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Rethinking Foetal Personhood after the Refusal of Medical Treatment

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About The Author

Sarah Barber (Guest Contributor)

Sarah is an aspiring barrister. She studied law at the University of Southampton. Sarah recently completed the BPTC at the University of Law, London. She has a particular interest in family law issues and now works for a local authority providing legal support in care proceedings. Sarah's other interests include singing for the Military Wives Choir and writing a parenting blog.

We have the duty to protect the life of an unborn child.

Ronald Reagan

Debates over foetal personhood usually have far-reaching consequences. As the abortion debate in America shows, they are invariably passionately fought. From a legal perspective, they can have controversial and significant impacts upon a number of areas, including family and criminal law.

However, the concepts of foetal personhood and foetal rights are rarely discussed in the context of a mother’s right to refuse medical treatment. Here, the rights and interests of the mother and foetus are necessarily in conflict and the law must strike a balance between the two.

The principles at play and the considerations relevant to resolving this conflict can be best illustrated by a consideration of the mother’s right to refuse an emergency Caeserean section at the point of pregnancy when the foetus is of viable gestation.

With this in mind, this article will consider whether the present law on this issue is satisfactory, arguing that it is clear from the provisions of Abortion Act 1967 (AA 1967) and the Offences Against the Person Act 1861 (OAPA 1861) that the law is ill-equipped to protect a foetus where a mother wishes to refuse an emergency Caeserean section. It advocates the introduction of a “best interests” test and the extension of the principle of necessity as to best way to remedy these defects.

The Legal and Linguistic Background

Key Definitions

Discussions of this area of the law necessitates the use of language that is likely unfamiliar to many, or that possesses meanings that are not definitively settled. In light of this, it is important to be clear what is meant by the following:

  • Foetus: The unborn organism in the womb at any point from its conception to its birth.
  • Viable Foetus: A foetus that has been passed the Viable Gestation Age.
  • Viable Gestation Age: The point in time at which the foetus reaches the minimum age that the scientific community expects it is likely to survive. This is, on average, the 24th week of pregnancy.

The Relevant Law

The Abortion Act 1967

The AA 1967 demonstrates Parliament’s understanding as to what constitutes the Viable Gestation Age. Following a reduction implemented by the Human Fertilisation and Embryology Act 1990 (HFEA 1990), Section 1(1) of the AA 1967 now sets the upper limit for abortions at the gestational age of 24 weeks; a reduction of four weeks from the original upper limits of 28 weeks’ gestation.

The reduction in this upper limit implemented by the HFEA 1990 was intended to avert controversy; Parliament did not want to be seen to sanction abortions at a stage of gestational development for which there is broad medical consensus that the foetus is capable of surviving outside the womb.

Offences Against the Person Act 1861

The law governing a patient’s right to refuse medical treatment comes from a mixture of common law and the OAPA 1861. As Fagan v Metropolitan Police Commissioner [1968] shows, the fundamental common law principle of inviolability that – explained by Robert Goff LJ in [1984] 3 All ER 374 – has long been applied in a way that means that the apprehension of “immediate and unlawful personal violence” will constitute an assault. Under the OAPA 1861, an assault that causes actual or grievous bodily harm is an offence.

In the context of medical procedures, a medical professional would be guilty of an offence under the OAPA 1861 if they were to operate or conduct a procedure on a patient without their consent. At present, a patient with capacity has the absolute right to refuse medical treatments against the advice of medical professionals, subject to the principle of necessity.

However, when the medical procedure affects not only the patient (in this context, the birth mother) but also the unborn child, further Acts of Parliament are relevant: the Surrogacy Arrangements Act 1985 (SAA 1985) and the HFEA 1990. These Acts – as amended by Section 33 of the Human Fertilisation and Embryology Act 2008 – ascribe legal parenthood to the gestational mother rather than the woman who all relevant parties (including the gestational mother) intend to be the mother following the foetus’ birth.

This is a controversial position: it means that the woman carrying and giving birth to the foetus has the absolute right to refuse medical treatment, regardless of the intended mother’s wishes. This is so, even if – as is permitted in the US – a contract compelling the gestational mother to carry the foetus to term and allow it to be born has been made. Clearly, this has far-reaching consequences for the intended mother, the gestational mother, and the foetus itself.

The Principle of Necessity and Protecting Foetal Rights

The Principle of Necessity

Authority for, and an example of the application of the principle of necessity comes from the case of Re T (Adult: Refusal of Medical Treatment) [1992] EWCA Civ 18. Here, T – a pregnant Jehovah’s Witness – was admitted to hospital following a road traffic accident. In the presence of her mother, T refused to consent to receiving a blood transfusion (as it was contrary to her religious beliefs), and subsequently signed a form (which was not explained to her) signifying this refusal of consent.

However, T’s condition worsened and she went into an early labour. The doctors elected to carry out a Caesarean section to save the child. The child that was subsequently delivered was stillborn. The medical procedure also caused a further deterioration in T’s own condition, which the doctors felt necessitated a blood transfusion.

Thus, the doctors applied to court for a declaration as to whether it would be lawful to administer a blood transfusion. The Court of Appeal held that T’s earlier refusal of consent did not extend ‘to the question of whether or not she should receive transfusions in the extreme situation which had arisen’; she could not have anticipated that she would end up in the condition she was now in. It was therefore concluded that the doctors were therefore justified in treating T against her wishes in line with the principle of necessity.

Using the Principle of Necessity to Protect Foetal Rights

As was noted in the landmark case of Re A (Conjoined Twins) [2001], the principle of medical necessity is one which has been debated heavily amongst academics. When exactly a situation will fall under is ambit remains unclear.

