Protecting The Unborn -- Fetal Injury At Mom's Job Is At The Center Of A Growing Debate

It is a pregnant woman's worst nightmare.

Linda Bell Freytes, a clerk at a Macy's department store in San Francisco, felt sharp abdominal pain after a morning coffee break. The nurse at Macy's attributed the pain to indigestion. In fact, Freytes, seven months pregnant, had a ruptured uterus.

Ignoring Freytes' pleas for medical help, the nurse waited 50 minutes to call for an ambulance. Freytes' son was born with severe brain damage, resulting from the delay. He died at age 2.

Freytes sued Macy's on behalf of her disabled son, but in a case with important implications for all pregnant women, she lost. A California Court of Appeal agreed that Macy's was negligent. But the court said that since the sick baby was not a Macy's employee, his survivors could collect nothing.

The ruling means a California employer has no liability for any fetal injury. Though it initially attracted little attention outside legal circles, the 1989 court decision is now at the center of a growing debate over the limits of an employer's responsibilities.

The stakes cannot be measured in dollars alone. The emotional cost is incalculable. "Every day we had to face (the fact) that our son would die," said Freytes.

The Freytes case has prompted legislation in California - believed to be the first of its kind in the nation - that would permit suits to be brought against a parent's employer on behalf of children with fetal injuries. The bill reaches far beyond the Freytes case to cover fetal injuries in the workplace caused by chemicals, radiation, even the AIDS virus.

California business vigorously opposes the bill. A fearful California Manufacturers Association put the proposal high on its "Dirty Dozen" list of anti-business bills and predicted that its passage would force factories to move elsewhere.

The proposed law makes employers especially nervous, following a U.S. Supreme Court decision striking down an important defense against fetal-injury suits.

The case involved Johnson Controls, a Milwaukee car-battery manufacturer. In 1982, Johnson Controls adopted a "fetal-protection" policy that barred fertile women from factory jobs working with lead, a fetal poison. On March 20, the Supreme Court said companies could not block women from dangerous jobs to protect a fetus.

The court said that a company is guilty of sex discrimination if it bars a woman from any job solely because she is capable of bearing children. The court noted that lead also appears to pose a danger to male workers' reproductive systems, but that Johnson Controls continued to hire fertile men in its battery plants.

The precedent-setting case of Linda Bell Freytes hinged on an interpretation of California's workers' compensation law. The 1st District Court of Appeal defined the baby's injury as a workplace accident, because it was "derived" from an injury to his mother. Yet in what Freytes' lawyers describe as a legal Catch-22, the court said in a 2-1 ruling that because the baby was not an employee, he could not collect workers' compensation. Freytes received no compensation for her injury, either.

The two-judge majority said that in coming to its decision, it took into account the potentially large liability costs employers could face if they were held responsible for work-related fetal injuries. Nonetheless, the majority was uncomfortable with its decision and asked the state Legislature to review the law.

Under certain circumstances, 40 states recognize the right to recover damages for prenatal injury outside the workplace based on the principle of negligence or wrongful death. A child may sue for fetal injuries suffered in a car accident. People may also sue drug manufacturers - such as the makers of the anti-miscarriage drug DES. Doctors face possible malpractice suits.

The liability of employers for fetal injury in many states appears largely untested. In the Freytes decision, the Court of Appeal cited a Louisiana case in which a fetus was injured when its mother, a waitress, slipped on a restaurant floor. The Louisiana court allowed the mother to sue on behalf of the child.

The legislative debate in California comes as society is trying to grapple with its responsibility to the fetus, and, in doing so, is testing the limits of "fetal protection."

In Washington, D.C., for example, a judge issued a ruling that allowed a hospital to perform a Cesarean section on a terminally ill woman against her wishes to save the life of her 25-week-old fetus. The baby died.

Also, law-enforcement officials are increasingly seeking to hold pregnant drug and alcohol abusers accountable for endangering their fetuses.

Among the first such cases was the highly publicized 1987 arrest in San Diego of Pamela Rae Stewart on a charge that she contributed to her son's death by ignoring a doctor's advice to refrain from sex and drugs while pregnant. A municipal-court judge dismissed the case against the woman, who was charged with failing to "support" her unborn child under a state law usually used to force delinquent fathers to pay child support.

In Florida last month, a state appeals court upheld the conviction of a woman for delivering cocaine to her baby through her umbilical cord. She had been charged under a law designed to prosecute dealers who sell drugs to children. The Florida conviction followed unsuccessful prosecutions of drug-addicted pregnant women in Michigan, Ohio, North Carolina and Massachusetts.

The most fundamental "fetal protection" debate involves, of course, abortion - with no consensus in sight on society's obligations to an unborn child.

Only recently has the discussion broadened to include the workplace, becoming "one of the most important topics" in bioethics, said Thomas Murray of Case Western Reserve University in Cleveland.

No one knows how many workers are exposed to fetal hazards. One estimate puts the figure at 20 million, or 17 percent of the workforce. The California Health Department lists 117 suspected fetal hazards, among them glycol ether, a chemical used to make semiconductors, and carbon disulfide and toluene, both widely used industrial solvents.

The federal government, through the Occupational Safety and Health Administration, only requires employers to offer temporary job transfers to pregnant workers exposed to two well-researched fetal hazards: lead or ethylene oxide. A scattered number of employers voluntarily offer transfers or protective garb - such as lead-lined vests for laboratory technicians - to pregnant workers exposed to other suspected fetal poisons.

AT&T says that not a single pregnant worker at its semiconductor factories has turned down a temporary transfer at full pay since it started the program in 1987. That was when a University of Massachusetts study found an association between high miscarriage rates and semiconductor factory jobs. "In the absence of government regulation, I don't see the employers doing anything additional," said James Lockey, an occupational health researcher at the University of Cincinnati.