Hospitality and Maternal Consent

Abstract

'Law is not justice. Law is the element of calculation, and it is just that there be law, but justice is incalculable, it demands that one calculate with the incalculable; and aporetic experiences are the experiences, as improbable as they are necessary, of justice, that is to say of moments in which the decision between just and unjust is never insured by a rule' (Derrida 2010: 244). There is a growing literature outlining deep concerns that a woman's basic right to give informed consent and, consequently, the capacity to determine what happens to her body, that is, herself, in the course of her own medical care, is being compromised. Covering a range of jurisdictions, but in particular reflecting on the US situation, concerns range from a perceived extortion of consent from uninformed and often unwilling women (Baker 2009-2010), to accusations of the perpetuation of violence against women by the obstetric profession as a whole (Charles 2011), and, in some cases, obstetricians and hospitals are choosing to request court orders to perform medical interventions that override an autonomous women's informed consent on the basis of a growing conception of 'foetal rights'. These moral rights are situated as being in perceived conflict with a woman's legal right to decide what happens to her body and, increasingly, there is medical and political pressure being bought to bear upon the law to attend to this moral dilemma in a range of cases.