This has been taken from the Royal College of Obstetricians and Gynaecologists website I am currently looking for the exact page
1 INTRODUCTION
1.1 In October 1992, for the first time, a court in the United Kingdom ruled that a Caesarean section could be lawfully performed
1.2 In spite of the diverse personalities of obstetricians and their patients the nature of the relationship between them is such that consideration of any court ordered intervention remains an extremely rare event. In fact, courts in the United Kingdom do not order medical treatment; they authorise it, if deemed in the patient's best interest.
1.3 Most pregnant women are concerned to do their utmost on behalf of their fetus. However, occasionally conflict can arise between a mother's personal wishes and the wellbeing of her fetus as perceived by her professional attendants. Potential areas of conflict between the interests of the mother and the fetus can occur either in medical intervention for diagnosis and treatment of the fetus (Brodner 1987; Walters 1986) or indeed in the mother's way of life which may be considered harmful to the embryo or the fetus.
1.4 The chances of any individual obstetrician encountering circumstances where the danger to the mother, to the fetus or to both is significant and where the remedy is refused are very small; but such incidents by their very nature require urgent resolution leaving little time for deliberation or for seeking advice.
1.5 The Ethics Committee of the Royal College of Obstetricians and Gynaecologists offers this description of related law and comment on the ethical position as a guideline to members of the College.
1.6 Our endeavour has been to clarify the position of the current law in relation to this particular problem and to identify the ethical principles involved. Others have suggested modification to the legal process for pragmatic or ethical reasons (4.5.5; 4.5.6) but such considerations are not within our purpose.
2 EXPERIENCE IN AMERICA
2.1 The major experience of court-ordered intervention has so far been found in America and Canada. There are concerns in America that courts are being asked at short notice to restrict the liberty of choice by pregnant women by requiring them to behave in a manner that obstetricians determine are in the better interest of the fetus (Johnson 1987; Nelson 1988; Annas 1987; Elkins 1989).
2.2 An American survey (Kolder 1987) indicated that court orders had been obtained in 11 different states in order to carry out Caesarean sections against the mothers' refusal of consent. In only a few cases (14%) had the application for the order been refused. Significantly, in many of these latter cases the obstetric outcome was favourable.
2.3 A disproportionate number of cases of forced obstetric intervention involved non-English-speaking patients and those from ethnic minorities, women whose cultures and circumstances were different from their medical and legal attendants. One woman underwent a court ordered Caesarean section despite her own and her husband's opposition. Her husband who was forcibly removed during the procedure committed suicide a few months later (Kolder 1987).
2.4 Obstetricians have stated that they might be legally liable if they did not try to save a fetus (Strong 1987). They may have been fearful of prosecution by the mother, or fetus, or a close relative, but there have been no reported cases of litigation where doctors have been accused of failing to obtain court orders.
2.5 In the majority of cases (88%) the court orders were obtained within six hours of application and it is presumed that the judgments leant heavily on the statement in Roe v Wade that "any state may assert a compelling interest in potential fetal life by barring certain abortions after the fetus is viable" (Roe v Wade 1973) (1).
2.6 The increase in litigation in the United States of America for prenatal injury tends to support the claims for "legal personhood" on behalf of the fetus - a concept not yet admitted in English or Scottish law.
2.7 The American College of Obstetricians and Gynecologists and the American Medical Association have now issued their own recommendations concerning legal intervention during pregnancy (ACOG 1987; Johnson 1987). The opinion of the Ethics Committee of the American College of Obstetricians and Gynecologists concluded that whilst every effort should be made to protect the fetus the pregnant woman's autonomy should be respected.
2.8 The Committee stated that the role of the obstetrician should be one of an informed counsellor, weighing the risks and benefits to both patients and realising that tests, judgments and decisions are fallible. Obstetricians should not perform procedures that are declined by a pregnant woman. The use of judicial authority to implement diagnosis or impose treatment violated the pregnant woman's autonomy.
2.9 Sources in North America have produced clinical guidelines aimed at preventing conflicts between pregnant women and their doctors (Chervenak 1 990).
3 UNITED KINGDOM LAW
3.1 As the legal framework is pivotal to our understanding in this area of clinical obstetrics we make no apology for looking at this in some detail. Initially we consider the position of the mother and then the relationship between mother and fetus.
