Comparative Analysis of the Right of a Pregnant Woman to Refuse Medical Treatment for Herself and Her Viable Fetus: The United States and United Kingdom, A


A COMPARATIVE ANALYSIS OF THE RIGHT OF A
PREGNANT WOMAN TO REFUSE MEDICAL TREATMENT

FOR HERSELF AND HER VIABLE FETUS: THE UNITED
STATES AND UNITED KINGDOM

I. INTRODUCTION

Few legal topics have raised more debate than the right of a pregnant
woman to refuse medical treatment for religious, moral, philosophical, or
personal reasons.' A woman's decision raises common law, statutory,
constitutional, and ethical questions. Courts must define the scope of a
pregnant woman's right to privacy in her own bodily integrity and compare
that right to the State's interest in protecting the health of the viable fetus. 2

Courts in the United States and United Kingdom have adopted the general rule
that a pregnant woman may refuse medical treatment; however, each system
provides different exceptions to the general rule.3 This Note has two purposes.
First, this Note will explain the development of a pregnant woman's right to
refuse medical treatment in both the United States and the United Kingdom,4
and second, this Note will explore the situations where each system allows
courts to intervene and force treatment. While the judicial system of the
United Kingdom allows a court to override a woman's choice in certain
circumstances, a majority of courts in the United States have not used this
approach. This Note will explain the source of the right to refuse treatment in
the United States and United Kingdom and then compare and contrast the
exceptions to the general rule in an attempt to formulate the best approach to
these precarious moral and legal dilemmas.

II. THE RIGHT TO REFUSE MEDICAL TREATMENT

In both the United States and the United Kingdom, an individual has a
right to refuse medical treatment, even life-saving treatment, in most
circumstances.5 The source and development of the legal right varies in the

1. See generally James Nocon, Physicians and Maternal-Fetal Conflict: Duties, Rights
and Responsibilities, 5 J.L. & HEALTH 1 (1990); Carson Strong, Court-Ordered Treatment in
Obstetrics: The Ethical Views and Legal Framework, 78 OBs. & GYN. 861-68 (1991).

2. See generally Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court defined the
scope of maternal and fetal rights in the Roe decision.

. 3. See generally St. George's Healthcare N.H.S. Trust v. Collins, [1999] Fain. 26, 1998
WL 1043638; In re Fetus Brown, 689 N.E.2d 397 (II. App. Ct. 1997).

4. The Note will focus primarily on decisions from courts within England and Wales,
which express the majority approach within the United Kingdom. English courts have
addressed the issue in numerous cases. This body of case law addresses the different medical,
ethical, and legal issues raised within this Note.

5. See generally Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990);
Airedale N.H.S. Trust v. Bland, [1993] A.C. 789, 1993 WL 963744 (HL); In re C., [199411



IND. INT'L & COMP. L. REv.

two countries; however, the doctrine of informed consent provides the basis
for the legal principle in both.6 The right to refuse medical treatment
developed differently in the United States and United Kingdom, and,
consequently, it is important to understand the legal analysis in both countries.

A. United States

In the United States, a competent adult has the right to refuse medical
treatment, even if refusal will result in death. 7 In Cruzan v. Director, Missouri
Department of Health,8 the U.S. Supreme Court held that the Due Process
Clause of the Fourteenth Amendment to the United States Constitution9

confers a constitutional right to preserve one's own bodily integrity by
avoiding unwanted medical procedures.'" The Court stated that the liberty
guaranteed by the Due Process Clause must protect, if it protects anything, an
individual's personal decision to reject medical treatment." Justice O'Connor,
in her concurring opinion, stated: "Because our notions of liberty are
inextricably entwined with our idea of physical freedom and self
determination, the Court has often deemed state incursions into the body
repugnant to the interests protected by the Due Process Clause."' 2 Because the
right to refuse treatment implicates a constitutional right, courts must use the
most rigorous standard of review when evaluating state intervention."

W.L.R. 290, 1997 WL 1105230.
6. See generallyIn re A.C., 573 A.2d 1235 (D.C. Cir. 1990)(en banc); In re J.T., [1998]

Fain. Law 23,1997 WL 1105230.
7. See generally Mark Strasser, Incompetents and the Right to Die: In Search of

Consistent Meaningful Standards, 83 KY. L.J. 733 (1995).
8. See Cruzan, 497 U.S. at 266. The case involved Nancy Cruzan, a twenty-four year

old woman, who had lost control and wrecked her car. See id. Ms. Cruzan's brain was deprived
of oxygen for roughly twelve to fourteen minutes, which placed her in a persistent vegetative
state. See id. Ms. Cruzan was incompetent, and her parents asked the State of Missouri to
remove her life support (i.e., a feeding tube and respirator); however, the hospital refused to
remove the tube because it would result in Ms. Cruzan's death. See id. at 267-68. The Missouri
Supreme Court overturned the trial court's order that directed the hospital to remove the life
support. See idat 268. The U.S. Supreme Court granted certiorari to determine if Ms. Cruzan,
through her representatives, had the right to refuse medical treatment if such refusal would
result in death. See id. at 269. The Supreme Court held that an individual has the right to refuse
medical treatment and the effect of such refusal was not relevant. Id.

9. U.S. CONST. amend. XIV, § 1. The pertinent portion states:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

Id.
10. See Cruzan, 497 U.S. at 278. See also In re Baby Boy Doe, 632 N.E.2d 326,331 (111.

App. Ct. 1994).
11. See Cruzan, 497 U.S. at 281.
12. Id. at 287 (O'Connor, J., concurring).
13. See id. at 281.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

The right to refuse medical treatment is well established in American
jurisprudence. At common law, the touching of another without that person's
consent was considered battery.'4 The Supreme Court noted that "[n]o right
is held more sacred ... by the common law, than the right of every individual
to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law."' 5

In the medical context, the doctrine of informed consent protects an
individual's bodily integrity. 6 Informed consent is a legal construct, which
has evolved over the past thirty years into a complex doctrine designed to
promote autonomous decision-making. 17 Justice Cardozo once wrote: "Every
human being of adult years and sound mind has a right to determine what shall
be done with his own body; and a surgeon who performs an operation without
his patient's consent commits an assault, for which he is liable in damages." 18

In addition to their ethical obligations, courts impose a legal duty on
physicians to inform their patients of all the risks associated with a surgery
before obtaining consent to perform that surgery.19  After receiving
information concerning a surgery, the patient has the choice of whether to
consent or refuse the treatment. 20 Chief Justice Rehnquist concluded that
"rt]he logical corollary of the doctrine of informed consent is that the patient
generally possesses the right not to consent, that is, to refuse treatment. ' 21

Consequently, physicians may be held responsible for failing to abide by a
patient's choice.

Two cases in particular demonstrate the potential liability physicians
face for failing to abide by their patient's wishes. In Shorter v. Drury,2 the
husband of a Jehovah's Witness brought an action against the obstetrician who
treated his pregnant wife.23 The obstetrician cut the woman's uterus and
caused profuse bleeding.24 Despite the immediate necessity of a blood
transfusion, the patient refused and died from the loss of blood. 25 The jury
found the physician negligent and awarded $412,000 in damages. 26 Thejury

14. See id. at 269.
15. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).
16. See Alan Meisel et al., Toward a Model of the Legal Doctrine of Informed Consent,

134 AM. J. PSYCH. 285, 286-87 (1977).
17. See id. See also Jessica Wilen Berg et al., Constructing Competence: Formulating

Standards of Legal Competence to Make Medical Decisions, 48 RUTGERS L. REv. 345 (1996).
18. Schloendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914).
19. See generally Meisel, supra note 16, at 287.
20. See id.
21. Cruzan, 497 U.S. at 270.
22. Shorter v. Drury, 695 P.2d 116, 118-19 (Wash. 1985).
23. See id. at 119.
24, See id. The physician was in a precarious situation because his negligence had caused

the bleeding, yet he could take no remedial action to fix his error. See id. The woman would
either die because of his mistake or he could save her life by compromising the woman's
religious beliefs. See id. Under either facts, the physician faced liability for his actions. See id.

25. See id. at 118-19.
26. See id. at 119.

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IND. INT'L & COMP. L. REV.

determined that the woman was 75% at fault for her refusal and reduced the
damages accordingly to $103,000.27 The Washington Supreme Court upheld
the judgment and noted that the physician had informed the woman of the risk,
which she chose to assume when she refused the transfusion.28 It was the
woman's refusal, not the physician's error that resulted in death. 9 One should
note that the physician was not charged with malpractice for abiding by the
woman's choice. °

Similarly, in Corlett v. Caserta,3' a woman brought suit against a
physician because the physician had abided by the wishes of her husband not
to receive blood transfusions.32 Upon the husband's death, his wife brought
a malpractice suit.33 The Illinois Court of Appeals held that the patient's
choice to refuse a blood transfusion did not bar recovery for the physician's
negligence; however, the refusal should reduce the recovery proportionally.34

Because a competent adult has the right to refuse medical treatment, the court
stated that an individual cannot impose liability upon a physician who
disagrees with the consequences of the choice.35 Corlett teaches that when
physicians inform a patient of the risks and potential consequences of an
action, and even then the patient refuses treatment, then the physician is not
liable for the patient's actions.36

A competent adult may also refuse medical treatment for religious
beliefs under the First Amendment of the United States Constitution.37

Although those cases normally involve Jehovah's Witnesses, an individual
may refuse medical treatment due to a number of traditional or non-traditional
religious beliefs.38 Both the First and Fourteenth Amendments of the U.S.
Constitution guarantee that an individual has the right to refuse medical
treatment.

27. See id.
28. See id. at 123.
29. See id. at 124.
30. See id at 119-21. The court noted that the use and form of a medical release was

appropriate. See id. at 120. The lack of a release would require the hospital to seek a court
order to override the woman's decision. See id. The release clearly stated the woman's wishes,
and, if it had not, then the outcome may have been different. See id.

31. Corlett v. Caserta, 562 N.E.2d 257 (Ill. App. Ct. 1990). See also Joelyn Knopf Levy,
Jehovah's Witnesses, Pregnancy, and Blood Transfusions: A Paradigmforthe Autonomy Rights
of All Pregnant Women, 27 J.L. MED. & ETHICs 171, 173 (1999).

32. See Corlett, 562 N.E.2d at 257-58.
33. See id.
34. See id. at 259-60.
35. See id.
36. Id.
37. See U.S. CONST. amend. I. See also Cantwell v. Connecticut, 310 U.S. 296, 303

(1940).
38. See generally Julie A. Koehne, Witnesses on Trial: Judicial Intrusion Upon the

Religious Practices of Jehovah's Witness Parents, 21 FLA. ST. U. L. REv. 205 (1993).

