Foetal patients, surgeons, and medical negligence: An insight for a new legislation

Abstract

Foetal interventions are the direct result of developments in the field of medicine. The scientific advancements opened the way for pregnant women to select the treatment of the foetus ‘in utero’. This is an option available when the pregnant woman is reluctant to terminate the pregnancy on the grounds of congenital abnormalities of the foetus. Further, treatment of the foetus is considered a psychological relief to pregnant women who otherwise had to wait until the birth of the child to remedy the defects. The predominant method of treatment of the foetus is ‘foetal surgery’ which facilitates the treatment of the foetus in the womb. This demarcates the treatment of the fatal conditions of the foetus through invasive procedures or open surgery. The problem that arises in this context is whether the foetal surgeons exercise a medical duty of care towards the foetus. The problem is aggravated when the viable foetuses become patients as such patients have the potential to survive outside the womb (ex-utero) irrespective of the destruction of the life of the mother. Medical negligence and a course of action for medical malpractice litigation are established only upon the proof of the existence of a medical duty of care and the breach of it. This paper aims to provide insight into legislation on the medical negligence of surgeons performing surgeries on foetuses. The methodology adopted in the paper is qualitative in nature and a comparative legal analysis with the jurisdiction of the United States of America (USA). The paper's conclusion holds that foetal surgeons legally undertake to act for the benefit of foetal patients and have an obligation to avoid negligence.