The 21st century marked increased emphasis on fetal rights which has resulted in the development of advanced medical procedures such as fetal surgery. Fetal surgery has been considered as a starting point of the maternal -fetal conflict owing to the fact that it involves two patients; the fetus and mother. Recognition of fetal patients has caused controversies in the field of law when determining issues pertaining to medical negligence and pre-birth injury. Legal scholars argue on the fact of imposing medical malpractice liability on physicians when fetal patients are injured during surgery. In addition, the "glorification" of the fetus while considering the termination of pregnancy as a secondary option is disputed by feminists. The reason is that, the termination of pregnancy signifies bodily independence of women and autonomy. The author, in this article has adapted a qualitative approach of methodology with a normative and content analysis. The author has discussed primary and secondary sources of law including foreign domestic legislations namely the Abortion Act 1967 (amended by the Human Fertilization and Embryology Act 1990) in the United Kingdom, The Offences against Persons Act 1861 and The Infant Life Preservation Act 1929. The central focus of the article is on the United Kingdom as an illustrative jurisdiction. The basic focus of this article is directed to study whether there is a conflict of rights between fetal patients and pregnant women in the face of the law of tort, medical law and ethics and to suggest the incorporation of the 'Two-Patient Model' to balance conflicting interests while discussing the Chervenak and McCullough's ethical framework.
One of the emerging scientific ventures in the world is the development of artificial gestation of human beings and the Artificial Womb Technology (AWT). This technology supports women who are unable to bear natural pregnancy to procreate. This process has been praised by scientists in view of its contribution to the reproductive process and its purview to act as an alternative to medical termination of pregnancy. The emerging technology has its own pros and cons. The first argument against the Artificial Womb is the fact that, it collides with the reproductive autonomy of women. The positivity of such a venture is signified only in the instances where it is used as a choice but not as a compulsory alternative to a reproductive health right of termination of pregnancy. The substitution of Artificial Womb as a substitute for the termination of pregnancy causes serious predicaments to women in countries with highly restrictive abortion laws where they are compelled to end up with a forced pregnancy. The Author has discussed international and domestic legal frameworks. As the concluding perspective, the author has recognized the fact that, women are entitled to the right of physical integrity, autonomous decision making and unique rights relating to pregnancy namely right not to procreate with the right to genetic privacy. If a technology compels a woman to continue a physical condition which she does not want to continue, that amounts to 'involuntary servitude' and a derogation of international human rights law.
Foetal interventions are the direct result of developments in the field of medicine. The scientific advancements opened the way for pregnant women to select the treatment of the foetus ‘in utero’. This is an option available when the pregnant woman is reluctant to terminate the pregnancy on the grounds of congenital abnormalities of the foetus. Further, treatment of the foetus is considered a psychological relief to pregnant women who otherwise had to wait until the birth of the child to remedy the defects. The predominant method of treatment of the foetus is ‘foetal surgery’ which facilitates the treatment of the foetus in the womb. This demarcates the treatment of the fatal conditions of the foetus through invasive procedures or open surgery. The problem that arises in this context is whether the foetal surgeons exercise a medical duty of care towards the foetus. The problem is aggravated when the viable foetuses become patients as such patients have the potential to survive outside the womb (ex-utero) irrespective of the destruction of the life of the mother. Medical negligence and a course of action for medical malpractice litigation are established only upon the proof of the existence of a medical duty of care and the breach of it. This paper aims to provide insight into legislation on the medical negligence of surgeons performing surgeries on foetuses. The methodology adopted in the paper is qualitative in nature and a comparative legal analysis with the jurisdiction of the United States of America (USA). The paper's conclusion holds that foetal surgeons legally undertake to act for the benefit of foetal patients and have an obligation to avoid negligence.
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