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Abstract

This thesis concerns the role of courts in decisions regarding perinatal intervention.
In particular, it examines the significance of jurisdiction to any determination a court
may be asked to make about the performance or non-performance of some proposed
intervention in the management of pregnancy and childbirth.
The central theme of the work is that any judicial involvement in perinatal decisionmaking
must be guided by the nature of, and operation of principle in, each of the
jurisdictions that the courts could be asked to exercise. Those jurisdictions include
the common law, statute, and the ancient parens patriae jurisdiction. It is contended
that the exercise of each of those jurisdictions has a different scope and is governed
by different sets of principles.
An important premise is that the legal status accorded to a foetus, whilst relevant, is
not necessarily determinative of any particular outcome. The analysis of each
jurisdiction includes consideration of when, and to what extent, foetal status is
relevant.
Since the nature of the interests concerned are fundamental, and since decisions in this
area evoke such strong emotional and moral responses, it is critical that any legal
response be principled and informed. This work aims to identify the relevant
decision-making constructs at play in each jurisdiction and to illustrate the application
of those constructs to decisions about perinatal intervention. The thesis is a
conceptual legal analysis of the considerations and limitations relevant to the exercise of each jurisdiction, and how each responds to the issues raised in the context of
perinatal care.
The focus of the analysis is on Australian law, although as a British common law
jurisdiction that position is influenced by persuasive common law jurisdictions, that
influence being reflected in the analysis. Equally, this work will have relevance to
common law jurisdictions beyond Australia.

Item Type:	Thesis - PhD
Authors/Creators:	McGivern, B
Additional Information:	Copyright the Author
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