The Law’s Response to Pregnancy and Childbirth: Consistency, Conflict or Compromise?

Date01 March 2002
Publication Date01 March 2002
AuthorSara Fovargue
The Law’s Response to Pregnancy and Childbirth:
Consistency, Conflict or Compromise?
Sara Fovargue*
John Seymour,Childbirth and the Law, Oxford: Oxford University Press, 2000,
xxix + 387 pp, hb £45.00.
For much of the twentieth century, and undoubtedly continuing this century, one of
the pressing moral and legal concerns within health care law and ethics has been
the status of the fetus, and the protection the law does, and should, afford it. For
example, debates surrounding the termination of pregnancy have been dominated
by discussions of the legal status of the fetus, and have tended to centre on the
rights of the woman versus the rights of the fetus.1Similarly, in relation to the
treatment decisions of pregnant and labouring women, the media, medical
professions and, although denying such a position, the judiciary, have also
frequently conceptualised the situation as being one of extremes. Either the ‘rights’
of the pregnant woman to choose, for example, to refuse her consent to a caesarean
section ‘trump’ the ‘rights’ of a fetus to life, or vice versa. In neither situation is the
context of the decision taken into account. A woman may view her relationship
with a fetus differently depending upon the circumstances in which she finds
herself when called upon to make a decision as to whether to terminate the
pregnancy, or consent to a caesarean section. Indeed, external factors such as the
existence or views of a partner may influence her decision, as may her social,
economic and cultural circumstances. However, as Sheldon has commented, in
relation to a decision to terminate a pregnancy, the refusal of medical treatment or
her antenatal behaviour, ‘the woman has often been cast as pitted against the
In Childbirth and the Law, Seymour seeks to ‘. .. explore the law’s impact on
pregnant women, their fetuses, and the doctors and midwives who care for them’ (p
ßThe Modern Law Review Limited 2002 (MLR 65:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.290
* Law School, Lancaster University. I would like to thank Julie Wallbank her helpful comments on an
earlier draft of this article.
1 The rights and role of men in the decision making process relating to the termination of pregnancy
have occasionally been in issue, however it is has been consistently held that the men involved do not
have a right to veto or prevent a termination provided the requirements of the Abortion Act 1967 are
complied with: Paton vTrustees of British Pregnancy Advisory Service and another [1978] 2 All ER
987, and CvS[1987] 1 All ER 1230. See, also, the recent unreported case discussed in ‘Sad Tale of
an Affair That Ended and an Abortion Row That Goes On and On’ The Guardian 31 March 2001.
Sheldon has assessed why male antenatal behaviour has, to date, received little attention, and argues
that it is due to law’s conceptualisation of men’s and women’s bodies, and the gendered division of
labour following the birth of a child: S. Sheldon, ‘ReConceiving Masculinity: Imagining Men’s
Reproductive Bodies in Law’ (1999) 29 Journal of Law and Society 129.
2 Sheldon, n 1 above, 131.

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