McLean, Sheila; Petersen, Kerry --- "Patient Status: The Foetus and the Pregnant Woman" [1996] AUJlHRights 6; (1996) 2(2) Australian Journal of Human Rights 229

Patient Status: The Foetus And The Pregnant Woman

Sheila A M McLean[*] and Kerry Petersen[*]

INTRODUCTION

The practice of describing the foetus[1] as a patient has gradually crept into obstetric medicine in response to developments in medical technology and foetal therapy. This practice is, however, a medical fiction. Effectively the law adopts a very simple approach to the female/foetal relationship and says 'there is no debate' because what we have is one person (who happens to be pregnant) and nobody else. In spite of this apparent simplicity there are legal contradictions and characterising this relationship within traditional legal structures is very difficult because as Asche points out pregnancy is a 'state of being that is neither unitary nor dual, exactly; a state to which we can apply no numbers known to us.'[2]

The elevation of a foetus to patient status is a product of the medicalisation of reproduction and reflects a medical perception of the maternal foetal/ relationship. It is said:

The medical model of pregnancy ... encourages the physician to view the foetus and the mother as two separate patients, and to see pregnancy as inherently a conflict of interests between the two.[3]

Before the medicalisation of pregnancy and birth, quickening was a significant gestational benchmark because the woman could feel foetal movement. It was a physical manifestation of pregnancy and the woman conveyed the information to the outside world. Control over information about the foetus has become increasingly clinical because medical technology can now expose the private interior of the womb to outsiders. As Wells says, 'Knowledge of the foetus is no longer purveyed from the woman to her doctor, but the other way around.'[4] Moreover, for many people information about the gender and health of a foetus, as well as ultra sound pictures depicting tiny hands and feet and other recognisable bodily parts tends to "personify" the foetus long before birth - when it acquires legal personhood.

This medical model of pregnancy and birth can produce and encourage attitudes which are antithetical to the best interests of the pregnant woman. It has paved the way for the development of the movement to protect separately the rights of the foetus and as the characteristics of foetal `personhood' are emphasised `the characteristics of personhood belonging to the mother are correspondingly devalued'.[5] If, for example, a woman consents to antenatal screening she may acquire information about the foetus which forces her to confront difficult decisions such as abortion, foetal therapy, foetal surgery or other medical interventions in a context where her interests are treated as being in competition with the interests of the foetus. Kolder et al conducted a study in the 1980s investigating the scope and circumstances of court ordered obstetric interventions. They said:

Although ... discussions of fetal status are interesting, they distract attention from the central legal question posed by treatment refusals during pregnancy. The question is really whether doctors or the government may usurp patients' decision-making rights and appropriate or invade their bodies to advance what they perceive to be the therapeutic interests of a second patient, the fetus.[6]

This medical model has also promoted the popularity of the expression "maternal/foetal conflict". This term implies a conflict relationship between a pregnant woman and her foetus thus distorting the complexity and intimacy of this unique relationship. It also disguises a number of suppositions. First, the foetus is correctly identified as foetus, whilst the pregnant woman becomes a 'mother' with all the implications concerning caring, protection and so forth that are implied by the term. Secondly, the use of the word conflict suggests a battle of equals whereas in fact there is only one party and that is the pregnant woman. There are no adversaries in this relationship - there is one person and one potential person. Moreover the word conflict seems to imply hostilities - sentiments which could really only come from the pregnant woman since the foetus has no capacity to be hostile and cannot deliberately harm the woman who is pregnant. The woman, therefore, must be the person who is hostile - not making decisions in her own best interests, but in hostility to the foetus. Perhaps because as has already been suggested, the law lacks the framework necessary to conceptualise the debate as anything other than an all or nothing attribution of rights, the foetus is viewed as `...an entity independent from the pregnant woman with interests that are potentially hostile to hers'.[7]

The commencement point for a discussion of these developments, however, must first of all concern the rights of the person involved, that is, the pregnant woman. These rights are particularly threatened by those who, apparently merely cautioning that we must make decisions which involve foetuses carefully, employ language which implies equating foetal existence to a human life and all that this entails.[8]

