A Mother on Trial—Best Interests and the Conflict of Maternal Instincts: Oxford University Hospitals NHS Foundation Trust and Z (by Her Litigation Friend, The Official Solicitor) [2020] EWCOP 20

• Published in: Medical law review 2021-10, Vol.29 (3), p.562-573
• Main Author: O’Connor, Dani M
• Format: Article
• Language: English
• Subjects: Capacity and disability; Learning disabilities; Legal status, laws, etc; Medical laws and legislation; Parents with disabilities; Pregnancy in women with disabilities; Women
• ISSN: 1464-3790; 1464-3790
• DOI: 10.1093/medlaw/fwab018

'Re Z' concerned the contentious issue of state intervention in pregnancy, and crossing the boundaries of the private sector to prioritise the interests of an unconceived child over the wishes of a mother. Pregnancy is predominately considered a personal issue of which the parents are in control. However, 'Re Z' established that should capacity be doubted, and health concerns arise, a person may be deprived of their ability or the possibility, to parent. In essence, this case questions whether parenthood can be controlled and whether the State has an obligation to dictate who can and who cannot parent. Whilst government agencies, such as social services, seek to monitor and maintain the welfare of children, 'Re Z' highlights that, if deemed necessary, the State will intervene prior to conception. Such action carries potentially dangerous and concerning consequences. Admittedly, it is a fine line to manage both the health of the parent and the welfare of the child, however, when conversation turns to controlling reproduction and barring certain people with disabilities from reproducing, questions over the right to equality arise. It is important to note that 'Re Z' is not a case concerning sterilisation, as the preventative measures taken could at some point be reversed. However, the principle and the outcome remain unchanged; a woman wanting to be a mother was prevented from doing so, based on a judgment believing it not to be in her best interests. This case commentary will examine the arguments against a finding of capacity and the subsequent reasoning of best interests, in order to determine whether a women's maternal instincts are given sufficient weight in the courtroom and, importantly, whether Z had a full and fair opportunity to fight her case.