Balancing Conflicting Interests During Pregnancy: Ultrasound v. Reality 2010) Cork Online Law Review 42

The article examines whether it is morally correct and legally possible to police a pregnant woman’s behaviour in order to protect the foetus. The first part of the paper discusses whether a pregnant woman should be forced to have a caesarean section; it proposes a ‘modified competency test’ which begins with the rebuttable presumption that the competent woman can refuse the operation if she offers at least one reason for her decision. The second part of the paper asks what should be the law’s reaction in cases where the pregnant addict causes serious injury or death to the foetus. There can be a criminal prosecution, civil liability or taking the baby from the mother as soon as she gives birth. Finally, a ‘middle solution’ is proposed which encourages women to come forward so that they can be rehabilitated. In both debates the pregnant woman should be the one who decides about her own future and society should only have a residual role; only this method will adequately protect both the mother’s and the foetus’ interests.

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