Blair Mayston: Midwife caught up in tensions over a mother’s rights

At the heart of Jennifer Crawshaw's trial lay a woman's right to refuse medical treatment - a right medical ethicist Professor Don Evans describes as inalienable.

"To encroach on anyone's liberty is a major, major thing and very few people are entitled to do it," said Professor Evans, the director of the Bioethics Centre at the University of Otago.
The Dunedin midwife was acquitted of manslaughter. The charge related to a baby she delivered to a first-time mother in 2004.

Testimony delivered during the trial made clear the mother's wish for a birth without medical intervention.

Professor Evans acknowledged there were cases of parents being taken to court for not providing the necessaries of life, including medical treatment. But the same rules did not apply during pregnancy.

"A fetus has no status in law until the birth."

He said the law took a gradualist view of the growth of the moral status of a fetus, meaning as it grew it came closer to becoming a human with rights. The process was completed once the baby was delivered.

That legal position created a tension with modern medical practice, in which many medical staff thought in terms of having two patients - the mother and the unborn child - during pregnancy.

"We can even perform surgery of certain kinds on fetuses which makes them consumers of health and disability services," Professor Evans said. "Nevertheless, you can't do anything to a fetus without doing something to the mother, and you can't do anything to a patient without their consent."

So should that law be changed, to protect the welfare of an unborn child? Professor Evans believes that could be problematic.

"If we were to be consistent, we would say one fetus is no more important than another, so there would be no termination of pregnancy," he said.

Although some people would favour that, Professor Evans suspected many more would not.

The law could put medical staff in an unenviable position when patients refused treatment their practitioner believed to be in their best interests.

"That is very frustrating for a doctor and it's very sad, but it's a fact."

That unenviable position appears to have been the one in which Mrs Crawshaw found herself.

Approaches to the family to speak have been declined. The suppression of their identities prevents the publication of much personal information, but they are members of the Exclusive Brethren, a conservative religious sect which tends to keep to itself.

There was only a passing reference to religion during the trial, with mention of police asking Mrs Crawshaw in the months after the birth whether the religious belief of the parents played a role in their desire for a natural birth.

The midwife said that question needed to be addressed to the parents.

It became clear during the trial the mother was strongly opposed to medical intervention in the delivery of her baby.

"This being her first baby, she wanted the birth to be a very private thing - she found it difficult, the idea of many people being around when the baby was born," her husband said in his testimony.

"She said it was bad enough having Crawshaw involved."

It is worth remembering she laid no complaint against Mrs Crawshaw; the identity of the complainant is unknown.

Indeed, the mother sought Mrs Crawshaw out to deliver her second baby little more than a year after the death of her first, and on hearing the not guilty verdict smiled broadly and hugged the midwife.

Testimony revealed the mother wrote a birthing plan which stipulated that doctors would be involved only if all four people in the birthing room - the mother, the father, and two midwives - agreed it was medically necessary.

Mrs Crawshaw gave evidence she told the parents during the labour a medical opinion might be needed, but the mother indicated by her body language she did not want a doctor at that stage.

The mother acknowledged she was aware a caesarean could be needed to save the baby's life if complications arose, but said: "If that became necessary, I'd probably have fought against it."

- OTAGO DAILY TIMES