| Acknowledgements |
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xv | |
| Foreword |
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xvii | |
| A Introduction |
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1 | (6) |
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I The context: the evolving status of the foetus, from non-person to patient, to adversary |
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1 | (3) |
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II The general principle that consent is a prerequisite to medical treatment |
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4 | (1) |
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III The focus of this book |
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5 | (2) |
| B Legal responses to a pregnant woman's refusal of medical treatment required for the benefit of the foetus |
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7 | (160) |
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I Court-ordered obstetric intervention: the American case law |
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7 | (33) |
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1 Introduction: the application of Roe v Wade outside the abortion context |
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7 | (1) |
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2 Court-ordered blood transfusions |
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8 | (8) |
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a Pre-Roe v Wade: the recognition of the unborn child's right to the law's protection |
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8 | (1) |
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b Post-Roe v Wade: balancing the state's interest in potential life against the pregnant woman's right to autonomy/privacy |
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9 | (7) |
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3 Court-ordered caesareans |
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16 | (13) |
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a The application of Roe v Wade's third-trimester rule in the caesarean context |
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16 | (5) |
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b The legacy of Re AC: differing interpretations of 'extremely rare' and 'truly exceptional' |
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21 | (8) |
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4 The use of pregnancy exceptions in advance directive legislation |
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29 | (8) |
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a Precedent autonomy: advance directives as a means of extending decisional autonomy past the onset of incapacity |
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29 | (2) |
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b The basis for a pregnancy-based exclusion or limitation clauses in advance directive legislation |
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31 | (2) |
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c Forms of pregnancy-based limitation and exclusion clauses |
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33 | (2) |
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d Challenging the constitutionality of pregnancy exceptions in advance directive legislation |
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35 | (2) |
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37 | (3) |
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II Court-authorised obstetric intervention: the English case law |
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40 | (53) |
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1 Introduction: the categorisation of the issue as a question of capacity, rather than as engaging foetal interests |
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40 | (1) |
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2 Pregnancy: an exception to the general principle that consent to medical treatment is required? |
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41 | (2) |
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43 | (42) |
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a Overriding the woman's refusal of consent in order to save her own or the foetus's life |
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43 | (2) |
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b Indirectly safeguarding the foetus via the categorisation of a caesarean as a treatment for a mental disorder |
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45 | (3) |
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c Indirectly safeguarding the foetus via a finding of incompetence and a determination of best interests requiring the safe delivery of the foetus |
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48 | (4) |
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d Appellate consideration of the issue: the emphasis of the woman's right to autonomy, provided that she is adjudged competent |
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52 | (7) |
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e The aftermath of St George's: the calm before the storm |
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59 | (1) |
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f The impact of the Mental Capacity Act 2005 |
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60 | (4) |
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g The re-emergence of the issue: court orders pertaining to women suffering from a mental health disorder |
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64 | (7) |
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h The use of the inherent jurisdiction to authorise a caesarean upon a woman detained under the Mental Health Act |
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71 | (4) |
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i Court orders pertaining to women suffering from mental illness, but not detained under the Mental Health Act |
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75 | (3) |
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j Guidance pertaining to women who lack the capacity to make decisions about perinatal care due to a diagnosed psychiatric illness |
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78 | (3) |
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k The granting of a declaration in the case of a woman with learning difficulties |
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81 | (4) |
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85 | (8) |
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III The imposition of a duty to protect the foetus upon a pregnant woman and her doctor in Germany |
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93 | (74) |
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1 Introduction: the very different context of the German debate |
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93 | (2) |
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2 The constitutional guarantees of life, human dignity, bodily integrity and self-determination |
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95 | (35) |
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95 | (1) |
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b The Bundesverfassungsgericht's abortion decisions |
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96 | (4) |
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c The right to life and bodily integrity as applied to the foetus, the differentiation between a person extant and the foetus |
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100 | (11) |
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d Competing conceptions of dignity: human dignity as a protective mechanism applied to the foetus, human dignity as protective of the woman's identity (as opposed to reproductive capacity) |
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111 | (10) |
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e The woman's right to self-determination and bodily integrity |
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121 | (6) |
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f Reconciling the rights and interests involved |
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127 | (3) |
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3 Crimes against life committed by omission |
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130 | (34) |
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a The tripartite structure of offences: Tatbestand, Rechtswidrigkeit and Schuldhaftigkeit |
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130 | (2) |
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b Derivative crimes of omission |
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132 | (2) |
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c The pregnant woman as guarantor: the scope and nature of her duty towards the foetus |
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134 | (20) |
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d The doctor as guarantor: the scope and nature of her duty towards the pregnant woman and the foetus |
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154 | (10) |
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164 | (3) |
| C Comparative analysis of the legal responses to a woman's refusal of medical treatment required for the benefit of the foetus |
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167 | (52) |
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I The medicalisation of pregnancy and creation of the foetal patient |
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167 | (2) |
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II Law's attempts to navigate the triadic conflict between the pregnant woman, the (state's interest in) the foetus and medical authority |
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169 | (4) |
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III Constructing the 'maternal'-foetal relationship |
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173 | (33) |
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1 Three models of pregnancy |
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175 | (9) |
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2 Reconciling the rights and interests of the woman and the foetus |
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184 | (7) |
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3 A critical assessment of justifications advanced in support of a duty to consent to treatment for the benefit of the foetus |
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191 | (10) |
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4 Interim conclusions on constructing the 'maternal' foetal relationship |
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201 | (5) |
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IV Framing the relationship between the woman and her doctor |
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206 | (13) |
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1 The impact of technology upon pregnancy and childbirth and the doctor's predisposition to intervene |
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206 | (6) |
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2 The overemphasis of medical advice by the courts and medical fallibility |
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212 | (4) |
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3 Interim conclusions on framing the relationship between the woman and her doctor |
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216 | (3) |
| D Conclusion: moving forward, putting the woman back centre-stage |
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219 | (13) |
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I Re-centring the relationship between women and healthcare professionals through anticipatory decision-making |
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220 | (6) |
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II Putting the woman back centre-stage in the adjudication of disputes: the need for effective procedural safeguards and respect for human dignity |
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226 | (6) |
| Bibliography |
|
232 | (10) |
| Index |
|
242 | |
