Should the Rights of an Expectant Mother Ever Be Subordinated to the Interests of Her Foetus?

Should the rights of an expectant mother ever be subordinated to the interests of her foetus?

Before addressing this question in its entirety, it is necessary to consider what is meant by its component parts. If we are talking about a moral 'should', in the sense that a pregnant woman ought sometimes to put the interests of her foetus before her own, then there is not much cause for discussion; a pregnant woman seen smoking or drinking alcohol is frowned upon because people see her to be acting immorally; her desire to have a cigarette or a drink should be secondary to her foetus's welfare. Therefore we will consider instead the question whether the law, in certain circumstances, ought to impose a legal duty on a pregnant woman to put her foetus' interests before her own. The question of the definition of 'interests' follows. It is important to note that the question speaks of the rights of the mother, but the interests of the foetus - surely because English law does not recognise the foetus as a legal person, and so it is not afforded rights until after birth. This is demonstrated by the fact that if a pregnant woman is attacked and the foetus is harmed, it is not possible to bring an action in the name of the foetus. However, if the foetus is subsequently born and suffers harm as a result of the attack, the case would be treated just as if the attacked had harmed a person. However, the point emphasised in A-G's Ref (No.3 of 1994) was that although the foetus is not regarded as a fully-fledged person, it is nevertheless not a 'nothing', with the court in that case rejecting the suggestion that it should simply be seen as a part of its mother; it possesses interests of its own.

The mother, on the other hand, has rights: including the right to autonomy, the right to bodily integrity, and therefore the right to refuse any sort of treatment that might be required for the wellbeing of her foetus. This creates potential for conflict between the two, and a complex legal dilemma; should the law intervene to ensure that where such conflict arises, the foetus's interests are taken into consideration. Although the current law claims not to intervene in this manner, case law seems to suggest that courts are not content with that fact. For instance, it was held in Re MB that a woman with the capacity to make such a decision was entitled to refuse treatment even where a medical professional believed that said treatment would be lifesaving. However, in that case it was also held that the mother's fear of needles meant that she temporarily lacked capacity to make the decision and the treatment was carried out against her wishes - perhaps using the front of capacity to ensure both mother and foetus' wellbeing. It seems to suggest that there is an unspoken assumption that a woman who wishes to act contrary to her foetus's best interests must be mentally ill. However, in St George's Healthcare v S, a woman's decision to refuse a caesarean section because she wanted her child to be born naturally was held to be legally valid, perhaps indicating that the courts do place mother's autonomy in front of the foetus' interests.

One might argue that it seems cruel for mothers in pain or fear deny their foetus' life, so perhaps the courts are imposing in law a moral duty for mothers to act in the best interests of their foetuses - with the St George's Healthcare perhaps being an exception as the 'morally good' outcome had already occurred, and the court was retrospectively applying its judgement. Yet there are many morally good things that the law does not require us to do - the closest analogy probably being with the fact that the law does not require us to help another person in danger provided that the danger is not our fault and the person is not our responsibility.

Let us take the example of the pregnant woman who regularly drinks alcohol. While the mother of a child could, for instance, task someone else with looking after it while she continues to engage in her chosen lifestyle, the pregnant woman has no such option - her only option is to stop drinking for nine months. If the law imposed on her a duty to do this, it would certainly interfere with her right to autonomy. In order to justify such interference, the interests of the foetus (healthy development) would have to outweigh the mother's rights (autonomy). The difficulty here is that an 'interest' is inherently inferior to a 'right'; the latter has independent legal force, whereas the former is only ever a consideration. Therefore the only way in which the mother could ever be under a legal duty to act in the interests of her foetus would be if the foetus were accorded rights on par with those of its mother. There are strong arguments for a foetus to be granted legal rights, but the common law has long established that this is not the case.

The pregnant woman who drinks heavily or consumes other drugs regularly throughout her pregnancy is, statistically, putting her foetus's health and wellbeing at risk. It is clear that if she were doing the same thing (creating a serious health risk) for a child had that was only a few seconds old, the law would have no difficulty in finding grounds to intervene. This seems to be at

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