kind of care she wanted and needed, she should have been able to go to another hospital. How do we know that the “care” she was receiving did not cause the still birth? (I’m not stating that it did. I don’t know anything about it.) If the concern was for the child then it shouldn’t have mattered which bed she was resting in. I’m sure Doctor “I know best” didn’t want to let her go after showing so much concern and care to take over her life (sarcasm). Fourth, who paid for her extended care? Do we know if her insurance even covered it? Did Doctor “I know best” find that out before giving her other options?


January 26th, 2010
5:28 pm

I don’t believe in government forced anything. Where was the father? We are blaming her—WHERE IS THE FATHER???


January 26th, 2010
5:39 pm

Jan – could be a ho :(


January 26th, 2010
5:42 pm

Don’t mean to be nasty, just throwing out the obvious.

BS on Denise...

January 26th, 2010
5:43 pm

In the ’70’s they DID know better – it was the ’50s and early 60’s that they began to know but did not push the issue.

And, why do people always ask “where was the father”? That is such a rhetorical question, as we all know “where” he was NOT – in the picture and possibly not even known.

This is such a sad commentary on all that happens in the US and the world today. But, the state DOES have the right to ensure the safety of a fetus, just as they have the right to ensure the safety of any child who is neglected.

New Stepmom

January 26th, 2010
5:47 pm

This is interesting being that I have been on bedrest for months with a problem pregnancy. I have been lucky to have had some providers who were easy to work with and others who were not. I had a nurse midwife tell me at 18 weeks that if my body held the pregnancy fine if not that was ok too. Well to us not holding the pregnancy was not an option, our baby is too special to us. I have played everything overly conservative, but I have a huge support system.

I am not sure that a judge ordering this person to stay in the hospital is the best course of action. She should be allowed to leave and seek a second opinion if that is what she desires and feels might be best for her and her baby. Also, bedrest is not a vacation and if you do not have a support system and other children there are a lot of things to consider. Bottom line, this seems like a slippery slope and not a good idea for the state to have stepped in.

I do drink one diet coke a day and I do not plan to breast feed due to daily medication that I must take. These are things that could be next on the list for intervention by the state and I would go to my grave fighting for my right to make these 2 choices during and after my pregnancy. I do not think that questioning prenatal care should be governed this way.


January 26th, 2010
5:51 pm

How many of those against governmental involvement were in favor of ordering Nancy Shiavo be kept alive?


January 26th, 2010
6:04 pm

I have to comment here because nobody has yet pointed out that the mother did not want to leave the hospital so that she could get a smoke, she wanted to GO TO ANOTHER HOSPITAL where she would receive BETTER CARE. Since it turns out that her baby was stillborn, MAYBE SHE HAD GOOD REASON. Some judge decided that there wasn’t time to let the mother get a second opinion and confined her to a bad in a hospital with a doctor she did not want to be treated by. I am all for prenatal care, but this is WAY over the line/


January 26th, 2010
6:22 pm

Smoking during pregnancy does not cause retardation or severe handicaps, folks. though it does cause lower birth weight and some other problems. She was a smoker – not a crack addict. Also, the hospital, in some way, caused her to quit cold turkey which can be even more dangerous on an addicted smoker. I would slap her too – as others have said. But get real – do you really think the government should decide?


January 26th, 2010
6:30 pm

How nice to know my rights end when my job as an incubator begins. There is no reason to force anyone to accept medical treatment in this country. How about we forcibly extract bone marrow to save children with leukemia? I bet some of you would be considerably less enthusiastic if we applied the law to your bodies.


January 26th, 2010
6:37 pm

@ newstepmom….do the Doctors tell you not to drink Coke now?

When I was pregnant with my son, I drank NO coffee as that is what the Doctor said. When I was pregnant with my daughter, they told me I could have 2 cups per day and I told them that was GREAT, as I had to drive 40 minutes on I85 each day and without coffee we would not make it. I did not drink or smoke with either.

