Abstract
Introduction
I wrote Rights, Duties and the Body: Law and Ethics of the Maternal-Fetal Conflict because I was intrigued by one legal case that had a judicial hearing of just 18 minutes, yet raised quite profound issues and resulted in very serious consequences. This was Re S, English law's first ‘caesarean’ decision, which occurred 18 years ago. 1 In this case Sir Stephen Brown P had to decide whether it would be lawful for doctors to override the refusal, on religious grounds (Ms S was a born-again Christian), of a fully competent 30-year-old woman to undergo an emergency caesarean section. Without a declaration, it would have been a criminal and tortuous assault to touch the woman without her consent, even if it was deemed to be in her (or her fetus's) best interests. 2 The surgeons considered the operation necessary to save the lives of both the woman and the fetus, which was in a position of ‘transverse lie’, and the declaration was granted.
How can you write a book based on one small but significant case? One reason you try to do this is if you are looking for a PhD topic and you have to write 100,000 words about something. In the first instance, then, I wrote a PhD thesis so as to try to become an academic in the field of medical law and ethics. The book emerged some years later.
Given an academic background in philosophy, followed by law, I was naturally interested in both the ethical and legal issues the case raised. At the very beginning of my research, I began to read around to get some sense of my subject. For instance, very early on I read Ian Kennedy's ‘A Woman and Her Unborn Child’, 3 and Ronald Dworkin's influential Life's Dominion: An Argument about Abortion and Euthanasia, which had just been published. 4 As I read further, I began to see that the case of Re S was part of a larger set of extremely interesting moral and legal issues. So, the book that I subsequently wrote explores the moral and legal rights that a pregnant woman has in pregnancy, with particular regard to the situation in which she wishes to refuse medical treatment that is, apparently, needed by the fetus she is carrying and what moral and legal duties, if any, she owes to the developing fetus. I contrast this scenario with the context in which she might unintentionally harm the fetus during her daily life, for instance by not taking sufficient care to cross a road. (Yes, there is a case on this. 5 ) The topic overall is actually a very large one and I was fortunate to have quite some time to work on it.
One reason that it was large was because I tried to tackle the issues from both a philosophical and legal perspective. So the book, which I discuss in more detail below, was about one-third ethical in content and two-thirds legal. An important component of the book was also the task of making links between the ethics and the law because I was keen to try to justify the law (as it later developed) to allow maternal autonomy.
Another feature of the topic was that it took me around the common-law world, in particular to the United States, to Canada and Australia. Again, this magnified Re S considerably. Prior to Re S, the sparse but highly relevant cases had all occurred in the USA. So I found myself enthusiastically reading cases from, for instance, Georgia, Illinois, the District of Columbia, the Northern District of Florida (Tallahassee Division) and so on. In turn, this led me to a cluster of related case-law, for instance on abortion, or the question of parents refusing medical treatment for their born children. On the abortion issue I had to engage with the highly significant case-law of the US Supreme Court, most obviously the leading case of Roe v. Wade,
6
but also a string of cases leading up to the then most recent decision of Planned Parenthood of Southeastern Pennsylvania v. Casey. In that case the joint opinion observed that ‘[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life’: before then I had no idea that law could be so interesting.
7
I also tracked down case-law about parents refusing medical treatment for born children, finding the wonderfully named Prince v. Massachusetts, in which Rutledge J notably observed:
8
‘Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.’
Should that apply to a pregnant woman refusing a caesarean section for religious reasons? That was something I had to try and decide.
My legal trail led me to Canada and Australia too, particularly for case-law about a pregnant woman's possible legal duties to the fetus, including beyond the treatment sphere. Should she owe a duty to the fetus in the way she crossed a road? Should she owe a duty to the fetus not to harm it through her work, or in her recreational time? What about in the way she drives her car?
Before I outline the book and what it tries to do, I would like to mention one ‘maternal–fetal conflict’ case in particular which, I think, is likely to provoke thought in anyone, that of Re A.C. 9 This was the District of Columbia case in which a woman with terminal cancer, Ms C, was in about the 25th week of her pregnancy and had initially agreed to palliative treatment to try to keep her alive until about 28 weeks, so that the outcome for the fetus would be optimized. Her condition then rapidly deteriorated and it was found that she had at best two days to live. The hospital treating her sought judicial authorization that it would be lawful to perform a caesarean on her despite her apparent refusal of this, to try to rescue, as it were, the fetus from her body. The court permitted this course of action and a caesarean was performed. Very sadly, both Ms C and the child died, Ms C after two days, the child after a few hours. Following a great deal of publicity and campaigning, a later court overturned the first court's decision and decided that a competent pregnant woman had the right to refuse any treatment needed by the fetus, ‘in virtually all cases’. 10 But what did ‘virtually all cases’ mean? A door had been left open and I spent what must have been months of my life wondering what lay behind it – what, if any, might constitute the exceptional circumstances this court had failed to define.
