Feature

Whose pregnancy is it anyway?

Can an unborn baby take its mother to court? Recent cases suggest that the right of a pregnant woman to refuse treatment is being called into question, says Julie Stone

All competent adult patients have the right to refuse medical treatment. This right is protected by law. Even after they have given consent, patients may change their mind and withdraw their consent, for whatever reason. According to the law, health care professionals who treat in the absence of consent may commit a battery. Yet several recent cases indicate that professionals may be entitled to treat certain reproductive choices in a different light.

Department of Health guidance says that the principles of consent in maternity services are the same as in other areas of medicine. Care should be discussed with the woman, preferably early in pregnancy, and the patient may change her mind at any stage, including labour.

In the UK, doctors are only obliged to disclose the amount of information about any given procedure that a reasonable doctor would disclose. They may hold back information which they feel would harm the patient unduly. Elsewhere the legal duty of disclosure is set by the amount of information a reasonable patient would want, or that the particular patient wants.

Most reproductive decisions are made by healthy, competent women. Doctors will rarely be justified in withholding information on the basis that patients are too ill or confused to make effective choices. But important developments in the law relating to consent cast doubt on a woman’s ability to make certain medical decisions about her pregnancy which might jeopardise her fetus.

Last year the Court of Appeal affirmed that a competent patient has a right to refuse treatment. The case, referred to as Re T, involved a 20-year-old woman, who had a car crash when she was 34 weeks pregnant. Her baby was stillborn, and the woman was likely to need blood transfusions. The woman, a Jehovah’s Witness, refused to consent to blood transfusions.

The court affirmed that a competent adult can refuse treatment, even if the likely outcome is that she will die. But the exception is where the choice might lead to the death of a viable fetus. If such a case were to arise, the court said the patient might not have an unfettered right to refuse medical treatment.

The disturbing implication is that pregnant women may be treated as being in a wholly different category to other women. Specifically, it raises once again the question of whether a fetus has rights independent of its mother, and whether those rights are protected by law. If the fetus has legal rights, arguably the law would be entitled to authorise measures to protect those rights, if necessary by submitting women to non-consensual treatment.

What is at issue is not the moral status of the fetus, but its legal status. Most people would accept that a mother has a strong moral duty towards her fetus, increasing with gestational age, to protect it from harm. But moral duty is not the same as a legal duty, which can be enforced by one party against another. A series of UK cases has consistently held that a fetus does not have an independent legal existence until it is born and is separate from its mother.

In 1978, a man went to court to try to stop his partner from having an abortion. The judge held that a fetus has no right of action until birth.

The matter was raised again in 1988 when the court was asked to make an unborn child a ward of court. The pregnant woman, who had a history of mental illness, was deemed to be an unstable character. She already had one child who had been taken into care. The Court of Appeal rejected this application. It refused to restrict a woman’s liberty during pregnancy on the basis of her past behaviour. It said that if the law were to be extended in this manner, this would be a matter for Parliament and not for the courts. Not least of all, the court recognised the insuperable difficulties in seeking to enforce any order to protect an unborn child against its mother.

Yet last year, for the first time in the UK, the most senior family law judge authorised a hospital to perform a caesarean section on a woman against her expressed wishes. The case, known as Re S, concerned a 30-year-old woman admitted to hospital in spontaneous labour. She had ruptured membranes, was six days overdue, and her child probably would have died had she not had a caesarean. The woman, who was unquestionably competent, refused consent on religious grounds.

After an emergency hearing, the caesarean was authorised despite the patient’s refusal to consent. The justification given by the judge was that these measures were in the vital interests of the patient and her unborn child.

For authority, he relied on a US case called Re A C. This involved a woman with cancer who became pregnant while in remission. During the pregnancy, another malignancy was discovered, and the hospital decided that, in the interests of the 26-week-old fetus, they should deliver it by caesarean. The mother and her family were told that surgery would, in all probability, shorten her life. When asked if she wanted the procedure to be performed, the patient said she did not. Despite her objections, a caesarean was performed but the baby died. Two days later the woman died.

The reliance on this case has been heavily criticised, as the ultimate ruling in that case was that enforced caesareans would be unlawful in all but the most exceptional circumstances. It said that where a patient is pregnant with a viable fetus and there is a risk of death, the question of what is to be done is to be decided by the patient, unless the patient is incompetent or otherwise unable to give consent, in which case the court, using a process known as substituted judgement, must ascertain what the patient would have wanted.

To assert that coercive surgery infringing a person’s fundamental religious beliefs is in that person’s best interests is unacceptable. The consequences of forcing a woman to undergo a procedure to save the life of her unborn child raises serious ethical questions.

We should be extremely cautious before turning moral responsibilities into legal duties, which can be backed up, if necessary, by coercion. If one adult cannot be forced to undergo a medical procedure on behalf of another adult, even in a situation where they are bound by family ties and might morally be expected to do so, it is unreasonable to force a woman to submit to treatment on behalf of her fetus.

The tragic outcome of Re S was that the baby died, as in the American case, and the decision was not appealed. The case sets a dangerous precedent and obstetricians and other health care professionals would be unwise to rely on it as authority to rush to court if faced with a non-compliant mother. It would be unfortunate if this case led pregnant women to believe that such measures can, and will, be taken against them if they do not comply with their obstetrician’s advice.

In high risk cases, there are serious issues of obstetric management which need to be addressed. Significantly, the UK caesarean section rate rose in 1992 to over 13 per cent. Evidence suggests that obstetricians are as influenced by the fear of being sued as they are by improved fetal survival rates.

The danger is that one isolated case will shift the debate away from questions of responsible obstetric management and turn this into another lobbying ground. Terms such as ‘maternal-fetal conflict’ polarise the issue into an adversarial situation, which does not exist. Women do not flippantly jeopardise the safety of their fetus at the point of birth. Where women are refusing to give consent, this will presumably be for strongly held reasons, which should be respected.

The threat of coercive measures will have a disastrous effect on the doctor/patient relationship, and will drive women away from primary care and the antenatal care that they need. It will particularly alienate groups of women, such as IV drug users, who already feel misunderstood and adversely judged by the medical profession.

If the prospect of coercive measures such as strapping women down or employing penal sanctions seems far-fetched, we need only look to the US, where drug-taking pregnant women may be imprisoned, and where there is much reported evidence of non-consensual treatment, especially of black and Hispanic women.

Coercive measures, which infringe civil liberties, are incompatible with maternity care. Education, support services and respect for patients with different cultures, or with strongly held religious beliefs, will enable all pregnant women and the professionals treating them to co-operate in a mutually beneficial way.