Self-regarding/mother-regarding? Female autonomy and maternal obligations during pregnancy

Bridie Walsh1Adrian 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.


Biography

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.

Thomas Szasz and the insanity defence

Neil Pickering1

1 Bioethics Centre, University of Otago, 71 Frederick Street, Dunedin 9016

In 1980, Thomas Szasz appeared in Oakland, California, in the case of People of the State of California vs Darlin June Cromer.  Cromer was charged with the racially motivated torture and murder of a young black child.  Szasz was called by the prosecution to rebut claims made by defence psychiatrists, that Cromer should be found not guilty by reason of insanity.  In answer to the question, what was Cromer suffering from on the day she committed the crime she was charged with, Szasz responded:  ‘[My] opinion is that she was suffering from the consequences of having lived a life very badly, very stupidly, very evilly’ (The Psychiatrist in Court, 1980, p.20).

Szasz gives a number of sorts of reasons for being opposed to the use of the insanity defence.  In this paper, I present and review some of them.  (1) He was morally opposed to it, as an offence to the dignity of human kind.  But I argue that Szasz should not appeal to morality to oppose the use of the defence, because it is inconsistent with his opposition to the use of morality to define a group of humans as mentally ill.  (2) He was opposed to it because he believed that all humans are responsible for their acts, and this is consistent with opposition to the defence, which reflects the intuition that not all people are responsible for their acts.  But I argue that an appeal to consistency does not support his position, unless he can give us some independent reason for thinking he is not only consistent but right.  (3) He was opposed to it because no scientific testimony can help decide the question whether someone is responsible for a crime they committed.  This is a much more convincing argument, premised on plausible ideas about the role of scientific explanation of behaviour, and I suggest that it is the strongest argument he has.


Biography

Neil is a senior lecturer in the Bioethics Centre at the University of Otago.  He specialises in the philosophy of psychiatry and medicine, and in particular on conceptualisations of disease.  He is author of The Metaphor of Mental Illness (Oxford University Press, 2006) and a number of articles on concepts of disease.  The work of Thomas Szasz has been a particular interest.

Making every sleep a safe sleep: Ethics, law and the hardening of child health advice

Monique Jonas1

1 School of Population Health, University of Auckland, Private Bag 9201 Auckland, New Zealand

In many jurisdictions, the state funds and/or provides child health advice. Advice is characterised by its discretionary quality: unlike laws or directives, recipients are free to choose whether to follow advice. Thus, state provision of child health advice is often seen as a way of informing and supporting parents, rather than as a means by which the state sets standards or regulates parental practice.

Recently in New Zealand, criminal proceedings have been brought against some parents of babies whose deaths were attributed to Sudden Unexpected Death in Infancy (SUDI), on the basis that they did not follow advice to refrain from co-sleeping.

This paper presents these cases and argues that they both reveal and contribute to the normative hardening of child health advice and increasing specification of parental obligations. The implications of this for child health advice are considered. Drawing upon the publicity principle as developed by Lon Fuller, I argue that fairness requires that, if child health advice is to be enforceable, it should not be presented as advice. I suggest that more transparency about the discretion attached to child health advice may foster fruitful debate about the nature and extent of parental obligations and allow broader social determinants of child health outcomes to enter into public debate. The ethical and political issues explored in this paper are by no means unique to SUDI prevention, and the arguments developed here have wide implications for health promotion.


Biography

Monique Jonas is a Senior Lecturer in Ethics at the School of Population Health at the University of Auckland, New Zealand.  Her research focuses upon ethical and political aspects of child-rearing and the relationship between the family and the state. Other research themes include the ethics of advice-giving, distributive and procedural justice in health, and competence and consent. She teaches health care ethics and bioethics.

The intersection between Advance Care Directives and voluntary euthanasia: Advocacy for both is a precarious and intimate dance

Sandra L Bradley1

1 ACD Consultant, Adelaide, South Australia, 5041, sandrabradley2@bigpond.com

In South Australia there is a new Advance Care Directive Form. There was an intensive exercise in educating clinicians and hospital systems in the acceptance and implementation of these forms during its first year in existence (2014-2015). Education of the general public was largely done by employees of SA Health and external volunteers addressing community groups who expressed an interest in learning about the new form. Since the end of the focused education campaign, however, the general public have largely been left to their own devices to learn about this form.

To assist the general public, palliative care and aged care agencies have created workshops and forums on advance care planning.  Advance care planning is predicated on the fact that a person has an illness which is life-limiting and requires a clinical care plan. This, therefore, leaves many members of the general public uninformed about the advance care directive until such time as they may interact with it through the illness of themselves or a family member or friend.

The emphasis in the new SA advance care directive is to complete it before illness strikes. To understand what factors may influence a person to create an advance care directive, the presenter recently completed a PhD thesis on advance care directive decision-making by Baby Boomers in South Australia.  The knowledge generated by this thesis led the presenter to create her own advance care directive consultancy directed towards informing the general public on the new form without a direct link to an illness, agency, or legal professional. This presentation will describe the approach used, the types of audiences educated, and the gaps that still remain which make advocating for the use of advance care directives precarious when voluntary euthanasia is the person’s preference.


Biography

Sandra Bradley, RN, PhD runs her own advance care directive consultancy assisting people in the South Australian community to understand and learn how to write their own South Australian Advance Care Directive Form. Through her consultancy, Sandra educates community groups, individuals, and professional groups while learning about the practicalities of this form for those who are not currently ill but who are interested in protecting what happens to them in their future care, as well as how this form may assist those who are ready to die but lack access to voluntary euthanasia.

About the Association

The Australasian Association of Bioethics and Health Law (AABHL) was formed in 2009.

It encourages open discussion and debate on a range of bioethical issues, providing a place where people can ask difficult questions about ideas and practices associated with health and illness, biomedical research and human values.

The AABHL seeks to foster a distinctive Australasian voice in bioethics, and provide opportunities for international engagement through its membership, journal and conferences.

Members come from all the contributing humanities, social science and science disciplines that make up contemporary bioethics.

Many members have cross-disciplinary interests and all seek to broaden the dialogues in which all members of the wider community ultimately have an interest.

The AABHL is a supportive, creative and challenging community that provides a rich source of continuing academic refreshment and renewal.

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