Maternal-Foetal Conflict Issues in Caesarean Section Refusal in Saudi Arabia in the Light of Saudi and Shariah Law

Abstract

Obstetricians may encounter challenges due to the unexpected nature of childbirth and a potential conflict of interests between the pregnant woman and her foetus. When a pregnant woman refuses to consent to a caesarean section that is necessary to prevent death to her foetus (referred to as a necessary caesarean section), the likelihood of such a conflict increases. Such a situation raises the possibility of a conflict between a pregnant woman’s legal right to autonomy, which includes her right to make her own decisions regarding her childbirth and her right to refuse medical intervention, and a foetus’ need to be born safely via a caesarean section and their legal right to life. This thesis examines the Saudi legal approach towards the possible maternal-foetal conflict in the context of maternal refusal of a necessary caesarean section. Saudi law grants a pregnant woman with capacity a legal right to autonomy in making her own treatment decisions, including her right to refuse a necessary caesarean section. However, the notion of autonomy in Shariah law, Saudi law’s supreme law, is restricted by an individual’s responsibility to comply with the Shariah provisions. Since causing death to the foetus is prohibited under Shariah law (and Saudi law), the thesis explores whether the religious-based direction placed on autonomy may offer scope for overriding maternal refusal to consent to a necessary caesarean section. Saudi law gives a foetus a legal right to life and to be protected from harmful actions. In light of this, the thesis examines how far the Saudi law on maternal refusal to consent to a necessary caesarean section maintains those rights. The thesis asks whether reform of the law in this regard is needed and whether an alternative approach for dealing with the maternal-foetal potential conflict in necessary caesarean section refusal cases can be developed from within Shariah law, the main source of law in Saudi Arabia. Due to the shortage of literature regarding the maternal refusal of necessary caesarean sections, the thesis includes an empirical element in the form of a short questionnaire to explore how the law is implemented in practice by obstetricians/gynaecologists. The empirical study also includes the question of whether participating doctors believe that Saudi law on necessary caesarean section refusals needs to be reformed. The conclusions reached in this thesis are as follows: (i) while the notion of autonomy in Islam does not accommodate a maternal refusal of a necessary caesarean section as such a decision is considered under Shariah law a sinful action, the thesis does not support the argument that justifies an overriding of such a refusal decision based on the restricted notion of autonomy; (ii) the thesis argues that a foetus’ legal right to life is not maintained in the current legal position of Saudi law regarding a maternal refusal of a necessary caesarean section; (iii) the thesis, hence, argues, based on doctrinal and empirical considerations, that reform of the law in this regard is needed; and (iv) the thesis shows that different approaches to the maternal refusal of a necessary caesarean section can be developed from within Shariah law. The thesis suggests that a ‘maxim-based’ approach through applying the Islamic legal maxim that severe harm is removed by lesser harm should be adopted for dealing with the possible maternal-foetal conflict in cases of maternal refusal of a necessary caesarean section.