3.2 All members of the Royal College of Obstetricians and Gynaecologists should practice within the law. It is therefore pertinent to examine the implications of current United Kingdom law in this respect.
3.3 We are concerned primarily with the law in the UK, but we will of necessity draw on authorities from other jurisdictions.
3.4 Although laws often consolidate ethical positions, it is quite possible to have unethical practice which is legal (and vice versa).
3.5 Consent
3.5.1 Generally speaking, the usual rules relating to consent apply to pregnant women in the same way as to other patients. Thus the NHS Management Executive's document A Guide to Consent for Examination or Treatment (1990) states at chapter 4: "Principles of consent are the same in maternity services as in other areas of medicine. It is important that the proposed care is discussed with the woman, preferably in the early antenatal period when any wishes she expresses should be recorded in the notes, but of course the patient may change her mind about these issues at any stage, including during labour."
3.6 Refusal of Consent
3.6.1 Axiomatic to the patient's right to consent to treatment is the right to refuse treatment. The Court of Appeal in the case of Re T (Adult: refusal of treatment)(2) affirmed that right.
3.6.2 T was a 20 year old woman who was injured in a road traffic accident when she was 34 weeks pregnant. On admission to hospital, her condition deteriorated. T, who had been brought up by her mother as a Jehovah's Witness, stated spontaneously to a nurse that she did not want a blood transfusion, having spent a period of time alone with her mother. T gave birth to a stillborn child. She reiterated her opposition to a blood transfusion. Her condition became critical and she was sedated and placed on a ventilator. Her father, supported by her boyfriend, applied to the court for a declaration that it would not be unlawful for the hospital to administer a transfusion to her in the absence of her consent.
3.6.3 The Court of Appeal held that an adult patient was entitled to refuse consent to treatment, irrespective of the wisdom of the decision. However, for such refusal to be effective, doctors had to be satisfied that at the time of the refusal the patient's capacity to decide had not been diminished by illness or medication or given on the basis of false assumptions or misinformation, or that the patient's will had not been overborne by another's influence, and that any refusal had been directed to the situation which had become relevant. Only where a patient's refusal was ineffective could doctors treat in accordance with their clinical judgment of the patient's best interests. In T's situation, it was held that the effect of her condition, together with misinformation, rendered her refusal of consent ineffective.
3.6.4 What is important about this case, notwithstanding the outcome for the individual patient, is the general affirmation of a patient's absolute right, properly exercised, to refuse medical treatment. Lord Donaldson said:
"An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered."
3.6.5 Lord Justice Butler Sloss said: "A man or woman of full age and sound understanding may choose to reject medical advice and medical or surgical treatment either partially or in its entirety. A decision to refuse medical treatment by a patient capable of making the decision does not have to be sensible, rational or well considered: see Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (3)."
3.6.6 Agreeing with the reasoning of the Court of Appeal in Ontario in Malette v Shulman(4), (in which a blood transfusion was given to an unconscious card-carrying Jehovah's Witness) she cited Robbins J A who said:
"At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adults ... are generally at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one's body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority."
3.6.7 Likewise, Lord Justice Staughton said: "An adult whose mental capacity is unimpaired has the right to decide for herself whether she will or will not receive medical or surgical treatment, even in circumstances where she is likely or even certain to die in the absence of treatment."
3.6.8 The right of a competent patient to refuse medical treatment was endorsed by Lord Keith in the House of Lords' decision of Airedale NHS Trust v Bland (5).
3.6.9 Usually children will be considered competent to make decisions on their own behalf when they are capable of understanding fully the nature of what is proposed. (Gillick v West Norfolk and Wisbech AHA)(6). Despite recent authorities to the contrary, a competent child's refusal should not be overridden, save in exceptional circumstances.
3.6.10 In law, no-one, including the court, is capable of providing consent on behalf of a mentally incompetent adult. Where an adult patient is incapable of giving consent, doctors may lawfully treat provided the procedure is in the patient's best interest. In such cases doctors should usually apply to the High Court for a declaration that their proposed conduct is lawful. Treatment will be in the best interests only if it is carried out either to save the patient's life or to ensure improvement or prevent deterioration in her physical or mental health. (Re F)(7).
3.7 Possible Exception to Right to Refuse Consent
3.7.1 In Re T Lord Donaldson made one hypothetical exception in relation to pregnancy to the right of a competent patient to refuse medical treatment. He said:
"The only possible qualification is a case in which the choice may lead to the death of a viable fetus."
