‘COURT-ORDERED
CESAREAN SECTION’
RIGHT OF MOTHER v. RIGHT OF FETUS
IN
MEDICO-LEGAL PERSPECTIVE
Abhishek Swaroop &
Satyam Sharat
Introduction
The legal regulation of women’s bodies raises some of the
most controversial issues in medico-legal jurisprudence. This paper aims at
examining a dubious area of conflict of interests, popularly referred to as the
‘maternal-foetal conflict’.
It is well settled law that a pregnant woman has the
legal right to refuse medical treatment
whatever be the consequences for herself or the foetus she carries. The Constitution of India provides for right to life
and liberty under Article 21 and this concept of ‘liberty’ subsumes within
itself certain unenumerated rights, which are essential to human dignity. One
such right is the right to privacy, i.e. an individual has an absolute control
over his body and no one can interfere with his bodily integrity except with
his permission. Similarly, the courts have recognized that a foetus is a person
in the eyes of law and as such it enjoys all the privileges and rights enjoyed
by a human being.
The conflict juxtaposed in this paper, is that a woman
carrying a foetus in her womb has a legal and well-recognized right to privacy
not to allow any sort of interference with her body. On the other hand, foetus
also possesses a valid, justified and legally recognized right to life. In
court-ordered caesarean sections, both these rights come in conflict and it is
left to the wisdom of courts to decide, to which right they should give preference.
Thus, this paper provides a feasible guideline or solution while balancing the
two conflicting rights.
Argument of Bodily
Integrity and Privacy
Every person has the right under common law and the
Constitution to refuse medical treatment. This right of bodily integrity
belongs equally to persons who are competent and to persons who are not. Infact, in cases of incompetency, it becomes the
duty of the State to protect such right of the individual because he himself
cannot claim that protection. The same logic also applies to a pregnant woman
who fears some traumatic bereavement post operation. To protect that right
against intrusion, a court must determine the patient’s wishes by any means
available and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them.
Courts do not compel one person to permit a significant intrusion upon his or
her bodily integrity. This right is based simply on the fact that if the law compels a person to
submit to an intrusion of his body, it would change every concept and principle
upon which the society is founded. To do so would defeat the sanctity of the
individual and would impose a rule which would know no limits. In India, the
Supreme Court has now for long upheld the right to privacy of an individual.
Such a right of privacy stresses the value of personhood and it protects
against the totalitarian abuse of government power. This concept of personhood
embodied in the right to privacy can be used to affirm the role of will and
creativity in a woman’s construction of her own identity.
In United States also, this right has been
recognized in Cleveland Board of Education v. La Fleur and in Griswold v. Connecticut, wherein Douglas, J., observed that:
1.
In addition to the rights explicitly protected
by constitution, there are implicit constitutional rights.
2.
One of those implicit rights is the right to
privacy.
Thus,
we can safely conclude that right to refuse medical treatment is within right
to privacy, well recognized as a fundamental right by the constitution.
Right per se of the Foetus
In A.C, Re, it was
held by the court that the state has an important and legitimate interest in
protecting the potentiality of human life, when the foetus has become viable.
It had also been acknowledged earlier in Roe v. Wade
that State’s interest in potential human life becomes compelling at a point of
viability. This is a situation, which exists when a woman has carried an unborn
child to viability, and when the unborn child reaches this stage the child
becomes a party whose interest must be considered. A similar approach has been
adopted by the courts in Fowler v. Woodward
and more recently in Whitner v. South Carolina
. In all these cases it was opined that ‘viable foetuses’ are ‘persons’ in
the eyes of law, certain legal rights and privileges and exclusion of viable
foetus from status of person would be an “unsound, illogical and unjust”. It
was unanimously held that a foetus having reached that period of prenatal
maturity where it is capable of independent life apart from its mother is a
person.
After
the perusal of the above-mentioned cases, it would be safe to conclude that a
foetus has the legal status of a fully born person in the eyes of law. And
therefore state’s interest in protecting the life and health of the viable
foetus is not merely legitimate but compelling.