Throughout the time I spent working on this topic, I was haunted by Ms C's case. I tried to acknowledge this in my book at one point, by quoting something that Ms C's mother had said after the case. Reading it always used to give me goose bumps, and it still does:
11
‘[T]he hospital staff told us we were needed at a short meeting. They did not tell us it was a court hearing. It took all day. Poor Angie, first she's told she's dying and the next thing everybody abandons her and leaves her alone in her room… Then even before the hearing was over they started prepping her for surgery. She was already in so much pain. We told the judge she didn't want the surgery, that we didn't want her to suffer anymore, that we didn't think the baby would live. But they didn't listen. After the surgery and after they told her the baby was dead, I think Angie just gave up.’
After I quoted this in my book, I tentatively wrote:
12
‘It is at this point that I would like to note that at some level, at some time, there may be a legitimate place for emotional considerations in legal reasoning. The suggestion here is that the legal decision to operate on Angela Carder without her consent was so poor partly because it did not attend to the physical and emotional reality of her predicament or of what was involved in ordering a caesarean upon her. I cannot develop this point here, but the contribution that the emotions can make to wise legal judgment has been discussed by others.’
What I said here was, of course, very vague and I have not yet had the chance to work on the enormous point to which I alluded, but I hope that one day I will. In the meantime, perhaps it is worth drawing attention to this here in case I never get that chance.
The case of Re A.C., of all the caesearan cases, perhaps raises most acutely the question of whether it could ever be right to impose surgery in this way. This was one of the several issues I explored in the book, which I shall now outline.
The book itself
What it tries to do
One of the exciting things about writing the book was that the law unfolded before my eyes. This was also somewhat nerve-wracking: initially I had a thesis to write, after all, and I did not have infinite time. So, for instance, Re S was followed by a series of decisions which gave something of the impression that a woman's competence in labour might generally be doubted. 13 There was also the extraordinary case of St George's Healthcare NHS Trust v. S, R v. Collins and Others, ex parte S), 14 in which a woman was actually detained under the Mental Health Act 1983 and operated on against her will. This spate of legal action ended with something of a denouement, the case of Re M.B. in 1997, in which the English Court of Appeal decided that a competent pregnant woman had the right, for any reason or none at all, to refuse medical treatment needed by the fetus, even at the point of birth. 15 Lady Justice Butler-Sloss, looking to the surrounding and relatively restrictive law on abortion, suggested that this might be rather illogical but that it must, nevertheless, be the case because the fetus is not a legal person.
However, apart from emphasizing that the fetus is not a legal person, Re M.B. did not consider the question of why a pregnant woman – who is not identical to one who is not pregnant – should have the same right as any other competent woman to refuse medical treatment. I therefore saw a central task of the book as being the explanation and justification, as far as possible, of the legal right that had been granted in Re M.B.
There were three key reasons why this seemed terribly important to me. One reason concerned the extent to which competence had been in issue in the caesarean cases and the way the legal test to rebut an adult's presumed competence (under the Re C test, 16 later under the Mental Capacity Act 2005), which includes a ‘weighing element’, may play out in this context, for instance as maternal concerns or risks versus fetal medical needs. Thus, despite the inclusion of a ‘diagnostic threshold’, so that the presumption that an adult has capacity can only be rebutted if a mental impairment or disturbance is affecting the ability to make a decision, 17 it is not inconceivable that third-party judgements about the apparent ‘irrationality/immorality’ of a woman's reasons for refusing medical treatment may illegitimately come to bear on the determination of her competence to decide treatment issues for herself.
