The right to be wrong
The May court of appeal ruling that a pregnant woman has the right to refuse medical treatment, even if her decision may jeopardise her life and the future of her pregnancy, was welcome. Three judges overturned the decision of a lower court and ruled that medical authorities and social workers did not have the right to force a pregnant woman, referred to during the proceedings as MS, to have a caesarean section against her will.
It was useful for eminent judges to confirm that pregnant women are not walking wombs and that, despite being 'with child', they remain individuals entitled to the same rights as anybody else - including the right to reject their doctors' advice.
It was also timely for the court to remind society that 'although human and protected by the law in a number of different ways...an unborn child was not a separate person from its mother. Its need for medical assistance [does] not prevail over her rights'.
There has been a growing unease among those of us who follow the contorted debate over medical ethics that, increasingly, the fetus is being seen as a patient in its own right. Frequently, doctors involved in fetal medicine talk of having two patients and muse about their obligation to the 'unborn child' independently of their obligation to the pregnant woman. Journalists who have grappled with the claims and counter-claims of ethicists and medical specialists probably breathed a sigh of relief that the court's ruling was so stridently clear. At least for the time being we can confidently assert the traditional truth: persons acquire rights at birth and not before.
There were fewer howls of outrage than might have been expected from those who - as part of their struggle to ban abortion - insist that fetuses should be accorded full rights in law. Sunday Telegraph editor Dominic Lawson curiously predicted the introduction of voluntary euthanasia after the case. Expressions of disapproval have, in the main, been reserved for the woman known as MS who, by means of this case, won her right to sue the hospital where her baby was delivered by a caesarean section to which she did not consent.
In truth it is hard to feel much sympathy for her. Most women, having carried a pregnancy to 36 weeks, are keen to co-operate with medical staff and see them not as adversaries in a battle, but allies who can help them achieve the birth of a healthy child. Most women, if told the life of their child was in danger, would submit to almost anything to improve its chances. Not so the woman in this case.
On being told she was suffering from severe pre-eclampsia and advised that she needed urgent medical attention, MS insisted that she wanted to give birth to her baby 'naturally' in a barn in Wales. Some might think that this was in itself proof of insan- ity such as to throw MS' mental competency into question. However, we who have not seen her medical records are in no position to judge whether her decision was as absurd as it seems. And the court of appeal judges, who cannot afford the luxury of outrage, were wise to remind us that the Mental Health Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is 'unusual, even apparently bizarre and irrational and contrary to the overwhelming majority of the community at large'.
One columnist did challenge the near consensus on the matter, asking 'has there ever been a more blatant example of the modern obsession with "rights" and corresponding neglect of "duties"?'. She was, of course, counterposing a woman's right to decide to her duty to manage her pregnancy in the best interests of her child-to-be. In her view, the court of appeal ruling has 'made the duties of motherhood into an object of contempt'.
Leaving aside the minor point that MS was not - in either law nor fact - yet a mother, the same pithy rhetorical question was on my lips too, but from a different perspective. There is, indeed, a 'modern obsession with rights' and 'neglect of duties'. Some doctors and lawyers would do well to end their growing obsession with the rights of the unborn, and concern themselves with their duty to heed the decisions of their patients.
The principles at stake in this case extend far beyond that of a woman's right to decide the future of her pregnancy. They touch upon the very principle of personal autonomy, liberty and our ability to make decisions for ourselves, free from coercion from external agencies. One of the most important rights we have is the right to make 'wrong' decisions. Freedom that only means freedom to do as doctors, social workers and lawyers think best, is no freedom at all.
Reproduced from LM issue 111, June 1998