THE PREGNANT WOMAN: LEGAL STATUS

A woman is not assigned to a special `class' when she becomes pregnant. Like other human beings, she possesses basic human rights such as: the right to life, personal autonomy, self determination, freedom of movement and freedom of religion. The right to bodily integrity gives her the right to provide or refuse consent to medical treatment like other legally competent human beings. The foetus has no rights and therefore it is very misleading to refer to a tension between the woman's autonomy and a right to life. Moreover, because only lip service is often paid to the pregnant woman's rights the endless disputes about the whether or not the foetus possesses independent moral status threaten the absolute quality of her rights.[9]

The right to self determination in relation to medical treatment has been firmly upheld by courts in a number of common law jurisdictions. The High Court of Australia in Marion's case has articulated the principle of bodily integrity as a right of legally competent persons `to choose what occurs with respect to his or her own person'.[10] Similarly in Mallette v Shulman, a leading case on personal autonomy, the Ontario Court of Appeal upheld a dying patient's decision to refuse a blood transfusion and expressed the right in the following words:

The right to determine what shall be done with one's own 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.[11]

In Re T (adult:refusal of medical treatment) the House of Lords supported the autonomy principle even where the patient's death would be a likely or probable consequence. Lord Donaldson affirmed the:

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...notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.[12]

The law of trespass prohibits non consensual invasion of bodily integrity and presumes that competent adults have the capacity to consent to or refuse medical treatment unless there is evidence that a person's power of reasoning is seriously diminished because of extreme and extenuating incidents of shock, unconsciousness, confusion or the effects of drugs.[13] Consent generally transforms potentially unlawful bodily contact[14] into permissible contact and lies at the heart of the doctor patient relationship. Consent or refusal must be voluntary, based on adequate information and intended for the treatment given.[15] In emergency cases, medical treatment may be administered if a patient is unconscious and cannot give consent when the action is immediately necessary to save the person's life and there is no known objection to the treatment. [16] As Brazier observes: `The right to autonomy, to self rule rather than rule by others, is endorsed by ethicists as a right to patient autonomy'.[17]

It is worth noting that as an extension to the right to personal inviolability the law does not impose a `duty to rescue'. The common law does not require a human being to rescue or take action to save the life of another human being and therefore it will not force a person to donate an organ to save the life of another - even a relative.[18] A mother cannot be forced to undergo treatment to save the life of her born child but in some countries she has been forced to do just that in the interests of a non-person.

In spite of a strong legal tradition reiterating the importance of fundamental human rights, pregnant women have not always been granted the right to self determination. Two cases are worthy of brief comment to illustrate the point.[19] In Re A C[20] Angela Carder was dying of cancer and 26 weeks pregant. She agreed to undergo treatment with the expectation of surviving an extra two weeks to maximise the chances of her foetus's survival, but not if it would impose an undue burden on her. After consultation with her husband and family, however, she finally sought aggressive treatment to assist with the pain in the knowledge that this was likely to harm the foetus. Even though the foetus was unlikely to survive and against the wishes of Angela Carder and her family, a court order was granted for an emergency caesarian section --- without even interviewing her. The infant survived for a couple of hours and Angela Carder died a few days later. The appellate court disapproved of the forced intervention.

More recently, the House of Lords in Re S (adult:refusal of medical treatment)[21] took the extraordinary step of granting a declaration authorising doctors to perform a forced caesarean operation even though the woman had expressly refused intervention for religious reasons. In rushed circumstances, Sir Stephen Brown accepted medical evidence that it was a life and death situation and the woman and the foetus would die if the procedure was not performed. The child was born dead. The brief judgment contains no convincing legal principle and suggests that the appeal decision in the Angela Carder case was misconstrued.

The Australian courts have not yet ruled on the issue of forced caesarean interventions. Seymour, however, refers to an application to the Family Court of Australia where a Judge indicated that he was prepared to hear an application for an order authorising the performance of the operation. He reports that the case did not reach court because the woman subsequently gave her consent. Given that the Judge was prepared to entertain the application, Seymour concludes that there is a real possibility that the Family Court possesses the power to authorise coercive caesarean operations.[22]

Before commenting further on this legal contradiction it is important to consider the status of the foetus in both legal and moral terms.

THE FOETUS: LEGAL STATUS

Although the status of the human foetus may seem like an unnecessarily esoteric question, it is one of increasing practical relevance to women, doctors and the law. One approach has been to describe the relationship in terms of a `single entity' model.[23] This model accords the foetus no legal or moral status and treats the foetus as a part of the woman's body - like her appendix or gall bladder. Few commentators have unequivocally adopted this model and this is not surprising given that the foetus is different from other body parts in two very important ways. First of all it has a distinct genetic code and physiology; and secondly it will probably one day leave the womb and become a human being. The `single entity' approach also denies the way many women experience pregnancy or indeed the way other people view the relationship between the pregnant woman and her foetus.

