OPINION: by Tim CannonNews Weekly
Doctor sued over unplanned second child
, October 13, 2007
Our laws don't always equate with justice, argues Tim Cannon.The recent case of a lesbian mother suing over the birth of an unintended second child (Canberra Times, September 18, 2007) points to a problem which is deeply ingrained in contemporary society, namely the dissonant relationship between humanity and the cold, mechanical systems which govern human existence.
It is a strange and reciprocal relationship: we create and utilise systems in order to achieve desired outcomes, and yet the systems inevitably end up influencing our behaviour. Economic systems, for example, moderate our spending habits; technological infrastructure affects the ways in which we communicate; and legal frameworks colour the way we conduct ourselves in society.Unwanted?
The impact of such frameworks on human behaviour is not always positive, as the aforementioned case of the unwanted second child makes patently clear. Seeking medically-assisted conception through IVF, the mother wanted one child. The embryologist implanted two embryos, both of which proceeded to gestation. The mother has subsequently sued for the cost of raising the unintended and unwanted second child.
There has been no shortage of alarm at the perceived callousness of the mother's response. A recent Sydney Morning Herald
article reported a call by Australian Medical Association ACT president Andrew Foote to change ACT law in such a way that would "enshrine the principle that a healthy baby is not a loss", as has been done in other states (SMH
, September 25).
In response, ACT Chief Minister Jon Stanhope defended the legal action by the mother of the unwanted child, saying: "We are talking about … the right to sue in an instance where one has actually invested one's trust in a professional, a doctor, to prevent or provide a service, and for that duty of care not to have been met."
Apart from highlighting the fact that, as a society, we have become far too flippant about when, how and why we create human life, the two responses represent the very dissonance to which I referred earlier. According to the letter of the law, Stanhope cannot be faulted. The doctor, in performing a service, has most certainly neglected his duty of care.
And yet, one cannot help feeling that a case such as this is exceptional, because it concerns a child, another human, who should not be objectified. (This, of course, takes the rather immense ideological liberty of assuming that a child - or any human for that matter - should not be objectified.)
If this were a case of a doctor accidentally grafting two noses
onto the face of a crash-victim instead of the customary one
, we could understand a legal suit suing for the ongoing medical and social costs associated with living a two-nosed life. But in such a case, one always has recourse to discarding the unwanted nose. Not so with a child.
The recipient of an additional child is suddenly burdened with the terrifying prospect of duty. There is now an other
to whom an ongoing responsibility is owed. And unlike the doctor's duty of care, which is conditional in this case upon his being commercially engaged by the patient, a mother's duty of care to a baby is unlimited and unconditional.
Foote and Stanhope's contrasting responses to the case represent two very different worldviews. One is legalistic, uncompromising, and utterly convincing in theory
. The other is idealistic, disruptive and often highly emotional. The question is, which is the better of the two?
Structures, frameworks and systems tend to be rigid and uncompromising. They do not readily accommodate considerations of "human-ness". It is a problem with which workplaces have grappled throughout history, and particularly since the dawn of the industrial age. Men and women constitute human capital, but they cannot be treated like machines. Machines do not have families to care for, or emotional and social natures which must be taken into account. Workplace systems which fail to recognise the qualitative difference between human capital and other factors of production in theory
invariably court failure in practice
But the dissonance between human-ness and procedural structures and systems seems most obvious when it involves the most vulnerable, especially babies.
King Solomon of the Old Testament faced the very same problem when asked to arbitrate a dispute between two women regarding which of them was the mother of a baby. Each woman had a convincing case, so Solomon's solution was to call for the baby to be cut in two, with each woman receiving half.
While one of the women accepted this as a just outcome, the other woman preferred to give up the baby in order to save its life, and her compassion, which indicated that she was truly the baby's mother, convinced Solomon to award custody of the child to her.
Back in the ACT, Chief Minister Stanhope seems more committed to legal procedure than child welfare. "Let's thrash [the legal] principle out," he says, "rather than get into this 'Oh, you don't love children as much as I do' nonsense that [AMA ACT President] Dr Foote is going on about."
Were the Old Testament to tell the story of King Stanhope, one suspects the women may well have been presented with half a baby each. After all, justice is justice.-- Tim Cannon works as a research officer with the Thomas More Centre, Melbourne.