Reference to case law and commentary

Until fairly recently the foetus was an entirely unseen entity, hidden within the womb until birth, its under developed primal form only revealed in the event of tragedy. Now in addition to standard ultrasonic imaging techniques, 3D and even 4D images of the unborn are available, thereby humanising and personalising the foetus in a previously unthought-of of manner. It can be argued that our seeing the previously unseen has wrongly elevated the social status of the foetus to unrealistic and more importantly undeserved legal heights to the ultimate detriment of women.

1 The ever-increasing availability of dedicated, daring foetal technological and surgical techniques have seduced the courts into sanctioning unwanted medical intervention, and, as a corollary, disengaging the due legal process of autonomy – all in the belief that they are protecting the well being of the foetus. Often presented by medics with a rushed and apparent life or death ultimatum, the courts, lacking any specialist medical expertise, have ordered antenatal medical intervention with the very best of intentions2.

Ordinarily the actions are raised to enforce surgical birth or blood transfusion although lifestyle diktats have also been the subject of medico-legal action. I will explore the appropriateness of legal intervention being utilised by medics in this manner by first examining the extent to which the law consistently recognises the foetus and the extent of its legal standing and rights. I will examine consent in relationship to a woman who is not pregnant, looking at capacity and capability.

Then I will consider how these rights have been juxtaposed with the perceived legal right and entitlements of the pregnant woman, and consider if the very nature of her pregnancy essentially disturbs her expected legal entitlement to have her autonomy respected and honoured. Lastly I will consider if it is desirable for our 21st century society to coerce women into medical procedures in order to ensure the safe birth of a healthy or, as is equally likely, a healthier baby.

In the UK today, the contemporary pregnant woman enjoys regular meetings and consultation with a variety of health care professionals working within their own specialities to ensure a usually safe and uncomplicated gestational period culminating in an anticipated safe and healthy live birth. Antenatal care consists of teams of dedicated specialists providing education, information and monitoring roles, continually reassuring the woman of her wellbeing or professionally addressing at an early stage any health problems.

I will discuss the potential power imbalance inherent in this relationship, with the medics providing and controlling the information that the woman receives regarding her condition. This is in direct contrast to the situation only three generations ago, when the medical profession relied entirely on the woman to report the same information regarding pregnancy progression3. The downside to the recent developments in foetal medicine, surgery and imaging techniques may be what many consider to be the "medicalisation" of pregnancy.

This can result in the unintentional patholgising of the condition into that of an illness, ultimately disempowering the woman, leaving the medics to controlling her progression through pregnancy4. When control is resisted, medics don't desist instead they reason that it is appropriate for them to approach the courts pleading the existence of a legally non existent entity whilst derailing the prevailing and statutory legal rights of their patient. Often with little or no legal expertise they presume to deny competent female patients their intrinsic rights to autonomy.

Paternalistic medicine may be – materialistic it is not. 2. The Foetus and The Law. Medically and theologically life can be said to begin at the instant of conception5, legally life begins at the second of birth. 6 Legal personality lives until death7 and in either form8 is fundamental to the operations of the common law legal system. Only legal persons9 have locus standi in courts and access to the legal processes of holding and enforcing their rights and prerogatives against others10.

One of the prerogatives being that a (legally recognised) person has the right to look to the courts to award reparation11, compensation for harm suffered as a result of another's' intentional intrusion12 upon a right or a interest of his which is recognised as being reparable in the eyes of the law. 13 The wrongdoer is in fact obligated to make reparation to compensate for the loss suffered by another as a direct result of his culpa with the obligation being legally obediential.

This does not mean that the foetus14 lacking full legal personality has routinely been denied either legal recognition or protection. Since the thirteenth century the criminal law had guarded the foetus15 whilst it simultaneously refused to extend full legal status16 to the unborn child thus denying him the right to maintain an action for prenatal injuries. 17 The born child was incapable of asserting its legal personality gained rights retrospectively to its previous conceived, but unborn existence18 in respect of claims for injuries sustained pre-birth19.