In cases, where the woman is pregnant and she
cannot have normal vaginal delivery,
the only option left to the doctors after detailed medical prognosis is the
caesarean section. If the woman consents to the operation, there is no problem
but if she refuses and her refusal may prove fatal to the foetus, then in such
a case the right to life of the valid and recognized legal person would
be infringed. This is based upon a simple logic that the foetus is a ‘person’
in eyes of law and as such it carries with it all rights vested in a person,
including right to life. And if such a right is infringed, the court through
‘court-ordered caesarean section’, could well enforce it.
Competence
and consent of the mother
It is a general societal tendency to privilege
and reify medical opinion. It means that whatever opinion a doctor gives, it will be the ‘final word’ for
the patients, atleast in the present scenario in India, contrary to the belief
that a ‘woman knows her body better’. It is because of this psychological
thinking prevalent in the society that when a woman rejects the medical advice
tendered to her, the possibility that she might be right and her doctors wrong
is unlikely to be raised. Thus, as a mother-to-be, she is seen to be
jeopardising not only herself but also her unborn child. As such, her sanity,
creditability and competence to decide about her own body comes into question
and thereby hampering the role of consent of the mother in allowing or
disallowing the medical authorities to operate upon her. The reasoning applied
in such situations is simple, the implicit societal expectations that mothers
must, if they are mentally normal, love their children, nurture and protect
them.
The expectant mother has placed herself in a special class of persons who are
bringing another person into existence. Thus when a person who has undertaken
such a great responsibility, refuses and rejects the medical prognosis, her
competence to consent definitely comes under close scrutiny. This competence to
consent plays an important part in situations where the court has to decide
about ordering the caesarean section and the pregnant woman has refused to
allow medical treatment upon her body, claiming bodily integrity and autonomy.
The courts can discredit any such consent before making an order for
caesarean section.
Right
of Mother v. Right of Foetus: The Conflict
As mentioned above, in those medical cases
where normal vaginal delivery could not take place and a caesarean section is a
must in order to save the life of the unborn child, and if the woman refuses to
give consent for the operation, then it is pertinently left to the courts to
decide whether to preserve and protect the right to privacy of the mother or to
give primacy and protection to the right of life of the foetus. This conflict
has been vexing the minds of the judges for long and they have generally relied
upon the medical jurisprudence to ensure minimal harm to both the entities.
In A.C,
Re,
Judge James A. Belson, in his dissenting opinion pointed out very aptly that “in
those cases in which the viable unborn child’s interest in living and the
State’s parallel interest in protecting human life comes into conflict with the
mother’s decision to forgo a procedure such as a caesarean section, a balance
should be struck in which the unborn child’s and state’s interest are entitled
to substantial weight.” The court further pointed out that the ‘balancing
test’ of the probabilities should be applied in instances in which woman
became pregnant and carry an unborn child to the point of viability. The point,
which I am driving at is that it must have been the perceived needs of the
foetus that underlay the impetus to seek court action and the fact that
mother’s decision was likely to impinge upon the child she carried.
When we come to the present issue it has to be borne in mind that the balancing
act required to be struck by the Courts prerequisites that any one interest has
to be sacrificed. Here what matters most for the courts is to consider the
informed consent made by the patient about the course of her medical treatment.
If the woman, competent enough, makes such a decision in the affirmative, then
there is no problem. But if the decision of the woman is in the negative, the
court has to decide upon her competence to consent, and if it draws some
adverse conclusions, then it can justifiably make a substituted judgement. Here
it needs to be emphasised that it would be an extraordinary case indeed in
which a court might ever be justified in overriding the patient’s wishes and
authorizing a major surgical procedure such as a caesarean section.
This balancing analysis has to be done keeping
in mind many considerations since both the rights are of constitutional
magnitude. Here what the courts should aim is that no right is denied
unjustifiably. The proper test in such a situation is that the courts must keep
in mind the ‘utmost compelling interest’, which they want to preserve.
As a
fundamental liberty the right to privacy could not be legitimately infringed
upon by the state, unless such infringement was necessary to serve some
compelling state purpose or interest. To be compelling, the state interest had
to be of the highest importance and even then a law restricting a fundamental
liberty had to be necessary in the sense that no alternative less intrusive
means of serving the compelling interest is available.
