Critical care decisions in fetal and neonatal medicine: ethical issues
Decision making: regulation and resolution
8.1 This chapter examines the legal framework in the UK within which critical care decisions are made for fetuses and the newborn.1It considers two major questions. The first is whether the constraints on decision making imposed by UK law and professional guidance are appropriate, sufficiently clear and well understood. The second is whether, when disputes do occur, there could be better means of resolving those disputes. We begin by highlighting the concept of children’s rights before turning to a discussion of regulation in fetal and neonatal medicine. We analyse the legal issues arising during critical care decision making at the borderline of viability and for babies remaining in intensive care. After this, we review the current law in relation to the active ending of life, and withholding or withdrawing treatment. We conclude the chapter by raising the possibility of different mechanisms that could help improve understanding and trust between the parties involved and avoid disagreements reaching the courts.
8.2 For over 30 years, there has been extensive theoretical and policy-related debate about the concept of children’s rights, to which, in the context of fetal and neonatal medicine, it may appear that little attention has been paid.2 The law, challenged by a potential conflict between the claims of the pregnant woman and the fetus, has, so far, declined to accord rights to the fetus. Once born, the newborn baby enjoys the same human rights as any other person. We have said earlier (see paragraph 3.44), that rights are accorded to children in the United Nations Convention on the Rights of the Child (UNCRC) and protected by UK law, albeit rarely articulated. The child’s “inherent right to life” (Article 6) is protected, and in determining questions about what constitutes appropriate care, the baby’s best interests are the “primary consideration” (Article 3) of UK courts. The questions addressed in this chapter do not concern whethernewborn babies have legal rights, there is no doubt that they do. The difficulty is interpreting and applying those rights when, as often happens, rights conflict. So, for example, a baby born extremely prematurely, with severe abnormalities, could perhaps be kept alive for a few days if subjected to multiple invasive procedures. The baby’s ‘right to life’ might be said to be respected but such a decision may not be in his or her best interests. We now turn our attention to regulation in fetal medicine.
Footnotes1 Within the United Kingdom there are in fact threelegal systems: (1) England and Wales; (2) Scotland; and (3) Northern Ireland. This means that both statutory law and the principles of law developed by judges with these three different jurisdictions may differ. For example, the Abortion Act 1967 does not apply in Northern Ireland. The devolved Scottish Parliament in Edinburgh has broad powers to legislate independently on the matters addressed in this Report. At the time of writing, there are few substantial differences in the law relevant to this Report within the UK; see generally Mason JK and GT Laurie (2006) Mason and McCall Smith’s Law and Medical Ethics(7th Edition) (Oxford University Press).
2 See Fortin J (2003) Children’s Rights and the Developing Law, 2nd Edition (London: LexisNexis) pp1–68; and see paragraph 2.3 of this Report.