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   Book Review

     Winter 2008

  
   
    The Troubled Pregnancy
     Legal Wrongs and Rights in Reproduction
     By J.K. Mason
     Cambridge University Press, New York, pp. 317, 2007

    This volume is part of the Cambridge University Press's law, medicine and ethics series and was
    written by Dr. J.K. Mason, professor (emeritus) of forensic medicine at the University of Edinburgh
    School of Law. Much of the book deals with jurisprudence in the United Kingdom but apposite
    cases from the U.S., Canada, Australia and the European Union are also cited.

    The author begins his monograph by defining and exploring the terms: 'wrongful pregnancy';
    'wrongful birth'; and 'wrongful life', all rather inaccurate terms that have become part of the
    lexicon of the medicolegal tort system. These type cases stem from various forms of medical
    negligence and should be addressed as such. He then devotes a chapter to a detailed analysis
    of abortion and his interpretation of when life begins and its implications. Abortion, and certainly
    abortion politics, is less of a public controversary in the United Kingdom than in the United States.
    Dr. Mason's ideas about resolving some of the conflict around abortion are quite reasonable, though
    zealots on both sides will undoubtedly object to some of his proposed measures.

    The central issues surrounding the abortion controversy: when life begins; at what stage of
    development is the fetus viable; and does the fetus have legal rights; are all explored in some detail
    by citing various judicial opinions from Britain, the U.S. and European countries. Of special interest
    is the legal approach to the non-voluntary termination of pregnancy, either from medical negligence
    or criminal assault on the mother that injures or kills the fetus. Some of these cases may be criminal
    in nature but the author cites several cases of negligent or unintentional homicide that were reversed
    on appeal and re-reversed by the supreme judicial authority (the House of Lords in England).
    He proposes a new category of the criminal law that he terms "feticide". This might approach
    the complex issues of fetal death, say by injury to the mother or to the fetus, who is either stillborn
    or dies after birth due to the pre-natal injury.

    Wrongful birth is a strange concept, largely arising from a parental wish not to raise a disabled or
    malformed child. This type birth usually occurs after a failed abortion or occasionally from failure
    to diagnose the abnormality during the pregnancy. While many fetal abnormalities can now be
    diagnosed by ultrasound or by chromosome and genetic analysis of amniotic fluid or actual fetal
    biopsy, there are obviously numerous abnormal conditions that cannot be diagnosed early in utero
    and are only recognized in the third trimester or after birth. Failure of the caregiver to suggest
    genetic counseling when appropriate may also serve as a possible basis for legal negligence. The
    author explores several cases in this category and analyzes the legal opinions. Civil jury awards
    usually take into account the extraordinary expenses involved in caring for a disabled or retarded
    child. So-called wrongful birth of a healthy child is another matter entirely and the British courts
    have looked askance at large damage awards.

    Unsuccessful sterilization leading to so-called wrongful pregnancy is another complex topic that
    the author attempts to clarify. In this case both male and female sterilization are involved and
    potential sources of litigation. Medical literature indicates a non-negligent failure rate of 1:2500
    for vasectomy and 1:600 for tubal ligation, the commonest forms of sterilization. Often there is a
    failure to inform controversy over the term 'irreversible' that seems to confuse many sterilization
    subjects who have a change of heart or circumstance. Another controversial matter is whether
    the duty of care owed to the sterilization patient extends to the spouse or partner; the courts
    have not really clarified this matter. Whether compensation is warranted for the wrongful birth of
    a healthy child has also caused confusion, especially in the United States, where state courts
    appear evenly divided on this point.

    The book is extraordinarily researched and though the emphasis is on jurisprudence in the United
    Kingdom, many cases from the United States, Australia and Europe are included. Sometimes
    the comparisons are the most interesting points and reflect the different cultures and legal
    process in the various countries. For example the difference between a post-sterilization birth
    of a healthy child versus that of a severely disabled one. Should the healthy child receive
    compensation; can the disabled child sue for wrongful life? The author spends considerable
    space to the various factors that have been addressed by the courts in such cases, notably one
    in which a blind woman gave birth to a healthy infant after an incomplete tubal ligation. Dr. Mason
    follows the case up the appellate ladder to the House of Lords, summarizing the half-dozen
    often conflicting judicial opinions along the way.

    This book is not an easy read but is well worth the time for those interested in the subject and
    wish an insightful summary of the state of legal opinion in the western world concerning matters
    of conception, pregnancy and neonatal life.
   
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