Another approach is the `separate entities' model where the woman and the foetus are viewed as two human beings in a single body - both possessing the full complement of human rights. As noted previously, doctors foster this perception by treating the foetus as a patient. Moreover, in the notorious Angela Carder case,[24] the foetus was separately represented by a lawyer. This is a dangerous precedent because it portrays the female/foetal relationship in individualistic and oppositional terms and provides a setting for a conflict situation. The human foetus is not a separate entity which crawls into a marsupial pouch after conception - like a kangaroo. To reduce a pregnant woman to a `maternal environment' or a `foetal container' diminishes human dignity. In addition this model does not accurately depict the special status of the foetus. Although the foetus is capable of becoming separate at some stage it is not separate from the pregnant woman. `The foetus exhibits the potential for separation only'.[25]

Neither the `single entity' nor the `separate entities' model is reflected in the legal developments as it is well established that the foetus has contingent legal interests but it has no rights until live birth.[26] Baker P's oft quoted dictum on this point bears repeating. In Paton v Trustees of BPAS he said:

The foetus cannot, in English law, in my view have any 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 ... and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, America, Canada, Australia, and, I have no doubt, in others.[27]

Rights may, however, be backdated to permit a born child to sue for damages sustained pre-conception or pre-birth, or to inherit under a will.[28] The law governing personhood is a legal benchmark which is founded in pragmatism and causes less damage and harm to important human interests by respecting a pregnant woman's full autonomous rights. But it does not require us to deny the foetus some moral relevance and attempts are now being made to examine pregnancy relationship in terms of shared needs and interdependence. Karpin, for example, uses the `Not-One-But-Not-Two' concept.[29] Seymour incorporates this concept into the `indivisibly linked' model. Its underlying premise is that:

The pregnant woman must be the one to decide what intervention should be employed (either for herself or the foetus). In doing so she must recognise that the foetus does have interests and is more than a body part. It is important to understand the full implications of this result. The mother will be in a position to decide not only how the interests of the foetus are to be protected, but also whether they will be protected.[30]

As Seymour says, the significance of this approach is that: "It enables the woman to elect to determine that her interests should prevail over those of the foetus." [31]

FOETUS:MORAL STATUS

Leaving questions of legal status aside, it is difficult and indeed impossible to achieve consensus on the moral status of the foetus because individual and collective morality relentlessly point people in different directions ensuring that agreement is unlikely. There are two major oppositional positions about the moral status of the human foetus. One side argues that a human foetus is a an unborn child from the moment of conception with the full plethora of human rights and the other side argues that on conception we have a collection of cells with a genetic code.[32] Avoiding this oppositional approach, the Report of the Committee of Inquiry into Human Fertilisation and Embryology (The Warnock Committee) put it another way: "Although the questions of when life or personhood begin appear to be questions of fact susceptible of straightforward answers, we hold that the answers to such questions in fact are complex amalgams of factual and moral judgements."[33] Like the Review of the Guidance on the Research Use of Foetuses and Foetal Material (The Polkinghorne Report)[34] the Warnock Committee was forced to conclude inconclusively.

The Warnock and Polkinghorne Committees probably express the feelings of most people on the issue by agreeing that the human foetus is worthy of some respect even if it was not possible to a allocate it a specific place on the moral scale. What we may say, then, is that the human foetus will always count as more morally relevant than even a fully grown animal but it will not count as being as relevant morally as a human child or adult. [35]

Perceiving, the foetus as neither a body part nor a separate distinct and equal party but as an entity which is deserving of some respect, perhaps implying some special care subject to the control of the pregnant woman, throws some light on the reason why the female/foetal relationship generates the dilemmas faced by women, doctors and ultimately the law.

THE DOCTOR

The role of the doctor in obstetric practice is clearly integral to this discussion because as has been suggested "Increased conflicts between physicians and their pregnant patients are likely with the advent of new technological developments in the areas of prenatal diagnostic testing and intrauterine surgery."[36] The dilemma for the doctor is twofold, and both strands are interdependent.

