British Journal of Obstetrics and Gynaccology July 1988, Vol. 95, pp. 641-643

COMMENTARY

Fetal rights

A 36-year-old-woman, referred to as F, became pregnant early in 1987. She was under the care of a consultant psychiatrist, having a history of severe mental disturbance and periodic drug abuse. Her circumstances were well known to local social services officers; her 10-year-old son had been taken into care some years before, and her access to him had been terminated as part of long-term foster arrangements. F continued her appointments until January 1988 when, just before the expected date of the birth of the fetus, she disappeared. The local authority applied for the fetus to be made a ward of court to protect its welfare. This is the first case in which this step is known to have been initiated in the UK.

The effect of a wardship order is to terminate all formal parental rights, duties and powers over the child and vest them in the court. In F’s case the local authority wanted the court to order the tipstaff to find and detain her, require her to surrender her passport and not attempt to take her child away after its birth, and finally, to order her to attend a hospital nominated by the social services. On birth, the authority would require F to comply with further instructions as to the child’s care and control. According to one judge, Lord Justice Staughton, these were orders ‘which seek directly to control the life of both mother and child’. A High Court judge. Justice Hollins, refused the authority’s request. It appealed to a panel of three more senior judges in the Court of Appeal; Lords Justice May, Staughton and Balcombe. They dismissed the social workers’ case.

This is at least the fourth recent example in which a social work department is known to have contemplated the use of wardship in seeking protection of a fetus. In one case, the authority anxiously discussed the possibility of using ward- ship to force a mentally competent woman to submit to a caesarean section. Although the Court of Appeal has said clearly that courts can- not extend the use of the wardship jurisdiction to

protect the interests and welfare of a fetus, Lord Justice May indicated that this was certainly a case in which it would have been justified. F’s case bears the hallmark of an emerging parallel with legal developments in the USA. There, court-ordered obstetrical interventions have sanctioned non-consensual, non-therapeutic caesarean sections, compulsory hospitalization and intrauterine transfusions. The spectres of judicial support for prenatal screening, fetal sur- gery and restrictions on the diet, work activity, and athletic and sexual recreations of pregnant women are feared to be waiting in the delivery room. Some (Leiberman et al. 1979) will warmly welcome the arrival of these judicial spirits as welfare guardians, but once they are in house, stalking and exorcizing the ghosts of legal super- vision will be troublesome and harrowing.

All the judges who heard this case agreed that, until birth, the fetus has no civil legal person- ality. Whatever its maturing moral character and physiological status, the fetus enjoys only the indirect protection afforded by the law on abor- tion. English law draws a fundamental distinc- tion between a newborn infant and a fetus. A claim to inherit property, or in respect of injuries inflicted before birth ‘crystallizes upon the birth, at which date, but not before, the child attains the status of a legal persona, and thereupon can then exercise that legal right’ (Lord Justice May). The wardship jurisdiction of the court did not extend to the fetus; ‘since an unborn child has, ex hypothesi, no existence independent of its mother, the only purpose of extending the jurisdiction to include a fetus is to enable the mother’s actions to be controlled (Lord Justice Balcombe). Respecting the autonomy of the woman outweighed any claims which might have been advanced on behalf of the fetus.

The court was unimpressed with the argument that orders of the kind sought could be limited to viable fetuses, so as not to conflict with the inter- ests of women seeking an early abortion. Lord

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Justice Balconibe said that if the wardship juris- diction extended to the fetus, there was no logic, although there might be sound pragmatism, in limiting it only to the viable fetus. The abortion provisions could not be confined in that way, and neither could the wardship jurisdiction. H e was similarly dismissive of an argument based on Article 2( 1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This provides that ‘Everyone’s right to life shall be protected by law’. According to Lord Justice Balcombe, extending this for the benefit of the fetus would mean that a pregnant woman’s ‘right to life’ would be subject to an implied limitation in favour of the fetus. In an cxtrcme case, such as a woman needing an abor- tion in order to avert a serious threat to her life, this could entail sacrificing the mother’s life to preserve the right of the fetus. The court refused to accept this conclusion.

