By Lisa Macdonald
"Foetal Welfare and the Law", a report released late last month, stems from an inquiry commissioned in 1993 by the Australian Medical Association. It followed several incidents in which women who were about to give birth had refused medical treatment which was considered by medical professionals to be in the best interests of their foetuses.
The report was based on examination of 129 legal cases from the UK, Canada, US, NZ and Australia, and 49 submissions from a range of Australian health and medical organisations, women's groups, church groups and individuals.
It addresses the appropriateness of using the law to compel pregnant women to undergo unwanted medical treatment or behavioural changes. The report also takes up the related question of whether children may take legal action against their mother and/or others for damages negligently caused before they were born.
At the heart of the 200 plus pages of legalese that make up the final report is a question of fundamental importance to all women:should foetuses be considered to have enforceable human rights, and under what circumstances can these rights override those of the mother?
The bulk of the report is written in the language and framework of existing laws rather than in a social or political framework — the concepts of power, control, oppression, rights and struggle barely get a mention. Nevertheless, the conclusions reached are inherently political and have significant implications for women's struggle for reproductive rights.
Against controls
The key recommendation is that "There is no place for legal intervention designed to impose controls on the behaviour of a pregnant women when this behaviour is potentially harmful to the foetus". As stated in the report, "In Australian law, a foetus is not a person. It follows that it does not have the rights possessed by a human being." This position has also generally been upheld in the UK, US and Canada to date.
The progressive nature of this recommendation is underlined by the Right to Life organisation's immediate condemnation of this report as "another blow to unborn children".
The report goes on to point out, however, that while under existing law harmful antenatal behaviour by the mother cannot be considered child abuse and justify state intervention, "There would be nothing to prevent a State legislature from enacting a [criminal] law which made it an offence to neglect or endanger a foetus". In light of the general backlash against women's right to control their bodies and an increasingly virulent "foetus rights" lobby, this is a very real possibility.
The report also documents a range of extra-legal reasons for maintaining the status quo, including that state intervention would generally be, not simply ineffective, but counterproductive. In the first instance, the report argues, laws permitting intervention by the state would be impossible to implement.
Secondly, it is "naive to assume that the threat of a criminal penalty or its enforcement will produce obedient conformity among pregnant women [whose] behaviour is much more likely to be determined by social or cultural factors than by the criminal law". On the contrary, says the report, women with high risk pregnancies (pregnant drug users, for example), those with the greatest need for prenatal care, would also be those most likely to be prosecuted and therefore those most deterred from seeking medical assistance at all. Legal action would exacerbate rather than help overcome the problem.
Thirdly, the report notes that there is considerable evidence that such laws would be applied in a discriminatory fashion against minority and low-income women. It adds to this concern the need to question the assumption that women always have control over their own life and behaviour. As one submission to the inquiry noted, "Poverty and lack of social and medical support are usually not voluntary".
Autonomy
The major significance of the report for feminists, however, is in its argument, "The rejection of legal intervention to control antenatal behaviour is consistent with the adoption of the principle of respect for women's autonomy".
It states that "Legal enforcement of foetal rights would require a system of surveillance and coercion oppressive to all women of child-bearing age" and cites one submission which asked, "Would women be subject to scrutiny from the day they ovulated till the day of menopause just in case they fall pregnant ... and aren't behaving themselves? Monitoring and enforcement problems could threaten to turn our society into a prototype of an Orwellian novel if foetal interests override maternal choice."
"Ultimately", says the report, "it will be up to the individual women to decide whether to accept advice. On occasions the advice will be rejected and the child will suffer. This is a price which must be paid by a society which respects maternal autonomy. Overall, it is a more acceptable price to pay than to seek to create ... anything resembling a 'pregnancy police'."
In considering whether children can pursue legal action against their natural mother or others for damages caused during pregnancy, the report notes that this question has not yet been authoritatively settled by an Australian court. On the basis of policy considerations, however, it maintains that since a foetus is not a legal person or a separate entity until birth, it cannot be owed a "duty of care" by its parents and therefore should not generally be able to sue its parents for damages. (Two exceptions noted are where disabilities have resulted from parents' negligent driving or from a criminal assault on a pregnant woman by her partner.)
Contradiction
The report also concludes, however, that while foetal rights cannot override those of the parents, "there is no reason why a mother and child should not secure damages in a variety of situations in which harm has been caused to the foetus. Thus, when there has been negligent failure to observe a duty of care to the pregnant woman, damages are recoverable by the damaged child from a motorist, an employer who has exposed the woman to hazardous working conditions, a company responsible for the escape of damaging pollution ..."
This conclusion, based on a notion that "a foetus has interests which the law recognises and protects" (in relation to everyone except the mother) is a significant contradiction and weakness in this report.
It is an implicit acknowledgment that foetuses are separate entities with rights which, upon birth, are enforceable retrospectively. As such, this recommendation is the thin end of a wedge which can and undoubtedly will be used by the foetus rights lobby to erode the application of a scientifically and philosophically coherent definition of human life or "personhood" which locates its beginning at birth or at the point of independence from the mother.