First, what is the role of the doctor in relation to the woman and the foetus? Are they both patients, or is only one a patient, entitled to the best the clinician can offer? This question may prove highly uncomfortable for a clinician, especially if the second strand is also present - namely that in the view of the doctor something could be done to help the foetus but the woman refuses to agree to it. The frustration of knowing that a foetus could be helped and could be born healthy as opposed to damaged but for the attitude of the woman can readily be understood emotionally. But it requires further consideration.

To deal with the first strand first. A doctor owes duties to his/her patient. A patient is someone with rights. A patient, therefore, must be a person. So, is the foetus a person? Not according to McCullough and Chervenack, who say:

...the foetus cannot be thought to possess subjective interests. Because of the immaturity of its central nervous system, the foetus has no values and beliefs that form the basis of such interests. It obviously follows from this that the foetus cannot possess deliberative interests, since these, in turn, are based on subjective interests and reflection on subjective interests. The latter is a task no foetus can accomplish. Hence, there can be no autonomy-based obligations to the foetus. Hence, also, there can be no meaningful talk of foetal rights, the foetus' right to life in particular, in the sense that the foetus itself generates rights.[37]

More simply put, the foetus may manifest diagnosable and treatable symptoms which the physician could resolve or palliate, but the patient is the pregnant woman. Only through her can treatment be given and only by her can it be authorised. Nor is the claim that the foetus is not a patient defeated by the fact that the foetus could sue after live birth for harm caused by the doctor's negligence while it was still in utero. As the court in Hamilton[38] made clear, the harm only occurs lawfully on live birth, since no person was present to be prior to birth. As has been said:

The viable foetus is not presented to the phsyican solely as a function of biomedical technology to diagnose, manipulate or treat it - contrary to what seems to be a widespread belief among physicians. This view is mistaken, because it assumes that the pregnant woman is always obligated to accept whatever morbidity and mortality risks are involved for her in obstetric management thought to protect and promote foetal interests.[39]

Nonetheless, although this may resolve the apparent problem of how many patients there are, and should ensure that the attention focuses on the woman, the case Re S demonstrates that the courts when faced with a crisis situation are prepared to ignore the woman's express wishes. Furthermore, allegations that doctors and courts are capable of seeing pregnant women solely as 'foetal containers' and of subordinating the interests of the pregnant woman to the perceived interests of the foetus merit consideration since these perceptions go directly to the heart of the problem. If we do not concede that the foetus is a person, then we owe it no duties, even if we may offer it some respect. Yet, that `respect' seems to have been used as a sword with which to threaten women.

Forced obstetrical interventions, aggressively managed pregnancies and other coercive measures have robbed women of their dignity, rights and even lives - sacrificed on the altar of foetal protection. Now, it may be that some, perhaps many, are unconvinced by the argument that the foetus is not a patient because it is not a person. Even if this is true, however, it does not justify overriding the competently expressed opinion of the pregnant woman. Thus, even if the argument that the foetus is not a patient is unconvincing, McCullough and Chervenak would conclude that "the obligation to protect and promote the interests of the patient applies theoretically to all patients equally, even and especially when the physician has more than one patient".[40]

This confusion between whether or not the clinician confronts one or more patients is taken up by Mattingley[41] who analyses the implications of either decision. On the one hand, if the pregnant woman and the foetus are seen as one patient, then in calculating risks and benefits of proposed foetal treatment, the doctor must base his/her recommendations on the totality of risks and benefits. This would mean that, even if there is some risk to the pregnant woman, and some benefit to the foetus, the doctor's conclusion must be a recommendation for therapy. However, if the woman and the foetus are seen as separate patients, then the doctor's authority to intervene is much more restricted since benefit will accrue to one (the foetus) but none will accrue to the other (the woman). Since the guiding principles of medical ethics (such as beneficence) are individualised concepts and contain within them no capacity or authority to balance the competing interests of patients, the doctor here must consider the well-being of each patient as a distinct individual.

Whatever weight we attach to this argument - and clearly it may mean that the clinical move towards holding the foetus to be an independent patient actually limits rather than expands the doctor's authority to override the views of a competent woman - as Annas has said, "Foetuses are not independent persons and cannot be treated without invading the mother's body...Treating the foetus against the will of the mother degrades and dehumanizes the mother and treats her as an inert container".[42]

THE ROLE OF THE PREGNANT WOMAN

But what is the role of the pregnant woman? Does not she have obligations to the foetus which she carries and in whose creation she shared? What kind of woman would set up this potential problem in the first place? Surely, choosing to proceed with a pregnancy rather than terminate it imposes on her increased obligations to do whatever is necessary (short of sacrificing her own life) to ensure that the foetus survives and survives in as healthy a condition as possible. If this means some discomfort to her, so be it - is this not the line we should take?

