Pregnant Women and Consent to Treatment — From Autonomy to State Control and Back Again

Abstract

Women’s choices during pregnancy can arouse controversy. My concern is the way in which the law has been used as an instrument for restricting pregnant women’s choices, on the ground that their conduct imperils their foetuses. While the law is generally (or appears to be) gender-neutral, it has been deployed in a manner that is not gender-neutral. At a time when women in Western democracies are enjoying greater social, legal and economic freedom than ever before, legal processes have been invoked to detain, punish or even assault pregnant women. Courts have been asked to detain pregnant women whose mental health problems or drug addictions are seen as a threat to the foetus; to punish women who have taken alcohol or other drugs during pregnancy; or to compel pregnant women who refuse obstetric intervention to undergo forced medical treatment. A number of such cases succeeded, particularly in the United States. This chapter will concentrate on developments in English courts, with some reference to American cases.

Fetal rights cases — from forced medical treatment to drug abuse cases — represent attempts by the state to assert its control over women’s bodies.

(Daniels, 1993: p. 138)