Table Of ContentPOLICING PREGNANCY
For Bryony
Policing Pregnancy
The Law and Ethics of Obstetric Conflict
SHEENA MEREDITH
First published 2005 by Ashgate Publishing
Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint oft he Taylor & Francis Group, an informa bu.siness
Copyright © Sheena Meredith 2005
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks,
and are used only for identification and explanation without intent to
infringe.
Sheena Meredith has asserted her right under the Copyright, Designs and Patents Act, 1988, to be
identified as the author of this work.
British Library Cataloguing in Publication Data
Meredith, Sheena
Policing pregnancy : the law and ethics of obstetric
conflict
!.Obstetrics -Law and legislation -Great Britain
2.0bstetrics -Law and legislation -United States
3. Informed consent (Medical law)-Great Britain 4.lnformed
consent-(Medical law)-United States 5. Pregnant women-
Legal status, laws, etc. -Great Britain 6.Pregnant women-
Legal status, laws etc.-United States ?.Pregnant women-
Treatment-Decision making 8. Medical ethics
!.Title
344.4' I 0412
Library of Congress Cataloging-in-Publication Data
Meredith, Sheena.
Policing pregnancy : the law and ethics of obstetric conflict I by Sheena Meredith.
p. em.
Includes bibliographical references and index.
ISBN 0-7546-4412-X
I. Obstetrics--Law and legislation--United States. 2. Informed consent (Medical
law)--United States. 3. Pregnant women--Legal status, laws, etc.--United States. 4.
Obstetrics--Law and legislation-England. 5. Informed consent (Medicallaw)-England.
6. Pregnant women--Legal status, laws, etc.--England. 7. Pregnant women--Treatment-
Decision making. 8. Medical ethics. I. Title.
KF2910.G94M47 2005
344.7304' 12-dc22
2005011780
ISBN 9780754644125 (hbk)
ISBN 9781138257948 (pbk)
Contents
Preface vii
Cases cited ix
Acknowledgements xiii
Introduction 1
1 Pregnant Women and the Law 5
2 Power Imbalance in Court 38
3 Is the Law Being Used to Enforce Compliance with Medical Advice? 64
4 Undermining Capacity to Consent – Another Route to Compliance 104
5 Questioning Child Welfare – Protection or Punishment? 130
6 Ongoing Challenges to Autonomy 171
Conclusions 206
Bibliography 224
Index 251
Preface
In the past two decades, a series of high-profile court cases in both the UK and the
US have highlighted a novel problem for both medical law and society. In
intervening in situations when pregnant women and those charged with their care
do not agree on management options or appropriate behaviour, the law has been
forced to try to reconcile the often competing demands made in the name of foetal
‘rights’, maternal autonomy and medical authority. Society’s interests, for instance
in preserving life and safeguarding future citizens, may also be brought to bear.
This book examines the legal and ethical background to such cases and
attempts to give an overview of the development of the law as it affects pregnant
women; the current legal position, and potential future complications.
In addition to assessing those cases that have come before the courts, and
the ensuing ramifications, it examines the legal principles underpinning such
aspects as medical care in pregnancy and during childbirth, patient autonomy,
foetal status and potential maternal liability, as well as the operation of these
principles at the practical level of the doctor’s office, clinic or obstetric ward. It
discusses the varying ethical viewpoints about foetal rights and maternal duty,
assesses the interaction between medicine and the law in this area, and examines
those factors – medical, legal, ethical and social – that may in the coming years
pose even further challenges within the already complex relationship between
pregnant women and their health care providers.
Although many of these issues are heavily influenced by prevailing social
mores, their underlying significance may pose intensely emotive questions, often
at the difficult intersection of ethics with morality, which touch on fundamental
beliefs about the meaning of the human condition, and have potential impact and
importance for the nature of the society in which we wish to live.
In this context it should be noted that the book does not attempt to discuss
the vast subject of abortion law per se, nor the enormous ethical questions it poses,
except insofar as it relates, directly or indirectly, to issues arising when a pregnant
woman and her medical advisers are in conflict over appropriate intervention or
behaviour in pregnancy. Similarly, while there is much to be said concerning the
complex issues raised by ‘workplace protection’ policies applied to pregnant or
potentially fertile women, they do not represent an example of such direct conflict
and will not be addressed specifically.