Simply put, the answer to this is 'no'. As Swartz has said:

Although it may be morally and ethically appropriate in most cases in which 1) a woman's own health would not be adversely affected and 2) the foetus is viable for the woman to make decisions that would enhance the foetus's chance for good health, legislating for morality in these cases raises more questions than it answers.[43]

In other words, we may legitimately feel unhappy with the woman who fails to take action which would have benefits for the future child and which involves minimal invasion of her bodily and moral integrity, but we should not permit the law to force her to comply with that action. As Ruddick and Wilcox put it: "Perhaps a woman ought to choose abortion or foetal surgery, but it might be wrong to prevent her from choosing the morally impermissible option of a continued, untreated pregnancy".[44]

There are a number of good reasons why any attempts to force women into a legal corner concerning their decisions during pregnany must be avoided. First, arguing purely from autonomy-based rights, the woman - and only the woman - is a right-bearer in these situations. There is no other (legal) person in existence and nobody else who can consent on the competent woman's behalf. She and she alone is custodian of her physical integrity. As Swartz says, "If pregnant women were treated the same as nonpregnant women and men, their rights to refuse treatment would be relatively clear."[45] It is, however, when the woman's wishes are subjugated to the assumed interests of the foetus that her right to refuse any treatment is placed at risk. In no other situation would one individual's autonomy rights be invaded to protect someone else - even where that `someone else' is alive and a bearer or rights him/herself.

That this should be so is a manifest usurption by medicine and the law of their positions of trust in the community. It devalues women and implies the primacy of a being with potential over a being with actuality. As Annas has said, "The reality...is that the foetus can be treated without its mother's consent only by drastically curtailing her liberty during pregnancy or by subjecting her to major surgery at or near birth".[46]

A further reason for disquiet about the law becoming involved in enforcing treatment is that it merely replaces one arguably morally dubious decision with a perverse and unarguable immoral intrusion into the integrity of a human being. The case of Angela Carder illustrates this point. Annas describes this decision as follows:

They [the judge and the doctors] treated a live woman as though she were already dead, forced her to undergo an abortion, and then justified their brutal and unprincipled opinion on the basis that she was almost dead and her foetus's interests in life outweighted any interest she might have in her own life and health.'[47]

The fact that she would inevitably die is (in all situations) a legal irrelevance. It is just as much murder to kill someone who would die in the next second as it is to kill someone with 40 years remaining, yet effectively - in the purported interests of the foetus - this is precisely what hapened here, with the authority of a judge, and therefore, until reversed on appeal, with the sanction of the law. In any other situation, this would be unthinkable.

The cases on coercive operations point to a further reason for not legally enforcing particular behaviour on pregnant women. They imply, or perhaps more accurately say explicitly, that the woman's decision is somehow flawed. Now, in deciding about her own medical treatment, the woman can be given information and advice but cannot be forced to accept treatment even where it will save her life. The considerations which weigh heavily with her - even if not shared by her doctors or others - must legally be given absolute credence. Yet, where her decision will affect an entity without legal rights it seems that this fundamental principle flies out of the window. Her reasons are dismissed or discounted or ignored because, on a consequentialist model, we disapprove of the outcome of that choice. In other words, in these circumstances the law treats the woman as if she were in the same situation as a child or a mentally handicapped person.

The implications of this are either that the woman is of lesser value than the health of the foetus she carries or there is an assumption that her reasons are inadequate, perhaps trivial. Yet Angela Carder had been prepared to accept considerable discomfort in an effort to give her foetus a chance. Equally, in less dramatic cases, women should not be assumed to be acting hysterically or maliciously when they weigh their own interests against those of the foetus and come down on the side of their own. It is most unlikely that women take such serious decisions lightly and certainly they have little to gain. As Draper says:

in the maternal versus foetal conflict model, whoever wins, pregnant women lose. Resolving the conflict in favour of the mother gives her the liberty and the sole burden for deciding whether or not the foetus will live; she alone must sacrifice or live with the consequences. If the conflict model is resolved in favour of the foetus, women lose out again; since the sacrifice for saving life is extracted from them and them alone.[48]

CONCLUSIONS

What has gone before is a necessarily somewhat brief account of the legal developments and the dilemmas posed by the apparently conflicting interests of some women and some foetuses. It shows that what is really in the balance is the rights of women to respect - to the respect that would be shown were they not pregnant or of a different gender. Certainly, the fact that there is a foetus in existence also complicates the matter - this is not in dispute. But what is in dispute is why it complicates it and to what extent.

