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Law and MedicineCurrent Legal Issues Volume 3$
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Michael Freeman and Andrew Lewis

Print publication date: 2000

Print ISBN-13: 9780198299189

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198299189.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 November 2019

The Caesarean Section Cases and the Supremacy of Autonomy

The Caesarean Section Cases and the Supremacy of Autonomy

(p.269) The Caesarean Section Cases and the Supremacy of Autonomy
Law and Medicine

Jonathan Herring

Oxford University Press

This chapter shows that caesarean section cases have presented a number of difficult issues for the law. The Court of Appeal has suggested the cases can be easily dealt with by referring to the supremacy of the principle of autonomy. However, it has been argued that the law does not generally accept autonomy as an absolute principle. Nor has the law developed sufficiently to enable the courts to make autonomy paramount. In particular, there is insufficient protection to ensure a patient receives all the information she needs for a decision, and the law has not yet sufficiently developed a way of dealing with a patient who has conflicting desires. It has been argued that the vision of pregnancy that autonomy portrays — namely the rights of autonomy trumping the interests of the foetus — is a vision of conflict which is at odds with most women’s experience of pregnancy. In the light of the enormous sacrifices in pregnancy and the mutual relationship between the woman and the foetus, the law has no basis for seeking to impose legal obligations on pregnant women. This leads us back to listening to the woman’s voice about how her relationship with the foetus should continue through birth. Under the present legal structure it is hard enough for the woman’s voice to be heard, yet alone decide what it is she is saying.

Keywords:   childbirth, pregnant women, caesarean sections, patient autonomy, foetus, legal structure

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