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A Woman’s Right To Her Own Body – Medical Negligence During Childbirth

In May 2014, it was reported that a New York woman was suing her doctors and Staten Island University Hospital after she claimed that she was forced into having a C-section which resulted in a perforated bladder[1].   This has once again opened the debate surrounding a woman’s right to make decisions regarding the refusal of medical treatment in childbirth.

As long as you have mental capacity, you have a right to refuse medical treatment, even if this means your life will be in danger.  This includes childbirth. However, when a health professional is charged with delivering a baby, there are two lives to consider. So whose rights are paramount – the mother’s or that of the unborn child?

Childbirth’s Deadly History

It is important to remember that medical advances in childbirth have massively increased the survival rates and reduced the incidents of birth injuries in both women and babies.  Right up until the modern age, childbirth has been a hazardous experience, and if something went wrong very little could be done.  If you haemorrhaged, you died.  If the birth was obstructed, you died (often after days of agony). The invention of forceps in the 16th Century gradually started to reduce mother and child mortality rates (tragically the development of forceps was kept a secret for more than 100 years by its inventors, the Chamberlen family[2]).  Caesareans have been carried out since ancient times, but the procedure was historically used to save the life of the unborn child and the mother almost always died.  In fact, it was not until the 1500s that a woman was recorded to have survived a caesarean[3].

A Two-sided Debate

As always, there are two sides of the maternal versus foetus rights debate.  Those who argue that the mother’s rights are paramount, state that there is no basis in law for foetal supremacy and if a woman’s basic human right to have control over her own body is ignored, then she is reduced to the role of  a “vessel” rather than a human being[4].   In one case[5], the Court of Appeal supported this view by stating in its judgment, “Pregnancy does not diminish a woman’s entitlement to decide whether or not to undergo medical treatment. Her right is not reduced or diminished merely because her decision to exercise her right may appear morally repugnant.”

Of course, the other argument in favour of the mother having total control over what happens to her during labour, is that all medical procedures carry a form of risk. If doctors can ignore a patient’s express wishes regarding refusal of treatment, what are the consequences if that treatment goes wrong?

On the other side of the debate is the concern of how to protect a mother and a baby from ill-informed decisions[6].  Is it right for a health professional to stand by and allow a healthy infant to perish because the mother has refused medical intervention?  In one case[7], in which doctors applied for and obtained a Court order for an unconsented caesarean delivery whilst a woman was already in active labour, a Florida Court held that “Because of the very substantial risk that the course Ms. Pemberton was attempting to pursue would result in the death of her baby, requiring her to undergo an unconsented caesarean section did not violate her constitutional rights. …[8]”. In 1992, a UK Court held “that in a situation in which the lives of mother and the unborn child would both be at risk if the operation were not performed, it was open to the court to make a declaration that the operation could be performed notwithstanding the mother’s refusal of consent”[9].

Unconsented Treatment and Medial Injury

If you have not given proper, informed consent for medical treatment, the health professional that performed the treatment can be charged with battery[10].  A claim for medical negligence can also be made if things go wrong, if proper informed consent is not given.  This rests on the basis that if the health professional had given the patient concerned full disclosure of the risks involved in the procedure, the patient may have refused to give consent and the procedure that gave rise to the complication may never have taken place.

People will continue to debate the rights of a Mother and that of an unborn child and many will be watching the case outlined at the beginning of this post with interest.  However, if you have been the victim of medical negligence which you believe was caused in whole or in part because you did not have the opportunity to provide full, informed consent to the procedure performed on your person, then contact us today.  Our compassionate, experienced lawyers will listen to your story and advise you on how to go about seeking compensation.











[5] St. George’s Healthcare N.H.S. Trust v S [1998] 3 W.L.R. 936

[7] Pemberton v. Tallahassee (66 F. Supp. 2d 1247) 1999


[9] Adult: Refusal of Treatment) [1992] 3 W.L.R. 806