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B. Legal responses to a pregnant woman’s refusal of medical treatment required for the benefit of the foetus
I. Court-ordered obstetric intervention: the American case law
1. Introduction: the application of Roe v Wade outside the abortion context
Although a patient with capacity may generally accept or refuse even life-sustaining treatment, where the patient is pregnant some courts in the United States of America have shown themselves to be willing to override the women’s autonomy in order to protect the foetus. In Roe v Wade,1 the Supreme Court held that the state has an important and legitimate interest in protecting the potentiality of human life throughout pregnancy and that this interest becomes compelling from the third trimester onwards.2 Therefore it has been argued that if a caesarean is medically indicated and vaginal delivery would have the same effect as an abortion, in that it would result in the death of the foetus, the court may order that a caesarean be performed, notwithstanding the woman’s refusal of consent. As will be seen in the following discussion, this interpretation of Roe has been relied upon a number of times by the courts in the United States as a justification for ordering that medical treatment be performed against a woman’s wishes. However, it should be remembered that although the state’s interest in potential life becomes compelling at viability, it never becomes absolute. In Roe and its progeny, the Supreme Court stressed that, whilst the state’s compelling interest in potential life meant that it could restrict or even prohibit abortion after viability, the state’s interest could never outweigh the woman’s right to elect an abortion where the continuance of her pregnancy posed a threat to her life or health.3 Moreover, the fact that the state may restrict or even prohibit abortion, in cases where there is no threat to the life or health of the woman, is a very different proposition to that suggested above, whereby courts have suggested that the state’s interest may suffice to mandate treatment for the benefit of the foetus.4
Notwithstanding the poor fit of the third-trimester rule, or indeed child abuse statutes when applied to the foetus (an alternative justification sometimes adopted by the courts), the courts in some US states have shown themselves willing to mandate the performance of a blood transfusion or a caesarean, despite the woman’s refusal to consent to the procedure. It may be argued that the degree of invasion entailed in a blood transfusion is of a much lesser degree than that involved in a caesarean, a major operation; for that reason the case law relating to the two forms of intervention is considered separately. Nevertheless, the common feature is that in both cases US courts have been willing to overrule a woman’s refusal to consent to obstetric intervention because she was pregnant at the time of the ruling and her refusal jeopardised the life or health of the foetus.
2. Court-ordered blood transfusions
As will be apparent from the following cases, the issue of court-ordered blood transfusions (for the benefit of the foetus) has arisen mainly in relation to Jehovah’s Witnesses who believe that blood transfusions are contrary to the tenets of the Bible5 and that the receipt of blood endangers eternal life. Although the courts have given varying reasons for overriding the woman’s refusal of consent to a blood transfusion, in a number of cases they have done so in order to protect the foetus, showing scant regard for the woman’s autonomy or her genuinely held religious beliefs.
a. Pre-Roe v Wade: the recognition of the unborn child’s right to the law’s protection
Raleigh Fitkin-Paul Morgan Memorial Hospital v Anderson6 was one of the first cases in which a court accepted that a woman’s refusal of consent to medical treatment could be overruled. The hospital sought a declaration that it would not be unlawful to administer a blood transfusion to Willimina Anderson if it were considered necessary to save either her life or that of the foetus. Mrs Anderson was 32 weeks pregnant and so the foetus had achieved viability. According to medical opinion, there was a real risk that she would haemorrhage and that a transfusion would be necessary to save both lives. However, Mrs Anderson had stated that even if a transfusion were to become necessary, she would not consent due to the fact that she was a Jehovah’s Witness. The trial court refused to grant the order sought, holding that it could not intervene to protect the life of either Mrs Anderson or the foetus. The hospital appealed, but Mrs Anderson left the hospital, so the judgment was given per curiam as the situation was likely to occur again. The New Jersey Supreme Court held that the ‘unborn child’ was entitled to the law’s protection and that
The welfare of the child and the mother are so intertwined and inseparable that it would be impracticable to attempt to distinguish between them with respect to the sundry factual patterns which may develop. The blood transfusions (including transfusions made necessary by the delivery) may be administered if necessary to save her life or the life of her child, as the physician in charge at the time may determine.7
It is notable that this case predates the Supreme Court’s decision in Roe and thus proceeds on the basis that the foetus, rather than the state’s interest in potential life, is capable of protection. The court’s decision clearly demonstrates the potential for a woman’s right to self-determination to be nullified by the fact of pregnancy. Indeed, as the court held, in the case of a pregnant woman, the power to determine whether or not medical treatment should be provided may rest not with the woman, but may be transferred to the doctor if there is a threat to her life, or that of the foetus, in the view of that same doctor. The doctor is thus designated as the sole decision-maker, empowered to determine how she should treat her patient, without reference to that patient’s views. Of course, if Mrs Anderson had not been pregnant, she would have remained entitled to refuse all treatment, including life-sustaining treatment.
b. Post-Roe v Wade: balancing the state’s interest in potential life against the pregnant woman’s right to autonomy/privacy
The relevance of the refusal’s impact upon the foetus is underlined by the Maryland case of Mercy Hospital, Inc. v Ernestine Jackson.8 Mrs Jackson was 25 weeks pregnant and in premature labour. The doctors advised that a caesarean was necessary and she consented to the performance thereof, but refused to consent to a blood transfusion even if her life were at risk. Her doctors accepted that she had the capacity to refuse a transfusion; she had previously undergone surgery without consenting to a blood transfusion and throughout her pregnancy she had made her doctors aware that she would not consent to a blood transfusion in any circumstance. Unlike the case of Mrs Anderson, the doctors believed that the failure to perform a transfusion would pose no risk to the life or health of the foetus; rather, any risk involved only the life of Mrs Jackson. Nevertheless, the hospital petitioned the court for the appointment of a temporary guardian of Mrs Jackson, with the authority to consent to a blood transfusion on her behalf.