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THE RIGHT TO REFUSE MEDICAL TREATMENT

B. United Kingdom

In the United Kingdom, courts operate on the legal principle that each
individual's body is inviolate unless the individual consents to the surgical
procedure.39 There are a few exceptions; however, courts generally defer to
an individual's choice even under the exceptions. 40 Generally, if a doctor
performs medical treatment without obtaining a competent patient's consent,
then his or her action violates medical ethics and a legal duty. In those
situations, an individual may sue a doctor under the civil action for trespass of
the person or criminally as an assault.4' The consent must be informed, as
doctors in the United Kingdom have an absolute duty to warn patients of all
potential risks involved with a medical procedure before obtaining consent.42

If a doctor informs the patient of all foreseeable risks, then the patient may
decide to refuse the treatment, regardless of the effect that decision might have
on the patient.4

3

I1. THE RIGHTS OF PREGNANT WOMEN AND THE UNBORN FETUS

Pregnant women are presented with health issues that are both private
and personal. Although each woman makes a choice to become pregnant
(unless the woman was raped), no woman has an obligation to keep a fetus in
her body under American or English law.' Courts in the United States and
United Kingdom agree that pregnant women have a unique set of personal
interests related to the pregnancy, which the courts must protect.45 Both
countries also agree that a viable fetus has limited right, and, consequently, it

39. See generally Marc Stauch, Rationality and the Refusal of Medical Treatment: A
Critique of the Recent Approach of the English Courts, 21 J. MED. ETHICS 162, 163-65 (1995);
Robert Francis, Compulsory Caesarean Sections: An English Perspective, 14 J. CONTEMP.
HEALTH L. & POL'Y 365 (1998).

40. See Francis, supra note 39, at 366-67. See also Gillick v. West Norfolk & Wisbech
Area Health Authority, [ 1986] A.C. 112, 1985 WL 311014, at 2. Under English law, a person
with parental authority may provide consent for a minor to undergo or forego medical treatment.
See id. The minor may consent himself or herself, if he or she can show a sufficient degree of
maturity. See id.

41. See id. See also Sidaway v. Bd. of Governors of Royal Bethlem & Maudsley Hosp.,
[1985] A.C. 871, 1985 WL 311459 (HL), at 10-11. The right to refuse treatment in the United
Kingdom remains grounded on the traditional common law torts. See id. The key question is:
what distinction should be made between medical treatment and assault? See id. In the United
Kingdom, there is not a distinct difference. In the United States, there is a critical distinction.

42. See Francis, supra note 39, at 366.
43. See id. See also In re F., [1988] Faro. 122, 1988 WL 624168 (CA); In re S., [1993]

Fam. 123; In re T., [1993] Fam. 95, 1992 WL 895109 (CA).
44. See generally Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.

833 (1992); Paton v. British Pregnancy Advisory Service Tr., [1979] Q.B. 276,1978 WL 57203
(QBD).

45. See Paton, 1978 WL 57203, at 1.

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IND. INT'L & CoMP. L. REV.

is worth noting the development of women's rights and fetal rights in both
countries.

A. United States

1. Maternal Rights

The Supreme Court of the United States has held that a pregnant woman
has a right to personal autonomy and privacy that is not relinquished when she
becomes pregnant.46 This determination was made when the Court considered
abortion rights, and it differs significantly from the right of a pregnant woman
to refuse treatment that harms the health of a viable fetus.4 7 Despite the
difference, many of the guiding principles behind Roe v. Wade and Planned
Parenthood of Southeast Pennsylvania v. Casey are involved in cases where
a pregnant woman refuses medical treatment.

Perhaps the closest link between the maternal rights in Roe, Casey, and
the right of pregnant women to refuse treatment can be found in Thornburgh
v. American College of Obstetricians and Gynecologists.48  The Supreme
Court struck down a Pennsylvania statute that required physicians performing
post-viability abortions to use the technique that provided the best opportunity
for the fetus to be aborted alive.49 The Court determined that the statute was
unconstitutional because it both forced a "trade-off' between "a woman's
health and fetal survival" and stressed that any procedure that increased the
risk to the woman's health was unacceptable."0 Applying this principle to
maternal decisions, courts have honored the medical decisions of pregnant
women in most circumstances.5 The Supreme Court recognized the
supremacy of maternal health over fetal interests; however, the maternal-fetal
conflict has not been completely resolved.

In the United States, courts considering a maternal-fetal conflict
distinguish between situations where: (1) a surgery is needed to save the life

46. See Roe v. Wade, 410 U.S. 113 (1973). See generally Casey, 112 S.Ct. at 2791;
David C. Blickenstaff, Defining the Boundaries of Fetal Surgery, 88 Nw. U. L. REV. 1157
(1994); Joel Jay Finer, Toward Guidelines for Compelling Cesarean Surgery: Of Rights,
Responsibility, and DecisionalAuthenticity, 76 MINN. L. REV. 239 (1991); Lawrence J. Nelson
& Nancy Milliken, CompelledMedical Treatment of Pregnant Women, 259 JAMA 1060 (1988).
These three articles explore and analyze the development of maternal and fetal interests.

47. See generally Rebekah R. Arch, The Maternal-Fetal Dilemma: Honoring a Woman's
Choice of Medical Care During Pregnancy, 12 J. CONTEMP. HEALTH L. & POL'Y 637 (1996);
Janet Gallagher, Prenatal Invasions and Interventions: What's Wrong with Fetal Rights, 10
HARV. WOMEN'S L.J. 9, 9-58 (1987).

48. Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
The Supreme Court's decision in Casey has limited the holding of Thornburgh; however, the
Court's analysis is still instructive for purposes of this Note.

49. See id.
50. Id. at 768-69.
51. See In re Fetus Brown, 689 N.E.2d 397 (111. App. Ct. 1997).

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THE RIGHT TO REFUSE MEDICAL TREATMENT

of both the mother and fetus; and (2) a surgery is needed to save the life of the
fetus at a risk to the mother.52 The two situations involve separate sets of
personal and state interests, and, therefore, courts have approached the cases
very differently. When only the health of the fetus is in danger, the courts give
absolute deference to the decision of the woman.53 One court has written:

A cesarean section, by its nature, presents some additional
risks to the woman's health. When the procedure is
recommended solely for the benefit of the fetus, the
additional risk is particularly evident. It is impossible to say
that compelling a cesarean section upon a pregnant woman
does not subject her to additional risks - even the circuit
court's findings of fact in this case indicate increased risk to
[the patient]. Under Thornburgh, then, it appears that a
forced cesarean section, undertaken for the benefit of the
fetus, cannot pass constitutional muster.'

It appears that when the health of the mother is compromised, even to
small degree, then a court will not overturn the woman's personal decision.55

When both the health of the woman and fetus are compromised, then a court
may be willing to intercede and force treatment, because the State has a
compelling interest in protecting the health of both the mother and fetus.56

In the United States, the majority approach is that a woman is under no
legal duty to guarantee the mental or physical health of her child, and,
consequently, she cannot be compelled to do anything merely for the benefit
of her unborn child.57 Under this approach, the mother cannot be forced to
compromise her own health for that of a fetus. The interests of the mother take
priority over the interests of a viable fetus or the interests of the state.58 One

52. In Thornburgh, the abortion technique attempted to save the fetus while increasing
the risk of harm to the mother. See generally Thornburgh, 476 U.S. at 747. The Supreme Court
has not been presented with a case that involved the health of both the mother and fetus. See id.
See also In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. Ct. 1994).

53. See generally Robin M. Trindel, Fetal Interests vs. Maternal Rights: Is the State
Going Too Far?, 24 AKRON L. REv. 743 (1991).

54. See generally In re Baby Boy Doe, 632 N.E.2d 326, 333 (Ill. App. Ct. 1994).
55. See id.
56. See Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga. 1981).
57. See In re Baby Boy Doe, 632 N.E.2d at 401. See generally Nancy K. Rhoden, The

Judge and Delivery Room: The Emergence of Court-Ordered ObstetricalInterventions, 74 CAL
L. REV. 1951 (1986); Finer, supra note 46, at 239.

58. See In re Baby Boy Doe, 632 N.E.2d.at 333. The court stated as follows:
Courts in Illinois and elsewhere have consistently refused to force one person to
undergo medical procedures for the purpose of benefiting another person - even
where the two persons share a blood relationship, and even where the risk to the
first person is perceived to be minimal and the benefit to the second person may
be great .... If an incompetent brother cannot be forced to donate a kidney to
save the life of his dying sister, then surely a mother cannot be forced to undergo

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IND. INT'L & COMP. L. REv.

should note that even under this majority approach, courts may intervene under
certain circumstances, such as when a surgery is not "invasive. ' ' 9

2. Fetal Interests

In contrast with the majority approach, a few courts have chosen to
recognize fetal interests. 60 The Supreme Court of South Carolina, in Whitner
v. South Carolina,6 determined that a mother who was addicted to cocaine
could be held responsible under South Carolina's child abuse and
endangerment statute.62 The court determined that the legislature intended the
word "child" to include a viable fetus. 63 Thus, the court upheld the conviction
of the mother for causing her child to be born with cocaine metabolites in its
system.' The court recognized that a viable fetus has certain rights and
interests that the State may protect.'5 This approach is highly controversial,
and no other state supreme court has held a mother criminally responsible
under a child abuse statute under similar circumstances.' The majority of

acesarean section to benefit her viable fetus.
Id. at 333-34 (citations omitted).

59. Id. See also Jefferson, 274 S.E.2d at 457 (ordering c-section to save both the mother
and the fetus); Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 201 A.2d 537 (N.J.
1964)(ordering blood transfusion to save the life of the mother and fetus), cert. denied, 377 U.S.
985 (1964); In re Jamaica Hospital, 491 N.Y.S.2d 898 (N.Y. Sup. Ct. 1985)(ordering the
transfusion of blood to save the life of a pregnant woman and her fetus); Crouse Irving
Memorial Hosp., Inc. v Paddock, 485 N.Y.S.2d 443 (N.Y. Sup. Ct. 1985)(ordering blood
transfusions as necessary over religious objections to save the mother and fetus).

60. See Jefferson, 274 S.E.2d at 457.
61. Whitner v. South Carolina, 492 S.E.2d 777 (S.C. 1997). South Carolina is the only

state that has adopted this approach. See generally WILUAM CuRRAN ET AL, HEALTH CARE
LAW AND ETIcs 848-59 (5th ed. 1998).

62. See S.C. CODE ANN. § 20-7-50 (2000). The pertinent portion of the statute reads:
Any person having the legal custody of any child or helpless person, who shall,
without lawful excuse, refuse or neglect to provide ... the proper care and
attention for such child or helpless person, so that the life, health, or comfort of
such child or helpless person is endangered or is likely to be endangered, shall
be guilty of a misdemeanor and shall be punished within the discretion of the
circuit court.