He stressed however that that was not the case, and that when the situation arose, the court would be faced with a novel problem of considerable legal and ethical complexity.
3.7.2 Although this statement was an obiter dictum*, it formed the basis of Sir Stephen Brown's decision in October 1992 to authorise a non-consensual Caesarean section. Is Lord Donaldson's position an accurate statement of the common law?
* an incidental remark tangential to the judicial opinion being given.
3.7.3 Whilst the direct point may never have been tested, there is considerable judicial authority to the effect that the interests of the fetus are necessarily subordinated to the rights of the pregnant woman. In Paton v BPAS (8), Sir George Baker, President, said:
"The fetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country."
3.7.4 More significant are the comments made in Re F (in utero)(9), when the court considered whether it had the jurisdiction to make an unborn child a ward of court. The case concerned a 36 year old pregnant woman who suffered from severe mental disturbance, accompanied by occasional drug use. Her first son had been the subject of a care order and was being adopted by foster parents. The woman had a nomadic life style, and the local authority became concerned when she disappeared from her flat and could not be located. Expressing concern for the welfare of her unborn child, the local authority sought to extend the wardship jurisdiction to the child in utero. The Court of Appeal was entirely opposed to this course of action. Lord Justice Balcombe said:
"Since an unborn child has, ex hypothesi, no existence independent of its mother, the only purpose of extending the jurisdiction to include a fetus is to enable the mother's actions to be controlled. ... indeed, that is the purpose of the present application."
He cited an academic article by Lowe, who gave examples of how such control might operate in practice(10):
"It would mean, for example, that the mother would be unable to leave the jurisdiction without the court's consent, the court being charged to protect the fetus' welfare would surely have to order the mother to stop smoking, imbibing alcohol and indeed any activity which might be hazardous to the child. Taking it to the extreme, were the court to be faced with saving the baby's life or the mother's it would surely have to protect the baby's."
Lord Justice Balcombe actually went on to consider that another possibility would be that the court might be asked to order that the baby be delivered by Caesarean section. He said:
"it would be intolerable to place a judge in the position of having to make such a decision without any guidance as to the principles on which his decision should be based. If the law is to be extended in this manner, so as to impose control over the mother of an unborn child, where such control may be necessary for the benefit of that child, then under our system of parliamentary democracy, it is for Parliament to decide whether such controls can be imposed and, if so, subject to what limitations or conditions". (our emphasis).
He went on to observe that in such a sensitive field, affecting as it does the liberty of the individual, it was not for the judiciary to extend the law.
3.7.5 Additionally, Lord Justice May pointed to the "inusuperable difficulties" which would be caused if one sought to enforce any order in respect of an unborn child against its mother, if that mother failed to comply with the order. He said:
"I cannot contemplate the court ordering that this should be done by force, nor indeed is it possible to consider with any equanimity that the court should seek to enforce an order by committal."
All three of their Lordships stressed that such a drastic extension of wardship jurisdiction to protect the fetus at the expense of the liberty of the mother would be a matter for Parliament. Whilst these dicta are obiter they are fairly persuasive.
3.8 Court-Authorised Caesarean Section - United Kingdom
3.8.1 In light of the above, it is with some surprise that the President of the Family Division, Sir Stephen Brown, felt able to grant the declaration that he did in the case of Re S (Adult: refusal of medical treatment)(11). In that case, a declaration was given that a Caesarean section and any necessary consequential treatment which the hospital and its staff proposed to perform on the patient could be lawfully performed despite the patient's refusal to give her consent being vital in the interests of the patient and her unborn child.
3.8.2 The facts as set out briefly by Sir Stephen Brown merit repetition:
"Mrs S is 30 years of age, she is in labour with her third pregnancy. She was admitted to a hospital last Saturday with ruptured membranes and in spontaneous labour. She has continued in labour since. She is already six days overdue beyond the expected date of birth, and she has now refused, on religious grounds, to submit herself to a Caesarean section operation. She is supported in this by her husband. They are described as "born again Christians" and are clearly quite sincere in their belief. I have heard the evidence of P. a Fellow of the Royal College of Surgeons who is in charge of the patient at the hospital. He has given, succinctly and graphically, a description of the condition of this patient. Her situation is desperately serious, as is also the situation of the as yet unborn child. The child is in what is described as a position of "transverse lie" with the elbow projecting through the cervix and the head being on the right side. There is the gravest risk of a rupture of the uterus if the section is not carried out and the natural labour process is permitted to continue. The evidence of P is that we are concerned with "minutes rather than hours" and that this is a "life and death" situation. He has done his best, as have other surgeons and doctors at the hospital, to persuade the mother that the only means of saving her life, and also I emphasise the life of her unborn child, is to carry out a Caesarean section operation. P is emphatic. He says it is absolutely the case that the baby cannot be born alive if a Caesarean operation is not carried out. He has described the medical condition. I am not going to go into it in detail because of the pressure of time."