A further reason why an attempt at a moral justification of the law seemed both appropriate and important was that in Re M.B. Butler-Sloss LJ sanctioned the use of persuasion, but offered no guidance on this issue. This is very problematic given that excessive use of persuasion might itself breach a pregnant woman's rights in this context. By comparison, the place of persuasion in relation to the legal right to abort has been the subject of intensive scrutiny in US Supreme Court case-law. 18 In England, by contrast, one health professional interviewed after Re M.B. described how in most cases there was a consensus of views about treatment between pregnant women, obstetricians and midwives, but in those few cases where this was not so ‘heavy duty persuasion usually works’ although, at the end of the day, the ‘woman's wishes’ must be accepted. 19
Another reason concerned the great publicity that this series of case-law had had, and the importance, as it seemed to me, of explaining and justifying the law in a way that undercut the polarizing tendency of much of the reaction to these cases and a large portion of the literature on point. This polarization was characterized by two main views – on the one hand that a pregnant woman must always be ‘right’, so that we cannot even say that she owes some moral duties to the fetus; and, on the other, that the fetus has rights which must necessarily negate all maternal choices once a pregnancy has begun, a position that ignores the difficulties a woman may face in pregnancy. These views are inherently polarizing because they tend to entrench the views of those adopting the ‘opposing’ position. I found this polarization not only simplistic, but in some ways also disturbing.
How it tries to do this
The book is divided into three parts: Part I looks at the ethics of the maternal-fetal relationship (Chapters 1 and 2); Part II looks at what I call ‘the legal arguments from rights’ (Chapters 3 and 4); and Part III looks at the ‘legal arguments from duty’ (Chapters 5, 6 and 7). I shall now discuss a few key points from these chapters.
When I started researching the ethics, I realized that while a great deal had been written about abortion and the moral status of the fetus, there was very little about the situation of a pregnant woman's refusal of medical treatment in pregnancy. The work that forms Chapter 1 (of Part I) therefore engaged with and developed key arguments about the moral status of the fetus and tried to apply this to the situation of treatment refusal in pregnancy. I found the relatively extreme positions that the fetus's lack of moral personhood therefore means no duties are owed to it on the one hand, or that the fetus's potential give it absolute rights from conception, both unconvincing and unsatisfactory in various ways. Instead, the gradualist account that I endorsed implies that the more advanced the fetus, the greater the justification (or the more serious the reason) must be on the woman's part for refusing treatment needed by the fetus, such as delivery by caesarean section or a blood transfusion. It is an approach that allows for an interplay of interests to some degree, and this seems appropriate to the complexity of the maternal-fetal relationship. I refined this argument to apply to the ‘future child’ who may be born harmed.
But how do we judge whether a woman's reasons are serious? Turning to the woman's interests in the treatment setting (in Chapter 2), arguably the moral right (of any competent adult generally) to refuse medical treatment is underpinned by a person's moral interests in bodily integrity and in self-determination (understood here as an interest in making important personal choices). Since at least a voluntarily pregnant woman has chosen to bring a child into the world, it may be that what are usually thought of as absolute moral rights for non-pregnant adults might reasonably be thought of as prima facie rights in her case, because she also has at least prima facie moral duties to the fetus or the future child. In many ways, then, the problem of the ‘maternal-fetal conflict’ is a problem that lies at the interface between rights and duties, in the sense that we need try to establish when, if ever, an area of interest (such as in bodily integrity) that is protected by a prima facie right, should ‘give way to’ or ‘be subject to’ a duty. Put another way, we need to consider how extensive her prima facie rights are or whether she does in fact have the moral duty, on occasion, to have medical treatment beneficial for the fetus.
In effect, my approach opens up scope for reflection on the moral quality of her decision to exercise her prima facie moral rights on any given occasion. When we engage in this exercise, however, what we actually see is that judging seriousness (in non-trivial cases) is inherently problematic because the reasons a woman has for refusing medical treatment will be very personal. Indeed, since the medical treatment context generally invokes a patient's very personal interests and rights in self-determination and bodily integrity – and so a woman's reasons for refusing treatment will typically be related to the way the proposed treatment impacts on these interests – then how would we judge when, if ever, a woman has the duty – moral or legal – to accept medical treatment for the fetus? In my view, this is the problem, in effect, of the maternal-fetal conflict within the medical treatment context and it lies at the heart, not only of an ethical analysis of the conflict, but also of the relevant law. As I see it, then, the maternal-fetal conflict is a problem which lies at the interface between rights and duties, both moral and legal. (This is reflected in my structure, with Part II discussing the legal arguments from rights, and Part III the legal arguments from duty.) So on this analysis there are important conceptual links between the ethics and the law which mean that the problem is not primarily one inhering in the legal enforcement of moral obligations.