My husband’s Mom drank and smoke with all four pregnancies and those were from 1958-1964.

Not sure how I feel about this but catlady has some good points. Many folks do not want the government telling them what to do unless the government is the only one who will foot their bill and then they open their hands and hearts.

catlady,,,,exactly what is good judgment and who ( if anyone) possesses it nowadays….:)

Oh, sorry, I did sit next to a Mom on the plane on my way home from Dallas who told me that her 7 year old had to catch the bus at 7:10 a.m. I asked her what time he went to bed. She replied,
“He brushes his teeth, has a story and prayers with lights out at 7:30.” Yep. there might be one or two parents still out there who have good judgment….LOL! KUDOS to her!

Tiger needs me on his PR team

January 26th, 2010
6:37 pm

The potential of this precedent is so far reaching. If you agree with the judges order, seems to me that you would also have to agree with the future order (and you know it would be coming) where a judge locks up the parent who smokes in a house with a child suffering from asthma. And then the order locking up parents of healthy children just because of the harmful effects of second hand smoke.

Why don’t we just cut to the chase and make cigarettes illegal?

Tiger needs me on his PR team

January 26th, 2010
6:43 pm

@ BS on Denise and Appalled…if, as you contend that this is child abuse or criminal neglect, where are the charges? From what I can see, the State Attorney is not leveling that charge..why not?

My only guess is that, from a legal perspective, this woman is guilty of neither of those things. I might be more inclined to support the state attorney if they actually indicted her with neglect or abuse of an unborn child, but they haven’t. That tells me they don’t think it existed, and if she wasn’t committing neglect or abuse, they shouldn’t be allowed to forcibly detain her.

Not Going To Use My Usual Name

January 26th, 2010
6:52 pm

Tiger needs me… The thing is, the morality police don’t care at all about the kids once they’re born. The same judge who demands that the pregnant mother follow doctors’ orders goes into the voting booth and elects folks who cut Medicaid for poor kids. There’s a very clear hierarchy from the right wingers: the older you get, the less they want to protect you.

Poor fetus => protect at all costs! It is a life! OMG!
Poor baby/young child => Mom shouldn’t have had it if she couldn’t afford it. (Never any demands for paternal responsibility)… I’m not paying for that kid’s health care.

Poor preteen/young teen => better not be in school with my kids, and I’m not paying a dime for their schooling, their healthcare, or anything–it’s not *my* kid.

Poor 16-year-old girl now pregnant => is everything wrong with society. But she’d better have that baby whether she wants it or not.

Poor female adult who wants her legal rights => is trying to destroy society!!1!

Tiger needs me on his PR team

January 26th, 2010
6:55 pm

@Anna….I find it kind of interesting that you’re offended by the lack of “manners”, “class”, and “religious belief” of us Americans….right before you call a woman you’ve never met and only read a brief media snippet about a “ho”. Sounds to me like you’re assimilating just fine here in the good old U S of A!

Tiger needs me on his PR team

January 26th, 2010
7:17 pm

by the way folks…ABC reports that Burton, the mother, is married, I know that matters greatly to some here.

Her lawyer, also a trained nurse, claims she was “actively taking part in prenatal care when she began to have problems with her pregnancy”.

its an interesting article.


January 26th, 2010
7:36 pm

Enter your comments here

New Stepmom

January 26th, 2010
8:44 pm

@MJG, there is a lot of debate on the caffiene issue. My doc says one or 2 cans per day is not a big deal. I know of others whose physicians have said none. I stick to one 12 oz can per day. I have looked at the studies and I cannot see that there is truly a link to caffeine causing issues.

But because of the fact that some docs say no caffiene, I could end up being treated this same way and I think this case is absurd.

Mastiff Owner

January 26th, 2010
10:00 pm

The main argument being presented to the First District Court of Appeals is that, Samantha Burton’s rights as guaranteed under The Florida Constitution were violated, she was also denied due process, as she was not appointed a attorney nor given an opportunity to seek council before the Judge ruled.
The Hospital attorney, who originally called the State’s attorney’s Office, was appointed as a special prosecutor on behalf of the State attorney’s office.

