Reproductive Choices and Informed Consent: Fetal Interests, Women’s Identity and Relational Autonomy

59 Pages Posted: 8 Dec 2011

See all articles by Pamela Laufer-Ukeles

Pamela Laufer-Ukeles

University of Dayton - School of Law; Academic Center for Law & Science (Shaarei Mishpat College of Law)

Date Written: December 5, 2011

Abstract

In this Article, I describe and examine the severe shortcomings in women’s autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation: abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women’s values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy.

In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices, a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women’s personal identity interests on the other.

Keywords: informed consent, reproductive rights, abortion, maternal-fetal tension, relational autonomy

Suggested Citation

Laufer-Ukeles, Pamela, Reproductive Choices and Informed Consent: Fetal Interests, Women’s Identity and Relational Autonomy (December 5, 2011). American Journal of Law and Medicine, Vol. 37, No. 4, 2011, Available at SSRN: https://ssrn.com/abstract=1968717

Pamela Laufer-Ukeles (Contact Author)

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States

Academic Center for Law & Science (Shaarei Mishpat College of Law) ( email )

Hamargoa 5
Hod Hasharon
Israel

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