Refusing medical treatment in pregnancy: what does the law say?

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.

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How to draw the line between ‘good’ and ‘bad’ reasons to die

Sascha Callaghan, University of Sydney

A Senate inquiry into legalising voluntary euthanasia for terminally ill people has recommended a conscience vote on the proposed bill after technical matters, such as what constitutes a “terminal illness”, are clarified.

While this is an important step forward in grappling with the idea of the “right to die”, drawing a line at terminal illness for this purpose will be difficult. What’s more, restricting the right to die to people who are terminally ill is very different to what most of us think of as justifiable euthanasia.

Research shows more than 82% of Australians support voluntary euthanasia where “a hopelessly ill patient, experiencing unrelievable suffering, with absolutely no chance of recovering” asks for help to end their life. This description covers terminal illnesses as well as other incurable conditions causing great suffering in which death may not be imminent.

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