BOOK REVIEW
THE TROUBLED PREGNANCY:
Legal Wrongs and Rights in Reproduction
By J.K.
Mason, Cambridge:
Cambridge University Press, 2007, 346 pp, incl index, £ 23.99. ISBN
978-0-521-61624-9.
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DOI: 10.2966/scrip.0 |
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This book
is published as part of a series on Law, Medicine and Ethics. As the
title suggests it is concerned with a number of medico-legal issues
arising out of complicated pregnancies. The focus is on those
pregnancies that are unwanted, or that end with the unwanted
consequence of a disabled child. The core issues are the legal suits
of wrongful pregnancy, wrongful birth and wrongful life. However,
Professor Mason also considers the issues of abortion and the
management of the seriously disabled neonate.
The book
is divided into eight chapters. Excluding the introduction and the
conclusion the six substantive chapters may all be read as stand
alone essays. This is perhaps unsurprising given the genesis of the
book in an earlier series of articles written by Professor Mason on
wrongful pregnancy, wrongful birth and wrongful life. While these
chapters may be read in isolation they also fit together into a
coherent whole. However, the origin of the book is perhaps also
reflected in the absence of any central thesis. Rather than being a
progressively argued defence of a single thesis, it is a cogent and
insightful analysis of the law’s approach set against the
backdrop of a number of reasonable beliefs about how the law ought to
be.
These
guiding beliefs are: that the fetus has interests, and possibly
rights, that should be protected against the actions of third parties
(i.e. those other than the mother); that the negligently caused birth
of an unplanned child should be compensated; that wrongful birth is
legally distinguishable from wrongful pregnancy on the grounds that
there is greater proximity in the case of wrongful birth; and that in
providing compensation for the birth of a disabled child, whether to
the parents or the child, one is not devaluing the disabled but
merely recognising that the defendant’s negligence has resulted
in a financial detriment that should be remedied.
In the
introductory chapter, Professor Mason explains what he means by the
‘troubled pregnancy’. He also considers the
categorisation and terminology of the different claims. Thus, he
explains the distinction between the parental claims of wrongful
pregnancy and wrongful birth and sensibly rejects the term ‘wrongful
conception’, which tends to be used synonymously with wrongful
pregnancy. The latter term, however, better expresses the wrong done,
which is to negligently cause the woman to become pregnant as a
consequence of, for example, a negligent sterilisation. Wrongful
birth, on the other hand, is where the doctor negligently fails to
alert the pregnant woman to the risk that the child will be disabled.
In this case the pregnancy is wanted but the birth of a disabled
child is not. Wrongful life claims are the parallel claims brought by
the disabled child born as a consequence of the doctor’s
negligence. Here Professor Mason helpful explains the problems that
such a loaded label has for the success of such claims and, in
chapter six, he subsequently argues that it would be better to refer
to the claims as for ‘diminished’ rather than ‘wrongful’
life.
The
introductory chapter ends with a brief overview of medical
negligence. If this book were aimed solely at lawyers such a
discussion would be unnecessary. However, given that the book will be
of interest to ethicists and to healthcare professionals the short
discussion is a helpful inclusion. It may also prove useful as a
refresher for law students reading the book.
In
chapter two, Professor Mason discusses the issues of fetal status and
abortion. His starting point is to acknowledge the strength of the
Catholic position that life begins at fertilisation. However, he
acknowledges that this may lead to intuitively unacceptable
conclusions about the status of the in vitro fetus and he
instead asserts that morally ‘meaningful life’ begins at
implantation. In adopting this position he summarily rejects the
moral personhood argument because it provides an ‘invitation to
infanticide’. Having set out his beliefs regarding fetal
status, Professor Mason goes on to consider the relevance of
viability, which he notes is a key stage in the acceptability of
abortion, albeit one reliant on policy rather than morality. The
remainder of the chapter examines the legal regulation of abortion,
including a discussion of where the termination of pregnancy is
involuntary. It is this latter part of the chapter that is the most
useful and Professor Mason considers some very important issues
regarding the protection provided to the fetus. The initial
consideration of fetal status, while it clarifies Professor Mason’s
beliefs, is unsatisfying as a discussion of the moral status of the
fetus. It is better seen as the author setting out his store rather
than as an engagement with the philosophical issue.