Most people share the view that we should offer some concern to the foetus, what the Polkingorne Committee called "a special status for the living human foetus at every stage of its development which we wish to characterise as a profound respect based on its potential to develop into a fully formed human being".[49] That it holds no legal status does not necessarily interefere with this desire, although it can and should simplify what can or cannot be done in respect of the pregnant woman.

Nor is it antipathetic to holding such respect to argue that the decision on intervention is solely and exclusively for the pregnant woman. Respect is desirable, but by no means non-defeasible where other interests predominate, as they should in this situation. Nor is this an unusual conclusion. We hold certain rights be be inalienable, such as the right to life, but we equally concede that life may be taken in certain circumstances. These circumstances are generally found where the effect of not taking the life would be worse than the taking of it. If this can be the case with fundamental human rights, it must surely be even more so with what is no more than an intuitively based respect, when to hold that respect as inviolable breaches both the respect we should have for the woman and involves an invasion of her rights.

We may all desire that every pregnant woman acts in an unimpeachable manner - many, if not most, do - but we cannot enforce this. To seek to do so would entail an unwarranted intrusion into all aspects of a woman's life solely because of the fact of her pregnancy. It would logically entail that the clincial information we have (not all of it unarguable) concerning what has the potential to harm the foetus would become not information or advice but an authoritarian regimen, removing freedom of choice for the duration of the pregnancy. It engenders, or perpetuates, discrimination against women based on their biological capacities. To adopt this approach, purportedly in order to show respect for the foetus, would be a monumental misunderstanding of the concept of respect and a perverse interpretation of the value of human rights. It is the law's shame that it has in the past colluded in this to the detriment of women.

Footnotes

Parts of this article are reprocuced from: S A M McLean 'Moral Status (who or what counts?)' in S Bewley and R Humphry Ward Ethics in Obstetrics and Gynaecology 1994 RCOG Press at the Royal College of Obstetricians and Gynaecologists, London

[*] Professor of Law and Ethics in Medicine, School of Law, University of Glascow.

[*] Senior Research Fellow, School of Law, University of Glasgow.

[1] The word foetus will be used throughout this paper to include an embryo.

[2] Asche M "Law-Language of Maternity: Discourse Holding Nature in Contempt" (1988) 22 New England LawReview 521 at 551.

[3] Mackenzie T B, Nagel T C and Rothman, B J K "When a Pregnant Woman Endangers Her Foetus" (1986) 16 (1) Hastings Center Report 24, 25.

[4] Wells C "Maternal Versus Foetal Rights" (1992) Working Paper no.1 Feminist Legal Research Unit, University of Liverpool, 17 at 18-19.

[5] Bennett, B "The Pregnant Woman and the Duty to Rescue: A Feminist Response to the Foetal Rights Debate" (1991) 9 (1) Law in Context 70, 85.

[6] Kolder V E B , Gallagher J and Parsons MT "Court- Ordered Obstetrical Interventions" (1987) New England Journal of Medicine 1192 at 1194.

[7] Johnsen, D "The Creation of Foetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy and Equal Protection" (1986) 95 Yale Law Journal 599.

[8] See for example Poplawski N and Gillett G (1991) "Ethics and Embryos" 17 Journal of Medical Ethics 62.

[9] Mc Cullough LB and Chernevak FA (1994) Ethics in Obstetrics and Gynecology OUP, Oxford 100-101.

[10] Secretary, Dept of Health and Community Services v JWB ans SMB (Marion's case) [1992] HCA 15; (1992) FLC 92-293, 79,172.

[11] Mallette v Shulman (1990) 67 DLR (4th) 321, 336.

[12] [1992] EWCA Civ 18; [1992] 4 All ER 649, 652-3.

[13] (Adult: Refusal of Treatment)Re T [1992] EWCA Civ 18; [1992] 3 WLR 782

[14] This refers to the tort of battery which stems from the right to bodily integrity and self determination. This tort provides protection from unwanted physical interference in the same way as landowners are protected from trespassers.