Unlike many of the other cases involving women refusing obstetric intervention, counsel was appointed for Mrs Jackson and an inter partes hearing took place, albeit it in an emergency setting at the side of her bed. Concluding the emergency hearing, Judge Greenfeld said:
This Court is of the opinion that a competent, pregnant adult does have the paramount right to refuse a blood transfusion in accordance with her religious beliefs, where such decision is made knowingly and voluntarily and will not endanger the delivery, survival or support of the fetus. This conclusion is consistent with a patient’s right of informed consent to medical treatment, … and the corollary right to refuse that medical treatment.9
Thus Greenfeld J stressed that a woman’s right to refuse medical treatment was not diminished by pregnancy provided that that refusal did not endanger a foetus, and there being no risk to the foetus in this case he refused the hospital’s application. The surgery was performed immediately, no transfusion was performed and both Mrs Jackson and her baby survived unharmed. Despite the fact that the issue was rendered moot by the safe delivery of the baby, the hospital appealed against the court’s refusal to appoint a guardian, but Greenfeld J’s decision was affirmed by the Court of Special Appeals of Maryland.10
The appellate decision in Anderson predated the US Supreme Court’s decision in Roe v Wade by nine years. Thus it could be argued that the reasoning adopted by the New Jersey Supreme Court – namely that the foetus, rather than the state’s interest therein, was entitled to the law’s protection – could not be adopted to compel a blood transfusion after the US Supreme Court had held that the foetus was not a person within the meaning of the constitution.11 Certainly in Jackson, Greenfeld J did not address the issue of foetal rights or the state’s interest in potential life, merely holding that as the foetus was not at risk, Mrs Jackson had the right to refuse the transfusion recommended by her doctors. However, in two New York cases decided during 1985 the pregnant woman’s refusal of consent to a blood transfusion was overruled in order to safeguard the foetus’s life or health. In the first of these cases, Crouse Irving Memorial Hospital, Inc. v Paddock,12 the pregnant woman had, like Mrs Jackson, agreed to the performance of a caesarean, accepting medical advice that it was necessary, but refused to consent to a blood transfusion due to her religious beliefs. The medical evidence was that a transfusion would be necessary to save Stacey Paddock’s life, particularly due to the fact that in performing the caesarean the doctors would have to cut the placenta due to its anterior position. The hospital sought an order authorising the transfusion of ‘mother and child’ during the performance of the surgical procedure,13 by which, of course, the transfusion of Mrs Paddock was meant as the foetus was still within her body and could thus not be separately transfused.
It is not clear from the judgment that the failure to transfuse Mrs Paddock would endanger the foetus; the medical evidence cited merely referred to the necessity of a transfusion to safeguard Mrs Paddock’s life and makes no reference to its impact upon the foetus’s welfare. Nevertheless, the New York Supreme Court, Onondaga County, considered the proposed transfusion of Mrs Paddock and the foetus separately. Hayes J considered the law regarding ‘blood transfusions to save the baby’s life and health’, reviewing the case law where the refusal of parents to consent to a blood transfusion for their child had been overridden. However, he failed to distinguish between the foetus and a child, referring to the foetus as ‘the baby’, and indeed he failed to differentiate between cases where a woman refuses a blood transfusion for herself and those where she refuses to consent to a blood transfusion on behalf of her child. This case did not involve a woman refusing to consent to her child receiving a blood transfusion; it concerned a woman refusing to consent to a blood transfusion for herself. However, Hayes J held that Mrs Paddock could be required to undergo a blood transfusion, despite the fact that he recognised her to be ‘an adult obviously of sound mind and deep religious conviction’.14 Holding that ‘the State has a vital interest in the welfare of children, an interest that will override even the parents’ most fervently held religious beliefs’, he authorised the hospital and attending doctors to administer blood transfusions as medically indicated.15
Moreover, the subjection of Mrs Paddock to a compelled blood transfusion was not only justified by concern for the foetus; rather, the judge admonished Mrs Paddock, stating that given she wanted the caesarean to be performed, she was putting the medical professionals in an untenable position by refusing a blood transfusion that was likely to be necessary as a result of the procedure. Hayes J found that
when a patient puts her doctor in charge of a surgical procedure, she necessarily makes him responsible for the conduct of the operation. Every such grant of responsibility should be accompanied by authority sufficient to properly carry out the delegated responsibilities.16
Therefore h...