Id.
63. See Whiner, 492 S.E.2d at 777-90.
64. See id.
65. See id.
66. See Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. 1995); Reyes v. Superior

Court, 141 Cal. Rptr. 912 (Cal. Ct. App. 1977); State v. Gethers, 585 So.2d 1140 (Fla. Dist. Ct.
App. 1991); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993); State v. Gray, 584 N.E.2d
710 (Ohio 1992); Nevada v. Encoe, 885 P.2d 596 (Nev. 1994); Collins v. State, 890 S.W.2d 893
(Tex. Ct. App. 1994). The preceding list of cases was found in CURRAN,supra note 61, at 856.
In all the cases, the courts were asked to interpret child abuse statutes. With the exception of
the South Carolina Supreme Court, courts have uniformly held that a viable fetus is not a child,
and no legislature could intend such a definition absent such wording.

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states have uniformly agreed that the fetus does not have protected
constitutional rights until birth.67

Several other decisions that recognize fetal rights are worth noting;
however, the cases are not binding on most jurisdictions within the United
States.68 One court held that the state has a compelling interest in protecting
the health of a woman's children, who as third parties, would be deprived by
the mother's refusal to undergo medical treatment and her subsequent death.69

Further, some courts have held that the health of an unborn fetus outweighs a
mother's right to refuse treatment in certain circumstances. 70 Despite these
exceptional cases, most states follow the view that a competent pregnant
woman has an absolute right to refuse medical treatment. 7'

In the United States, a pregnant woman, if competent, has the right to
accept or forego medical treatment.72 A viable fetus has no rights in most
jurisdictions within the United States.73 Consequently, a pregnant woman has
no duty to a fetus within her body, as the courts have chosen not to compel one
person to permit an intrusion on her body for the benefit of another.74 The
leading case supporting this legal premise is McFall v. Shimp, 71 in which a
court refused to compel an individual to donate bone marrow to his cousin.
The court explained its refusal by stating:

67. See generally CURRAN, supra note 61, at 856-57. Some state prosecutors have
attempted to prosecute pregnant drug offenders under laws that make it a crime to "deliver"
drugs to another person. See id. The theory is that the mother ingested drugs and then
transmitted the drug through her umbilical cord after the birth of the child. See id. All courts that
have considered this issue have held that the drug delivery statutes were not intended to cover
this type of situation. See, e.g., Johnson v. State, 602 So.2d 1288 (Fla. 1992); State v. Luster,
419 S.E.2d 32 (Ga. Ct. App. 1992); People v. Hardy, 469 N.W.2d 50 (Mich. Ct. App. 1991),
appeal denied, 471 N.W.2d 619 (Mich. 1991).

68. Some decisions have been overturned, such as the initial Illinois case discussed later
in this note. Others are likely invalid due to holdings in the same or other jurisdictions. One
should also note that the attitudes of many courts have changed since the initial rulings noted
in footnote 66.

69. See Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga. 1981).
See also In re Madyun, 114 Daily Wash.L.Rptr. 2233 (D.C. Super. Ct. 1986).

70. See Application of President of Georgetown Coll., 331 F.2d 1010 (D.C. Dir. 1964),
cert. denied, 377 U.S. 985 (1964); Crouse-Irving Memorial Hosp. v. Paddock, 485 N.Y.S.2d
443 (N.Y. App. Div. 1985); In re Jamaica Hospital, 491 N.Y.S.2d at 898; Fosmire v. Nicoleau,
551 N.E.2d 77 (N.Y. 1990).

71. See Application of President of Georgetown Coll., 331 F.2d at 1010.
72. See In re A.C., 573 A.2d 1235, 1240 (D.C. Cir. 1990)(en banc).
73. See id.
74. See id.
75. McFall v. Shimp, 10 Pa. D. & C.3d 90 (1978). The plaintiff suffered from a bone

marrow disease and had needed a bone marrow transplant to survive. See id. The only known
match was a cousin, who had consented to the test but refused to donate the marrow. The
plaintiff died two weeks after the court issued its decision. See generally Fordham E. Huffman,
Coerced Donation of Body Tissues: Can We Live with McFall v. Shimp, 40 OHIO ST. L.J. 409
(1979).

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IND. INT'L & COMP. L. REV.

The common law has consistently held to a rule which
provides that one human being is under no legal compulsion
to give aid or to take action to save another human being or
to rescue. A great deal has been written regarding this rule,
which, on the surface, appears to be revolting in a moral
sense. Introspection, however, will demonstrate that the rule
is founded upon the very essence of our free society .... Our
society, contrary to many others, has as its first principle, the
respect for the individual, and that society and government
exist to protect the individual from being invaded and hurt by
another .... For our law to compel defendant to submit to an
intrusion of his body would change every concept and
principle upon which our society is founded. To do so would
defeat the sanctity of the individual, and would impose a rule
which would know no limits, and one could not imagine
where the line would be drawn.76

In this case, even though Mr. Shimp' s refusal to donate his bone marrow
meant that his cousin, Mr. McFall, would almost certainly die, the court did
not order the invasive surgery. 7 The standard rule was applied in the context
of a mother and fetus, and the same result was reached.78 A mother does not
have a duty to her fetus, and she may refuse invasive medical treatment (i.e.,
cesarean section, fetal surgery, or blood transfusions) if the treatment places
the mother at risk.79

B. United Kingdom

Under English law, physicians owe certain ethical duties to pregnant
women and unborn viable fetuses.' These obligations often conflict, and The
Royal College of Obstetricians has formulated the following guidelines:

76. McFall, 10 Pa. D. & C.3d at 92-93. The McFall decision has been adopted in
virtually every jurisdiction within the United States. See id.

77. Of all the relatives tested, Mr. Shimp's bone marrow was the only match for Mr.
McFall. Mr. Shimp resorted to the court as a last effort to save his life, but, as noted, the court
refused. See id.

78. See In re A.C., 573 A.2d 1235, 1241 (D.C. Cit. 1990)(en banc). Although it was
suggested that a mother has an enhanced duty to protect the fetus, the court determined that an
unborn child cannot have a greater interest than a living person. See id. The mother has no
enhanced duty to her fetus, and the mother has a right to refuse an invasive surgery such as a
cesarean section. See id.

79. See generally Eric M. Levine, The Constitutionality of Court-Ordered Cesarean
Surgery: A Threshold Question, 4 ALB. L.J. SCL & TECH. 229 (1994).

80. See Stauch, supra note 39, at 163-65.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

The aim of those who care for pregnant women must be to
foster the greatest benefit to both the mother or fetus, and
inform and advise the family, utilizing their training and
experience in the best interests of parties. Obstetricians must
recognize the dual claims of mother and her embryo or fetus
and inform and advise the family, utilizing their training and
experience in the best interest of both parties.8

Consequently, there are situations where the mother's health and child's
health are opposed to each another.82 It is under those circumstances that
courts have been asked to intervene to protect fetal interests.

In the United Kingdom, courts have carved out a few exceptions to the
general rule that competent adults have an absolute right to refuse medical
treatment. The courts first acknowledged the possibility of an exception in the
case of In re T:83

An adult patient who.., suffers from no mental incapacity
has an absolute right to choose whether to consent to medical
treatment, refuse it, or to choose one rather than another of
the treatments being offered. The only possible qualification
is a case in which the choice may lead to the death of a viable
fetus.84

The court outlined two potential exceptions when treatment may be
forced. First, courts may force treatment when a patient is mentally
incompetent.85 Second, courts may force medical treatment in certain
circumstances when a viable fetus is involved.86 The development of the
exceptions has coincided with the manner in which the competing interests of
a pregnant woman and a fetus developed within the English courts.

81. ROYAL COLL. OF OBSTETRICIANS & GYNAECOLOGISTS, A CONSIDERATION OF THE
LAW AND ETHICS IN RELATION TO COURT-AUTHORISED OBSTETRIC INTERVENTION, §§ 4.3.1 -
4.3.2 (1996). See also ACOG COMM. ON ETHICS, AM. COLL. OF OBSTETRICS AND
GYNECOLOGY, COMM. OPINION, PATIENT CHOICE: MATERNAL-FETALCONFLICT 1 (1987). The
American College of Obstetrics and Gynecology issued a similar statement that stated: "[Tihe
obstetrician should be concerned with the health care of both the pregnant woman and the fetus
within her, assessing the attendant risks and benefits to each during the course of care." Id.

82. See id.
83. In reT., [1993] Fan. 95, 1992 WI, 895109 (CA), at 7.
84. Id.
85. See Tameside & Glossop Acute Serv. NHS Trust v. C.H., [ 1996] F.L.R. 762; See also

St. George's Healthcare, [1999] Fain. 26, 1998 WL 1043638.
86. See generally id. The case involved a mentally incompetent pregnant woman and

there were two issues involved: her competency and the presence of her fetus. See id.

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IND. INT'L & COMP. L. REv.

1. Maternal Rights

Courts in England and Wales have refused to recognize the competing
interests between a mother and a fetus.87 Those courts have chosen to protect
the rights of the pregnant woman by refusing to grant the fetus any standing
to challenge the medical decisions of the mother.s Similarly, English courts
considered and held that an unborn child has no standing to prevent a mother
from consenting to an abortion.89 The court stated that "the authorities...
show that a child, after it has been born, and only then, in certain
circumstances... may be a party to an action. .... "'0 The child attains a legal
persona upon birth, and only then, can it assert its rights.9 The court did note
that there are some exceptions when a child may bring a cause of action,
however, those exceptions have been codified.92

2. Fetal Rights

Legislatures in the United Kingdom have taken very little action to
protect the rights of unborn fetuses. 93 The English legislature has enacted
three pieces of legislative material that are neither consistent nor controlling
on the courts.94 In the Infanticide Act of 1938,9s the legislature outlawed the
destruction of children that are capable of being born." Conversely, the
Abortion Act of 19679' allowed women to terminate a pregnancy by abortion

87. See id.
88. See Paton v. British Pregnancy Advisory Service Tr., [1979] Q.B. 276, 1978 WL

57203, at 3-4. In the case, the court determined that a husband could not stop the abortion of
the fetus he fathered. Sir George Baker wrote for the court:

The first question is whether the plaintiff has a right at all. The fetus cannot, in
English law, in my view, have a right of its own at least until it is born and has
a separate existence from its mother. That permeates the whole of the civil law
of this country... and is, indeed, the basis of the decisions in those countries
where law is founded on the common law... there can be no doubt, in my view,
that in England and Wales the fetus has no right of action, no right at all, until
birth.