3.8.3 After proceedings conducted ex parte* lasting for under two hours, the President granted a declaration authorising non-consensual treatment (Hewson 1992). He gave only two justifications for granting the declaration, namely:
"The fundamental question appears to have been left open by Lord Donaldson in Re T (Adult: refusal of medical treatment)(12) and ... there is no English authority which is directly in point."
He also referred to:
"Some American authority which suggests that if this case were being heard in the American courts the answer would be likely to be in favour of granting a declaration in these circumstances."
and cited Re AC (13).
3.8.4 The reliance on the case of Re AC (Annas 1988, 1990) was both extraordinary, and, it has been submitted by a number of legal commentators, wrong. In the Columbia Court of Appeal's decision in Re AC, the majority departed from the court's earlier decision in the case(14), and ruled that a Caesarean section should not have been authorised on AC by the trial court to save her unborn child. It was held that a full hearing, not an ex parte hearing, was required before a court could contemplate authorising a procedure upon a pregnant woman who was refusing treatment. Rather, the correct approach was for the court to determine whether the woman was competent, and if so what were her wishes. If she was not competent, the court should apply a substituted judgment test to decide what she would have wanted in the circumstances. Judge Terry stated in Re AC that the woman's wishes would be determinative in virtually all cases. The court left open whether there might be "truly extraordinary or compelling reasons" to override the woman's wishes. The only possible justification for Sir Stephen Brown's decision could be an assumption by him that the facts of Re S(11) involved the truly exceptional case.
3.8.5 This seems unlikely, since even in Re AC, where the carrying out of a Caesarean section was likely to affect the mother's health adversely (the pregnant woman had cancer and died two days after the Caesarean), Judge Terry stated:
"Some may doubt that there could ever be a situation extraordinary or compelling enough to justify a massive intrusion into a person's body, such as a Caesarean section, against the person's will."
* a legal expression applied to a proceeding in which only one side of the case is presented and the opposing side is absent.
3.8.6 Martha Swartz points out in the Cambridge Quarterly of Health Care Ethics (Volume 1 No. 1 Winter 1992), that the decision of the district of Columbia Court of Appeals which overturned the decision in Re AC only applied to Washington DC, and elsewhere the overwhelming trend has, worryingly, been to override the pregnant woman's objections to treatment. Certainly Sir Stephen Brown's reliance on Re AC has made the Re S judgement be regarded with considerable scepticism by legal commentators.
3.8.7 The Re S case is not being appealed, and as such the decision stands. There is no legal justification for overriding a competent patient's wishes purportedly in her best interests. Thus to the extent the declaration in Re S purports to be in the mother's vital interest, this must surely be wrong. The justification provided by the case of Re F (Mental Patient: Sterilisation)(15) applies only in the case of incompetent adults, and should certainly not be applied in the case of competent female patients. Indeed, even if the woman were unconscious, Re F would only justify treating her if such treatment were in her best interests, either to save her life or to ensure improvement or prevent deterioration in her physical (or mental) health. This would not necessarily justify a Caesarean unless it fulfilled the above criteria.
3.8.8 The Infant Life Preservation Act 1929
The effect of the Act, in relation to abortion, was amended by the section 37
(4) of the Human Fertilisation and Embryology Act 1990 (vide infra). Before
the amendments were introduced by the new legislation, the Abortion Act 1967
said at Section 5 (1):
"Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus)."
Section 1 (2) of the Infant Life Preservation Act stated:
"For the purpose of this Act, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive."
Thus arose the mistaken belief that the lawful definition of viability was 28 weeks and that there was an upper limit of 28 weeks for performing lawful terminations. In fact, the offence of child destruction created by the 1929 Act applied to any termination where the child was capable of being born alive. The recognition by the medical profession that a child may be capable of being born alive substantially earlier than at 28 weeks is reflected in the amendments to the Abortion Act which reduce the upper limit, in various circumstances, to 24 weeks.
