Balancing Conflicting Interests During Pregnancy: Ultrasound V. Reality

Author:Anthanasia Hadjigeorgiou
Position:LLB (Hons) (University College London), LLM Candidate (Cambridge University)
Pages:33-46
[2010] COLR
BALANCING CONFLICTING INTERESTS DURING PREGNANCY:
ULTRASOUND v. REALITY
Anthanasia Hadjigeorgiou *
ABSTRACT
The article examines whether it is morally cor rect and legally possible to police a pregna nt
woman’s behaviour in order to protect the foetus. The first part of the paper discusses
whether a pregnant woman should be forced to have a caesarean section; it proposes a
‘modified competency test’ which begins with the rebuttable presumption that the competent
woman ca n refuse the operation if she offers at least one r eason for her decision. The second
part of the pa per asks what should be the law’s reaction in cases where the pregnant addict
causes serious injury or death to the foetus. There can be a criminal prosecution, civil
liability or taking the baby from the mother as soon as she gives birth. Finally, a ‘middle
solution’ is proposed which encourages women to come forward so that they can be
rehabilitated. In both debates the pregnant woman should be the one who decides a bout her
own future and society should only have a residual role; only this method will adequately
protect both the mother’s and the foetus’ interests.
A INTRODUCTION
The patient‟s right to control her body is so well established, at least in theory, that it has
almost become a mantra. If a paranoid, schizophrenic man can decide whether he wants his
leg amputated or not1 then all competent people have the right to decide whether anyone can
touch their body, no matter the consequences. This is both legally and morally correct;
however, does the same principle apply to pregnant women? In particular, should a pregnant
woman be able to deny a life-saving (for her and her foetus) caesarean section? The law on
the importance of patient autonomy seems settled; but as Lord Mustill stated in AG’s
Reference (No.3 of 1994), 2 [t]he relationship was one of bond, not identity.3 The mother
and the foetus were two distinct organisms living symbiotically, not a single organism with
two aspects. The mother‟s leg was part of the mother; the foetus was not. Clearly, autonomy
is not the only consideration to be taken into account in these circumstances.
The debate largely rests on whether a pregnant woman is the only person who can
decide what happens to her body or whether society, in the voice of the doctor or the judge,
has a say as well. The question is a difficult one: on one hand, pregnant women should not
be treated differently than anyone else. They make sacrifices for the foetus they carry inside
them that no one knows of. If they are not willing to make this ultimate sacrifice, that is their
right and they should not be morally blamed or legally punished. On the other hand, they
consented to the risks of pregnancy, including a caesarean section when they decided not to
have an abortion, thus establishing a moral obligation towards the foetus.
However, the question of a forced caesarean section cannot be seen in isolation from
other maternity questions. If society has the right to trespass the woman‟s right of autonomy
and self-determination during the delivery of the child, then it arguably has the right to
impose some limits on what she can do during the gestation period as well. This raises
another series of difficult issues: even though it is easy to say that a woman should not be
* LLB (Hons) (University College London), LLM Candidate (Cambridge University).
3 ibid 255.
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