Mastiff Owner

January 26th, 2010
10:17 pm

And she was NOT hooked up to a monitor, so there was no way they would know IF there was a problem. Think about this, the court order authorized the hospital to CUT INTO this woman against her will!


January 26th, 2010
11:14 pm

While I can’t believe in this day and age someone would smoke while pregnant (and I’m a former smoker who still lights up when drinking, although I did neither while pregnant), the government has NO business getting into the prenatal care area. Plenty of crackheads and meth addicts never receive any prenatal care. They show up at an ER, drop the baby and leave as soon as they can walk to get a fix. So, what’s next -the gov’t spending more tax dollars to hire special squads of “prenatal” officers who can patrol for preggos possibly violating prenatal care orders? You can’t save everyone and you cannot fix stupid! It’s horribly sad for babies born to mothers who did awful things while pregnant, but the government needs to stay far, far away from this!

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January 27th, 2010
8:29 am


You said: “And she was NOT hooked up to a monitor, so there was no way they would know IF there was a problem. Think about this, the court order authorized the hospital to CUT INTO this woman against her will!”

They did not “cut into her against her will.” She had a C-Section because the doctors could tell the baby was dead or dying. What do you mean she was not hooked up to a monitor. She was in a hospital – they were checking for heartbeats from the baby quite regularly.

Get a clue before you spout your stupidity.

Mastiff Owner

January 27th, 2010
9:51 am


January 27th, 2010
10:40 am

I agree with the if we have to have a DL to drive a car why cant we do the same for parents… NONE of us would have kids…….. This goes back to the we all have made mistakes with our children.

Not Going To Use My Usual Name you are a coward if you cant use your real name


January 27th, 2010
10:55 am

@Not Going to Use…You are SOOOOOO right!!

Tiger needs me on his PR team

January 27th, 2010
10:56 am

@ if….that’s a great sound bite from the movie “parenthood”, but I think we can all agree that reproductive rights and driving rights differ from one another. Would anyone really advocate the state authority to grant persmission to have a child? If I recall correctly, that’s the road China has taken.


January 27th, 2010
11:35 am

Jane, Mastiff Owner is neither stupid nor insane. According to the article, the court ordered her to submit to anything to “preserve the life and health of [her] unborn child.” And apparently, the hospital and her doctor were given total authority over what that treatment would be (she did not even have the option of seeking out another doctor or hospital), which of course, could include a C-section against her will. We don’t know if she agreed to the C-section or not, but it doesn’t matter because she had no say in the matter anyway. Really, this story is shocking.


January 27th, 2010
12:17 pm



Tiger needs me on his PR team

January 27th, 2010
12:21 pm

@JJ…I think you’ve mistaken this topic for the kitchen renovation! ;-)

No Way

January 27th, 2010
2:13 pm

I think state had no right. What will be next? Will expecting mothers be ordered to take all prenatal tests (wich most of them are not necessary and they just provide income t the doctors/hospitals)?
Smoking does not kill… Otherwise we all would have been dead. And how did people function 100 years ago? No prenatal vitamins, no ovulation/pregnancy tests no anything. Time came and you gave a birth. It was that simple.

Well, if we take the same route as the judge, then we should arrest and jail half of our population. Life is not a Stepford Wifes movie. There will be good parents and bad parents. Should all parents whose kid’s are obese be forced to put all their family on diet? I believe that weigting 300 lb at the age of 16 is more harmfull to a kid than smoking while pregnant.


July 16th, 2010
4:36 am

I believe that no judge should step in and tell anyone how,where,and who will render care to any pregnant woman. Also, please think about the problem the pregnant mother was having with smoking!!! She made needed, HELP!! But there a risk to smoking and the judge nor doctor thought about the stress would do to pregnancy!!!! The end results was she was the one that was hurt. She suffered a lost!!! So sorry I will pray!!