Reviews
| DOI | http://doi.org/10.1111/1468-2230.66050081 |
| Date | 01 September 2003 |
| Published date | 01 September 2003 |
REVIEWS
Rosamund Scott, Rights, Duties and the Body: Law and Ethics of the Maternal-
Fetal Conflict, Oxford:Hart Publishing, 2002, xxxv þ401 pp, hb d50.00.
The introduction to this thoughtful and original book describes its purpose as
being to examine a cluster of problems arising from ‘maternal/fetal conflict’. The
primary aim is to scrutinise a woman’s moral and legal responsibilities in
pregnancy: ‘[h]ow minimal or how great are her duties and how far do her rights
extend as regards the unborn other which is, for nine months, inside her?’ (p xxv).
In answering this question, Scott pays particular attention to the problems posed
by a pregnant woman’s refusal of medical intervention (typically a caesarean
section) when this intervention is thought likely to benefit her future child.
At the outset, Rights, Duties and the Body offers a helpful commentary on the
status of the fetus. The starting-point, of course, is the proposition that a fetus is
not, in the eyes of the law, a person. A fetus is a potential person and as such it
does not have the rights of a person, but only potentially has these rights. This
does not mean that it lacks moral value or that society will not recognise the fetus
as an entity deserving protection. The value of the fetus lies in its potentiality: ‘a
fetus is of moral interest because of what it is becoming’ (p 57). As a subject of
moral concern, it has ‘strong interests’ (p 19). Discussion of the status of a fetus is
complicated by the fact that a fetus is not a static entity. As it develops, a fetus
becomes increasingly like a person and it can be argued that its claims or interests
become stronger as it moves towards personhood. Abortion laws recognise this
argument: ‘the moral seriousness of abortion grows with the fetus’ (p 43). In spite
of this, however, rights are not acquired until birth, and Scott rejects the notion
that a late-gestation fetus has even weak rights.
She draws a distinction between the fetus and the future child. This distinction
illuminates the relationship between abortion law and the law applied when a
pregnant woman refuses treatment. The discussion of this relationship focuses on
the problem identified by the English Court of Appeal in Re MB [1997] 8 Med LR
217: under English law, a viable fetus may not be aborted (unless there is a grave
risk to the woman’s health), but is not protected from an irrational decision of a
competent woman not to allow medical intervention to avert the risk of fetal
death. In terms of the fetus/future child distinction, it might be said that abortion
law is concerned with the destruction of the fetus; the law on treatment refusal is
concerned with the risk faced by the future child. Scott recognises that applying
this distinction does not solve the problem. After tentatively suggesting that as the
abortion debate is about fetal death it is ‘necessarily and exclusively about the
fetus,’ (p 24) she acknowledges that this is too simple. The moral status of the fetus
attracts such concern because it is a developing human being.
What emerges from this analysis – a point that Scott could have made more
clearly – is that the answer to the dilemma posed by the law’s seeming
inconsistency is not to be found in discussions of the nature of the fetus. Instead,
as she shows, the decision whether the law on treatment refusal should reflect the
values embodied in abortion law must be reached by asking what obligations can
properly be imposed on a woman whose pregnancy is to be carried to term. The
key question is whether the state’s interest in the welfare of the future child justifies
rThe Modern Law Review Limited 2003 (MLR 66:5, September). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 809
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