Does the Act have any application in the case of a viable fetus which dies at or before birth because of the mother's refusal of treatment? The answer is no. The Infant Life (Preservation) Act 1929 is a criminal statute, carrying a maximum sentence of life imprisonment.
Its passing was intended to remedy the mischief of unwanted babies being killed as they were in the process of being delivered. The key point is that the offence of child destruction is only caused by a person who "with intent to destroy the life of a child capable of being born alive" causes it to die by some "willful act". A mother refusing treatment, or the obstetrician treating her, would not come within this definition.
3.8.9 Re S is also out of step in elevating the status of the fetus in law to such an extent that its supposed rights become more important than its mother's. To do so is out of line with both previous case law, and the Congenital Disabilities (Civil Liabilities) Act 1976, which gives a child a right of action for damage caused in utero against everyone except its mother (with the exception of motor accidents, for which the mother is insured). Indeed, as Grubb points out(16), the Law Commission in its report(17) on Injuries to Unborn Children explicitly stated that a woman should not be liable for "rash conduct during pregnancy" which causes harm to the unborn child. Rather, the intent of Parliament was to leave it up to the individual mother to decide how to act in the "best interests" of her unborn child.
3.8.10 Moreover, there is no other precedent in law for forcing one person to use his or her body to save the life of another. In McFall v Shimp(18), a cousin was found to be the only person with compatible bone marrow to save his cousin's life. After some reflection the cousin declined to have the tissue removed, even in the knowledge that his cousin would probably die as a result. The issue went to court. The court, unsurprisingly, was unwilling to order the removal of the tissue, even though the cousin's moral culpability was criticised heavily. This is a critical distinction. Although a pregnant woman may well have an extremely strong ethical responsibility towards her unborn child, this does not mean that it is correct to use the law to enforce these responsibilities.
3.9 Reliance on Re S
There are a number of dangers in relying on the Re S decision to seek further court authorisation for obstetric intervention.
3.9.1 An emergency ex parte hearing is the least appropriate forum in which to make these decisions even if life and death situations are at stake and time is pressing. Decisions of this magnitude with longer term repercussions might be considered unsafe without a woman having a full opportunity to be represented adequately and to make her wishes known.
3.9.2 Confirmation of the Re S decision in a future court intervention could do immeasureable harm to the doctor-patient relationship. Some doctors might be tempted to threaten to use it to obtain maternal compliance. The fear of such a court intervention might drive away some of the very women who are in greatest need of antenatal and intrapartum care.
3.9.3 As well as a common law duty of care towards an unborn child, recently confirmed by the Court of Appeal in Burton v Islington HA: de Martell v Merton and Sutton HA(19), since July 1976, a third party has a statutory duty of care towards an unborn child who is subsequently born disabled, under the Congenital Disabilities (Civil Liability) Act of that year.
A child's right of action under this Act is derivative only. In other words, a person is only liable towards a child, if he or she would, if sued in time, be liable in tort to one or both of the child's parents.
This raises the question of a child damaged in utero or in the course of delivery as a result of maternal non-compliance. An obstetrician has a duty of care to a mother to exercise reasonable care for her wellbeing. If, however, the mother rejects the obstetrician's advice and refuses to permit the obstetrician to act in such a way as to secure her interests, and those of her unborn child, and the child suffers damage, no tort has been committed, because the obstetrician's duty is to respect the mother's wishes. To do otherwise would be to commit a battery. An obstetrician who complied with a mother's refusal of consent to a Caesarean section would not incur legal liability towards the child, even if it suffered harm.
3.10 Summary of Legal Position
3.10.1 Although obligations to the fetus increase with its growth in utero, UK law does not grant it any legal status. This comes from the moment of birth.
3.10.2 The law does not limit a woman's freedom because she is pregnant. Her bodily integrity cannot be invaded on behalf of her fetus without her consent. The fetus has no remedy against injuries caused by her.
4 PROFESSIONAL ETHICS
4.1 The Unique Relationship
4.1.1 The maternal-fetal relationship is unique. There are two patients with access to one through the other. For the duration of the pregnancy the woman is the only person who can directly control what is done to her fetus. Others can advise and encourage but she alone takes direct responsibility during every minute of every day for some nine months.
