Women and prenatal testing : new medical frontiers, new legal challenges

Abstract

The thesis explores the legal implications on women’s autonomy and reproductive rights arising from the use of prenatal tests. Pregnant women are often worried about the unborn child’s physical, mental or genetic health throughout the pregnancy. Undergoing prenatal testing may ease some of these concerns and help gather information that can be discussed with the family doctor. The concepts of reproductive choice, informed consent and confidentiality are discussed in relation to the carrying out of such tests. The study then discusses the legal and regulatory aspects of prenatal testing in relation to the sensitive information it generates. If a woman’s fears are confirmed and the test results reveal an abnormality, she is able to plan in advance the future needs of such child or decide on a termination of the pregnancy, where such option is available. Termination of pregnancy as a consequence of a prenatal test result raises the complex issues of sex selection and the rights of persons with disabilities. Furthermore, in order to protect the foetus from potential harm, the state may use the results from the prenatal tests to control women’s behaviour during the pregnancy. The State will have to find a balance between a pregnant woman’s right to self-determination and access to health information, and the right of the foetus to develop and be born healthy. The thesis also briefly discusses the legal actions relating to negligence in the carrying out of the prenatal tests and the special action for the wrongful birth of a child. Finally, the study ends with a discussion on the lack of legislation in the local context and the regulatory challenges facing Malta, as a result of the continuous developments of safer, more-accurate and less invasive prenatal tests.