Id.
89. See C. v. S., [1988] Q.B. 276, 1987 WL 492060, at 3.
90. Id. See also Francis, supra note 39, at 369.
91. See Francis, supra note 39, at 369-70.
92. See generally Attorney General's Reference No. 3, [19961 2 W.L.R. 412, 1995 WL

1083798. The opinion dealt with cases where an unborn child was killed with the mother. See
id. The opinion stated that "Murder or manslaughter can be committed where an unlawful
injury is deliberately inflicted either to a child in utero or to a mother carrying a child in utero

Id.
93. See generally Francis, supra note 39, at 369-71. The Article discusses the

development of English law.
94. See id.
95. Infanticide Act, 1938, c. 36, § 1. The Act outlawed abortions.
96. See id.
97. Abortion Act, 1967, c. 36, § 1 (amended by the Human Fertilisation and Embryology

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THE RIGHT TO REFUSE MEDICAL TREATMENT

in most cases. The Infant Life (Preservation) Act of 192998 and the Abortion
Act of 19679 caused problems for the English courts for many years.' ° As a
result, the English legislature enacted the Human Fertilisation and Embryology
Act of 1990 '0' to resolve the confusion and bring consistency among the
various English courts. Finally, several courts have assumed that the lack of
legislation gives women the right to refuse treatment. In the case of In re F.
the court stated:

If the law is to be extended ... to impose control over the
mother of an unborn child, where such control may be
necessary for the benefit of that child, then under our system
of parliamentary democracy it is for Parliament to decide
whether such controls can be imposed .... If Parliament
were to think it appropriate that a pregnant woman should be
subject to controls for the benefit of her unborn child, then
doubtless it will stipulate the circumstances in which such
controls may be applied and the safeguards appropriate for
the mother's protection. In such a sensitive field, affecting as
it does the liberty of the individual, it is not for the judiciary
to extend the law.'"

The legislature intended for the courts to continue to use traditional tort
theory when analyzing the right of women to refuse medical treatment, rather
than creating an independent source for such a right."0 3

The development of common law rights for pregnant women have been
controversial and are still evolving."° The general common law proposition
is well established: "[A] competent adult patient cannot be forced to submit
to medical treatment, however well-intentioned, and however necessary to
preserve life or health."'05 The common law also allows medical professionals
to intervene for incompetent patients and force treatment, if the treatment is in
the "best interest" of the patient. This "best interest" standard created the

Act, 1990, c. 37, § 37).
98. Infanticide Act, 1929, c. 87, § 1.
99. Abortion Act, 1967, c. 36, § 1.

100. See generally Francis, supra note 39. The Article provides insight into the English
statutory scheme.

101. Human Fertilisation and Embryology Act, 1990, c. 37, § 37.
102. In re F., [ 1990] 2 A.C. 1, 1989 WL 650444 (HL), at 7-8. See also Francis, supra note

39, at 375.
103. See Francis, supra note 39, at 375.
104. See In re F., 1989 WL 650444, at 7-8.
105. Francis, supra note 39, at 370. See also Sidaway v. Bd. of Governors, [1985] A.C.

871, 1985 WL 311459, at 1. The Sidaway court established the general proposition that an
individual English patient can refuse medical treatment at his/her request. See id.

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IND. INT'L & COMP. L. REV.

possibility that a pregnant woman could be forced into unwanted medical

treatment if she was found incompetent."

IV. THE RIGHT OF PREGNANT WOMEN TO REFUSE MEDICAL TREATMENT

A. United States

1. Before In re A. C.: Balancing Competing Interests

Although it is well established that a competent adult has the right to
refuse medical treatment, the right of a pregnant woman to refuse treatment
that would save the life of her fetus is not established. The right to refuse
treatment is not an absolute right." 7 Prior to the In re A. C. decision, courts in
the United States performed a balancing test to determine whether to intervene
and force a competent adult to undergo medical treatment. °" Courts balanced
the woman's interest in her health and bodily integrity against four traditional
State interests: (1) the preservation of life, (2) the prevention of suicide, (3)
the protection of a third party, 1' 9 and (4) the integrity of the medical
profession."' The State's interest in protecting third parties and preserving the
integrity of the medical profession has received the most attention from courts.
Courts considering competing interests imposed a sliding scale to determine
if state intervention was appropriate. The state's burden increased as the
evasiveness of the procedure increased."' Courts are more willing to allow
less invasive procedures, such as immunizations and blood transfusions, than
invasive surgeries, such as transplants and cesarean sections. "2 The American
Medical Association (AMA) recommended that physicians should honor a

106. See id
107. See Francis, supra note 39, at 270.
108. See Satz v. Perlmutter, 362 So.2d 160, 162-64 (Fla. Dist. Ct. App. 1978). See also

James A. Filkins, A Pregnant Mother's Right to Refuse Treatment Beneficial to Her Fetus:
Refusing Blood Transfusions, 2 DEPAUL J. HEALTH CARE L. 361, 362 (1998).

109. See Filkins, supra note 108, at 362. Courts are most likely to allow forced medical
treatment when the health and interests of third parties are compromised. See id. It is well
established that individuals can be forced to have vaccinations over personal or religious
objections. See generally Jacobson v. Massachusetts, 197 U.S. 11 (1904). The State's need to
protect the health of its citizens clearly outweighs the individual's interests. See id.

110. See Jacobson, 197 U.S. at 11. See also Alicia Ouellette, New Medical Technology:
A Chance to Reexamine Court-Ordered Medical Procedures During Pregnancy, 57 ALB. L.
REv. 927, 929-30 (1994). Scholars, judges, and medical professionals fear that forcing a
woman into a treatment gives her a disincentive to use medical institutions. See id. They argue
that a woman in medical danger will avoid a hospital if she thinks it will force treatment upon
her. See generally Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga.
1981). This was true in Jefferson. Although the court ordered treatment, the woman went into
hiding and, eventually, gave birth to a healthy child. See id.

111. See Filkins, supra note 108, at 362.
112. See In re Baby Boy Doe, 632 N.E.2d 326, 331 (111. App. Ct. 1994).

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THE RIGHT TO REFUSE MEDICAL TREATMENT

pregnant woman's choice unless there are exceptional circumstances. One
scholar interpreted the AMA decision as follows:

The AMA's description of "exceptional circumstances" could
encompass refusals of blood transfusions. Judging by the
case law, in the opinion of most physicians, a transfusion
poses little risk to the woman, is minimally invasive, and, in
many cases, has the potential to save the fetus's life. Yet, if
transfusions fall within the escape clause the AMA and
ACOG have allowed physicians, they illustrate the pitfalls of
encouraging physicians to assess for their patients the
desirability of a treatment based solely on its medical risks
and benefits .... Ultimately, the patient must decide, based
on her values and beliefs, whether such a risk is tolerable. If
the patient is pregnant, she necessarily will have to make the
decision not just for herself, but for the fetus as well.
Furthermore, so long as the patient is competent to make the
decision, her decision need not be rational in the physician's
opinion."'

The AMA and ACOG have not had an opportunity to explain the
meaning of "exceptional circumstances"; however, the organizations make it
clear that the woman's choice should be honored in most circumstances." 4 In
1987, a group of authors who were interested in the number of pregnant
women who were forced to undergo court ordered medical treatment in the
United States launched the Kolder Study."' The results demonstrated that
physicians were not following the AMA recommendations. " The study
showed that:

Among 21 cases in which court orders were sought, the
orders were obtained in 86 percent [17 cases]; in 88 percent
of those cases, the orders were received within six hours.
Eighty-one percent of the women involved were black, Asian,
or Hispanic, 44 percent were unmarried, and 24 percent did
not speak English as their primary language."'

113. Filkins, supra note 108, at 177 (footnote omitted).
114. See id.
115. Veronika E.B. Kolder, Janet Gallagher & Michael T. Parsons, Court-Ordered

Obstetrical Interventions, 316 NEw ENG. J. MED. 1192, 1192-93 (1987).
116. See id.
117. Id. The study took place in 1987, so attitudes have likely changed since the study was

conducted. See id. It does show the willingness of physicians to intervene. Also, very few of
the cases went to court on appeal because the women chose to end their ordeals. See id.

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IND. INT'L & COMP. L. REv.

Although the attitudes of physicians have evolved and the law has
changed significantly, the Kolder Study is important because it shows that in
most cases courts ordered treatment, and these cases rarely get appealed. "'

After the Kolder Study, two distinct approaches to court ordered
treatment have developed in the United States. The courts of Illinois and
Georgia have helped define these two opposing viewpoints.

2. Illinois Law: The Majority Approach

The courts in the State of Illinois have considered several cases
involving maternal-fetal conflicts." 9 Consequently, Illinois has a coherent,
well-developed line of cases. Those cases hold that: (1) the rights of a fetus
are subordinate to the rights of a mother in all circumstances; and (2) pregnant
women have an absolute right to refuse medical treatment, even if the refusal
harms the health of the mother or unborn fetus. 20

In Stallman v. Youngquist,'21 the Illinois Supreme Court refused to
recognize a tort action against a mother for unintentional infliction of prenatal
injuries. 122 The Court determined that a child does have a right to recover from
unrelated third parties for pre-natal injuries, but children do not have the right
to recover from their mothers. 123 It feared that allowing the action would
subject a woman's every act to state scrutiny during her pregnancy, which
would intrude upon both her right to privacy and her right to control her own
life. 124 The majority noted:

No other plaintiff depends exclusively on any other defendant
for everything necessary for life itself. No other defendant
must go through biological changes of the most profound
type, possibly at the risk of her own life, in order to bring
forth an adversary into the world. It is, after all, the whole
life of the pregnant woman which impacts upon the
development of the fetus .... That this is so is not a pregnant
woman's fault; it is a fact of life.'25

118. See id.
119. See Stallman v. Youngquist, 531 N.E.2d 355 (1l. 1988); In re Baby Boy Doe, 632

N.E.2d 326 (I11. App. Ct. 1994); In re Fetus Brown, 689 N.E.2d 397 (111. App. Ct.). The court's
strong preference to strengthen maternal rights is founded both in the United States Constitution
and the State of Illinois Constitution. See id.

120. See In re Fetus Brown, 689 N.E.2d at 397.
121. See Stallman, 531 N.E.2d at 360.
122. See id. at 360-61.
123. See id. at 361.
124. See id. at 360. The court held that a woman was not responsible for actions that she

took during her pregnancy that resulted in harm to her child. See also In re Baby Boy Doe, 632
N.E.2d 326, 331 (Ill. App. Ct. 1994).

125. Stallman, 531 N.E.2d at 358.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

Ultimately, a woman's rights supersede those of the fetus and the
State.' 26 The court gave preference to maternal rights over fetal interests.27
This case set the precedent for all future Illinois decisions on the issue.

