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Rights, Duties and the Body - Law and Ethics of the Maternal-Fetal Conflict (Hardcover)
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Rights, Duties and the Body - Law and Ethics of the Maternal-Fetal Conflict (Hardcover)
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If a pregnant woman refuses medical treatment needed by the fetus -
for instance for religious reasons - or conducts some aspect of her
life in a way which risks fetal harm, there may arise an instance
of "maternal-fetal conflict". This is an unfortunate term, since
pregant women are generally renowned for their self-sacrificing
behaviour, but it may well reflect the reality of certain maternal
choices and actions. Should a pregnant woman have the legal right
to refuse medical treatment needed by the fetus, or should she owe
it a legal duty of care which precludes her acting in ways which
may harm it? Does the debate hinge simply upon the appropriateness,
or otherwise, of legally compelling presumed moral obligations, or
is it more complex than this? Indeed, what are a pregnant woman't
moral obligations towards her fetus? In England and in some US
states, courts have held that a pregnant woman has the right to
refuse medical treatment needed by the fetus. In similar fashion,
the idea of a general maternal legal duty of care toward the fetus
has been rejected, most recently in Canada. The cases, however,
leave the impression of an uncomfortable split between the ethics
and the law, as if the problem were entirely one of not legally
enforcing presumed moral duties. The effect is both puzzling and
polarising: puzzling in that the cases leave unanswered - as
largely they must - the huge question of a pregnant woman's moral
rights and duties; polarising in that the cases leave troubling
tensions about a pregnant woman's rights in the face of fetal harm
or death. The tendency is to deny these by ever more strongly
asserting a woman's rights. In turn this encourages a reaction in
favour of fetal rights, one which is unlikely to attend to a
woman's interests and difficulties in pregnancy. This could have
serious legal repercussions for various instances of maternal-fetal
conflict, including in those US states or other jurisdictions which
have yet to address these issues. It might also increase the
pressures on the issue of abortion. This book, which seeks a way
between these polarised positions, tries to explain and justify a
woman's moral and legal rights in pregnancy and, at the same time,
to explore the extent of her moral duties toward the fetus. The aim
is to resolve, as far as possible, the ethical, legal and social
tensions which undoubtedly surround this area. Innovatively in work
on this issue (and unusually in the field of medical law and
ethics) the author adopts a joint philosophical and legal approach
directed to issues both of principle and policy, revealing strong
conceptual links between the ethics and the law. In addition to an
ethical exploration of the maternal-fetal relationship, the author
explores and analyses the relevant English, American, Canadian (and
sometimes Australian) arguments from the law of treatment refusal,
abortion, tort and rescue, as well as relevant jurisprudence from
the European Court of Human Rights. This important book breaks new
ground and will be of great interest to academics in law and
philosophy, lawyers, health professionals, policy-makers and
students of medical law and ethics. "It is rare to find a book
which so skilfully combines legal and moral analysis of a
controversial medical issue. Rosamund Scott has produced what is
undoubtedly one of the finest pieces of medico-legal writing of
recent years. This is a clever, human and immensely readable work."
Alexander McCall Smith, Professor of Medical Law, University of
Edinburgh "This book concerns one of the most personally agonizing
and morally complex issues in medical ethics. It is a work of great
philosophical sophistication, combining breadth of vision with
acute sensitivity to the nuances of women's experiences. It will
soon become the standard work in philosophical, legal and political
debate on maternal-fetal conflicts." Roger Crisp, Uehiro Fellow and
Tutor in Philosophy, St Anne's College, Oxford
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