4.1.2 The fetus is totally reliant on the mother so long as it remains in utero. The protection of the fetus stands on her performance of her moral obligations, not on any legal right of its own.
4.2 Maternal Obligations
4.2.1 Pregnancy need not be, and is not usually, an enforced state for a woman, but rather a matter of personal choice (given contraception and, within legal limits, induced abortion) and so carries with it the obligations arising from liberty of choice.
4.2.2 Pregnant women and their partners are now more aware of the state of early pregnancy through the help of accurate diagnosis. Ultrasound creates early appreciation of a live embryo and a developing fetus. This new, constantly improving view of the developing fetus brings an earlier recognition of the depth of responsibility towards the fetus as it progresses towards "personhood".
4.2.3 The unique relationship between a mother and her embryo or fetus places on her a responsibility which increases as the pregnancy advances. The welfare of the child may well be dependent on her commitment to this unique obligation.
4.2.4 The pregnant woman's actions and lifestyle may enhance or damage her fetus. There are many ways in which a mother can influence her fetus. Indirectly she can accept or reject advice regarding drugs, alcohol, smoking, diet and also maternal examination and investigation. More directly related to the fetus, she alone decides whether to accept prenatal diagnosis and treatment, eg chorion villus sampling, amniocentesis, fetoscopy, fetal monitoring and Caesarean section.
4.2.5 The pregnant woman may have a different perspective from her professional adviser towards a recognised problem (Murray 1987). By giving up smoking, for example, she may feel she would put on significant weight or become clinically depressed. Some may have religious or other convictions which prevent their accepting a particular course of action.
4.3 Relationship Between Obstetrician and Patient
4.3.1 The concern of parents for their offspring in utero is normally both deep and genuine, and indeed many pregnant women are willing to put their lives or health at risk for the sake of the fetus.
4.3.2 The aim of those who care for pregnant women must be to foster the greatest benefit to both the mother and fetus with the least risk to both.
4.3.3 Obstetricians must recognise the dual claims of the mother and her embryo or fetus, and inform and advise the family, utilising their training and experience in the best interests of both parties. Almost always, when medical information and the possible options are communicated sensitively and effectively, both the decision and the responsibility for it can be shared by the mother and her obstetrician.
4.3.4 There are limits to the accuracy and effectiveness of many diagnostic and therapeutic procedures during pregnancy and confinement and this should be discussed with the mother. For example, the methods for detecting fetal distress antenatally and during labour are not always reliable indicators of a poor outcome. The fine indices that determine whether the dynamic process of labour will culminate in a normal outcome are difficult to measure.
4.3.5 In caring for the pregnant woman an obstetrician must respect the woman's legal right to choose or refuse any recommended course of action and at the same time maintain the medical obligation to promote the wellbeing of mother and child.
4.4 Society's Responsibility
4.4.1 Society flourishes when professional and social relationships are good and it is important therefore to foster trust between Doctor and Patient, Medicine and the Public, and between the Law, the Medical Profession and the Public.
4.4.2 Conflicts between individuals leading to tension and disputes in medical management are less likely to occur in a society where the participants are working in harmony.
4.4.3 In so far as society is comprised of individual persons bound together to the common advantage, so it owes a duty of care both to its members and to its potential members. For neither mother nor society is it sufficient to consider a baby solely as a by-product of a sexual union or the fulfilment of her reproductive instinct. The end product of pregnancy is both an individual child and a new member of society. To regard it as anything less is a source of sadness, but not a justification for overriding maternal integrity or destroying the trust between doctor and patient.
4.5 Society's Stance
4.5.1 A woman's "right to decide" must surely be balanced by her obligation to her dependent fetus and renders her morally accountable if knowingly the child is harmed by her decision or indecision.
4.5.2 In the United States of America pregnant women have been jailed for taking illicit drugs which might damage the fetus and the court judgments have stated that "a child has a legal right to begin life with a sound mind and body" (Smith v Brennan 1960)(20). hile such action emphasises accountability, it can also be counter-productive as abusers may then be reluctant to attend for medical care or may conceal their pregnancies in case their defect comes to light.
4.5.3 It has been the practice in this country to offer services and provide incentives to encourage mothers towards caring for their unborn child rather than using threats of punishment or invoking laws (Bewley 1991). This help must be designed to enable women to give that care by providing adequate opportunities and pay, a comprehensive safety net and access to high quality antenatal services (Annas 1 987).