The next case heard by an Illinois Appellate Court concerning maternal-
fetal interests was In re Baby Boy Doe.1' The case involved a woman whose
fetus was receiving insufficient oxygen in the thirty-fifth week of the
pregnancy. 29 The obstetrician suggested either an immediate cesarean section
or the inducement of labor. 3 °  The patient refused the doctor's
recommendation because she was a member of the Pentecostal church.'3 ' The
woman returned to the doctor's office two weeks later, and the doctor's
diagnosis revealed the fetus had worsened.'32 The doctor again recommended
an immediate cesarean section, but the woman refused. 33

The hospital then contacted the State's attorney to seek his assistance in
obtaining a court order compelling surgery." The case was heard, and
evidence was presented.' The court refused to grant the hospital's petition
to compel the woman to consent to the cesarean section and stated that the
woman should be allowed to make her own treatment decisions.' 13 The State
immediately appealed. The Illinois Appellate Court upheld the lower court's
determination, noting that illinois courts should never balance a fetus's rights
against those of its mother.137 The court's rationale was that a woman's choice
to refuse medical treatment must be honored, even if the decision harms the
woman's health or the health of the fetus.'38 The court wrote as follows:

Applied in the context of compelled medical treatment of
pregnant women, the rationale of Stallman directs that a
woman' right to refuse invasive medical treatment, derived
from her rights to privacy, bodily integrity, and religious

126. See id. at 359.
127. See id.
128. In re Baby Boy Doe, 632 N.E.2d 326.
129. See id.
130. See id. at 327.
131. See id.
132. See id.
133. See id. The doctor no longer had the option of inducing labor because of the gravity

of the situation. See id. He felt that the only chance for the fetus was immediate surgery. See
id.

134. See id.
135. See id. at 328-29. The obstetrician testified that without the cesarean section surgery,

the fetus had a zero percent chance of survival. See id. The mother faced a 1 in 10,000 chance
of dying during the procedure, compared to a one in 20,000-50,000 for a normal birth. See id.
at 328.

136. See id.at 329.
137. See id. at 330-31.
138. See id. at 331. The woman delivered a healthy baby boy several weeks after refusing

to consent to the medical treatment. See id. at 329.

2001]



IND. INT'L & COMP. L. REv.

liberty, is not diminished during pregnancy. The woman
retains the same right to refuse invasive treatment, even of
lifesaving or other beneficial nature, that she can exercise
when she is not pregnant. The potential impact upon the fetus
is not legally relevant; to the contrary, the Stallman court
explicitly rejected the view that the woman's rights can be
subordinated to fetal rights. 39

The right to refuse medical treatment extends to all competent pregnant
women without any qualifications."4 The court also noted that the woman's
rights are always primary, and the rights of a fetus secondary.'4'

In re Baby Boy Doe left some difficult questions unresolved. First, the
court did not discuss issues raised by an incompetent or mentally ill pregnant
woman.'42 Second, it left open the door regarding whether a court could
compel a pregnant woman to take a blood transfusion. 43 The court considered
only the "massively invasive, risky, and painful cases,"'"T leaving the "non-
evasive procedures... for another case."' 45 Feminist and legal scholars did
not have to wait long for an answer to their remaining questions."

139. Id. at 332.
140. See id. at 330-33.
141. See id.
142. No court in the United States has considered the competency of a woman during the

birthing process. See generally id. Although a well-established proceeding in English law, no
such procedure has occurred in the United States.

143. See id. at 333.
144. Id.
145. Id. See also Levy, supra note 31, at 174-75. The author noted that this part of the

holding was inconsistent with the rest of the opinion. See id. She reconciled the discrepancy
by noting as follows:

There are at least two explanations for this seeming inconsistency in the court's
reasoning. One is that the judge who issued the opinion felt that the potential
demise of a fetus due to failure of the pregnant woman to accept a treatment
much less invasive than surgery distinguished such a situation from [In re Estate
of Brooks], which involved a non-pregnant woman placing only her own life at
risk. In fact, part of the Doe court's analysis rested on the increased risks to the
mother of undergoing a cesarean section rather than a normal delivery, although
the court seemed more persuaded by the legal precedent than by the medical
risks.

A second possible explanation is that the appellants had raised, as
precedent, cases where courts had ordered pregnant women to accept blood
transfusions. Therefore, the Doe court was faced with earlier cases that had
allowed physicians to override a competent adult's wishes and was forced to
distinguish those cases from the one at bar. Furthermore, the Doe court was
already forging new territory in holding that a woman could decline a cesarean
section; only one other court in the country had so held. The Doe court therefore
might have been reluctant to make a more general finding and sought to limit its
holding to the facts before it.

Id. at 174-75.
146. See id

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THE RIGHT TO REFUSE MEDICAL TREATMENT

In the case of In re Fetus Brown,47 the Illinois Court of Appeals
completed its body of law on the subject by holding that a pregnant woman
has the right to refuse a blood transfusion for religious or personal reasons. 4 '
The case involved a twenty-six year old, pregnant Jehovah's Witness, who had
surgery on a urethral mass. 49 The woman lost a large amount of blood during
the procedure and needed a transfusion, which she refused." ° The hospital
feared that the life of both the woman and fetus were in grave danger and
asked that the state appoint a temporary guardian, who could then consent to
the surgery. 5 ' The court granted the request and appointed a guardian. 5 2 The
woman survived, delivered a healthy child, and then filed an appeal to overturn
the state's action.'53

After considering prior illinois case law and the Supreme Court's
decision in Cruzan,'" the lower court's decision was reversed, and the
appellate court held that the woman should not have been forced to take the
transfusion for the benefit of her fetus.'" The State argued that a court should
balance the interests of the mother against the interests of the fetus and State
when a case involves a "minimally invasive" procedure.'" The appellate court
held that the right to refuse medical treatment is not absolute, and that a court
must balance a woman's rights against the State's interests in: (1) preserving
life; (2) preventing suicide; (3) maintaining the integrity of the medical
profession; and (4) protecting third parties. '" In turn, the appellate court
disregarded each of the aforementioned state interests and determined that the
real state interest is protecting the health of a viable fetus. 58

147. In re Fetus Brown, 689 N.E.2d 397 (111. App. Ct. 1997).
148. See i at 405.
149. See id.
150. The physicians made every effort possible to reduce the amount of blood lost during

the surgery; however, their efforts failed and the woman needed a transfusion to survive. See
id.

151. See id. The woman was restrained, sedated, and fought the physician, but despite her
clear objection, the transfusion was given. See id. at 400.

152. See id.
153. See id. The issue had become moot upon the birth of the child; however, the court

chose to hear the case because of the probability it would rise again in the future. See id.
154. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).
155. See In re Fetus Brown, 689 N.E.2d at 397, 405-06 (111. App. Ct. 1997).
156. Id. at 401. See also Levy, supra note 31, at 175. The author noted as follows:

Although the difference may seem semantic, balancing maternal and fetal rights
presents a greater challenge than weighing the state's interest in the fetus against
the mother's right to autonomy. The difference stems in part from the state's
shared interest in the mother's autonomy, which places it on both sides of the
argument concerning the mother's right to refuse blood. In addition, it is much
more difficult to balance the rights of mother and fetus than it is to balance the
rights of the mother against an impersonal government entity.

Id.
157. See In re Fetus Brown, 689 N.E.2d at 403.
158. See id. at 403-04.

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IND. INT'L & COMP. L. REV.

The court began its analysis by examining the state's interest in a viable
fetus as set forth in Roe v. Wade. 59 It then determined that an intentional
abortion differed from a refusal of medical treatment, meaning that Roe had
limited application.'60 The court then turned to Illinois law, which recognized
a fetus's right to life from the moment of conception. 6' Further, the court
examined the Illinois state child abuse laws and determined that the legislature
did not intend the term "child" to include viable fetuses. 62 Because a viable
fetus was not included within the definition, there was no compelling state
interest that would force medical treatment. 6 3 There was no dispute that a
blood transfusion is "an invasive medical procedure that interrupts a competent
adult's bodily integrity." 1'6 Finally, the court stated that "the State may not
override a pregnant woman's competent treatment decision, including refusal
of recommended invasive medical procedures, to potentially save the life of
the viable fetus."'65

Illinois has the most well defined body of case law concerning the right
of pregnant women to refuse medical treatment. The law demonstrates the
majority approach in the United States, which gives absolute deference to a
competent woman's choice to refuse treatment. 1

3. Georgia Law: The Minority Approach

In Jefferson v. Griffin Spalding County Hospital Authority,67 the
Supreme Court of Georgia balanced the rights of a fetus against the rights of
a mother. It determined that an expectant mother, in the last weeks of her
pregnancy, lacks the rights of other persons to refuse surgery or treatment if
that refusal jeopardizes the rights of the fetus.' The Court intervened when
a pregnant woman refused medical treatment for religious reasons."6 In the
decision, the court reasoned that the woman was legally obligated to accept
treatment if it would benefit both her and her fetus.' 70 After the court's order,
the woman went into hiding and delivered a healthy child despite the
physician's prognosis.' 7'

159. Roe, 410 U.S. 113. See also Shannon Such, Lifesaving Medical Treatment for the
Nonviable Fetus: Limitations on State Authority under Roe v. Wade, 54 FORDHAM L. REv. 961.

160. See In re Fetus Brown, 689 N.E.2d at 404.
161. See id.
162. See In re Fetus Brown, 689 N.E.2d at 405.
163. See id.
164. Id.
165. Id. at 405.
166. See generally id.
167. Jefferson, 274 S.E.2d 457.
168. See id. at 460.
169. See id. at 458-59.
170. See id. The treatment would benefit both the mother and her fetus; therefore, the

court reasoned that the treatment was not detrimental to the woman's health.
171. See generally id.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

This approach, although not adopted in many jurisdictions, has found
some support from legal scholars. In particular, one scholar noted:

[T]he pregnant woman, in a pregnancy being taken to term,
is ethically obligated to accept reasonable risks on behalf of
the fetus .... Invasiveness should not be the sole criterion for
assessing physical burdens, because invasiveness in this case
is not associated with net harm. To the contrary, it is
associated with net benefit, because it dramatically reduces
the risk of maternal mortality .... The net effect of cesarean
delivery for this complication is to benefit the pregnant
woman, not burden her. 72

The scholar reconciled the Jefferson approach with In re A.C. by
explaining that, when the health of the mother is compromised, the court
should not intervene. 173 Conversely, when treatment will help both the mother
and fetus, then a court may force treatment because the treatment does not
compromise the mother's health. 174 Although recent courts such as the In re
Baby Boy Doe'7 ' and In re A. C.' 6 courts and many other jurisdictions have
declined to adopt this approach, Georgia recently reaffirmed the approach, and
courts in Georgia may compel treatment in many circumstances after
conducting a balancing approach. 77

The U.S. approach differs from the approach employed by courts in the
United Kingdom; however, both court systems have reached the same result:
a pregnant woman has the right to refuse treatment. The major difference
between the two nations lies in the exceptions to the general rule. 78

