Consent for Caesarean Section:
Part 1 development of the law
Mathew Alexander Thorpe
The law relating to Caesarean section operations, having gone through a process of evolution, is now seemingly clear. Two decisions of the Court of Appeal (Re MB1 and St Georges Healthcare NHS Trust v S2) establish that the principle of adult autonomy severely limits the circumstances in which a surgeon may operate without the patient's express consent. However, let us begin at the beginning and see how the courts arrive at that conclusion. For my purposes I take the Abortion Act 1967 as the starting point. I do not intend much excursion into the field of criminal law but prior to its enactment the Infant Life (Preservation) Act 1929 provided that:
Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of the felony of child destruction.
Clearly an act legalising abortion in certain carefully prescribed circumstances was a landmark in the fields of law and ethics. Its consequences were wide ranging and certainly extended into the fields of civil and family law, diminishing the prospects of establishing independent legal rights of action or of protection for the fetus.
......an act legalising abortion in certain carefully prescribed circumstances was a landmark in the fields of law and ethics.
The first significant attempt to establish rights in the face of the 1967 Act came in Paton v British Pregnancy Advisory Service Trustees.3 The claimant husband challenged his wifes intention to terminate lawfully her pregnancy by seeking an injunction restraining her and the trustees of the defendant charity from causing or permitting the abortion without his consent. The challenge rested on his assertion that the fetus had a right to be born. The President of the Family Division, Sir George Baker, dismissed the application and held that an unborn child had no rights of his own nor had the husband the right to sue for relief. The reasoning is to be found in the following citation:
The first question is whether this 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 (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia and, I have no doubt, in others.
For a long time there was a great controversy whether after birth a child could have a right of action in respect of prenatal injury. The Law Commission considered that and produced a Working Paper No. 47 in 1973. followed by a Final Report (Law Commission Report, No.60 (Cmnd 5709)); but it was universally accepted, and has since been accepted that in order to have a right the fetus must be born and be a child. There was only one known possible exception which is referred to in the Working Paper at p 3, an American case. White v Yup (1969) P.2d 617 where a wrongful death of an 8_month_old viable fetus, still born as a consequence of injury, led an American court to allow a course of action, but 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. The succession cases have been mentioned. There is no difference. From conception the child may have succession rights by what has been called a fictional construction but the child must be subsequently born alive; see per Lord Russell of Killowen in Elliot v Lord Joicey  AC 209, 233.
The father's case must therefore depend upon a right which he has himself.
The husband, dissatisfied with this outcome, took his case to Strasbourg alleging a breach of Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that is:
Everyone s right to life shall be protected by law.
The case is reported as Paton v United Kingdom4 The European Commission of Human Rights ruled that Article 2 cannot apply to a fetus. Their reasoning appears from this passage:
The life of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the unborn life of the foetus would be regarded as being of a higher value than the life of the pregnant woman, the right of life of a person already born would thus be considered as subject not only to the express limitations mentioned in paragraph 8 above but also to a further, implied limitation.
The decision of the President in Paton3 gave rise to a good deal of academic discussion as to whether the courts parental jurisdiction in wardship could be invoked to prevent abortion. Whilst all recognised that the assumption of the parental jurisdiction in relation to an unborn child would require radical extension, some argued that it would be a logical and natural development. Others argued to the contrary, stressing the problems of controlling the mother that would flow from such an extension and emphasising that such a radical extension should be left to Parliament. The debate was settled approximately 7 years later by the leading case of Re F,5 to which we will come soon.
....a child incapable of breathing was not a child capable of being born alive.
In the case of C v S,6 a similar challenge was raised by the putative father of a fetus of approximately 20 weeks. The father applied on his own behalf and on behalf of the unborn child for an injunction to restrain the mother and the Health Authority from performing an abortion, even though all the relevant conditions of the Abortion Act 1967 had been fulfilled. The application was advanced on the ground that termination of a pregnancy at about 20 weeks would involve the Commission of a criminal Offence under s. 1(1) of the Infant Life (Preservation) Act 1929, the provisions of which are unaffected by the Abortion Act 1967. To come within the section, it was necessary for the applicant to demonstrate that the fetus was a child capable of being born alive. It was held on the expert evidence that the fetus, even if surgically delivered would not at that age be capable of breathing. The Court of Appeal, hearing the fathers appeal from the Family Division judge within an hour of the dismissal of his application, ruled as a matter of statutory construction that a child incapable of breathing was not a child capable of being born alive. Since the father wished to go at once to the House of Lords, his counsel consented to the remainder of the appeal being dismissed, that is to say his contention that the father had a right to apply and his contention that a fetus is a legal person in law capable of suing. But, although the point did not arise for decision, the Master of the Rolls, Sir John Donaldson, dropped a broad judicial hint that he would have followed the reasoning of the President in Paton.3 Because of the urgency the Court of Appeal announced its decision with the intention of delivering a full judgement in due course. Since the fathers application to the House of Lords for leave was refused, no further judgement was delivered. However, full judgements were delivered in the following year in the case of In Re F.5 That case, coming to the court 11 months after the decision in C v S,6 raised different legal issues but required a decision on the two issues that the court had not been required to decide in C v S.6 So In Re F is the leading case, and the judgement of Balcombe LJ is the leading judgement on the issues. It is a model of brevity and cogency; I acknowledge the extent to which I have drawn upon it in preparing this paper.