I explored this ‘interface between rights and duties’ in Chapter 2, when I turned to consider a woman's moral interests in the treatment setting. As I have suggested, in practice it may well be very difficult, and sometimes impossible, to judge whether the decision to refuse medical treatment is morally justifiable. To explore this, I tried to analyse a pregnant woman's relationship to the fetus in two ways: first, in terms of her rights and second, in terms of her duties. Thinking about the extent of her rights, I focused upon her interest in self-determination and the question of religious reasons for refusing medical treatment, noting the difficulties of judging the seriousness of such reasons (from outside the perspective of a religious faith) and the attention that must therefore be paid to the place of religion within such a woman's life. To look at the problem from the perspective of a woman's possible duties towards the fetus, I focused on the idea of a duty being owed ‘through the body’, for instance when a caesarean section is apparently needed by the fetus. I sought to show that we encounter considerable difficulties if we try to determine the existence and extent – in effect, the reasonableness – of a very bodily (indeed extraordinary) duty, to aid another. I contrasted this kind of duty with both negative and positive duties towards others within the realm of what I dubbed ‘general conduct’, the reasonableness of which may be much easier to determine.
I also had to deal with the point that the women in these cases are typically voluntarily pregnant, and the objection that they therefore had absolute positive duties entailing large and even extraordinary burdens to the fetus they were carrying. I suggested that biological facts at the heart of our social life – in essence the point that the job of reproduction falls principally on women – may here lessen, rather than strengthen, the positive moral duties to promote fetal welfare imposed upon pregnant women in this regard. This would mean that her positive duties to assist the fetus are less stringent than the negative ones not unintentionally to harm it.
My discussion in Part I was meant to ground the two subsequent discussions of a pregnant woman's legal rights and the idea of her legal duties which generally fall into Parts II and III, respectively.
So in Part II, I considered the maternal-fetal conflict cases within the framework of arguments from legal rights. While the appeal judgements in the key maternal-fetal conflict cases were now broadly in line with the law as it relates to any competent adult, a pregnant woman is clearly not identical to a non-pregnant patient, as refusal of treatment in her case affects an unborn other. In turn, this begs questions about why – given that it is her choice (usually in these cases) to have a child – she should have the same rights as the non-pregnant patient, notwithstanding her strong interests in self-determination and bodily integrity. At law, the ‘technical’ answer is that the fetus is not a legal person, as shown in Chapter 3, which analysed the maternal-fetal conflict cases and considered the questions they raised. But to assert simply that the fetus is not a legal person can do nothing, without further explanation, morally to justify the legal position.
To try to do this, in Chapter 4, I delved into and tracked the earliest case-law on treatment refusal generally, trying to understand the interests and values at stake in the development of the right (of any competent adult) to refuse medical treatment. I also explored the interests and values at stake in the abortion context. And I argued (looking explicitly at US law) that we can understand the state interests invoked in relation to these rights – in the preservation of life and in the potential life of the fetus – in a way which theoretically supports a woman's right to refuse treatment during pregnancy. (These interests are explicitly present within US law and largely implicitly so in the English setting.) I argued that the public interest these state interests represent amounts to a concern that a woman's reasons for refusing medical treatment are serious – hence truly founded in her moral and legal interests in self-determination and bodily integrity – so that she exercises her rights with meaning and care. Whether this interest is satisfied in practice will depend upon a pregnant woman's reasons for refusing medical treatment: in the unlikely event that these are apparently not serious and considered, there may be limited scope for the involvement of others in her treatment choice. Significantly, the fact that the cases concerned women with serious reasons for refusing medical treatment needed by the fetus indicates the extent to which the maternal-fetal conflict usually involves serious maternal reasons. Overall, this may help us feel that it is right that a pregnant woman now has the legal right to refuse medical treatment.
The idea that a pregnant woman has the legal right to refuse treatment needed by the fetus of course implies that she does not have the legal duty to submit to treatment on its behalf. But in Part III, I analysed the arguments about possible legal duties in their own terms with reference to further arguments from the law of abortion, tort and rescue (an aspect of the law of tort). This meant that the legal arguments in Parts II and III were teased out in related but distinct ways.