B. United Kingdom

The right of pregnant women to refuse medical treatment has arisen in
several situations: forced blood transfusions, forced cesarean sections, and
forced treatment on incompetent pregnant women. 79

An English court first considered the rights of pregnant women in the
case of In re S. 8 A woman objected to the delivery of her fetus by cesarean

172. F. Chervenak and L. McCullough, Justified Limits on Refusing Intervention, 2
HASTINGS CENTER REPORT 13-15 (1991).

173. See id.
174. See id.
175. In re Baby Boy Doe, 632 N.E.2d 326.
176. In re A.C., 573 A.2d 1235 (D.C. Cir. 1990)(en banc).
177. See id.
178. See Francis, supra note 39, at 369.
179. See Stauch, supra note 39, at 163-65.
180. In re S., [1993] Fan. 123, 1992 WL 894554 (Farn. Div.), at 1. One should note that

the case presented a bizarre set of facts, and it is unlikely that any court will be faced with

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IND. INT'L & COMP. L. REv.

section for religious reasons.'' The woman was thirty-years old, an African
immigrant on her third pregnancy.8 2 The physicians informed the woman that
she and her fetus were in serious danger due to the position of the fetus.8 3 The
woman understood that she and her fetus would die without the treatment;
however, she continued to refuse.'" The hospital applied to the court for a
declaration that would authorize the surgery. "5 The court authorized the
surgery after a brief hearing conducted in the judge's chamber.'86 The judge
could not find any binding English law, so he turned to the American case of
In re A.C.," 7 and, ultimately he granted the application.'8  The court order
stated as follows:

It is declared that the operation of caesarean section and
necessary consequential treatment which the Plaintiff, by its
servants or agents proposes to perform on the Defendant at
[hospital] is in the vital interests of the Defendant and the
unborn child she is carrying and can lawfully be performed
despite the Defendant's refusal to give her consent.8 9

Unfortunately, by the time the order was issued the child had died, and
the mother would have died if the surgery had not been performed.'9 The
hospital performed the surgery, the mother lived, and she did not appeal the
decision to force treatment.' 9'

similar facts. See id. Consequently, the decision of the court is neither applicable nor binding
in future cases. See id.

181. See id. The cesarean section cases are of particular interest as they are the most
controversial of the forced treatment cases and the most commented upon. See generally id.
Normally, a woman objects for religious reasons. Many cases involve Jehovah's Witnesses,
who object to all blood transfusions. See id. Cesarean sections almost always require blood
transfusions, and, consequently, pregnant Jehovah's Witnesses opt not to have the treatment
despite medical necessity. See id.

182. See id. at 130.
183. See id. at 130-31.
184. See id.
185. See id.
186. See generally Sir Stephen Brown, Matters of Life and Death (Lecture to the Medico-

Legal Society, Oct. 14, 1993) 62 MED. LEG.J. 52 (1994). Sir Stephen Brown was the presiding
judge at the hearing and stated:

The question was, should [the cesarean section] be allowed?. .. It was very clear
- this was minutes, not hours - both would die. I heard very helpful submissions
by counsel for the Official Solicitor and I made the ... declaration ... it was as
vital as that.

Id.
187. In re A.C., 573 A.2d 1235 (D. C. Cir. 1990) (en banc).
188. See id.
189. Sir Stephan Brown, supra note 186, at 65-66.
190. See id.
191. See In re S., [1993] Farn. 123, 1992 WL 894554 (Fain. Div.), at 7.
See also Sir Stephan Brown, supra note 186, at 66. One of the obstetricians on duty noted

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THE RIGHT TO REFUSE MEDICAL TREATMENT

The court determined that it was permissible to override the intent of a
mentally competent woman and perform the cesarean section for her benefit. 92

The In re S decision defies the House of Lords decision in Sidaway v. Board
of Governors of Royal Bethlem & Maudsley Hospital, 193 which held that
competent adults have an absolute right to choose whether to agree to
surgery.94 The House of Lords stated: "If the doctor making a balanced
judgment advises the patient to submit to the operation, the patient is entitled
to reject that advice for reasons which are rational or irrational - or for no
reason."' 95 Indeed, following the In re S decision, the Royal College of
Obstetricians formulated standards that respect a competent mother's choices
in most circumstances:

A doctor must respect the competent pregnant woman's right
to choose or refuse any particular recommended course of
action whilst optimising care for both mother and fetus to the
best of his or her ability. A doctor would not then be culpable
if these endeavours were unsuccessful. We conclude that it
is inappropriate, and unlikely to be helpful or necessary, to
invoke judicial intervention to overrule an informed and
competent woman's refusal of proposed medical treatment,
even though her refusal might place her life and that of her
fetus at risk.96

Although the statement summarizes the current state of the common law,
there are still exceptions that allow a court to authorize court intervention."'

the problems that occurred during the surgery and process. In regards to his fellow doctors, he
noted:

As far as the obstetricians are concerned, I think we are deeply divided about
this. Having understood that our duty is to the baby through the mother, we
don't quite like this idea of maternal/fetal conflict, because the vast majority of
our work is done with the mothers and through the mothers, and the idea we can
breach confidentiality and then go to make applications to divide mothers and
children legally, when we can't divide them physically, is actually an anathema
to many.

Id.
192. See id.
193. See Sidaway v. Bd. of Governors, [1985] A.C. 871, 1985 WL 311459 (HL), at 1, per

Lord Templeman.
194. See id.
195. Id. But see In re T., [ 1993] Fano. 95, 1992 WL 895109 (CA), at 7. The court hinted

that there were exceptions to the general rule. See id. Also, the court In re S operated on the
presumption that the woman was competent. See id. It did not inquire into the mental state of
the woman. See id.

196. A CONSIDERATION OF THE LAW AND ETHICS IN RELATION TO COURT-AUTHORISED
OBSTETRIC INTERVENTION, supra note 81, §§ 5.11-5.12.

197. See id.

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IND. INT'L & COMP. L. REv.

In the United Kingdom, the general rle remains that a pregnant woman has
the right to refuse medical treatment in most circumstances. 98

V. THE CURRENT STATE OF LAW AND EXCEPTIONS

A. United States

1. The Majority Approach: In re A. C.'t

The current position of the majority of United State's courts can be
found in the decision of In re A. C." That case involved a terminally ill
pregnant woman with cancer.2"' The hospital suggested that the woman
undergo a cesarean section in order to save the life of her unborn fetus after it
had reached viability. 2 The woman refused because the surgery would
shorten her life and threaten the life of her unborn fetus. 3 The hospital sought
a court order to compel the surgery, which was granted after the District of
Columbia Court of Appeals refused to stop the surgery.2°4 The surgery was
performed, the child lived for a short period of time, and the mother died two
days later.20

The District of Columbia Court of Appeals ordered an en banc hearing
of the case and vacated the district court decision.2 ' The court held as
follows:

What a trial court must do in a case such as this is to
determine, if possible, whether the patient is capable of
making an informed decision about the course of her medical
treatment. If she is, and if she makes such a decision, her
wishes will control in virtually all cases. If the court finds
that the patient is incapable of making an informed consent

198. See id.
199. In re A.C., 573 A.2d 1235 (D.C. Cir. 1990)(en banc).
200. See id. at 1235-39.
201. See id. A.C. had suffered cancer for around fourteen years, and she became pregnant

during a period of remission. See id At twenty-five weeks, the doctors found a terminal tumor.
See id. The woman chose to attempt to prolong her life until twenty-eight weeks, when the
fetus would have a better chance of survival. See id. A.C.'s condition worsened, and numerous
parties got involved in the pregnancy. See id. The pregnant woman originally consented to the
treatment but withdrew without stating a reason. See id.

202. See id. The court determined that there was a 50 to 60% chance that the fetus would
survive if a cesarean section were performed. See id.

203. See id. It was also undisputed that the fetus was viable and that the surgery would
shorten the life of the mother by a short period. See id.

204. See In re A.C., 533 A.2d 611 (D.C. 1987). Tragically, the child survived for only a
short period of time, and the mother died two days after the surgery was performed. See id.

205. See id.
206. See In re A.C., 573 A.2d 1235, 1238 (D.C. Cir. 1990)(en banc).

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THE RIGHT TO REFUSE MEDICAL TREATMENT

(and thus is incompetent), then the court must make a
substituted judgment.'

The trial court did not conduct a competency determination before
proceeding, and, consequently, it had no authority to force treatment. 2a The
court also stated that it would be improper to presume that a patient was
incompetent; rather, competence must be proved by medical testimony. 9

The court stated that the decisions of a competent pregnant woman
should never be overruled.21 The court adopted two other arguments that
supported A.C.'s position. The court found that to allow court-ordered
treatment would breach the confidentiality of the doctor and patient
relationship.' By breaching the relationship, the court believed it would force
women away from medical treatment,212 especially those women with high-
risk pregnancies and strong non-traditional religious views. Finally, the court
determined that the complexity, gravity, and urgency of the matter make the
courts ill equipped to deal with the question. In regard to the legal
proceedings, the court pointed out several problems presented to the pregnant
woman:

[A]nyjudicial proceeding in a case such as this will ordinarily
take place like the one before us here under time
constraints so pressing that it is difficult or impossible for the
mother to communicate adequately with counsel, or for
counsel to organize an effective factual and legal presentation
in defense of their liberty and privacy interests and bodily
integrity. Any intrusion implicating such basic values ought
not to be lightly undertaken when the mother not only is
precluded from conducting pre-trial discovery... but also is
in no position to prepare meaningfully for trial.2 4

207. Id. at 1252.
208. See id. at 1252-53.
209. See id. at 1247. The Supreme Court has never held that competent adults have the

right to refuse treatment. See idL Cruzan involved the right of an incompetent adult to refuse
treatment. Competency has never been an issue before a court in the United States in this type
of case. See id.

210. See id. at 1248-49.
211. See id. at 1248.
212. See id. The court appeared to anticipate problems posed by women with strong

religious or personal beliefs. See id. For instance, if a Jehovah's Witness had a medical
condition during her pregnancy that resulted in blood loss, she would be apprehensive of going
to medical institutions if they could force blood transfusions upon her. See id. However, if she
knew that the hospital could not force medical treatment upon her, then she would be able to
go to the hospital and consent to or deny any or all suggested medical treatments.

213. See id. at 1248.
214. Id.

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IND. INT'L & COMP. L. REv.

Although the court's opinion noted a strong disfavor for forced cesarean
sections, the court declined to overrule In re Madyun."5 In the Madyun case,
a judge authorized a cesarean section over the religious objection of the
pregnant woman.2t 6 The court intervened to protect the state's interest in the
viable fetus, whose mere presence diminished the right of the woman.2 7

Further, unlike In re A. C., the surgery In re Madyun benefited both the mother
and fetus, so there were not really conflicting interests.2 t It is that difference
which did not require the District of Columbia Court of Appeals to overrule
an earlier case, In re Madyun, which it affirmed in an unreported opinion.2 9

One should also note that the In re A. C. decision does not preclude court
ordered intervention in all circumstances.22 In its opinion, the District of
Columbia Court of Appeals stated as follows:

We emphasize, nevertheless, that it would be an extraordinary
case indeed in which a court might ever be justified in
overriding the patient's wishes and authorizing a major
surgical procedure such as a cesarean section. Throughout
this opinion we have stressed that the patient's wishes, once
they are ascertained, must be followed in 'virtually all cases'
... unless there are 'truly extraordinary or compelling reasons
to override them'.. . . Whether such a situation may someday
present itself is a question that we need not strive to answer
here.

221

The court limited the cases in which a court may override a patient's
wishes; however, the court clearly did not foreclose the possibility, such as
when a woman may be incompetent or mentally ill. 222

There are only a few exceptions to the rule that a pregnant woman may
refuse medical treatment. As noted previously, some jurisdictions are willing
to force treatment when the treatment benefits both the mother and fetus.223

In those cases, the surgery does not compromise the mother's health for that
of the fetus; rather, it benefits the mother as much, or more, than the fetus.2 2 4

Traditionally, courts allow this type of intervention when the treatment is

215. In re Madyun, 114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct. July 26, 1986).
216. See id.
217. See id.
218. See id.
219. See In re A.C., 573 A.2d 1235, 1243 (D.C. Cir. 1990)(en banc).
220. See generally id.
221. Id. at 1248.
222. See id.
223. See generally Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga.

1981).
224. See id.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

"minimally invasive. '"2' Consequently, a court may allow blood transfusions
and other similar procedures.

A final exception may exist in competency determinations, as
demonstrated by the English approach to this issue. '26 No court has heard a
case where a hospital or state challenges the competency of a pregnant woman.
This is largely due to the rare use of competency determinations in this
situation within the United States; however, such a challenge may arise in the
future. The United Kingdom's approach sheds light into how this exception
works.

B. United Kingdom

In the United Kingdom, one exception to the general rule is that a
pregnant woman must be competent in order to refuse medical treatment.227

Therefore, if a court undertakes a competency determination and finds that the
woman is incompetent, then the court can order medical treatment.22 This
exception has developed in recent years and continues to be very
controversial.229 Competency arises in two contexts: (1) mentally ill pregnant
women and (2) competency determinations involving pregnant women.

1. Mentally Ill Pregnant Women

An English court first considered the competence of a pregnant woman
in Tameside & Glossop Acute Services NHS Trust v. C.H.23 A pregnant
paranoid schizophrenic woman was in a mental health institute under the
Mental Health Act of 1983."3 Under the Act, a court may assume that an
individual has lost the mental capacity to consent or refuse medical
treatment. 21 The patient was convinced that the physicians were evil and
wanted to harm her child.233 The woman developed complications during the
pregnancy and a cesarean section was needed to save the baby; however, the
woman had a history of resisting treatment.234 The hospital sought an order

225. See generally In re A.C., 573 A.2d 1235 (D.C. Cir. 1990)(en banc).
226. See generally Frances Gibb, Courts Wrong to Force Treatment on Pregnant Women,

TvMEs LONDON, Apr. 12, 1994, available in 1994 WL 9163954.
227. See id. See generally Francis, supra note 39.
228. See Stauch, supra note 39, at 163-65.
229. See id. See also Janet Sayers, Must a Mother Render unto Caesar?, TIMES LONDON,

May 26, 1990; Alex Richardson, Life and Death Cases Decided in the Courts, BIRMINGHAM

POST, July 16, 1999.
230. Tameside & Glossop Acute Services NHS Trust v. C.H., [1996] F.L.R. 762.
231. See id. The case largely involved the interpretation and application of the Mental

Health Act of 1980.
232. See id. See also Francis, supra note 39, at 376.
233. See Tameside, [1996] F.L.R. at 762.
234. See id.

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IND. INT'L & COMP. L. REV.

from the court to permit it to use restraint and perform the surgery.235 The
court held a hearing and it was undisputed that the woman was incompetent
under the standard established In re C.,236 which defines competency as (1) the
ability to understand information about the surgery; (2) the ability to believe
that knowledge; and (3) the ability to balance the risks and arrive at an
informed decision. 7

Ultimately, the decision rested on the interpretation of the Mental Health
Act of 1980,238 which allows certain types of restraint and treatment free of
liability.239 The court had to decide if a forced cesarean section fell within the
scope of the Act.2' The evidence showed that without the surgery the fetus
would die and the mother would fully recover. 4 The court determined that
the death of a stillborn baby would have a negative mental impact on the
woman, and consequently it ordered the cesarean section. 242 Although the
court's interpretation of the Mental Health Act 1983 is controversial, 4 3 recent
case law confinms that the court reached the proper result.244

2. Competency Determinations Involving Pregnant Women

Competency determinations are a relatively recent development in
English law.245 The standard for competency determinations was formulated
by English courts in T. v. T.2' and adopted by the House of Lords In re F.247

The House of Lords held that, when adults are mentally incompetent or unable
to communicate a personal choice concerning treatment, it is lawful for such
treatment to be provided in the best interests of the patients.2" The "best
interest" of a patient is determined by examining the responsible and accepted

235. See Francis, supra note 39, at 377.
236. In re C., 1 W.L.R. 290, 1993 WL 965301, at5. The case provides the standards used

in competency determinations in the United Kingdom.
237. See id. See also Francis, supra note 39, at 378.
238. Mental Health Act, 1980, c. 20, § 4 (Eng.).
239. See Francis, supra note 39, at 376.
240. See id.
241. See id. at 378.
242. In re C., 1 W.L.R. 290, 1993 WL 965301. The statute has been interpreted broadly.

See ia Most treatments are considered treatment for the mental condition. See also B. v.
Croydon Health Authority, [1995] Fam 133 (force feeding anorexic with personality disorder
was determined permissible under the Act).

243. See Barbara Hewson, Woman'sRights and Legal Wrongs, 146NEwL. J. 1385(1996).
244. See also Francis, supra note 39, at 378-79.
245. See generally P.D.G. SKEWG, LAW, ETHics AND MEDICINE 101 (1984). The author

summarized the law regarding incompetent individuals by observing that it is generally
accepted that a doctor is justified in providing treatment without consent to adult patients
incapable of consenting for themselves." See id. at 104.

246. T. v. T., [1988] Farn. 52, 1987 WI. 492876. See also In re C., 1993 WL 965301, at
5.

247. In re F., [19881 Q.B. 122, 1988 WL 624168 (CA), at 13.
248. See id.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

medical treatment for the incompetent individual's health dilemma.249 If a
physician decides that a medical procedure is in a patient's best interest, then
the physician may administer the treatment without obtaining consent from a
third person."

The first case to consider the competency of a pregnant woman without
a mental disorder was the case of Roachdale Healthcare NHS Trust v. C.15' A
woman in labor suffered from a ruptured uterus.5 2 The medical condition
developed so quickly that the physician had a one-hour window to obtain the
court's permission to perform a cesarean section and save the child. 53 There
was no representative at the hearing for the patient and the patient may not
have even known of the hearing.2" The woman had stated that she would
rather die than have another cesarian section, because she had a bad experience
with a previous cesarean section."2 There was no evidence about the woman's
mental condition; however, her obstetrician believed that she was competent.
With little information and little time, the judge decided as follows:

[I] concluded that the patient was in the throes of labour with
all that is involved in terms of pain and emotional stress. I
concluded that a patient who could, in those circumstances,
speak in terms which seemed to accept the inevitability of her
own death, was not a patient who was able properly to weigh
up the considerations that arose so as to make any valid
decision, about anything of even the most trivial kind, surely
still less one which involved her own life.256

The decision is contrary to the Sidaway25 7 decision, which prevents
courts from deciding competence based on an individual's irrationality or the
absence of good reasoning.5 The holding is also problematic because: (1)
the judge had little evidence; (2) the woman consented to the surgery; and (3)
it stated that women in labor are incompetent.259

In Norfolk and Norwich Healthcare NHS Trust v. W.,260 an English court
was faced with a similar situation.26' The case involved a woman who denied

249. See Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582.
250. See id.
251. Roachdale Healthcare N.H.S. Trust v. C., [19971 1 F.C.R. 274.
252. See id.
253. See id. The judge probably issued his decision because of the circumstances of the

case, as he was dealing with some difficult facts. See id.
254. See id.
255. See id.
256. Id. See also Francis, supra note 39, at 380.
257. Sidaway v. Bd. of Governors, [1985] A.C. 871, 1985 WL 311459 (HIL), at 1.
258. See id.
259. See generally id.
260. Norfolk and Norwich Healthcare NHS Trust v. W., [1996] 2 F.L.R. 613.
261. See id.

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IND. INT'L & COMP. L. REv.

being pregnant.262 The woman's obstetrician realized that the fetus would die
within about an hour if a cesarean section were not performed.263 The
obstetrician called a psychiatrist, who determined that the woman was free of
mental illness, but he determined that she was not able to balance or form a
decision about the suggested treatment. 26' The judge considered the
information and again decided to allow the medical procedure because it
would be in her best interest to protect her mental and physical health.265 The
judge also determined that the treatment would be reasonable and a necessary
incident to treatment. 2' Both the Roachdale and Norfolk cases are problematic
because the courts had a very small amount of information and characterized
pregnant women in labor as incompetent.

Another competency determination arose in the case of In re L.26 7 The
case involved a pregnant woman who had such a severe treatment of needle
phobia that she refused to consent to medical treatment.268 The court allowed
the forced treatment and stated "her extreme needle phobia amounted to an
involuntary compulsion that disabled her from weighing treatment information
in the balance to make a choice. ' 269 Again, the decision was problematic
because the woman clearly made her intentions known, and the court overrode
those intentions.270

3. In re M.B.: The Current Law

The current state of law in the United Kingdom regarding medical
treatment for pregnant women was decided in In re M.B.2 7' That case involved
a woman in labor who had both a footling breech and needle phobia.272 If
natural labor were to occur, then the child would be at great risk, but the
mother would be in no danger.273 The woman consented to the cesarean

262. See id. The woman also had some past psychological problems. See id.
263. See id. at 614.
264. See id. at 616.
265. See id. at 616-17.
266. See In re F., [1990] 2 A.C. 1, 1989 WL 650444 (H.L.).
267. See Francis, supra note 39, at 382-83. The author cited to this unpublished case from

the Family Division in footnote 67.
268. See id. The woman needed a cesarean section due to labor difficulties. See id.
269. Id. at 383.
270. See id. at 382-83.
271. In re M.B., [1997] 2 F.L.R. 426. Because of the subsequent proceedings, the case

became the standard for forced medical treatment on pregnant woman. See id. The case had
some unique circumstances: (1) the woman was represented by counsel at the hearing; (2) there
was a more significant time period in which the court could deliberate; and (3) the decision was
immediately appealed. See id. These factors and the court's past struggles with the issue
caused it to deliberate and make a binding decision on future courts faced with this difficult
issue. See generally id.