May LJ affirmed the first instance decisions in Paton and C v S to the effect that an unborn child had no legal rights or existence.
To set the scene, a Local Authority had used the remedy of wardship to separate a wayward mother from her 9 year old child. Shortly thereafter, she conceived again and, within a fortnight of the expected date of her confinement, she disappeared. The Local Authority, who had intended to ward the expected child at birth, applied as a matter of urgency to ward the child in advance of birth. Al though the facts clearly merited judicial intervention, the Family Division judge held that they had no jurisdiction. The Local Authority obtained an emergency hearing on a Saturday, 7 days before the mothers due date. The Local Authority accepted that if they succeeded, they would require an order that the tipstaff locate and detain the mother and that further orders would follow for her detention and treatment in a suitable maternity unit. The Court of Appeal, although again stating its sympathy for the Local Authority s objectives, dismissed its appeal. In delivering the first judgement, May LJ affirmed the first instance decisions in Paton3 and C v S6 to the effect that an unborn child had no legal rights or existence. Second, he reasoned that to apply the paramount welfare principle would create most undesirable conflicts between the existing legal interests of the mother and those of the unborn child. Third, he emphasised the practical difficulty of enforcing against the mother whatever order the welfare of the unborn child required. In considering the conflict between the welfare of the unborn child and the mothers civil liberties, he said:
Further, there could well be medical problems which have to be solved: the mother might wish one course of action to be taken; it might be in the interests of the child that an alternative procedure should be followed. Until the child is actually born there must necessarily be an inherent incompatibility between any projected exercise of wardship jurisdiction and the rights and welfare of the mother.
I cite the essential reasoning of Lord Justice Balcombe in full because he specifically addressed the Caesarean section issue:
Approaching the question as one of principle, in my judgement there is no jurisdiction to make an unborn child a ward of court. Since an unborn child has, ex hypothesi, no existence independent of its mother, the only purpose of extending the jurisdiction to include a foetus is to enable the mothers actions to be controlled. Indeed, that is the purpose of the present application. In the articles already cited, Professor Lowe gives examples of how this might operate in practice:
It would mean, for example, that the mother would be unable to leave the jurisdiction without the courts consent. The court being charged to protect the fetus welfare would surely have to order the mother to stop smoking, imbibing alcohol and indeed any activity which might be hazardous to the child. Taking it to the extreme were the court to be faced with saving the babys life or the mothers it would surely have to protect the babys.
Another possibility is that the court might be asked to order that the baby be delivered by Caesarean section. (In this connection see Fortin - Legal Protection for the Unborn Child (1988) 51 MLR 81 and the US cases cited in note 16; in particular Jefferson Griffen Spalding County Hospital Authority (1981) 274 SE2d 457.) Whilst I do not accept that the priorities mentioned in the last sentence of the passage cited above are necessarily correct, it would be intolerable to place a judge in the position of having to make such a decision without any guidance as to the principles upon which his decision should be based. If the law is to be extended in this manner, so as 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 and, if so, subject to what limitations or conditions. Thus, under the Mental Health Act 1983, to which we were also referred, there are elaborate provisions to ensure that persons suffering from mental disorder or other similar conditions are not compulsorily admitted to hospital for assessment or treatment without proper safeguards: see ss 2, 3 and 4 of that Act. 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.
From this significant decision there emerge the following clear conclusions:
The child in the womb is an extension of the mother's bodily parts, devoid of legal existence or legal rights.
To invest the child in the womb with legal existence and legal rights would be to create unmanageable conflict with the mothers rights and liberties.
The creation of any legal control over the mother for the protection or benefit of the unborn child was not for the judges but for Parliament.
Although the observations of both judges on surgical conflict were what the lawyers classify as obiter dicta, any student of form, to borrow a racing analogy, would in 1988 have been confident of knowing the outcome if and when the Caesarean section issue were directly before the court for decision. However, as we shall see, the form-book meets a bumpy ride to vindication.
