Like it or not, and however (in)effective in protecting autonomy it may seem to be, the doctrine of consent is the vehicle which offers patients a role in healthcare beyond the merely submissive or passive one which was seemingly historically expected. Achieving joint or shared decision-making, with the patient as ultimate arbiter, is the supposed ambition of the law of consent (and its corollary, the right to refuse). As we have seen, however, the way in which the law operates serves to distance the actual decision-maker from the decision, by focusing either on the standards adopted by the ‘reasonable doctor’ or the ‘prudent patient’. In the routine medical case, the extent and quality of information that has to be provided to patients is set at a relatively low level, thereby casting doubt on the authenticity of any decision taken and allowing for subtle pressures to be brought to bear on patients to reach decisions that correspond to clinical recommendations. While apparently adopting a version of the individualistic model of autonomy, it has also been suggested that in some cases – like active assistance in dying – a more contextualised approach is sometimes used in law to reject the validity of an otherwise apparently autonomous choice. From what has gone before, it seems that the individualistic approach is

preferred except where there are ingrained ‘policy’ based reasons to move away from it. As became clear from the last chapter, this tends to occur when the issue under scrutiny is highly emotive. In this chapter, we will consider the law’s approach to decisions made by pregnant women in managing their pregnancy and labour and test this against the so-called right to refuse treatment which – as we have seen in the last chapter – is supposed to be absolute for competent individuals. Before considering the development of case law in this area, let me restate

what I have said elsewhere.1 Although cases in this area are sometimes referred to as examples of ‘Maternal/Foetal Conflict’, this language is inappropriate because it imports value-laden concepts that should not go unchallenged.

First, it represents the pregnant woman as ‘mother’, with all of the expectations that flow from this status. Second, the notion of a conflict implies some hostility or even threat. Since the foetus cannot will or intend anything, it casts the pregnant woman in the role of aggressor on her foetus. For these reasons, this language will not be used in this discussion, unless in quoting other commentators. At the outset, it is helpful to consider the status of the human embryo/foetus,

since ‘whatever status we concede to the [embryo or] foetus is directly relevant to the status which we accord to the woman who is carrying it.’2 In most Western countries, the embryo or foetus no matter its stage of development is accorded no legal standing. Even although once born it is possible to seek compensation for injuries sustained by the now born child pre-birth (and sometimes even pre-conception) this is a right that is applied retrospectively; that is, it accrues only on live birth.3 While the moral status of the embryo or foetus may be subject to debate, the law is clear; the embryo/foetus is not a legal person (although there are some countries that are exceptions to this general rule4). Nor does the fact that abortion laws tend to become more restrictive as pregnancy progresses mean that embryos or foetuses are being accorded rights in law. Rather, in imposing limitations on the availability of abortion, the state is engaged in reflecting what it sees as legitimate social policy. Since this is essentially a policy issue, it is scarcely surprising that there is no universal agreement as to when, and what kind of, limitations are imposed. While the law in many countries seems clear as to the non-legal standing

of the embryo/foetus, moral status is arguably more complex, and resolving this to the satisfaction of everyone seems unlikely. As is often the case in biomedical ethics, there are polar extremes of opinion. For some, the human embryo in its earliest stages is little more than a collection of cells whereas for others it is equivalent to an actual (or sometimes potential) person. Those who hold to the former position would be unlikely – perhaps unable – to build a case for regulation of what can be done with or to the embryo, while those in the latter camp would accord it the full panoply of rights and interests held by a person already born. However, arguably the most widely accepted view is that the embryo of

the human species is more than a mere collection of cells, but less than a fully formed, born human being. It is, therefore, entitled to some respect; respect which grows as it develops towards birth.5 It does not, however,

possess, nor is it self-evidently able to claim to be a bearer of, rights. Indeed, it could be argued that any respect due to it stems not from its own characteristics, but rather from our interest in showing it respect.6 The position adopted here will be that favoured in most Western countries and described by the Warnock Committee; namely, that ‘the embryo of the human species ought to have a special status … ’,7 and that ‘although the human embryo is entitled to some added measure of respect beyond that accorded to other animal subjects, that respect cannot be absolute … ’.8 Thus, on the face of it, the embryo is of importance but the born person is the holder of rights – in any ‘competition’ the rights of the born person should prevail. While the embryo has no legal rights, the consequence of Warnock’s

gradualist approach is that the respect owed to it increases as it develops towards becoming a legal person; that is, when it becomes a foetus. This is generally reflected in abortion laws, which in the liberal tradition typically impose fewer limitations on the availability of pregnancy termination in the early stages, with constraints developing and strengthening as the embryo develops towards birth. However, countries that allow abortion do not make the critical judgement about its permissibility at the same stage in the pregnancy, and some impose reasonably strict criteria even in the earliest stages of pregnancy. There is therefore no universally agreed point at which moral status is attributed before birth. McCullogh and Chervenak see this as inevitable, saying: