Court‐Ordered Caesarian Sections: In Whose Interests?
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb00961.x |
| Published date | 01 March 1993 |
| Author | Kristina Stern |
| Date | 01 March 1993 |
The Modem Law Review
[Vol.
56
Law Revision Committee and the absence of a formalised guarantee of religious
freedom, it
is
hoped that
Gruenke
will renew the debate concerning religious advisor
privilege in England. It will certainly spark debate in Canada regarding the extension
of privilege to confidential communications in non-traditional relationships.
Court-Ordered Caesarian Sections: In Whose Interests?
Kristina
Stern”
In
re
S
(adult: refusal oftreatment),’
Sir Stephen Brown, President of the Family
Division of the High Court, granted a declaration that a caesarian section and
consequential treatment could lawfully
be
performed upon a pregnant woman despite
her refusal of consent. The case arose when Mrs
S
was admitted to hospital with
ruptured membranes and in spontaneous labour. The child was in a position of
‘transverse lie’ and, in the opinion of Mrs
S’s
medical advisors, there was the gravest
risk that her uterus would rupture unless the doctors performed a caesarian section.
Also, the baby could not be born alive unless the caesarian section was carried out.
Mrs
S
refused consent to the operation because of her religious beliefs and it was
found that her mental condition was such that she was competent to decide about
her medical treatment. It was held that the operation was lawful ‘in the vital interests
of both Mrs
S
and of the unborn child.
’
As a consequence of the court’s declaration
the caesarian section was carried out, despite the fact that the unborn child, although
alive when the declaration was made, had already died.
The decision has been described as ‘reigniting the debate over a woman’s right
to control her body.’* Sir Stephen Brown P in
re
S
established that the ‘right’ of
an individual to choose whether to consent to medical treatment is not absolute,
but may be qualified where the choice may lead to the death of a viable fetus. The
possible significance of this decision is twofold. First, it casts doubt on the principle
underlying the decision of the Court of Appeal in
re
T
(adult: refusal
of
treatment)3
that a competent adult patient’s refusal of consent to medical treatment may not
be overridden in the patient’s best interests. Second, it confirms fears that the courts
may protect the interests of the unborn child at the expense
of
those of the mother.
Although decisions similar to
re
S
have been reached in the United States, this
is the first time that an English court has declared that a caesarian section is lawful
despite the woman’s refusal. It is also the first decision to be based on the interests
of
both
the mother and the unborn child. In the United States such declarations have
been based solely on the basis of the interests of the unborn child.4
*School
of
Law and Centre
of
Medical Law and Ethics, King’s College London.
1
[1992]
3
WLR
806.
2
3
[I9921 3
WLR
782.
4
fie
Times,
15
October
1992,
p
8.
For
example in
re
A
C
(1990)
573
A
2d
1235
(DC CA) and
Jefferson
v
Crifin
Spalding
County
Hospital
Authority
(1981) 274
SE
2d 457
(Ga Sup Ct).
238
0
The Modern Law Review Limited
1993
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