This article, however, argues that the principle of necessity is a useful tool for resolving the conflict between foetal rights and the rights of the pregnant woman; it might be used to justify a medical professional’s decision to ignore a mother’s refusal to agree to treatment that would benefit, or even save, a Viable Foetus.

The application of the principle of necessity in this way is not completely novel, as illustrated by St. George’s NHS Healthcare Trust v S [1998] 2 WLR 936 . Here, a mother at 36 weeks’ gestation – thus, carrying a Viable Foetus – was diagnosed with preeclampsia, a condition involving hypertension and fluid in the mother’s urine that can lead to severe complications for both the mother and the foetus during birth.

The mother was advised that the danger posed to both herself and her baby meant she needed urgent medical attention. However, she refused a delivery by Caeserean section and insisted upon a natural delivery of the foetus that would have, almost inevitably, resulted in its death. After being admitted to a mental hospital for assessment, she was transferred to St. George’s Hospital against her will where – invoking the principle of necessity to justify their actions – doctors delivered the foetus by Caeserean section.

Justifying This Use of the Principle of Necessity

The role of the principle of necessity is to protect vulnerable individuals from their own decisions. However, at present, the fact that the law does not ascribe personhood to a foetus of any gestation means the principle cannot be employed to protect a foetus. This applies even to a Viable Foetus whose survival outside of the uterus is highly likely, and to a ”full-term” foetus at 37 weeks’ gestation whose chances of survival are almost certain. Even at 40, 41 or 42 weeks’ gestation (the normal length of a pregnancy where the foetus will be fully developed), the foetus does not have legal personhood, and thus cannot rely on the principle of necessity, until it has been born.

The anomaly of this approach is evident when it is compared to the law as it applies more generally to medico-patient relationships: as Doyle v Wallace [1998] confirms, a medical professional is held liable at common law for failing adequately to treat a patient with anything more than a 50% chance of survival. The chances of a foetus surviving beyond 30 weeks’ gestation is higher: it has a 95% chance of survival.

In light of this, it is clear that a medical professional must be failing to adequately fulfil their Socratic Oath to ‘do no harm’ to a patient if harm is caused to an unborn foetus at this stage. Reform is required to reflect this principle and to ratify the statute with the common law.

Proposals for Reform: The Doctrine of Best Interests

Before the foetus is born, its survival is dependent on the survival of the mother. Under the doctrine of “best interests” that this article proposes, the health of both the foetus and the mother should prevail. This means that, where the lives of both can be protected, they should be.

At present – given the mother possesses a seemingly unassailable right to refuse medical treatment that even the principle of necessity cannot overcome – this “best interests” approach is not reflected in the law. Indeed, previous attempts to give a foetus such protection by making the foetus a ward of court have failed: in Re F [1988] 2 WLR 1288, the court held that because a foetus was not a person, such a course of action was not permitted by law.

Ultimately, by failing to ascribe a Viable Foetus the positive right to be born, English law is failing to take account of the best interests of both the mother and the foetus. Arguably, this puts it in breach of international law: although not directly implemented into English law, the preamble to the United Nations Convention on the Rights of the Child 1989 (the UNCRC) creates an obligation on states to ensure the health and safety of children, including those in the womb. It notes that children require:

[S]pecial safeguards and care, including appropriate legal protection, before as well as after birth.

English law should place due weight to the approach taken in the UNCRC when regulating pregnancy in situations where an emergency Caeserean section is required to save the life of the foetus. The proposed “Best Interests” approach would just do that.

The Effect of the Proposed “Best Interests” Approach on Abortions

The AA 1967 currently allows for abortions after the foetus has reached Viable Gestation Age in three sets of circumstances:

  • It is required to prevent grave permanent injury to the physical or mental health of the pregnant woman;
  • The continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
  • There is a substantial risk that the child, if born, would suffer from such physical or mental abnormalities as to be seriously handicapped

Under the proposed “best interests” approach, abortions in these three defined and limited circumstances would still be available. These three circumstances reflect situations in which a best interests approach is no longer possible: it is no longer possible to protect the best interests of both mother and foetus in these limited circumstances and a best-interests approach, these abortions would still be available.

Conclusion: Recommendations for Reform

Three changes to the current statutory scheme governing this area of the law are recommended. They aim to achieve the best outcome in both a medical and socio-legal context for the foetus and the mother. They are justified in relation to the existing legal and ethical obligations placed on healthcare professionals and mothers in relation to the care and wellbeing of the child in the womb.

Recommendation One: A Positive Right to Be Born

A specific provision should be inserted into the HFEA 1990 which states that:

A pregnancy which has exceeded its 24th week shall confer upon the foetus both a legal right to be born and status as a Viable Foetus with enforceable rights of personhood against the gestational mother. The rights and status conferred shall be enforceable in circumstances where the life of the foetus is endangered and birth via Caeserean section is considered in the best-interests of the foetus, and thus shall not affect the gestational mother’s right to seek a termination under Section 1(1) of the [AA 1967].

Recommendation Two: The Principle of Necessity

A specific medical exception should be written into the OAPA 1861 which states that:

Where a medical professional performs an emergency Caesarean procedure on a pregnant woman, and where the pregnancy has exceeded its 24th week – subject to [Recommendation One] – this shall not constitute an assault regardless of consent being granted or denied for the procedure to be completed.

Recommendation Three: Limits on the Principle of Necessity

The actual performance of the procedure against the wishes of the gestational mother in line with Recommendation Two should be subject to approval by two doctors and only apply where labour is already in progress or there are other medically exceptional circumstances. This will protect the gestational mother from any grossly negligent interference with her autonomy.

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Tagged: Criminal Law, Family Law, Human Rights, Rule of Law

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