The recent report of a pregnant woman who refused life-saving cancer treatment whilst heavily pregnant has reignited debate within the community about how we should resolve conflicts between mothers rights and those of her unborn child. The woman had refused blood products that were required to give her lifesaving chemotherapy because of her Jehovah’s Witness faith, and she and her fetus died in hospital when she was 28 weeks pregnant.
From a legal point of view this case engages two well-established principles: the first is that an adult who has mental capacity, may refuse medical treatment for any reason whatsoever, even if the consequences are that she will die. The courts are clear that all medical treatment is optional, and when it comes to decisions about our own life and health, our wishes will be respected. The second is that a fetus is not a legal person with rights of its own, until it is born. This is not to say that the law does not protect fetuses at all. Abortion is still a criminal offence in New South Wales and it is grievous bodily harm to destroy the fetus of a pregnant woman whether or not the woman herself is injured – punishable by up to 20 years in jail. Children can also sue people who have caused them injury in the womb after they are born. However it does mean that whilst a fetus is still in the belly of its mother, the mother’s right to make decisions about her own body will prevail.
In the wake of the tragedy of the preventable death of a young woman and her unborn child, some have suggested that we would be better off as a community if the law required pregnant women to be forced to have medical treatment in some circumstances. Some might think that women should be required to make particular life choices more generally, wherever fetal health is involved. But all of these suggestions are bound for unintended consequences – and they all deserve careful thought.
Whilst the needs of fetuses and their mothers usually coincide, there are not uncommonly circumstances where conflicts arise. Women are diagnosed with life-threatening conditions, the treatments for which are likely to hurt or even kill their fetuses. As the law stands we are permitted to decide to save ourselves, with all the bitterness that might entail, and doctors who act to save a woman in an emergency need not concern themselves with fear of prosecution if she happens to be pregnant. But we often assert our interests in more subtle ways. For now we cannot be forcibly restrained from smoking, drinking, having sex or exercising while pregnant even though all of those activities have been implicated as real or potential dangers to our fetuses. Women and their doctors would face potential liability in all of these situations if fetuses were themselves legal persons with enforceable rights.
And if women’s rights to refuse treatment were curtailed in pregnancy, women could be prevented from refusing burdensome treatment – life support, chemotherapy and so on, no matter how sick we are or how strongly we and our loved ones hold our personal desire to be allowed live or die on our own terms. Just this sort of situation was considered by an Irish court last year when a father won the right to have his pregnant daughter’s life support switched off, to prevent her being kept alive with invasive care, solely as an incubator for her fetus. The treatment on the woman, who was brain dead, was acutely distressing to her family -including her other children – and was initiated because the Irish constitution imposes an obligation on doctors to protect the lives of fetuses.
Law cannot prevent tragedy. And no one can fail to be moved by these most difficult of medical dilemmas. But for now we have accepted that a woman’s right to refuse treatment will be the deciding factor in a choice between evils.