Looking East and West on advance decision-making in pregnancy: the pregnant advance directive holder in Irish, English and New York state law

peer-reviewedIn Western society, the point in a woman’s life when she routinely ceases having control over her person in a treatment context – if such a point in time arises – is pregnancy. The Assisted Decision-Making (Capacity) Act 2015 typifies this, providing that advance directives intended to apply in pregnancy be referred for High Court adjudication. The singling out of pregnant women for special treatment where their bodily integrity and self-determination are concerned did not suddenly start with this Act. Instead, impingement on the interests of pregnant women has existed in many domestic legal frameworks for decades. This research discusses the development of such laws and the underpinning moral issues to explain why the Irish legislature drafted the Act in this manner. In doing so, it highlights the many and varied issues – ethical and legal – with the position adopted. Perhaps obvious, but it is only by describing the law applicable to non-pregnant individuals that the extent of these ‘pregnancy exceptions’ are fully articulated. Aiding this exposition, is a discussion of the law in other jurisdictions, namely England and Wales and New York State (and the greater United States). The Irish legislature was undoubtedly guided by the now-repealed 8th Amendment to the Irish Constitution, which protected the right to life of the unborn, however, there is a wealth of international law demonstrating that in pregnancy, exceptions have always been made to the usual rules governing medical treatment. These exceptions can be explicit in laws prohibiting life sustaining treatment from being withdrawn from pregnant women, despite their wishes. Or, they can be more subtle in laws that allow, however inadvertently, for consent to treatment to be coerced. Spanning seven chapters, this thesis comprehensively discusses informed consent, end-of-life decision-making, advance directives and critically, how the law operates in these areas when the individual is pregnant