In 1933 the first ever successful application of the nasciturus20 principle to the claim in delict regarding a child born with clubfeet resulted in the present day accepted premis whereby the facilitation of the tort or delict crystallising on the now born child's first breath allows delictual claims in respect of third party damages to the previously unborn foetus21. But a foetus does not have legal personality and is not a person,2223 although it is not entirely without rights24 and interests,25 it certainly is more than a biological appendice to the mother's body.

26 However, it is legally impossible to bring forward an action based "in the name of the foetus"27 and similarly a foetus cannot legally be made a ward of court. 28 The foetal entity has been described as an "infant29", with this compassionate but misguided use of terminology being designed to provide a timescale in reference to the concept of "foetal viability30" as the automatic earning of particular legal rights by the attainment of a certain period of time in the womb. This reference replaced the traditional often-blurry image in our minds of the neonate with the more familiar and imaginable swaddled babe.

The relatively advanced gestational period of a foetus has provided the court with the ability to "truly liken"31 a foetus to a person, a person with associated rights, but crucially not to rule that the foetus is a person. 32 Finding it impossible to clearly define the viability of the foetus, depending as it does on a number of unforeseeable variables, uncontrollable by even the medical profession themselves33 the English, Canadian and Australian courts have not followed the United States Court in pursuing this measuring of the foetus as an attempted aid to establishing personhood.

This is an example of the definitional approach of foetal categorisation, that establishing specific characteristics or defining attributes will naturally lead then to a clear identification of the legal standing and rights to which the foetus is entitled34. The contrary approach cleverly avoids all questions of a definitive and timeous nature and instead employs consideration of the direct effect and consequences of applying a certain law or precedent.

By studying its specific content and its intended intention it can then be determined if it would be appropriate for foetus to be legally recognised. This relational approach considers not the developmental stage of the foetus, but the foetus in relation to its mother and any third party involved in the case. It realistically recognises the constraints of the law in relation to the protection of the foetus and the limitations of its rights to intervene.

35 More fluid than the definitional method, this approach has been used to substantiate the law's differing attitude to foetal harm in permitting a woman the legal right to abort and concomitantly prosecuting those whose violent actions result in the destruction36 of a foetus37allowing the court to promote the saving of potential life in the one instance and allowing the destruction of potential life in the other.

The certainty required by the "scientific classification"38 of the definitional approach is fundamentally unavailable given the normative nature of the law when considering the application of personhood to the foetus. 39 The relationalship approach fosters flexibility, providing for the differences in which the lawmakers will approach the problem and allowing for factors such as context, the relationship between the various actors and the specific purpose of the law being evoked to be taken into consideration.

This can be viewed either as strength or as an avoidance of legally addressing the true nature of the foetus. The difficult conclusion is that although the foetus is not a legal person, its intrinsic value is earned by its potential life and the law does not consider it to have value to be uniform, instead it chooses to view each case on its individual merits. There are no certainties in its approach. 3. Women and Consent To Medical Treatment. Consent is a precondition of the autonomous based decision-making process and is required to be given by any woman before medical treatment can be lawfully administered.

It is a crime to medically enforce treatment on a woman who has full capacity against her will (without her consent). It is an offence in delict or tort to do so leading to the actions of negligence, battery or assault. This applies even if the non-consenting patient dies as a result40 Having medieval origins in the law in trespass to the body and being developed in part to regulate sword fights41 and essentially an internal state of mind42 medical consent may not be completed even where there is a completed consent form, this only provides evidence of consent.

43 There is no technical need for a consent form to be signed as patient actions and behaviour can be taken to represent a valid consent, such as holding an arm out to be vaccinated. 44 Before proceeding with a medical procedure or treatment the woman must give valid consent. This consent must be given voluntarily by a woman who has capacity to consent and who understands the nature of the procedure being proposed.

Competence presupposes a cognitive ability to logically and rationally able to decide on issues of limited complexity. Capacity in relation to consent for medical purposes requires more than basic competence with the three stage test for determining adult capacity being determined as being as a requirement for the patient to understand the treatment information, the patient believing the information and the ability of the patient to weigh it sufficiently to reach a reasoned choice45.