Abortion and the cognitively impaired mother
It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.
As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’
There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?
It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made.
In fact, said the court, the evidence from experts and the family was to the effect that continuation of the pregnancy would be in her best interests, but that, of course, was wholly academic. The way it is often put is that someone with capacity can lawfully make a decision in relation to their own life which is contrary to her ‘objective’ best interests. I’d prefer to say (since autonomy is an essential element of best interests, rather than something divorced from them) that the decision of a capacitous adult is definitive of her best interests.
The evidence about capacity seems to have been clear. And yet, since the judge, Hedley J, is Christian, some will no doubt mutter that his decision was motivated by a distaste for abortion. I have no idea of his personal view on abortion, but such mutterings would be very unfair. As well as being unfair on the facts of the case, the judge has a track record of impeccable objectivity.
But anyway, shouldn’t everyone have some sort of distaste for abortion? It’s no part of the responsible pro-choice case that abortions should be done blithely. We can discuss whether or not abortion is an evil, and, if it is, the metaphysical language in which to describe the evil, and, if it is an evil, whether or not it is a necessary evil. But no one serious pretends that having an abortion is like having a cup of tea.
Maternal autonomy is rightly at the centre of pro-choice arguments. No respecter of autonomy would like to think of this woman being forcibly anaesthetized and her pregnancy being terminated. If she really didn’t have the cognitive hardware necessary to understand what was at stake in pregnancy, and there were good evidence that continuation of pregnancy would not be in her best interests, then (subject to arguments about the Article 2 rights of the fetus), that might be different. But the physical and psychiatric insults necessarily involved in the forcible termination of pregnancy would not be easily outweighed by the insults necessarily involved in bringing the pregnancy to term.
Best interests determinations may have a long perspective, though. Suppose the evidence were that the woman, although able to decide to continue with the pregnancy, would not be able to care for the child, and that ultimately it would not be in the child’s best interests to be looked after by the woman. Then it might be said that one should factor into the determination of the best interests of the woman (in relation to the continuation of the pregnancy), the trauma caused by the inevitable removal of the child.
But here we are swimming in some very murky ethical and legal waters. Public policy prevents a child from coming to court and saying: ‘Were better my mother had not borne me.’: see McKay v Essex Area Health Authority  QB 1166. A child, in other words, cannot legally unwish itself; cannot say that it would have been in its best interests to have been aborted. If that submission cannot be heard, can one logically, in performing the algebra of the mother’s own best interests determination, consider the child’s best interests at all?