CYIL vol. 11 (2020)

PETR ŠUSTEK CYIL 11 (2020) to the brain and severe lifelong disability, or she or he could die. However, the woman in labour might not always agree with the invasive procedure, insisting on the continuation of natural birth. In clinical practice, dilemmas of this kind are far from rare. The apparent legal (and ethical) question here is whether the medical personnel should give priority to the autonomy of will of the pregnant woman or to the protection of life and health of the child that is being born. In other words, the balance between the pregnant woman’s and the child’s interests needs to be defined. Maternal-foetal conflict of interests has often been discussed with regard to abortion 4 . In this paper, we will focus on this question in the specific context of childbirth 5 . First, we will outline more closely the competing interests. Then, we will discuss when precisely the child acquires the right to life. Furthermore, we will ask whether the child’s interests during the labour – even without the right to life granted to the child – can possibly override the mother’s autonomy. In our search for answers to these questions, we will analyse relevant legal regulation and case law that is applicable in the Czech Republic, i.e. both on the national and international level. 1. Competing interests If a medical procedure were performed against the wishes of the woman in labour, her right to physical integrity and self-determination would be interfered with 6 . In the last decades, respect to the patient’s autonomy has become the legal and ethical paradigm of health care. Informed consent has a crucial role in securing this respect. It serves as an instrument of equalising the information asymmetry between the physician and the patient 7 . Even more importantly, informed consent is the most common legal ground for intervention in the physical or psychological integrity of a person. Under Czech law, medical procedures

4 The author wilfully admits that in choosing the name of this paper, he was inspired by Imogen Goold’s and Jonathan Herring’s chapter “How should we balance the interests of the pregnant woman and foetus?” in their discussion on abortion in GOOLD, Imogen, HERRING, Jonathan. Great Debates in Medical Law and Ethics. 2 nd ed. Palgrave, London 2018, pp. 159-164. 5 In contrast with its practical importance, this topic has only been scarcely subjected to an intensive and complex analysis in Czech legal literature. An important exception is a paper written in the Czech language by Lucie Široká and Michaela Povolná in 2017: ŠIROKÁ, Lucie, POVOLNÁ, Michaela. Právo rodící ženy odmítnout péči versus právo dítěte na život a zdraví ve světle judikatury Ústavního soudu a Evropského soudu pro lidská práva [The Right of a Woman in Labour to Refuse Treatment versus the Child’s Right to Life and Health in the Light of the Case-Law of the Czech Constitutional Court and the ECtHR]. Jurisprudence. (2017, Vol. 26, No. 5), pp. 18-28. 6 See ibid., p. 25. 7 See SALAČ, Josef. Informovaný souhlas jako nástroj vyrovnání informačního deficitu ve vztahu lékař-pacient [Informed Consent as an Instrument of Equalizing the Information Asymmetry in the Physician-Patient Relationship]. Paneurópske právnické listy. (2019, Vol. 2, No. 1.) accessed 25 June 2020.

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