Bridie Walsh1, Adrian Walsh2
1 University of Melbourne
2 University of New England
In 1991 in the landmark case of Lynch v Lynch, the NSW Court of Appeal, held that a woman found to be guilty of negligent driving while pregnant could subsequently be sued by the child for harms inflicted as a result of prenatal injury. The court restricted the finding to cases where the driver had motor vehicle insurance in order to limit its range of applicability. Nonetheless, concerns were raised about the extent to which this might unconscionably limit women’s choices while pregnant. In a similar case in Canada, the fear of setting a precedent and restricting women’s autonomy led the court to reject the claim for damages. The findings in the Australian case raise many ethical questions concerning, amongst other things, the extent to which a woman’s autonomy can and should be curtailed when bearing a child she intends to carry to term. What moral and legal limits upon women’s activities whilst pregnant should be regarded as acceptable? In exploring this question, the paper will draw upon John Stuart Mill’s Harm Principle in which a distinction is drawn between self-regarding and other regarding actions and, according to which, one can engage in harmful activity so long as it does not impinge upon others. The problem is that just about anything a woman might do while pregnant, including driving a car or walking up the street (to take two everyday examples), could conceivably harm the future child. How do we balance the rights of women to lead normal lives whilst pregnant with the rights of the future child? In this paper we argue that while some restrictions on the range of activities undertaken by pregnant women are justifiable, concerns with the well being of the future child are not absolute trumps and we provide some basic guidelines for distinguishing between legitimate and illegitimate restrictions.. This paper also raises critical questions about whether John Stuart Mill’s moral distinction between self–regarding and other-regarding harms—which is typically thought to safeguard autonomy—might well be overly restrictive when applied to pregnant women.
Adrian Walsh is an Associate Professor in Philosophy at the University of New England. He works mainly in political philosophy and applied ethics. He has published on the ethics of markets, on the philosophy of economics and on questions of philosophical method. His most recent work is the co-edited collection, The Ethical Underpinnings of Climate Economics.
Bridie Walsh is a law student at the University of Melbourne currently completing her Juris Doctoral degree. Her undergraduate work was in Politics and History.