Maternal-Foetal Conflict Issues in Caesarean Section Refusal in Saudi Arabia in the Light of Saudi and Shariah Law
Creators: name: Alsheddi, Alhanoof
Publisher: name: Lancaster University
Year: 2024

description: 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.