Beyond Stork Delivery: From Injury to Autonomy in Reconceptualising ‘Harm’ in Wrongful Pregnancy

• Published date: 27 March 2006
• DOI: https://doi.org/10.1016/S1059-4337(05)38004-5
• Pages: 105-149
• Date: 27 March 2006
• Author: Nicolette M. Priaulx

BEYOND STORK DELIVERY: FROM

INJURY TO AUTONOMY IN

RECONCEPTUALISING ‘HARM’ IN

WRONGFUL PREGNANCY

Nicolette M. Priaulx

ABSTRACT

Can one describe the ‘natural’ process of pregnancy as ‘harm’, even when

negligently brought about? What does that harm consist of? Offering a

contextual analysis of the English judiciary’s characterisation of wrongful

pregnancy, this paper demonstrates from a feminist perspective that the

current construction of pregnancy as a ‘personal injury’ is deeply prob-

lematic. Forwarding an alternative account, this paper argues for law to

embrace a richer notion of autonomy that will better resonate with wom-

en’s diverse experiences of reproduction, and articulate the importance of

autonomy in the reproductive domain: notably, women gaining control

over their moral, relational and social lives.

Studies in Law, Politics, and Society, Volume 38, 105–149

Copyright r2006 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(05)38004-5

105

INTRODUCTION

She pondered. ‘‘Androids can’t bear children,’’ she said, then. ‘‘Is that a loss?’’

He finished undressing her. Exposed her pale, cold loins.

‘‘Is it a loss?’’ Rachel repeated. ‘‘I don’t really know; I have no way to tell. How does it

feel to have a child? How does it feel to be born, for that matter? We’re not born; we

don’t grow up; instead of dying from illness or old age we wear out like ants. Ants again;

that’s what we are. Not you; I mean me. Chitinous reflex-machines who aren’t really

alive.’’ (Dick, 1968, p. 165).

Pregnancy is woman’s work (Murphy, 1989). It is the one experience that

‘inevitably differentiates women from men’ and thus forms a ‘crucial part of

our identity which we cannot ignore, even supposing we would wish to do

so’ (Atkins & Hoggett, 1984, p. 83). The fact that most women hold the

capacity to bear children, Anne Morris and Susan Nott (1995) reflect has

had adverse consequences for the treatment of women in society. The dom-

inant ideology of reproduction positions and defines women in terms of

their potential mothering role (Morell, 2000) and thereby exercises a reg-

ulatory role over all women’s lives. Nor has the increasing incidence of

infertility and deliberate childlessness displaced this view. Childless life is

not perceived as being a ‘viable or appealing choice’ and ‘women who pur-

posefully do not have children are not taken on their own terms, but are

measured by the idealised standard of motherhood’ (Morell, 2000, p. 314).

Whilst pro-natalist norms hold a powerful influence on the way that women

are viewed, non-pregnant women are nevertheless assumed to have the ca-

pacity to make valid self-determining choices about their lives and destinies,

in a way that the pregnant women rarely are. The pregnant woman’s body is

no longer her own, it labours now for another – she is not one person ‘but

two – mother and foetus – and society may expect, even demand that her

freedom is curtailed in the interests of the foetus’ (Morris & Nott, 1995, p.

54–55). Under an ideology whereby ‘the foetus is something to be protected

from its mother’ (Diduck, 1993, p. 471), the rational and sane mother must

willingly accept treatment by medical professionals, for ‘no normal mother-

to-be’ would persist with a course that would cause serious harm to her

foetus. As a result, pregnant women are confronted with a law that speaks

‘loudly of care and protection of children, and less loudly but perhaps more

profoundly, of control of women’ (Diduck, 1993, p. 465).

It is in this context that this paper explores wrongful pregnancy in the

tort of negligence in the United Kingdom. This becomes important when

considering that the law has been more involved in conceptualising women

NICOLETTE M. PRIAULX106

as a ‘‘harm’’ to foetal health, than as harmed through the experience of

pregnancy itself. Therefore, while society values motherhood for its product,

a healthy child, and is one which construes motherhood as naturally in-

volving sacrifice, the law rarely speaks the language of the care and pro-

tection of the rights, health and integrity of pregnant women. But in

confronting the action of wrongful pregnancy, this is the language de-

manded of it. Does wrongful pregnancy constitute a personal injury or

merely a harmless biological function that cannot constitute ‘‘damage’’ or

‘‘harm’’? The significance of this question lies at the heart of the tort of

negligence.

A number of torts, such as trespass or libel, are actionable per se – with-

out evidence of damage.

1

The absence of damage is not germane to such

actions since tort law operates here to ‘vindicate private rights and not

necessarily to compensate the victim’ (Markesinis & Deakin, 1999, p. 18).

By contrast, in the law of negligence, ‘‘damage’’ holds a central role and is

said to form the ‘gist of the action’ (Stapleton, 1988, p. 213). Therefore, a

claimant will not only need to establish a duty of care, a breach of that duty,

and that the breach caused the damage complained of – she must also show

that the type of harm she has suffered is one that is accepted by the law as

‘actionable’. This proves unproblematic in the case of the ‘straightforward

results of many physical acts of negligence’ (Atiyah, 1997, p. 52). Beyond the

broken bones and personal injuries obvious to the human eye, it is well

recognised that ‘damage can be recovered for any physical harm’ (Atiyah,

1997, p. 53). Therefore, gastroenteritis suffered through swallowing parts of

a snail in a bottle of ginger beer, cancer or lung diseases suffered through

exposure to asbestos in the workplace, will most certainly constitute phys-

ical harms for the purposes of negligence (Witting, 2002). The question is, in

what way might an unwanted pregnancy – a normal, biological function,

although unwanted, be conceptualised as actionable physical damage for the

purposes of negligence? It is undeniable that there are salient differences

between an unwanted pregnancy and broken bones, but what do they con-

sist of? What is a ‘personal injury’, and importantly, who defines it? Does it

matter for these purposes that while some pregnancies are unwanted, others

are not? Or in determining this issue should we merely be content with the

weaker view that pregnancy should be treated as analogous to a personal

injury, so as to avoid the difficult arguments that pregnancy gives rise to

(Mullis, 1993)? And indeed, if wrongful pregnancy does constitute ‘‘dam-

age’’ what rights/interests are being implicated and how do such concep-

tualisations of harm intersect or conflict with alternative representations of

the processes of pregnancy and childbirth? As Morris and Nott (1995)

Reconceptualising ‘Harm’ in Wrongful Pregnancy 107