4.5.4 The law and the ethics of the obstetrician are at one in recognising a duty towards the welfare of the fetus, which only exceptionally conflicts with the vital interests of the mother and her freedom of choice. It is in the common interest for society, and it is the object of obstetric care in particular, to assist the mother to fulfil her obligation.
4.5.5 The creation of an "intentional crime of prenatal injury" would serve as a contemporaneous non-coercive threat only realisable on behalf of the child after delivery (Bewley 1991). This is unlikely to be of benefit in the management of the pregnancy.
4.5.6 It has been suggested tentatively that in extreme cases of competing claims between mother and fetus a judge could hear all the arguments and decide on the course of action ( Kennedy 1990). Such a law giving the judge powers of prebirth seizure would be seen by mothers as a threat, and by doctors as a restriction of clinical freedom, and would strike at the heart of the doctor-patient relationship.
4.5.7 Any change in approach to the mother must demonstrate that present methods have failed. The greater the restriction on the pregnant woman's freedom the greater must be the justification for interference; and the harm prevented must be more than the harm caused.
4.5.8 Present United Kingdom law protects the rights of the mother over the claims of the fetus. Resort to law in individual cases to overturn this presumption raises more difficulties than it solves.
4.6 Summary of Ethical Position
4.6.1 The management of pregnancy rests upon two sorts of obligation: moral obligation in the mother, professional obligation in the obstetrician. The latter is under the sanction of law; the former is not. Normally both responsibilities are exercised in concert.
4.6.2 Obstetricians must respect the woman's legal liberty to ignore or reject professional advice, even to her own detriment and that of her fetus. They are not thereby released from their duty of care. When that duty is discharged fully, as judged by objective professional standards, should ill nevertheless befall, the obstetrician also is under the protection of law. The protective function of law is to be valued more than the coercive.
5 CONCLUSIONS
5.1 The aim of those who care for pregnant women is to foster the greatest benefit to both mother and fetus with the least risk.
5.2 Occasionally problems arise when a pregnant woman and her doctor fundamentally disagree over action believed to be in the best interest of mother or fetus or when advice is in conflict with her religious scruples.
5.3 Although obligations to the fetus in utero increase as it develops, UK law does not grant it personal legal status. This comes from the moment of birth.
5.4 The law provides no restriction on a woman's freedom on account of her pregnancy. Any medical action requires her informed consent.
5.5 A pregnant woman has a natural duty and moral obligation to the welfare of her fetus as a future person and member of society.
5.6 Society should provide all the necessary services and incentives to help the pregnant woman to fulfil her obligation.
5.7 It is rare for a doctor to be faced with a conflict where judicial intervention on behalf of the fetus might be considered.
5.8 Such circumstances are usually unexpected and the requirement of haste leaves little time for the case to be properly prepared and decided.
5.9 Doctors must recognise that medical advice is based on evidence that is seldom infallible. It is the doctor's duty to provide appropriate information so that the pregnant woman can make an informed and thoughtful decision.
5.10 Where conflict arises the doctor should seek help and advice from other professional colleagues and, with the patient's agreement, it may be appropriate to involve other members or friends of her family.
5.11 A doctor must respect the competent pregnant woman's right to choose or refuse any particular recommended course of action whilst optimising care for both mother and fetus to the best of his or her ability. A doctor would not then be culpable if these endeavours were unsuccessful.
5.12 We conclude that it is inappropriate, and unlikely to be helpful or necessary, to invoke judicial intervention to overrule an informed and competent woman's refusal of a proposed medical treatment, even though her refusal might place her life and that of her fetus at risk.
GENERAL REFERENCES
ACOG Committee on Ethics. (1987) Patient choice: maternal-fetal conflict. American College of Obstetrics and Gynecologists. Washington DC. No. 551
Annas, G.J. (1990) Foreclosing the use of force: AC reversed. Hastings Cent Rep 20:27.
Annas, G.J. (1988) She's going to die: The case of Angela C. Hastings Cent Rep 18:23.
Annas, G.J. (1987) Protecting the liberty of pregnant patients. New Eng J Med. 316, 1213.
Bewley, S. (1991) Restricting the freedom of pregnant, drug-taking women: putting the fetus first? MA Thesis (University of London).
