Pregnant with meaning: a Foucauldian analysis of foetal harm cases

Abstract

This thesis explores the conventional problem of maternal-foetal conflict as it has arisen in cases of foetal harm in Canada, the United States, England and New Zealand. The examination of these judgments is undertaken by using philosopher Michel Foucault's notion of the "medical gaze" and physician Howard Brody's work on power in the clinical setting as analytical tools.

By viewing the obstetric arena through the lens of the Foucauldian medical gaze it becomes apparent that a silent pregnant body is created when Courts uncritically rely on clinical evidence, presented to them by medical experts, to determine the outcome of a particular case. Although, Brody's understanding of the healer's power can account for why expert medical opinion in general holds so much sway in determining legal judgments, it cannot necessarily account for why the Courts would choose one expert testimony over another when the experts appear to occupy equal positions on the hierarchical clinical ladder.

Foucault's understanding of the medical gaze also reveals that the traditional problem of maternal-foetal conflict is created by viewing the obstetric world in a particular way. The conflict between the pregnant woman and her unborn child does not necessarily exist. Many of the superior Courts do not view this relationship in this adversarial light and thus the conflict is not necessarily brought into existence. Viewing the obstetric world through the lens of the "narrative gaze" reveals that the conflict is not between the pregnant woman and her unborn child but between the pregnant woman and the medical establishment.

Four general conclusions are arrived at in this thesis: 1) Foucault's understanding of the medical gaze is a useful tool for analysing cases of foetal harm even though physicians may not actually perceive the clinical world in this manner; 2) when Courts rely solely on medical evidence to determine the outcome of a particular case the "audible" pregnant body is excluded; 3) the use of the pregnant woman's narrative by superior Courts to gather facts about a particular pregnancy or childbirth proves valuable; 4) when medical professionals use adversarial terminology, such as "maternal-foetal conflict", to describe the relationship a pregnant woman has with her unborn child a conflict is created where one may not necessarily exist in the first place.