I have tried to give an overview of the many and varied opinions that have
been expressed on the issues underlying what I have chosen to call ‘obstetric
conflict’ (for reasons explained in Chapter 3). I am grateful to all those whose
opinions and judgements are here quoted or analysed. The presentation of facts
however is my own selection, and the opinions expressed mine except where I
have made clear that I am citing the viewpoints of others. The responsibility for
any errors is entirely my own.
viii Policing Pregnancy
In deference to my English roots, British spelling and terminology have
been used throughout, except where I have quoted from original sources that use
the American versions. I hope that this will not be overly jarring for my American
readers. To forestall any accusations of inconsistency, readers should also note that
whilst the standard English ‘judgement’ is used with its general meaning, I have
used ‘judgment’ to represent court decisions, as appropriate in a legal context.
As the majority of cases that have arisen in this area have occurred in
either the US or the UK, the discussion concentrates largely on the law as it
applies in these jurisdictions – both based on common law (with the exception of
the US state of Louisiana, which operates the French Civil Code). Yet while the
basic legal principles of patient autonomy have developed in parallel between the
two countries, the approach to the application of these principles when pregnant
women are involved has diverged considerably. In addition, the legal position may
vary between individual states in the US.
As to the fundamental question of whether a pregnant woman is entitled
to the same rights of self-determination and bodily integrity as other adults, courts
on both sides of the Atlantic have in some instances decided that she is not. The
implications of such decisions are wide-ranging and their future development of
great importance both for individual women and their families, and for society as a
whole.
Cases cited
Airedale NHS Trust v Bland [1993] AC 789.
Angela MW v William Kruzicki et al 209 Wis 2d 112, 561 NW2nd 729 (1997).
Application of the President & Directors of Georgetown College Inc. 331 F.2d
1000, 1006-07 (DC Cir), cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12
L.Ed.2d 746 (1964).
Attorney-General's Reference (No.3 of 1994) (1997) LTL 25/7/97; TLR 25/7/97;
(1997) 3 WLR 421; (1997) 3 AER 936; ILR 1/10/97; (1998) CAR 91.
Bonte v Bonte 136 N.H. 286, 289 (1992).
Bowditch v McEwan [2002] QCA 172.
Brinkley v State 322 S.E.2d 49 (Ga. 1984).
Brown v Shwarts 968 S.W.2d 331 (Tex. 1998).
Bruggemann and Scheuten v Federal Republic of Germany [1977] 3 EHRR 244.
C v S (1988) QB 135.
Collins v Wilcock [1984] 3 All ER 374.
Commonwealth v Cass 467 N.E.2d 1324 (Mass. 1984).
Commonwealth v Lawrence 536 N.E.2d 571 (Mass. 1989).
Conroy, In Re (1985) 486 A.2d 1209.
Crawley v South Carolina 523 U.S. 1145 (1998).
Crawley v Catoe U.S. 4th Circuit Court of Appeals, decided 16 July 2001.
Crouse Irving Memorial Hospital Inc v Paddock (1985) 485 NYS.
Cruzan v Director, Missouri Department of Health 497 U.S. 261 (1990).
Cullotta v Cullotta 287 Ill. App. 3d 967, 969-70, 678 N.E.2d 717, 718 (1997).
Curlander v Bio-Science Laboratories 165 Cal. Rptr. 477 (1980).
Endresz v Friedberg 24 NY 2d 478 [1969].
Ferguson v City of Charleston [2001] 99-936 (Supreme Court of the United
States); (1999) 186 F.3d 469 (U.S. 4th Circuit Court of Appeals); [1998]
CA-93-2624-2-12 (U.S. 4th Circuit Court of Appeals).
Fidelity Financial Services Inc. v Hicks 267 Ill. App. 3d 887, 890, 642 N.E.2d 759,
761 (1994).
Fosmire v Nicoleau 75 N.Y.2d 218, 227, 551, N.E.2d 77, 81-82, 551, N.Y.S.2d
876, 880-81 (NY 1990).
Grodin v Grodin 102 Mich. App. 396, 400-401, 301 N.W.2d 869 (Mich. Ct. App.
1980).
Hamilton v Fife Health Board (1992) TLR 28/01/92 [Lawtel]; on appeal [1993]
SLT 624.
Harnish v Children's Hospital Medical Center 387 Mass. at 154-155, 439 N.E.2d
240 (1982).
Hughes v State 868 P.2d 730 (Okl.Cr. App. 1994).
In re Baby [Boy] Doe 260 Ill. App. 3d 404, 632 N.E.2d 326-335 (Ill. App Ct 1994).
