Title : Current Development: "The Seymour Report" on fetal : welfare and the law in Australia Author : Lee Ann Marks Organisation : Faculty of Law and Legal Studies, La Trobe University Keywords : Pregnancy; fetal welfare, medical law and policy Abstract : This article reviews the 1995 "Seymour Report" on fetal : welfare and the law, which was commissioned by the : Australian Medical Association. The report attempted to : balance the interests of the pregnant woman with the : welfare of the fetus she is carrying, and concluded : that education and information are preferable to legal : sanctions as means for securing fetal welfare. Citation : E Law - Murdoch University Electronic Journal of Law, : vol 2, no 3, (December 1995) (There are no page numbers.) 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RETRIEVAL- EMAIL: message "get elaw-j marks.txt" to majordomo@cleo.murdoch.edu.au URL: gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/elaw/ current/marks.txt URL: ftp://infolib.murdoch.edu.au/pub/subj/law/jnl/elaw/ current/marks.txt URL: http://wwwlib.murdoch.edu.au:8088/ecolln/type/jnls/murdoch/elaw /elaw.html _________________________________________________________________________ CURRENT DEVELOPMENT: THE "SEYMOUR REPORT" ON FETAL WELFARE AND THE LAW IN AUSTRALIA Lee Ann Marks Lecturer in Law and Legal Studies Latrobe University This report, published in 1995, was commissioned by the Australian Medical Association and sponsored by the Royal Australian College of Obstetricians and Gynaecologists, the National Association of Specialist Obstetricians and Gynaecologists, the Australian College of Paediatrics and the Medical Protection Association of Australia. The project was conducted by Dr John Seymour of the Faculty of Law, Australian National University, under the supervision of the Advisory Committee on Fetal Welfare and the Law chaired by Dr Amanda McBride and comprising representatives of the sponsoring organisations. Dr Seymour was assisted by three special consultants: Ms Natasha Cica, Lecturer in Law and Medicine, Faculty of Law, Australian National University, Dr Gregory Kesby, Registrar in Obstetrics and Gynaecology, King George V Memorial Hospital for Babies and Mothers, Sydney and Clinical Lecturer in Obstetrics and Gynaecology, University of Sydney and Ms Judith Mair, Senior Lecturer, Faculty of Health Sciences, University of Sydney; and two research assistants: Ms Katrine Bewley and Mr James Wood. The purpose of the inquiry was to assess "where responsibility should lie for the provision of the best possible care for a fetus before and at the time of delivery."[1] The inquiry sought a middle path through the highly contentious debates surrounding fetal welfare, acknowledging both the interests of the fetus and the pregnant woman's entitlement to autonomy and to bodily integrity. It criticised the use of rhetoric centring around the concept of rights, preferring a consideration of the ways in which "the welfare of the pregnant woman and her unborn child can best be promoted".[2] The inquiry explored the following questions: - What are the responsibilities of health care professionals to ensure that a pregnant woman is fully aware of the harm which certain forms of behaviour can cause to her developing fetus? - What is their legal position if they fail to provide appropriate warnings knowing that a woman is engaging in behaviour likely to harm the fetus? - Do they have a duty to volunteer information on all recognised risks if they have no reason to believe that the woman might engage in potentially harmful behaviour? - What responsibility should be borne by the mother if she chooses not to follow the advice of those undertaking her antenatal care and the fetus is harmed as a result? - Are there any circumstances in which the law should intervene to ensure the provision of treatment to a fetus in utero when the mother , after being fully informed of the need for such treatment, refuses to consent to it? - Are there any circumstances in which the law should intervene to prevent the mother from continuing to engage in behaviour likely to harm the fetus? - What are the obligations of health care professionals assisting at a delivery to provide information as to the risks ( to mother or fetus) of a failure to accept appropriate treatment? - What responsibility should be borne by a mother for the harm suffered by her child when, at the time of delivery, she has chosen not to consent to a particular form of treatment after a full explanation of the risks involved? - Are there any circumstances in which health care professionals assisting at a delivery should employ methods to which the mother has not given consent? - Are there any circumstances in which, when consent to appropriate treatment has been refused at the time of deliver, the law should intervene in an attempt to ensure that this treatment is provided? - Do health care professionals who have carefully advised a mother as to the appropriate form of treatment at the time of delivery have any further obligations if the advice is rejected? In this situation, are the persons responsible for the mother's care entitled to cease to provide it?