A number of recent cases have highlighted the need for midwives to have an increased knowledge and understanding of legal and ethical issues and how to apply these in practice. One of these, the case of CP v Criminal Injuries Compensation Authority, has been discussed in detail in this month's legal column (p902).
It is recognised that midwives have to deal with sometimes complicated moral dilemmas, in which they may require assistance. The Nursing and Midwifery Council (NMC, 2014a: 3) state that supervisors of midwives ‘must support and work collaboratively with midwives working with complex ethical, legal and professional issues’.
So what are some of the issues a midwife might face in contemporary practice? The starting point is logically related to fetal rights. Currently, under English Law an unborn child does not have legal rights until the point of birth when it becomes a person in its own right, independent of its mother (Griffith et al, 2010). The wider and more contentious debate relates to personhood and when life begins with experts having differing opinions. Some believe that life begins at conception, others at the point of viability where a baby can survive independently of its mother, and others at the point of birth when the baby takes its first breath. In the case of CP, if the appeal is upheld, it might bring into question fetal rights: so what could the consequences of this be? To assess this, we shall discuss some cases in the US where the fetus already has a legal status. Paltrow and Flavin (2014) describe a number of scenarios where women have been arrested using these laws. In Utah, they highlight the case of a woman who gave birth to twins, one of whom was stillborn. She was arrested on a charge of fetal homicide when it was purported that the death was due to a delay in agreeing to a caesarean section.
A woman in Louisiana who went to the hospital for unexplained vaginal bleeding was imprisoned for over a year on charges of second-degree murder before medical records revealed she had suffered a miscarriage at 11–15 weeks of pregnancy. Another woman, who had been in labour at home, was picked up by a sheriff, strapped down in the back of an ambulance, taken to a hospital, and forced to have a caesarean she did not want. When this mother later protested what had happened, a court concluded that the woman's personal constitutional rights clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child (Paltrow and Flavin, 2014).
Readers may have their own personal opinions about fetal rights based on their moral beliefs, religion, culture and perhaps even professional experiences. This has recently been highlighted in the UK's Supreme Court appeal case in relation to two catholic midwives who are labour ward coordinators. They argued that they should be able to opt out of any involvement with women who choose to terminate their unborn babies. Under the 1967 Abortion Act, midwives can conscientiously object to taking part in terminations but it has always been understood that care should still be provided in an emergency situation, for example if the woman suddenly suffers a haemorrhage. Although it is not clear if they question their duty to provide care in life threatening situations, the midwives argued that supervising staff involved in terminations violates their human rights and that they should be able to refuse to do so (Parry, 2014). This not only has implications for care provision but also on the already compromised midwifery service.
Fetal rights, therefore, raises a number of legal and ethical questions as treatment of the fetus tends to involve the woman's body and women should have control over that. If it is decided that women's consumption of alcohol in pregnancy should be criminalised (as in the case of CP) is this a slippery slope? Might it mean that women who do not eat healthily or do not exercise appropriately in pregnancy might also be policed in some way? This could have massive implications for the midwife who might be expected to ‘investigate and interrogate’ women about their behaviours and report any concerns. Care provided by the midwife is essential to both short- and long-term maternal and fetal wellbeing and relies upon the trusting relationship between midwife and the women and women's attendance for antenatal care. If women feel their behaviour might be criminalised it could prevent them engaging with maternity services and receiving the support of specialist services. Any change that leads to women failing to engage appropriately would immediately undermine its own good intention. Less experienced midwives require the support of more senior or knowledgeable staff including supervisors of midwives to take a non-judgmental and evidence based approach to care provision.