[18]
While
applying this principle to the situation where a woman has refused the medical
prognosis report and foetus has become viable, and the report also suggests
incontrovertibly that if the caesarean section is performed no harm
would be caused to the foetus or the mother; the court must order the caesarean
section because here the compelling state interest, after balancing, tilts in
favour of preserving the right to life of unborn child.
Though
questions may be raised that right to privacy has been violated, but if we
follow Dworkin’s concept of privacy wherein he believes that any rule of legal jurisprudence must be interpreted
purposively and not construed as collection of norms, then such violation seems
justified. He argues that if a broader privacy principle fits the explicit
legal rules but correct moral judgment requires narrow principle, then that
should form part of law. Lon Fuller also joins his argument by saying that interpretation of rules purposively
would promote good of society- something that morality commends us to-
otherwise literalist application may exclude the justifiability of the rule
itself. Thus if the medical report suggests that both mother and child would be
healthy post caesarean, then in pith and substance right to privacy is not
violated as the mother is restored to same healthy position.
But where
the report suggests that the life of the woman may itself be endangered, then
the court must abstain from ordering a caesarean section. The logic here lies
in the fact that in present situation, the balancing analysis tilts in favour
of preserving the right to life of mother itself and thereby the right to
privacy, as the compelling interest of the state shifts. The argument goes, “can
you kill a person for the benefit of foetus, which under the law is one level
away from what we consider a physical person? There is no ‘good samaritan’
requirement under the law that forces a woman to sacrifice her life for that of
her foetus”.
The point
to be considered here is that courts have to rely upon the medical opinion
tendered upon the viability of the caesarean section. It is understandable that
the courts tend to treat the medical ‘facts’ with which they are presented as
in controvertible, as they do not have medical expertise to challenge them. In
most cases caesarean sections have been judicially sanctioned on the basis that
operation was the bets available option in the interest of the patient. This
aspect of ‘best interest’ as determined by courts is, here, presumed to be
based on the ‘notion of the infallibility of the medical opinion’.
Conclusion
In this area of law and medical jurisprudence, the tug of war between
‘privacy’ and ‘life’ is an unending conflict and much is left to the judicial
approach. Though the medical opinion’s infallibility could always be
challenged, the judges have almost accepted doctor’s definition of essentiality
and the need to act quickly.
This paper aims at resolving the conflict of rights, through reliance upon the
medical jurisprudence because it is necessary to maintain the right of medical
professionals to intervene on behalf of foetus when a woman is unable to
understand the importance of the decision. But as always believed, no problem
in legal jurisprudence has straight solutions or to use Kant’s
expression, “ From such crooked wood as man is made, nothing perfectly
straight can be built”.
Similarly this is also an attempt to provide a plausible solution only.
References:
Books
and Commentaries-
- ANDREW
ALTMAN, ARGUING ABOUT LAW: AN
INTRODUCTION TO LEGAL PHILOSOPHY, (Wandsworth Publishing Co., 2001(1999)).
- SHAPIRO & SPECE, BIOETHICS AND LAW:
CASES, MATERIALS AND PROBLEMS, (West Publishing Co., 1981).
- WEISBURG & APPLETON, CASES AND
MATERIALS ON MODERN FAMILY LAW, (Aspen Law and Business Publisher Inc.,
1998).
- DEREK MORGAN, ISSUES IN MEDICAL LAW AND
ETHICS, (Cavendish Publishing Ltd., 2001).
Articles-
- R. Bailey- Harris,
Pregnancy, Autonomy
and Refusal of Medical Treatment, 114, Law Quarterly Review, 550.
(1998).
- Rosamund Scott,
The Pregnant Woman And
The Good Samaritan: Can A Woman Have A Duty To Undergo A Caesarean
Section?, Vol.20, Oxford Journal of Legal Studies, (2000).
- Jane Weaver,
Court-Ordered Caesarean
Section, Body Lore and Laws, (2002).
See, e.g., McFall v.
Shimp, 10 Pa.D&C. 3d 90 (Allegheny County Court, 1978). The common
law has consistently held to a rule which provides that one human being is
under no legal compulsion to give aid or take action to save another human or
to rescue at the risk of one’s own life;