The difference between a woman and a pregnant woman patient is that the latter, for a limited period of time, carries within her a foetus. This foetus may or may not have legal rights. If the foetus does have legal rights, these rights are unusual in that they can only be vindicated by someone intruding the host, its mother. 46 If she, like her non-pregnant counterpart, withholds her consent for medical treatment, even if she has capacity and is competent, she may none the less be forced to undergo the procedure.
This would not legally happen to a woman who was not pregnant and is often termed the maternal/foetal conflict. There are three different manners of viewing the legal relationship between a woman and her foetus. If they are both being viewed as being a single entity47 then the only proponent of conflict, the hostility, can be the woman48 as the foetus is "flesh of her flesh, part of her"49, whilst this is undeniably true for the most part, the uniqueness of a foetus in having a potential for independent life has earned it the right to be legally determined as being more than just another part of a woman's body.
50 The courts no longer accept this approach. At the other extreme is the viewpoint that the woman and her foetus are entirely separate entities51, often taken to be the views of most medics52 this professional viewpoint may have been reinforced by the developments in foetal imaging and in utero therapy and surgery. This model allocates both woman and foetus legal rights and potential autonomy, leaving the women open to suffering a denial of her rights in favour of granting the foetus its perceived legal due.
The middle ground is occupied by the model that views the pregnant woman not as being a single entity, not as behind entirely separate entities but somewhere in between, not a single entity, but not two separate entities either53. Recognising that the foetus has the potential to acquire legal rights, but is not actually in possession of those rights, denies its complete separateness from the woman and so provides a buffer to the possible conflict that may arise between them.
Only a matter of weeks following the caveat expressed by Lord Donaldson in 1993, quoting the danger to a "viable foetus" as being the only exception to an adults' absolute right to refuse medical treatment54, medics were capable of legally enforcing their patients to undergo caesarean sections against their express wishes. (The potential life of a previable foetus had already gained court protection). 55 A six-day labour was presented to the courts as a medical emergency, with both lives depending on immediate caesarean operation56.
The President bizarrely granted the health authority permission to proceed, despite their patients' religious objections and unexplored competency. Citing a combination of Lord Donaldson's rationale and the absence of any directly relevant precedent or authority as providing justification of the ruling. This raised a number of issues including the obvious medical biased of the judgement – only the medical authorities had the chance to present their case, the woman's competency was not assessed57.
"Re S was not only based on unsound authority, it also runs counter to the accepted principles of law" 58A competent adult has the right to refuse medical treatment without the need to prove the rationality of the reasoning. 59 There was little legal analysis, the still unanswerable question of determining the much-quoted "viability" of the foetus and the already legally established principle that the foetus is without legal personality60.
It can only be surmised that the President61 in reaching this decision was under great strain being presented literally with a life or death situation against the clock, and lacking specialist medical expertise himself this bad decision was reached in less than twenty minutes. Conversely in acknowledging the lack of previous authority and precedent, this case provided the precedent for a number of rushed hearings over the next months, which resulted in women's express wishes been overruled, with tenuous evidence for incapacity under the Re C test or equivalent being accepted by the court.
62 One case equated the routine trials and pains of labour with a women being rendered temporarily emotionally incompetent to decide on her treatment. 63 The foetal relationship with the mother was fully revaluated a short time later64, with a woman's right to refuse medical treatment being fully reinstated (with the caveat that she demonstrates full capacity and competency), reiterating that this decision should stand even if the woman's rationale is irrational.
However Re MB was not quite so groundbreaking as it might first have had appeared. With its emphasis on the competency of women who decides to refuse medical treatment, it preserved the intrinsic power of the medical profession to decide if the woman had the legal right to refuse their recommendations. It did however stress that even in the case of the woman lacking capacity; the rights of the foetus cannot be relied upon as being separate from those of its mother.
This deference to the medical professions professed rights to determine a pregnant patients competency was continued by an appeal court ruling two years later. The decision to admit S to a mental hospital under a Mental Health Act section, for refusing hospital based treatment, precluded her eventual hospital admission. 65 Later her wishes to have a non-surgical birth were easily dispensed with by the granting of a declaration, and the operation proceeded.
Following the birth of her baby S discharged herself and appealed. It was ruled that she had suffered an inappropriate use of the Mental Health Act. What was established were guidelines for other professionals finding themselves in the same situation. In summary the pregnant woman's right to self determination in medical matters has been clearly adopted by the majority of courts66, overriding the premise that the state has the right to intervene on behalf of the foetus, by promoting foetal rights.