[3] The first step in the inquiry was the collection and scrutiny of Australian evidence on fetal impairment and injury caused by refusal of appropriate treatment at the time of birth. This information is contained in Part 1 of the Report titled "The inquiry and some background issues". This part sets out information on the origin, nature and purpose of the inquiry (Chapter 1) and identifies the legal problems (Chapter 2). The Report goes on to review the medical evidence concerning certain types of behaviour; the risk such behaviour poses to the fetus; medical intervention which offers "a substantial chance of safeguarding the welfare of the fetus" both ante natally and at the time of birth (Chapter 3). The remaining two chapters in Part I consider theoretical questions (Chapter 4) and basic legal concepts underlying liability: battery and negligence (Chapter 5). The second step in the inquiry was to focus on the legal obligations of all those involved, specifically the health care professionals and the pregnant woman. The legal problems are set out in Part II of the Report. The inquiry formulated the legal problems in the following terms: When intervention is declined: should court action be possible? (Chapter 6); maternal antenatal behaviour which might harm the fetus: does the law have any part to play? (Chapter 7); may the child sue? (Chapter 8); damages claims against doctors and midwives (Chapter 9); other types of harm to the fetus (Chapter 10); damages claims against the parents (Chapter 11) The Report recommended clarification of State and Territory law to provide that it is unlawful for a doctor to perform a medical procedure on a mentally competent pregnant woman when she has expressly declined to give her consent to that procedure.[4] It recommended that neither criminal law nor child welfare law should be used to impose controls on the behaviour of a pregnant woman. However it did recommend that in some situations involving care and protection of children a court should accept evidence of the ante natal behaviour of the mother "provided this evidence is relevant to determining the question whether there is a substantial likelihood that the child will suffer harm in the future."[5] The Report found that Australian common law does permit a child to sue for damages in respect of injury negligently caused before that child was born but that further clarification of the law was required.[6] It recommended that pending the outcome of the current review of the torts system in relation to medical misadventure, "the States and Territories should consider enacting provisions which make it clear that a child may take proceedings in negligence in respect of injuries or disabilities caused before birth."[7] It should be noted (as discussed in the Report) that under Australian law the fetus has no legal status, and hence no rights, until birth.[8] With regard to the current review of the torts system in relation to medical misadventure, the Report also recommended that States and Territories should consider enacting provisions that give the woman and her partner immunity from a negligence action at the suit of a child injured in utero. This would be subject to an exception where the injury was caused by a parent's negligent driving. Consideration of the desirability of legislation which would allow for the reduction, on the basis of a parent's contributory negligence, of the damages received by a disabled child in a negligence action against a doctor or midwife was also recommended.[9] Throughout the Report there is recognition that law is not necessarily the most appropriate tool for regulating behaviour and protecting the fetus. In particular the inquiry found that: "The law of torts has a very limited part to play in the regulation of family life and it follows that parents do not owe legally enforceable duties to their children. They do, however, have a moral duty."[10] Seeking a middle path through the highly contentious debates surrounding fetal welfare, the inquiry concluded that "the central issue is how best to promote the welfare of pregnant women and their fetuses, the answer offered is that, instead of resort to the legal process, our society should foster education and improved communication between women and the doctors and midwives who care for them....Ultimately, the best protection of pregnant women and their fetuses will be achieved by the adoption of methods which ensure that the women are well informed, free of pressure and able to make their own decisions in an open minded manner".[11] This reflects the acceptance of Isabel Karpin's concept of the pregnant woman and her fetus as Not-One-But-Not-Two,[12] which reflects the special relationship between the woman and the fetus. In the words of the report: "The proposed model is flexible enough to ensure that women's rights are respected, while at the same time recognising that, in certain circumstances, the fetus is sufficiently distinctive to have legally protected interests".[13] Despite terms of reference which could be (and were) criticised as paternalistic and potentially anti-woman, the Seymour Report on Fetal Welfare and the Law has attempted to steered a middle path through the contentious debates surrounding the maternal/fetal relationship. In the process it has provided a theoretical, legal and medical context within which to consider these difficult issues which recognises the primacy of the woman's autonomy and is consistent with the Not-One-But-Not-Two approach. The Report acknowledges the inappropriateness of legal regulation and seeks solutions which ensure that "women are well informed, free of pressure and able to make their own decisions in an open-minded manner."[14] NOTES [1] Seymour, *Fetal Welfare and the Law A report commissioned by the Australian Medical Association* 1995 (hereinafter *The Seymour Report*), vii [2] Id, 212 [3] Id, vii [4] Id, 105 [5] Id, 135 [6] Id, 153 [7] Id, 153 [8] For further discussion see id, Chapters 4 & 8 [9] *The Seymour Report*, 205 [10] Id, 204 [11] Id, 213 [12] I. Karpin, "Legislating the Female Body: Reproductive Technology and the Reconstructed Woman" (1992) 3 *Columbia Journal of Gender and Law* 325 [13] *The Seymour Report*, 57 [14] Id, 213