In
chapter three, Professor Mason engages with the issue of wrongful
birth, which is part of the core focus of the book. The chapter
begins with a helpful analysis of late termination of pregnancy for
reasons of fetal handicap. He then goes on to provide a brief
overview of the causes of fetal abnormality and the principles of
antenatal care. This is a useful diversion for the non-medical
readers and helps to provide a context for the subsequent discussion
of wrongful birth. This section of the chapter ends with an analysis
of the negligent failure to disclose the requisite information.
Again, this will be useful to the non-lawyer and student readers and
it helpfully connects the role of antenatal counselling to the
wrongful birth action. The final section of the chapter provides a
cogent analysis of the wrongful birth cases. The focus is mostly on
the UK, but Professor Mason also provides a short summary of the US
and Commonwealth jurisprudence.
Chapters
four and five examine the wrongful pregnancy cases. Chapter four
focuses on the classic scenario of the healthy child while chapter
five explores the relevance of disability. Professor Mason provides a
brief summary of the US and Canadian cases before looking at the UK
jurisprudence with the analysis appropriately focused on the leading
House of Lords case of McFarlane v Tayside Health Board [2000] 2 AC 59. While Professor Mason underplays the relevance of
distributive justice, his analysis is insightful and, coupled with
the subsequent comparison of the High Court of Australian case of
Cattanach v Melchior (2003) 199 ALR 131, provides a cogent
criticism of their Lordships’ rejection of the McFarlanes’
claim.
In
chapter five Professor Mason examines the cases that followed
McFarlane but sought to distinguish that decision on the basis
that either the child or the mother was disabled. He provides a
valuable analysis of the Court of Appeal case of Parkinson v St
James and Seacroft University Hospital NHS Trust [2002] QB 266,
which concerned the case of wrongful pregnancy where the child was
born with a disability. Professor Mason then discusses both the Court
of Appeal and House of Lords hearings of Rees v Darlington
Memorial NHS Trust, which concerned the birth of healthy child to
a disabled mother. These analyses, which reflect Professor Mason’s
view that the parents in these cases should be able to recover
damages, are insightful and well argued. The discussion is
comprehensive enough for the non-expert but sufficiently thought
provoking to be valuable to those already familiar with the cases.
In
chapter six, Professor Mason tackles the controversial area of
wrongful life claims. Again his approach is from a position that is
sympathetic to allowing the child to recover damages to meet the
financial costs consequential to the child’s disability. In
this regard he is forceful in his rejection of the idea that wrongful
life claims devalue the disabled. As noted earlier, he makes the
reasonable suggestion that the claim is really for diminished, rather
than wrongful, life. In other words, the child is seeking
compensation for the effects of the disability rather than for the
fact of his or her existence. Again, the analysis is insightful and
provides an invaluable discussion of the approach of the courts in
Europe, as well as those in Australia, Canada and the US.
In
chapter seven, the final substantive chapter, Professor Mason
considers the emotional area of the management of the disabled
neonate (and infant). One may reasonably ask why this topic is
included in a book on the ‘troubled pregnancy’ but
Professor Mason justifies its presence on the basis of Hale LJ’s
approach in Parkinson, when she noted that the end of
pregnancy does not signal the end of the effect on the mother’s
autonomy. Professor Mason strengthens the relevance of the chapter by
restricting its focus to the disabled neonate whose disability was
‘sown during fetal life’. However, its bearing on the
core focus of the book (wrongful life, wrongful birth and wrongful
pregnancy) is a little tenuous and its relevance to the rest of the
book is not entirely clear. This impression is cemented by the fact
that the conclusion to the book refers to all the other matters
discussed but makes no reference to the management of the disabled
infant. This is unfortunate because the discussion might have been
made more relevant by considering whether the approach in these cases
is consistent with the UK courts’ attitude to wrongful life
claims. Nevertheless, while the chapter does not fit well with the
rest of the book it provides an interesting and valuable analysis of
the case law that will be a useful resource for those interested in
the management of the disabled neonate.
Overall,
this book is a cogent and insightful analysis of the ‘troubled
pregnancy’. As one would expect, it is well written and is a
pleasure to read. It should appeal to a variety of readers including
lawyers, ethicists and healthcare professionals. It should also
appeal to both students and qualified academics. My only criticisms
of the book are that the discussion of fetal status was frustratingly
unsatisfying and that the final chapter on the management of the
disabled neonate seems like an unnecessary distraction from the
central issues. Nevertheless, I would strongly recommend this book to
anyone interested in the legal regulation of the management of the
‘troubled pregnancy’.
Alasdair Maclean
University of Dundee
© Alasdair Maclean
This work is licenced under a
Creative Commons Licence.