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Murdoch University Electronic Journal of Law |
Author: | Lee Ann Marks Faculty of Law and Legal Studies, La Trobe University |
Issue: | Volume 2, Number 3 (December 1995) |
This report, published in 1995, was commissioned by the Australian Medical Association
and sponsored by the Royal Australian College of Obstetricians and
Gynaecologists, the National Association of Specialist Obstetricians and
Gynaecologists, the Australian College of Paediatrics and the Medical Protection
Association of Australia. The project
was conducted by Dr John Seymour of the Faculty of Law, Australian
National University, under the supervision of the Advisory Committee on
Fetal Welfare and the Law chaired by Dr Amanda McBride and comprising
representatives of the sponsoring organisations. Dr Seymour was assisted by three special consultants: Ms Natasha
Cica, Lecturer in Law and Medicine, Faculty of Law, Australian National
University, Dr Gregory Kesby, Registrar in Obstetrics and Gynaecology,
King George V Memorial Hospital for Babies and Mothers, Sydney and
Clinical Lecturer in Obstetrics and Gynaecology, University of Sydney and
Ms Judith Mair, Senior Lecturer, Faculty of Health Sciences, University of
Sydney; and two research assistants: Ms Katrine Bewley and Mr James Wood.
The purpose of the inquiry was to assess "where responsibility should lie for
the provision of the best possible care for a fetus before and at the time
of delivery."[1] The inquiry sought a middle path through the highly contentious
debates surrounding fetal welfare, acknowledging both the interests of the
fetus and the pregnant woman's entitlement to autonomy and to bodily
integrity. It criticised the use of
rhetoric centring around the concept of rights, preferring a consideration
of the ways in which "the welfare of the pregnant woman and her
unborn child can best be promoted".[2] The inquiry
explored the following questions:
- What are the responsibilities of health care professionals to ensure that
a pregnant woman is fully aware of the harm which certain forms of behaviour
can cause to her developing fetus?
- What is their legal position if they fail to provide appropriate warnings
knowing that a woman is engaging in behaviour likely to harm the fetus?
- Do they have a duty to volunteer information on all recognised risks if they
have no reason to believe that the woman might engage in potentially harmful
behaviour?
- What responsibility should be borne by the mother if she chooses not to follow
the advice of those undertaking her antenatal care and the fetus is harmed
as a result?
- Are there any circumstances in which the law should intervene to ensure the
provision of treatment to a fetus in utero when the mother , after being
fully informed of the need for such treatment, refuses to consent to it?
- Are there any circumstances in which the law should intervene to prevent the
mother from continuing to engage in behaviour likely to harm the fetus?
- What are the obligations of health care professionals assisting at a delivery
to provide information as to the risks ( to mother or fetus) of a failure
to accept appropriate treatment?
- What responsibility should be borne by a mother for the harm suffered by her
child when, at the time of delivery, she has chosen not to consent to a
particular form of treatment after a full explanation of the risks involved?
- Are there any circumstances in which health care professionals assisting at
a delivery should employ methods to which the mother has not given consent?
- Are there any circumstances in which, when consent to appropriate treatment
has been refused at the time of deliver, the law should intervene in an
attempt to ensure that this treatment is provided?
- Do health care professionals who have carefully advised a mother as to the
appropriate form of treatment at the time of delivery have any further obligations
if the advice is rejected? In this
situation, are the persons responsible for the mother's care entitled to
cease to provide it?[3]
The first step in the inquiry was the collection and scrutiny of Australian
evidence on fetal impairment and injury caused by refusal of appropriate
treatment at the time of birth. This
information is contained in Part 1 of the Report titled "The inquiry
and some background issues". This part sets out information on the
origin, nature and purpose of the inquiry (Chapter 1) and identifies the
legal problems (Chapter 2). The Report
goes on to review the medical evidence concerning certain types of behaviour;
the risk such behaviour poses to the fetus; medical intervention which
offers "a substantial chance of safeguarding the welfare of the
fetus" both ante natally and at the time of birth (Chapter 3). The remaining two chapters in Part I
consider theoretical questions (Chapter 4) and basic legal concepts
underlying liability: battery and negligence (Chapter 5).
