Abortion, Autonomy and Prenatal Diagnosis

Abstract

The principle of patient self-determination has assumed central importance in British medical law in recent years. This article considers whether this increasingly strong commitment to patient autonomy has any resonance for abortion law. In particular, this article explores the possibility that the priority currently accorded to autonomous decision making may be in tension with the Abortion Act's requirement that a woman's reasons for seeking to terminate her pregnancy be judged acceptable by two medical practitioners. Moreover, interest in the moral legitimacy of a woman's reasons for wanting to terminate her pregnancy seems to be intensifying. Concerns arising from the increasing availability of precise prenatal tests have led to suggestions that access to abortion should be further restricted in order to prevent the cavalier use of abortion for reasons that might seem trivial or misguided. Using abortion following prenatal diagnosis as an example, this article considers whether it is anomalous for the common law's vigorous protection of an individual's freedom to make irrational or morally objectionable choices about his or her medical treatment to coexist with demands for further restriction of the acceptable grounds for abortion.

Can there be such a thing as a ‘wrongful birth’?

“…Sharp and Earle (2002) interpret Shakespeare's (1998) perspective as implying that were women free from the constraints put onto them by society and able to make a truly free choice, they would not perceive the birth of a child with an impairment to be wrongful and would, therefore, reject the need for termination. This view is rejected by others like Jackson (2000) who argues that to incorporate cultural context into a discussion of autonomy is irrelevant as all our choices are affected by the situation in which we find ourselves. In Jackson's view (2000, p. 480) this 'does not undermine the legitimacy of a particular choice.…”

“…This is particularly important in the difficult decision of whether to terminate for foetal abnormality, as the path chosen will inevitably affect that individual's future. To deny people the power to decide the course of their own future can be viewed as morally unjustifiable (Doyal, 1998, in Jackson, 2000. Therefore, the protection of autonomy is fundamental to the provision of ethically sound healthcare.…”

“…Importantly, Sharp and Earle (2002) warn that to reject the legitimacy of an individual's beliefs, attitudes and preferences simply because they are influenced by social factors is a dangerous path. Jackson (2000, p. 472) cites Doyal (1998 in illustrating these dangers: 'to fail to recognise the autonomy of competent people is to inflict harm on them that is just as morally unacceptable as direct physical or mental harm'.…”

Feminist Jurisprudence: Keeping the Subject Alive

“…2 This call is made against the background of a reticence amongst feminist scholars towards such normative aspirations which has been attributed to various sources. 3 Many feminists are either returning to, or newly emphasising, the value of feminist projects of reconstruction (Battersby, 1998;Cornell, 1998;Jackson, 2000;Jackson and Lacey, 2002;James and Palmer, 2002;Knop, 2004). Some advocate a reaffirmation of the value of 'women-centred' feminist approaches (Conaghan, 2000, pp.…”

Framing Women, Framing Fetuses: How Britain Regulates Arrangements for the Collection and Use of Aborted Fetuses in Stem Cell Research and Therapies

“…Capacity to consent, in the context of abortion, does not translate into a right to termination of pregnancy, but rather signals a woman's agreement to undergo a procedure which, according to two medical practitioners, falls within the law (Jackson, 2000). Consent is patients' voluntary agreement to treatment, examination and other aspects of health care including the retention of bodily material removed for therapeutic purposes from a living patient.…”