[15] This paper is not intended to cover questions of capacity concerning children or adults who are intellectually disabled. For information on these topics see: Mclean SAM A Patient's Right to Know (1989) Dartmouth, Aldershot, chaps 3& 4.

[16] McLean S A M and McKay A J "Consent in Medical Practice" in McLean S A M (ed) Legal Issues in Medicine Gower Aldershot, 1981.

[17] Brazier M "Medicine, Patients and the Law" 1992 (2nd ed) Penguin, UK 73.

[18] McFall v Shrimp 10 Pa D&C 3d 90 (1978).

[19] Case law on this issue has been extensively analysed in a recent Australian study. See: Seymour, J., Foetal Welfare and the Law (1995) A Report of an Inquiry Commissioned by the Australian Medical Association.

[20] 533 A 2d 611 (1987); 539 A 2d 203 (1988); 573 A 2d 1235 (1990).

[21] [1992] 4 All ER 671.

[22] Seymour (1995) op cit 81.

[23] See Seymour J "A Pregnant Woman's Decision to Decline Treatment: How Should the Law Respond?" (1994) 2 Journal of Law and Medicine 27. See also: Cica N "The Pregnant Patient and Her Doctor" The Third Australian Medico-Legal Conference 8 & 9 December, 1994, Sydney (unpublished paper) for further discussion of these theoretical models. This discussion draws on both of these sources.

[24] In re AC 533 A 2d 611 (1987); 539 A 2d 203 (1988); 573 A 2d 1235 (1990).

[25] Seymour (1994) at 33.

[26] See: Attorney-General (Qld) (Ex rel Kerr) v T (1986) 46 ALR 275, 277; Paton v British Pregnancy Advisory Service [1979] QB 276, 279; Roe v Wade [1973] USSC 43; 410 US 113, 161-162 (1973).

[27] [1978] 2 All ER 987,989.

[28] Elliot v Joicey [1935] UKHL 3; (1935) SC (HL) 57; Watt v Rama [1972] VicRp 40; [1972] VR 353. See also the Scottish case Hamilton v Fife Health Board (1993) 4 Med LR 201

[29] Karpin I "Legislating the Female Body: Reproductive Technology and the Reconstructured Woman" (1993) 3 Columbia Journal of Gender and Law 325 at 329.

[30] Seymour (1995) op cit 56.

[31] Ibid

[32] Dworkin R Life's Dominion Harper Collins 1993 chap 2. See also Singer P Rethinking Life and Death (1994) Text Publishing Company, Australia, 180-183

[33] Department of Health and Social Security (1984) Report of the Commission of Inquiry into Human Fertilisation and Emryology (Warnock Report) Cmnd 9314/1984. London: HMSO, para.11.9.

[34] Review of the Guidance on the Research Use of Foetuses and Foetal Material (Polkinghorne report) (1989) Cmnd 762/1989 London HMSO.

[35] To add to the complexity it must be acknowledged that some also regard animals as morally relevant and Singer argues that we should not exclude animals from the category of beings having interests which should be protected. See Singer , op cit 172-180.

[36] Swartz M "Pregnant Woman v Foetus: A Dilemma for Hospital Ethics Committees" (1992) 1 Cambridge Quarterly Healthcare Ethics 51 at 53.

[37] McCullough, Chevenak, op cit 102.

[38] (1993) 4 Med LR 201.

[39] McCullough, Chervenak, op cit 103-4.

[40] Mc Cullough, Chervanek, op cit 104.

[41] Mattingly, S S "The Maternal-Foetal Dyad: Exploring the Two-Patient Obstetric Model" (1992) Vol 22 No 1 Hastings Center Report 13.

[42] Annas G "She's Going to Die: The Case of Angela C" Vol.18 No.1 (1988) Hastings Center Report 23, 24.

[43] Swartz op cit 56.

[44] Ruddick W, Wilcox W, "Operating on the Foetus" (1982) 12 Hastings Center Report 12.

[45] Swartz op cit 55.

[46] Annas, G "Protecting the Liberty of Pregnant Patients" (1987)316 New Eng J Med 1213.

[47] Annas (1988) op cit 25.

[48] Draper H "Women, Forced Caesarians and Antenatal Responsibilities" Working Paper No.1, (1992) Feminist Legal Research Unit, University of Liverpool, 12.

[49] Polkinghorne Report at para 2.4.