In relation to abortion, for example, various ‘technical’ arguments were addressed in Chapter 5, such as whether restrictions on abortion following fetal viability could be construed as mandating the imposition not just of a negative duty not to abort but also of affirmative obligations to accept medical treatment for the fetus. Turning to the possible relevance of the legal tort of negligence in Chapter 6, I tried to show echoes of my analysis of the ethics of the conflict in Part I. There, to recap, I had explored the difficulties of subjecting the domain of, for instance, the religious reason to a duty and of determining the reasonableness – hence the existence and extent – of a duty seriously to aid another through one's body (as in the caesarean cases). In turn, this analysis grounded aspects of the reasoning relating to the difficulties of determining a ‘standard of care’ for the purposes of trying to use the tort of negligence in pregnancy. Reassuringly, I also found within the legal cases a reflection of my moral arguments relating to what I had called the ‘social context’ of pregnancy. As the Supreme Court of Illinois strikingly observed in Stallman v. Youngquist, unlike the third-party tortfeasor whose conduct may harm the fetus, it is a pregnant woman's ‘every waking and sleeping moment which, for better or worse, shapes the prenatal environment which forms the world for the developing fetus’, something that is not a ‘pregnant woman's fault’ but ‘a fact of life’. 20
Indeed, I also tried to show important differences – of principle and policy – between the ideas of maternal and third-party liability for prenatal harm or death. These were founded on distinctions I had in fact made in Part I between maternal choices within the treatment context and those which are part of a woman's general conduct: in the latter case she may harm the fetus or future child in a manner more akin to that of a ‘detached’ third party. In this way, since it is unlikely that specific rights – and so highly personal interests and reasons – are implicated, we may be able to say that a moral duty lies. However, policy considerations count against the imposition of a duty of care in negligence. The final Chapter 7 on aspects of rescue law tried to identify certain moral but also legal and policy problems in coerced, especially surgical, medical treatment of pregnant women. The chapter also addresses the hypothetical question of what we should do when faced with maternal refusals which appear trivial. For various reasons that I explored, although discussion and persuasion may be appropriate in such circumstances, coerced treatment is not.
After several years during which I had seemed to think of little else, I came to the conclusion that it is appropriate that the law protects a pregnant woman's right to refuse medical treatment. This position values pregnant women. In the unlikely event that a woman apparently lacks serious reasons for her refusal of treatment there should be a place for discussion and, very rarely, persuasion in relation to treatment decisions. In such a case, her prima facie moral right has ‘given way’ to the claims of the fetus, and she would unjustifiably claim and exercise a moral and legal right to refuse the treatment. Discussion, counselling and persuasion in such a case would acknowledge the value of fetal life – despite, that is, its lack of legal rights – and the potential harm to the future child where a treatment refusal would result in harm rather than fetal death. Overall, I hope that it will be the most beneficial approach for unborn children.
I still hold by these conclusions, though I do worry particularly about the ‘future child’ who might later be born harmed in some way. But the problem is that, at the moment the treatment is needed, the future child lives inside the woman and her interests in self-determination and bodily integrity are necessarily implicated when treatment such as a caesarean section is in issue. Reflecting on this worry, I hope that the way I tried to show the complexity of the topic does some justice to the interests both of the fetus and the future child, even though my analysis ultimately upholds maternal autonomy within the law, while acknowledging the hopefully rare occasions when a woman's refusal of medical treatment is not for reasons of great importance for her, so that morally her choices might, on occasion, be unjustifiable.
Lastly, what about my title – Rights, Duties and the Body…? This came into my mind on a break in Prague just after my viva and it stuck with me as I worked on transforming the thesis into a book. I am not so happy with the sub-title – Law and Ethics of the Maternal–Fetal Conflict – but it proved the only workable (that is, sufficiently informative) one. I worry that it implies I think I have it ‘all covered’. But never mind. And my cover (Johannes Vermeer, Brieflezende vrow)? When it came to choosing a cover, I wanted to avoid obvious images of the fetus in utero. I wanted something that would capture, for me at least, the seriousness of the topic, the degree to which I had reflected on it and something of the subtlety of the maternal–fetal relationship. I do not know if I subconsciously had in mind the image I ultimately chose, but I typed into Google Images ‘woman and window’ and this was among the first images that came up. I knew the painting and, as a choice for my cover, it was love at first sight.
Rights, Duties and the Body: Law and Ethics of the Maternal-Fetal Conflict.
Oxford and Oregon: Hart Publishing, August 2002. 480 pages. ISBN-13: 9781841131344. £74 (hardcover).