272. See id.
273. See id.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

section until she saw a needle, when she retracted her consent.27 4 The hospital
then sought an order allowing the surgery via telephone with a judge.275

Ultimately, the judge heard the evidence and issued the following order:

It shall be lawful for 2 days from the date of this order,
notwithstanding the inability of [the woman] to consent
thereto: (i) for the hospital's responsible doctors to carry out
such treatment as may in their opinion be necessary for the
purposes of the [woman's] present labour, including, if
necessary, caesarian section, including the insertion of
needles for the purposes of intravenous infusions and
anesthesia; (ii) for reasonable force to be used in the course
of such treatment; (iii) generally to furnish such treatment and
nursing care as may be appropriate to ensure that the [woman]
suffers the least distress and retains the greatest dignity.27 6

The judge found that the woman lacked the mental capacity to make
decisions about her medical treatment, and, consequently, he ordered the use
of reasonable force to protect the best interests of the woman.277  The
woman's counsel immediately appealed the decision, and the full Court of
Appeals heard the case, affirmed the lower court, and dismissed the appeal.278

The Court of Appeals began by stating that every adult is presumed to
have the mental capacity to determine her own course of medical treatment,
unless that presumption is rebutted.279 Under the decision, a person may base
his or her decision on "religious reasons, other reasons, for rational or
irrational reasons or for no reason at all." 280 The court noted that a woman
may "choose not to have medical intervention, even though the consequences

274. See id.
275. See id. The judge was aFamilyDivision judge and had previous experience with this

type of emergency proceeding. See id. The woman was represented by counsel at the hearing.
See id. Further, she had been interviewed by a psychiatrist who found:

Away from the need to undergo the procedure, I had no doubt at all that she fully
understood the need for a caesarian section and consented to it. However in the
final phase she got into a panic and said she could not go on. If she were calmed
down I thought she would consent to the procedure. At the moment of panic,
however, her fear dominated all.

Id. See also Francis, supra note 39, at n.70.
276. In re M.B., [1997] 2 F.L.R. 426.
277. See id. at 430.
278. See id. at 432-33.
279. See id.
280. Id. at 433. Each individual may refuse treatment for a wide variety of reasons. See

id. The decision noted that it was not the court's place to evaluate and judge that person's
decision or the rationality of the decision. See id. Each individual has a unique set or moral
standards, philosophical beliefs, and religious ideals. Consequently, each individual is the best
judge of his or her own best interests. See id. The decision made it very clear that courts should
attempt to stay out of individual's decisions. See id.

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IND. INT'L & COMP. L. REV.

may be the death or serious handicap of the child she bears, or her own
death."28'

Although the courts prefer to give deference to an individual's personal
beliefs, the court noted that there are some clear limitations:

Although it might be thought that irrationality sits uneasily
with competence to decide, panic, indecisiveness and
irrationality in themselves do not as such amount to
incompetence, but they may be symptoms or evidence of
incompetence. The graver the consequences of the decision,
the commensurately greater the level of competence required
to take the decision.282

The court noted that confusion, shock, fatigue, pain, drugs, or panic
induced by fear may destroy capacity.2"3 The court noted that each case must
be examined individually, and all evidence weighed thoroughly to determine
if fear destroyed capacity or was a rational reason to refuse treatment. 284

In the case of In re M.B., the woman's needle phobia overrode her ability
to rationalize and make an informed decision.2"5 The woman was found
incompetent and the court order was upheld.2"6 The court further stated that
the hospital could use reasonable force if it was in the best interest of the
patient. 87 Further, and most importantly for our purposes, the court examined
English common law288 and held that it did not protect the interests of an
unborn child or fetus. The court noted as follows:

The law is, in our judgment, clear that a competent woman
who has the capacity to decide may, for religious reasons,
other reasons, or for no reason at all, choose not to have

281. Id. at 433.
282. Id. at 434.
283. See id.
284. See id.
285. See id.
286. See id.
287. See id.
288. The court considered a large number of cases in reaching its decision including:

Paton v. British Pregnancy Advisory Service, (1979] Q.B. 276; C. v. S., [1989] Q.B. 135;
Burton v. lslington Health Auth., [19931 Q.B. 204; Villar v. Gilbey, [19071 A.C. 139; In re T.,
[1993] Fain. 95; and Patton v. United Kingdom, [1977] 3 E.H.R.R. 408. The court also
considered several statutes and pieces of legislative materials including the Attorney General's
Reference No. 3 [1996] 1 Cr. App. R. 351 and the Offences against the Person Act, 1861, c. 1,
§ 58. The court also considered many cases from foreign jurisdictions including several
American cases: Paul Morgan Memorial Hospital Authority, 201 A.2d 537 (N.J. 1964);
Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga. 1981); In re A.C., 573
A.2d 1235 (D.C. Cir. 1990)(en banc); and In re Baby Boy Doe, 632 N.E.2d 326 (I11. App. Ct.).
The court did not rely on any specific case or legislative material; rather, it considered a wide
range of legal issues and topics in reaching its final result.

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THE RIGHT TO REFUSE MEDICAL TREATMENT

medical intervention, even though... [the] consequence may
be the death or serious handicap of the child she bears or her
own death. She may refuse to consent to the anesthesia
injection in the full knowledge that her decision may
significantly reduce the chance of her unborn child being born
alive. The fetus up to the moment of birth does not have any
separate interests capable of being taken into account when a
court has to consider an application for a declaration in
respect of a caesarian section operation.2' 9

Ultimately, the court upheld the general premise that a competent adult
woman has an absolute right to refuse treatment and protect her autonomy.2"
The court did allow physicians to intervene and override the decision of an
incompetent woman, but even then, the intervention was to protect the
woman's health and her best interests.29 The court narrowed the exception
and carefully defined when a court may intervene and force medical
treatment. 292 A court may intervene only when the competency of the woman
comes into questions, and only when the woman is found incompetent due to
mental health reasons or due to the labor process.293

VI. BALANCING COMPETING INTERESTS: TWO APPROACHES COMPARED

Courts in both the United States and the United Kingdom have reached
the conclusion that an individual has the right to refuse medical treatment.294

Further, the majority of courts in both countries have reached the conclusion
that pregnant women have the absolute right to refuse medical treatment, even
if that choice results in her death.25 Despite these similar outcomes, the legal
and historical basis for the court decisions vary in the two countries and helps
define the exceptions to the general rule.

Perhaps the greatest difference in the legal analysis of the United States
and United Kingdom is the source of the right of pregnant women to refuse
medical treatment. The right to refuse treatment in the United Kingdom is
clearly grounded in traditional common law tort liability, and, specifically, the

289. In re M.B., [1997] 2 F.L.R. 426, 435.
290. See id.; See also Francis, supra note 39, at 386.
291. See id.
292. See id.
293. See In reM.B., [ 199712 F.L.R. 426,431. The court stated that hospitals should bring

forth the issue as soon as it is raised, rather than waiting for the last second, when intervention
is difficult. See id.

294. See generally In re A.C., 573 A.2d 1235 (D.C. Cir. 1990)(en banc); In re C., [ 1994]
1 W.L.R. 290.

295. See In re Baby Boy Doe, 632 N.E.2d 326 (Il1. App. Ct. 1994); In re M..B., [1997] 2
F.L.R. 426, 431.

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IND. INT'L & COMP. L. REV.

doctrine of informed consent. 96 Therefore, courts within the United Kingdom
have developed, and continue to develop, the doctrine of informed consent in
such a way that it protects an individual's right to self-autonomy.2 9 The
House of Lords and English courts are less interested in "personal" rights or
"constitutional" rights, than they are in developing a workable tort doctrine of
informed consent.

The United Kingdom's focus on traditional tort theory has allowed the
courts to formulate one major exception to the right of pregnant women to
refuse treatment: the use of competency determinations. 298 This exception is
logical and consistent with English law.29 A court has set guidelines and
specific medical factors that must be examined before it may override a
pregnant woman's decision.' Specifically, the exceptions apply if the
woman's decision is both incompetent and irrational and the woman's decision
will result in the death of a viable fetus. The exception insures that there is
some flexibility to the traditional tort liability and common law rights within
the United Kingdom.

In the United States, the right to refuse medical treatment arises from
both Constitutional and common law doctrines."' Again, it is the common
law doctrine of informed consent that prevents physicians from giving
unwanted treatment; however, it is an individual's right under the U.S. that
protects the individual from unwanted State intervention. °20  Because
Constitutional rights trump common law rights, the focus of American
jurisprudence is on the individual and his or her rights. Consequently, a
majority of courts in the United States give an absolute right to individuals to
refuse treatment on Constitutional grounds." 3 Although this is an inflexible
doctrine, there can be no exceptions if the courts are truly going to protect the
rights that they and the Constitution have created.

VII. CONCLUSION

Because the source of the right of pregnant women to refuse treatment
varies in the United States and United Kingdom, it appears that the countries
will always have some variations on a pregnant woman's fundamental rights.
The United Kingdom's exception that allows the State to intervene when a
woman is incompetent seems inconsistent with American jurisprudence and

296. See Francis, supra note 39, at 430.
297. See In reM.B., [1997] 2 F.L.R. at 431.
298. See id.
299. See generally Francis, supra note 39.
300. See generally id.
301. See generally Krista Newkirk, State-Compelled Fetal Surgery: The Viability Test Is

Not Viable, 4 WM. & MARY J. WOMEN & L. 467 (1998).
302. See generally Levine, supra note 79.
303. But see Pemberton v. Tallahassee Memorial Medical Center, 66 F.Supp.2d 1247

(N.D. Fla. 1999).

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THE RIGHT TO REFUSE MEDICAL TREATMENT

will not likely receive attention from American courts. Courts in the United
States refuse to examine the rationality of an individual's choice, as the
individual has a Constitutional protected interest in her decision. Because of
the difference in legal analysis, it appears that the United Kingdom exception
and U.S. Constitutional protections prevent a coherent approach to this
difficult legal problem.

Bradley J. Glass*

* J.D., 2001, Indiana University School of Law-Indianapolis; A.B. in History, 1998,
Wabash College. I would like to thank my wife, Jessica, for her unconditional support and
patience during the drafting of this Note. I would also like to thank the editorial staff of the
Indiana International & Comparative Law Review, Professor David Orentlicher, and Kris
Monson for their comments, guidance, and advice on the content of this note.

2001]