Brodner, R.A. and Shuster, E. (1987) Fetal therapy: Ethical and legal implications of prenatal intervention and clinical application. Fetal Ther 2:57.
Chervenak, F.A., McCullough, L.B. (1990) Clinical guides to preventing ethical conflicts between pregnant women and their physicians. Am J Obstet Gynecol 162:303.
Elkins, T.E., Anderson, F.H., Barclay, M., Mason, T., Bowdler, N., Anderson G. (1989) Court-ordered caesarean section: An analysis of ethical concerns in compelling cases. Am J Obstet Gynecol 161: 150. Hewson, B. (1992) Mother knows best. New Law J p 1538.
Johnson, D. (1987) A new threat to pregnant womens autonomy. Hastings Cent Rep 17:33.
Kennedy, I.M. (1990) "The woman and her unborn child: rights and responsibilities" in P Byrne (Ed) Ethics and law in health care and research. Chichester: John Wiley & Sons, pp 161-186. Reprinted in: Kennedy, I.M. (1991) Treat me right: Essays in Medical Law and Ethics 2nd Ed. Oxford, Clarendon Press pp 364-384.
Kolder, V.E.B., Gallagher, J., Parsons, M.T. (1987) Court-ordered obstetrical interventions. New Eng J Med 316: 1192.
Murray, T.H. (1987) Moral obligations to the not yet born: the fetus as a patient. Clin Perinatol 14:329.
NHS Management Executive. (1990) A guide to Consent for Examination or Treatment.
Nelson, L.J. and Milliken, N. (1988) Compelled medical treatment of pregnant women. JAMA 259:1060.
Strong, C. (1987) Ethical conflicts between mother and fetus in obstetrics. Clin Perinatol 14:313.
Swartz, M. (1992) Cambridge Quarterly of Health Care Ethics (Volume 1 No. 1 Winter.)
Walters, L. (1986) Ethical issues in intrauterine diagnosis and therapy. Fetal Therapy 1:32.
LEGAL REFERENCES
Roe v Wade (1973) 410 US 113.
Re T(refusal of treatment) [1992] 3 WLR 783.
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [19851 AC 871, 904 to 905.
Malette v Shulman [1990] 67DLR (4th) 321.
Airedale NHS Trust v Bland [1993]1 All ER 821.
Gillick v West Norfolk and Wisbech AHA [1986] AC 12.
Re F [1990] 2 AC 1.
Paton v BPAS [1979] 1 QB 276.
Re F (in utero) [1988] 2 All ER 193.
Lowe 96 LQR 29 at 30.
Re S (Adult: refusal of medical treatment) [1992] 4 All ER 671.
Re T (Adult: refusal of medical treatment) [1992] 411 ER 649.
Re AC [1990] 573 A 2d 1235
Re AC (1987) 533 A 2d 611
Re F (Mental Patient: Sterilisation) [1990] 2 AC 1.
A Grubb. "Despatches" Vol. 3, No. 3. Centre of Medical Law and Ethics, King's College, London.
Law Commission (1974) Injuries to Unborn Children. No. 60, CMND 5709.
McFall v Shimp (1978) 10 Pa D and C 3d 90.
Burton v lslington HA: de Martell v Merton and Sutton HA [1992] 3 All ER 833.
Smith v Brennan [1960]157Ad 2 497, 503.
ETHICS COMMITTEE
Mr J R Friend MA DM(Oxon) FRCOG (Chairman)
Revd Professor J M Beezley MD FACOG FRCOG
Professor the Reverend Canon G R Dunstan CBE MA Hon DD Hon LLD FRCOG
Mrs H Hayman MA, Chairman, Whittington Hospital NHS Trust
Mr R H J Kerr-Wilson MA FRCS(Ed) FRCOG
The Marchioness of Lothian, Patron, UK National Council of Women
Professor A A Templeton MD FRCOG
Mr J A A Watt, Solicitor, Senior Partner Hempsons
Miss A Gawith, Secretary to the Committee
These guidelines were produced under the direction of the Ethics Committee of the Royal College of Obstetricians and Gynaecologists as an educational aid to obstetricians and gynaecologists. These guidelines do not define a standard of care, nor it is intended to dictate an exclusive course of management. Variations of practice taking into account the needs of the individual patient, resources and limitations unique to the institution or type of practice may be appropriate.