Can the State Turn You Into An Incubator?

Rachel Larris

Can the state turn you into a legal incubator? The First District Court of Appeal in Florida heard arguments that asked that very question after the state ordered a woman confined to a hospital bed, against her wishes, when she was 25 weeks into her pregnancy.

Update 1/15/10 2pm EST: Samantha Burton released a statement
to the press today which you can read below.

Can the state turn you into a legal incubator? Can care of a fetus take primacy over your legal ability to control your own
life? On Tuesday the First District Court of Appeal in Florida heard arguments that
asked that very question after the state ordered a woman confined
to a hospital bed, against her wishes
, when she was 25 weeks into her

In March 2009 Samantha Burton was experiencing
problems with her pregnancy. On the advice of her obstetrician she willingly
checked into the Tallahassee Memorial Hospital, but after a few days there and
after her pregnancy had stabilized, she was unhappy with the hospital and wanted
to check out. "She didn’t feel like it was the right place for her," said her
lawyer David H. Abrams, who took her case pro bono after the state became

After she expressed a desire to leave, the
hospital lawyers went to the Circuit Court of Leon County, which ordered Burton
to be confined indefinitely to the Tallahassee Memorial Hospital and to submit,
against her will, to any and all medical treatments, including bed rest and cesarean
section delivery, that the "the unborn child’s attending physician," deemed necessary
to "preserve the life and health of Samantha Burton’s unborn child." The
Circuit Court even denied Burton the right to transfer to a different hospital.

Appreciate our work?

Rewire is a non-profit independent media publication. Your tax-deductible contribution helps support our research, reporting, and analysis.


Abrams said the court order was so broad,
that even after an emergency cesarean section several days later showed the
child to be stillborn – fundamentally making the ordered bed rest moot — they
had to get an order to allow Burton to be legally released from the hospital.
"The original court order had almost no limits," Abrams said. "So we felt we
had to go back to the circuit court to lift the order just to make sure she
could be released.

"[The Circuit Court’s order] basically made
her into an incubator for the state," Abrams said. "Everything was focused on
the health of the fetus. They essentially took her, as a legal person, out of
the equation."

According to Samantha Burton’s advocates the
breadth and scope of control taken by the state of Florida in her case was so
broad and frightening that even though the original circuit court order is
moot, she is asking the First District Court of Appeals in Florida to
rule the order unconstitutional so that no other woman will find herself in this
situation.   The ACLU of Florida and the American Medical
Women’s Association have joined the case.

Diana Kasdan is a staff attorney with the ACLU
Reproductive Freedom Project, which filed
an amicus brief
on Burton’s behalf.
She says that the original circuit court order should never have been applied
in the first place. "The Florida Constitution has an explicit right of privacy
that has been held by the Florida Supreme Court to apply to medical decisions,
including the right to refuse treatment," Kasdan said. She also pointed out that
Burton was denied the option of treatment by doctors of her own choice by the
circuit court’s order. "What this says is not only are we going to force you to
get medical care whether you want it or not, but the state determines who your
care is going to be administered by," Kasdan said.

Abrams said that the Circuit Court also applied the wrong
standard to Burton’s case. "They used the standard of what is in the ‘best
interest of the child,’" he said. "The best interest of the child makes it
sound all nice, warm and fuzzy, but the real problem is that it’s really a subjective
standard" before birth. Abrams said using that standard during pregnancy means
that almost any behavior that a court deems as not the best way for pregnant
women to take care of themselves could be used to take legal control of their
own bodies away from them.

The case is now in the hands of the Court
of Appeal.

Update: Here is a statement by Samantha Burton she released through her lawyers.

"When I went to Tallahassee Memorial Hospital in March 2009
because of pregnancy complications, I was desperately hoping to receive the
care I needed to save my baby.  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.  In the end, I lost my baby. The entire experience
was horrible and I am still very upset about it.  I am trying to move on.  I appreciate all those who have voiced their
support for me, and I hope nobody else has to go through what I went through."

Load More

We report on health, rights, and justice. Now, more than ever, we need your support to fight for our independent reporting.

Thank you for reading Rewire!