The second step in the inquiry was to focus on the legal obligations of all
those involved, specifically the health care professionals and the pregnant
woman. The legal problems are set out
in Part II of the Report. The inquiry formulated the legal problems in
the following terms: When intervention is declined: should court action be
possible? (Chapter 6); maternal antenatal behaviour which might harm the
fetus: does the law have any part to play? (Chapter 7); may the child sue?
(Chapter 8); damages claims against doctors and midwives (Chapter 9);
other types of harm to the fetus (Chapter 10); damages claims against the
parents (Chapter 11)
The Report recommended clarification of State and Territory law to provide that
it is unlawful for a doctor to perform a medical procedure on a mentally
competent pregnant woman when she has expressly declined to give her
consent to that procedure.[4] It recommended that neither criminal law nor
child welfare law should be used to impose controls on the behaviour of a
pregnant woman. However it did
recommend that in some situations involving care and protection of
children a court should accept evidence of the ante natal behaviour of the
mother "provided this evidence is relevant to determining the
question whether there is a substantial likelihood that the child will
suffer harm in the future."[5]
The Report found that Australian common law does permit a child to sue for damages
in respect of injury negligently caused before that child was born but
that further clarification of the law was required.[6] It recommended that
pending the outcome of the current review of the torts system in relation
to medical misadventure, "the States and Territories should consider
enacting provisions which make it clear that a child may take proceedings
in negligence in respect of injuries or disabilities caused before
birth."[7] It should be noted (as discussed in the Report) that under
Australian law the fetus has no legal status, and hence no rights, until
birth.[8] With regard to the current review of the torts system in relation
to medical misadventure, the Report also recommended that States and
Territories should consider enacting provisions that give the woman and
her partner immunity from a negligence action at the suit of a child injured
in utero. This would be subject to an
exception where the injury was caused by a parent's negligent
driving. Consideration of the desirability
of legislation which would allow for the reduction, on the basis of a
parent's contributory negligence, of the damages received by a disabled
child in a negligence action against a doctor or midwife was also recommended.[9]
Throughout the Report there is recognition that law is not necessarily the most
appropriate tool for regulating behaviour and protecting the fetus. In
particular the inquiry found that: "The law of torts has a very limited part
to play in the regulation of family life and it follows that parents do
not owe legally enforceable duties to their children. They do, however, have a moral duty."[10] Seeking a
middle path through the highly contentious debates surrounding fetal
welfare, the inquiry concluded that "the central issue is how best to
promote the welfare of pregnant women and their fetuses, the answer
offered is that, instead of resort to the legal process, our society should
foster education and improved communication between women and the doctors
and midwives who care for them....Ultimately, the best protection of
pregnant women and their fetuses will be achieved by the adoption of
methods which ensure that the women are well informed, free of pressure
and able to make their own decisions in an open minded manner".[11]
This reflects the acceptance of Isabel Karpin's concept of the pregnant
woman and her fetus as Not-One-But-Not-Two,[12] which reflects the special
relationship between the woman and the fetus. In the words of the report: "The proposed model is
flexible enough to ensure that women's rights are respected, while at the
same time recognising that, in certain circumstances, the fetus is sufficiently
distinctive to have legally protected interests".[13]
Despite terms of reference which could be (and were) criticised as paternalistic
and potentially anti-woman, the Seymour Report on Fetal Welfare and the
Law has attempted to steered a middle path through the contentious debates
surrounding the maternal/fetal relationship.
In the process it has provided a theoretical, legal and medical
context within which to consider these difficult issues which recognises
the primacy of the woman's autonomy and is consistent with the
Not-One-But-Not-Two approach. The
Report acknowledges the inappropriateness of legal regulation and seeks
solutions which ensure that "women are well informed, free of
pressure and able to make their own decisions in an open-minded manner."[14]
NOTES
[1] Seymour, Fetal Welfare and the Law A report commissioned by the Australian
Medical Association 1995 (hereinafter The Seymour Report), vii
[2] Id, 212
[3] Id, vii
[4] Id, 105
[5] Id, 135
[6] Id, 153
[7] Id, 153
[8] For further discussion see id, Chapters 4 & 8
[9] The Seymour Report, 205
[10] Id, 204
[11] Id, 213
[12] I. Karpin, "Legislating the Female Body: Reproductive Technology and the
Reconstructed Woman" (1992) 3 Columbia Journal of Gender and Law 325
[13] The Seymour Report, 57
[14] Id, 213