Clearly, all the judges were concerned about the consequences of extending the jurisdiction. Lord Justice Balcombe was alarmed that the court might be asked to exercise its inherent jurisdiction to control and direct a woman’s health regimen (no smoking, no alcohol), social life (‘any activity which might be hazardous to the child’), and possibly her obstetrical prefer- ence. The judges agrecd that if the wardship jurisdiction needed extension to protect the fetus, then that was a parliamentary and not judicial responsibility. The court had no guid- ance as how such a responsibility should be exer- cised and discharged.

Some lawyers have regarded the use of the wardship jurisdiction to protect the fetus as ‘a logical and natural development’ of the powers of the courts. As a form of defensive social work practice these recent moves can be understood as attempts to pre-empt criticism that local auth- orities have not anticipated danger to a new client group, unborn fetuses and newborn infants. They reflect and are a representative part of a more general mood which has seen the emergence of the fetus, figuratively and literally, from the shadows of moral concern. They are part of a broader movement to accord rights to the unborn, which is paralleled in the concern expressed about human embryo research. To date, the vantage of British judges has resembled that of the Wimbledon spectator; clearly having their own private view as to which shots are out of court, but deferring to the legis- lative calls. But as some of the cases get closer to

lines set by social priorities of different times, courts will get drawn more closely into reproduc- tive conflicts. There are, however, at least two cardinal reasons why I think that temptation was correctly resisted in Re F; the ’slippery slope’ argument, and the ‘therapeutic conflict’ consideration.

These may undoubtedly be regarded as diffi- cult and troubling cases. But they must be recog- nized to be at the top of a tortuous and slippery slope. The ‘horrible result’ which lies at the bot- tom is the translation of pregnant women into nothing more than ‘fetal containers‘ (Annas 1986). seeing them as no more than a resource to be used to the ends of another. English law has always been remarkably reticent about the imposition of a positive duty to come to another’s rescue. It would be inappropriate to accord more respect to the integrity of a human corpse, which might yield organs or tissue for a lifesaving transplant, than to the autonomy of a pregnant woman; yet English law presently allows the surviving relatives of a deccased per- son effectively to frustrate even the express wishes announced by the deceased before death (Human Tissue Act 1961 ~ as amended).

Alternatively, the ‘arbitrary result’, once on the slippery slope, concerns the appropriate fetal age; what sort of threats the fetus must be exposed to; what likelihood of harm is neces- sary; and so on, before the court would entertain wardship. And if enforced medical regimens were countenanced, what potentially welfare threatening would not be regulated? (Williams (1985) distinguishes these two types of argument.)

Secondly, lawyers should be hesitant to rush into the delivery room. The relationship between pregnant women and obstetricians is not straightforward: creating an adversarial ground between the woman and her fetus will not clarify it. Physicians often disagree about the appropriateness of obstetrical intervention, and the intrusion of professional social workers and lawyers into the doctor-patient relationship would be a doubtful way of resolving any gather- ing conflict. In fact, most women when faced with the risk of death or serious injury to their fetus, do, cven if begrudgingly, submit to their obstetrician’s judgement. While English law is quick to accept medical uncertainty as a justifi- cation for physician error, we seem in danger of being less ready to recognize the implications of

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this for patient self-determination; this point is forcefully made by Kolder ef al. (1987).

If there is a course to be set between the Scylla of treating women as fetal containers and the Charybdis of regarding their fetuses as uterine cargo (Meeker 1987), the price which we must be prepared to pay for protecting the integrity and autonomy of all competent adults is the rare, occasional risk of death or serious injury to an unborn fetus. It cannot be that it i s professionals alone who are entitled to make the occasional mistake.

Derek Morgan Cardiff Luw School

PO Box 427 Card# CFl 1 X D

References

Annas, G . (1986) Pregnant women as fetal containers. Hastings Center Report 16(6), 13-14,

Kolder, V. E. B., Gallagher, J . & Parsons, M. -1. (1987) Court-ordered obstetrical interventions. N ErrgIJ Med 316, 1192-1196.

Leiberman, J . R., Mazor, M., Chaim, W. & Cohen, A . (1979) The fetal right to live. Ohsfef Gynecol53, 515-517.

Mcekcr, W. (1987) Protecting the liberty of pregnant patients. Correspondence. N Engl J Med 317, 1224.

Williams, B. (1985) Which slopes are slippery'! In Moral Dilemmas in Modern Medicine (cd. M . Lockwood), Oxford University Press. Oxford, pp. 126- 137.