This provides legal parity with the rulings regarding the various attempts to impose on one person various covert sociological and psychological pressures to save another by organ or body part donation67. None of us is ever obliged to do so. 4 A Conflict of Interests. Medical involvement in childbirth is nothing new68. There is a case for suggesting that despite the popular assumption that falling perinatal and maternal mortality rates are entirely due to the increases in medical technology, it in fact owes more to the increase in the average western woman's nutrition and standard of living.
That said there exist situations which place mother and foetus in undoubted and well recognised obstetric risk, where medical intervention is essential to preserve life for example severe haemolytic disease and major placental pathology. 69 Certainly the courts attitude to obstetric malpractice would back this assertion, whereby a woman or foetus suffering harm can take action in negligence against the failure of the medical team to carry out antenatal or perinatal intervention.
The medics' failure to advise of this risk could possibly compound their negligence. 70 It is known that a significant proportion of the medical profession view the foetus as being a patient separate to the mother, but this leads to an irresolvable problem. The only way to operate or to treat this "patient" is through another separate patient, the mother and for these procedures to proceed authority is required, from the mother. The reason for the crystallisation of tort on live birth is that before birth, there was not legally a person to harm.
71 Recognising the foetus in these terms runs the risk of impinging on the woman's legal rights for privacy and autonomy72 and there in lies the doctors' dilemma and the source of what is frequently referred to as the maternal/foetal conflict73. Some would argue that a woman's right to autonomy is overridden by societies rights to curtail an individual's actions in order to prevent harm to another person in this case the foetus comparing to the situation where we would invade an individuals free will in order to prevent her shooting someone.
74 Except of course that it has been proven that although like a person, a foetus is not a person. Equally comparing the mother to a shopkeeper75, claiming that as a dominant person in a special relationship she has a duty to forgo her own wishes in order to aid her foetus is an unworkable route round maternal autonomy, as the shopkeeper although obliged to stop an escalator in favour of a customer, is not obliged to risk his life to save another. None of us are, there is not duty to rescue.
The major surgery involved in surgical birth, with its incumbent risk of sepsis, haemorrhage and shock involves exactly that, risking a life. As for placing an interdict on the mother to legally compel her to perform or abstain from certain duties or treatments this is would be an outrageous infringement of her legal rights, and is legally impossible. This is entirely unrelated to the natural legal right to have a similar interdict placed on third parties with the two situations not being at odds with each other, but rather making perfect legal sense.
Ex hypothesi, the foetus seeking protection does not have legal personality76, the women does, any external, third party threat against the foetus also affects the woman, who has legal personality and an associated right to prevent the eventuation of the threat. 4. Conclusion "Self determination as a shield is valued for the freedom from outside control it is intended to provide. It manifests the wish to be an instrument of one's own and "not of other men's acts of will""77 As individuals most of us deeply value our autonomy.
With its Greek origins, literally meaning to give oneself his own law78, autonomy is our legal heritage as patients, male and female, so long as adults we remain legaly competent, we have every right to determine which medical treatment to accept or refuse. I believe that every woman should have, within the standard legal parameters, the right to refuse medical treatment, no matter how irrational or unconcventional the reason, pregnant or not.
To sanction otherwise would be to propose that a women who chooses not to abort should automaticaly have this right truncated, with this transient state of diminshed legal personality being restored on the ocassion of her either suffering a miscarriage or giving birth. Cited as an existing example of post conception pre birth State interventionism79 is the provision of specific medical support and education in the antenatal period80. This is naivety. The State has been historically concerned with population, generation and regeneration to ensure maximum status, productivity and wealth.
Natural eceonomic benefits derive from providing pregnant women with screening and health care – it is ultimately an attempt to develop as healthy a populous as possible, reducing health care costs on unnecessarily sick infants and new mothers, whilst, engendering female political loyalty by demonstrated paternalism. Euphemistically referring to a woman who is as pregnant as being in the midst of a "maternal/foetal conflict" is similarly inaccurate. This concomitant transposing of a woman into a mother and the foetus into a person of equal standing to the women belies the legal truth.
The woman when pregnant is still legally superior to her foetus in that she has achieved legal personality, whilst the foetus only has the potential to do same81. The medics moral meandering around what has traditionally been a clear cut legal situation has forced the law to unnecessarily revisit and unbelievably to modify this legal relationship,which had already been clearly defined by the institutional writers, common law and precedent. Technically conflict is impossible between a women and her body with the real dispute lying between medics and their patient daring to disagree.