Medical Law International

COVID-19 has significantly impacted all aspects of maternity services in the United Kingdom, exacerbating the fact that choice is insufficiently centred within the maternity regime. In this article, we focus on the restrictions placed on homebirthing services by some National Health Service Trusts in response to the virus. In March 2020, around a third of Trusts implemented blanket policies suspending their entire homebirth service. We argue that the failure to protect choice about place of birth during the pandemic may not only be harmful to birthing people’s physical and mental health, but also that it is legally problematic as it may, in some instances, breach human rights obligations. We also voice concerns about the possibility that in the absence of available homebirthing services people might choose to freebirth. While freebirthing (birthing absent any medical or midwifery support) is not innately problematic, it is concerning that people may feel forced to opt for this.

Regulatory T cells (Tregs) hold promise for cell-based therapies for autoimmunity and transplant rejection. In Canada, the potential collection, short-term banking, and transplantation of pediatric Tregs left over from surgery raise legal and policy concerns. Tregs likely fall under the definitions of “tissue” found in most provincial donation and transplantation statutes. With the exception of Alberta’s Human Tissue and Organ Donation Act, the fundamental distinction between donation of tissue primarily for transplantation and secondary donation of by-products of a medical intervention undertaken for the benefit of the donor is inadequately addressed in Canadian law. Most statutes prohibit transplantation except in accordance with their provisions and do not contemplate living donation by minors under a specific age. Provinces could amend their legislation in order to properly enable the transplantation of by-products like Tregs from infant donors. This process is relatively ethically uncontroversial, so if common research ethics and privacy concerns can be addressed, it should likely be permitted.

For the first time in over a hundred years, the world faces a devastating pandemic. Millions have been infected with the severe acute respiratory syndrome (SARS)-CoV-2 virus and thousands have died. Unprecedented global shortages of protective equipment have resulted in the infection and death of healthcare workers. The legal and ethical duty of a doctor to treat during a pandemic has evolved over time, shaped by legislation and ethical guidance following SARS and the September 11 terrorism attacks. A positive ethical obligation to treat is arguably outweighed by the inability to meet occupational safety standards and high risk of personal harm, in addition to a physician’s competing duties to future patients, their families and colleagues. Nevertheless, individuals who continue working should be acknowledged by society with accessible worker’s compensation, alternative accommodation, hazard pay and student debt forgiveness so that healthcare workers continue to serve patients, answering far beyond the call of duty.

The provision of lifesaving treatment subject to severely limited resources can lead to serious moral dilemmas and legal challenges on many levels. The issue becomes particularly acute in a crisis such as the current Covid-19 pandemic. In this context, legal questions arise regarding withdrawal of treatment, particularly withdrawal of ventilation. Israeli law prohibits withdrawal of ventilation, a situation that affects the prioritization criteria for patients who can benefit from ventilation. This issue is discussed in the context of the Covid-19 pandemic where the legal prohibition may lead to a situation in which patients will not have access to ventilators. In addition, a theoretical framework is proposed that includes not only beneficence, nonmaleficence, and distributive justice but also a relational approach to autonomy and justice. We also propose potential solutions under the current legal framework. Based on the legal analysis, it is proposed that Israeli law be amended so that more patients will have access to ventilation during a pandemic. It is argued that clinicians cannot act beneficently to prolong life if they ignore patients’ fundamental rights or the distributional effects of ethical policies. Autonomy and justice and their accompanying liberal and relational perspectives should remain relevant even during a pandemic, a time when resources are scarce.

There is a well-established common law doctrine for ascertaining information disclosure in informed consent claims within the treatment context that governs the doctor–patient relationship. But there is no such doctrine in clinical research governing the researcher–participant relationship in India. India, however, is not exceptional in this regard. Common law countries like the United States and Canada at most have sparse, non-systematised, criteria for such cases; arguably, a doctrine for research is at its nascent stage. But the adequacy of the existing criteria for settling informed consent claims in research has hardly ever been discussed. Furthermore, a specific discussion on the applicability of this ‘nascent doctrine’ to India is non-existent. This article discusses both. The article examines case law from India and other common law jurisdictions that hint at developments in this area. It suggests that Indian courts need to move abreast with other jurisdictions to better protect India’s patients and research participants.