However before the advent of the test case of Re S7 the student of form should also have noticed another obiter dictum, that of the Master of the Rolls in Re T8 (1993) when he said:
An adult patient who ... suffers from no mental incapacity has an absolute right 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. That is not this case and, if and when it arises, the courts will be faced with a novel problem of considerable legal and ethical complexity.
It was only 2 months later that the court was faced with the novel problem. Manifestly an issue of such significance should have been presented to the court for decision on the foundation of thorough preparation, extensive research and skilful argument. In the event, the President was presented with an emergency application during the lunch hour. The medical emergency demanded an instant decision. The whole hearing lasted but minutes and the Presidents judgement appears as Re S.7 The President chose to override patient autonomy in order to maximise the chance of survival for mother and unborn baby. I was then a Family Division judge and I would have reached the same decision. More speculatively I say that the majority, if not all, the judges of the Family Division would have so decided. It was certainly not an unprincipled decision in the light of the observation of the Master of the Rolls and some US authority to like effect. However neither Paton3 nor Re F5 was cited to the Master of the Rolls in Re T8 (after all the cases were irrelevant to the issue before the court) nor to the President, for whom they would have been of direct relevance. Ten years on - and two Court of Appeal decisions later - it appears that the decisions of 1993 represent a wobble off the legal rails.
Certainly the President s decision in Re S7 attracted immediate and widespread criticism not only from academics but also from womens rights vigilantes. Despite the chorus of criticism, the Presidents approach was followed in every succeeding first instance decision. In Re S7 the President had overridden a mothers refusal to consent on religious grounds. In the following first instance cases the decisions often rested on a finding that the mother in labour transiently lacked capacity. There emerged a sense that the judges strained to find incapacity in order to achieve the outcome that their judicial instinct required, namely the promotion of the well being of the child on the threshold.
[In Re S] the court squarely rejected the submission that the rights of the unborn child should be weighed in the balance and upheld the principle that the competent mother has the unqualified right to decide whether or not to accept surgical intervention in childbirth.
An appellate review was inevitable. It came in the case of Re MB1 decided on 26 March 1997. Lady Justice Butler-Sloss, giving the leading judgement, rejected the Master of the Rolls invitation to qualify the competent patients right to decide in circumstances where the decision threatened the life of a viable fetus and doubted the correctness of the President s decision in Re S,7 The court squarely rejected the submission that the rights of the unborn child should be weighed in the balance and upheld the principle that the competent mother has the unqualified right to decide whether or not to accept surgical intervention in childbirth. However, on the facts, the court upheld the decision of the first instance judge who had held that the mother s phobia of the injection needle rendered her incompetent.
However in May 1998 in the case of St George 's Healthcare NHS Trust v S7 the Court of Appeal was faced with a wide-ranging challenge to medical and judicial management which had resulted in the competent mothers detention under the Mental Health Act and her subsequent delivery by Caesarean section in the face of her sustained objection. The court held that her right of self-determination had been violated at every stage. The detention under s.2 of the Mental Health Act had not been motivated by a need to treat her mental state but by an urge to treat her pre_eclampsia. Mental Health Act safeguards had been overridden. The judicial authority for the performance of the Caesarean section had been obtained on information both false and incomplete. Essential litigation procedures had been ignored. The patient, now the appellant, succeeded on every front. The essential conclusion is expressed in these terms:
In our judgement while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a number of different ways set out in the judgement in Re MB,1 an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant. The declaration in this case involved the removal of the baby from within the body of her mother under physical compulsion. Unless lawfully justified this constituted an infringement of the mothers autonomy. Of themselves the perceived needs of the fetus did not provide the necessary justification.
In all, the judgement is a ringing endorsement for the principle of autonomy. The court chose as its foundation a passage from the speech of Lord Reid in S v McC and M W v W9 when he said:
........... English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups detat but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.
That being where the balance now rests, I propose to consider in Part 2 of this series briefly a number of subheadings which are likely to bear upon management in individual cases.
Re MB (an adult: medical treatment)  2 FCR 541, CA.
St George s Healthcare NHS Trust v S  Fam 26, CA.
Paton v British Pregnancy Advisory Service Trustees  QB 276.
Paton v United Kingdom  3 EHRR 408.
Re F (in utero)  Fam 122.
C v S1 QB 135.
Re S (adult: refusal of treatment)  Fam 123.
Re T(adult: refusal of medical treatment)  Fam 95.
S v McC (orse. S.) and M (D.S. intervener) W v W . AC 24 at 43E.
This is the first paper presented to the Royal College of Obstetricians and Gynaecologists and edited by Elizabeth-Anne Gumble, QC. Reprinted by permission from Clinical Risk, 5, pp 173-176.
The Rt. Hon. Lord Justice Thorpe is Lord Justice of Appeal, formerly Judge of the High Court Family Division,