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Personhood and property in the jurisprudence of pregnancy

Ford, Mary 2005. Personhood and property in the jurisprudence of pregnancy. PhD Thesis, Cardiff University.

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Abstract

Courts in the United Kingdom currently employ a conflict model of adjudicating maternal/foetal issues. This thesis aims to expose the inadequacy of the current model, to evaluate alternative approaches, and ultimately to propose a property-based model of adjudicating pregnancy. I begin by surveying some of the case-law under the conflict model and discussing the model's shortcomings. On the practical level, the conflict model leads to negative perceptions of pregnant women, fails to reflect the realities of pregnancy, and embodies legal and logical inconsistencies. On the theoretical level, problems arise from the model's necessary characterisation of the foetus as a 'sentient non-person'. This is problematic for two reasons, which are explored in chapters two and three respectively: first, because the sentience of the foetus is a matter of controversy second, because the concept of personhood is deeply flawed and is anyway incapable of functioning as a determinant of moral status. Later I review an alternative to the conflict model which has been proposed by Eileen L McDonagh: her 'consent model' of pregnancy which characterises pregnancy as an 'intrusion' by the foetus upon the body of the mother and views the right to terminate pregnancy as a right of 'self-defence' against this intrusion. I conclude that McDonagh's thesis fails, ultimately, to provide a satisfactory alternative to the conflict model. My own alternative to the conflict model, developed in chapter five, proposes a departure from the metaphysical language of personhood and moral status, and a focus on the legal framework of property as a method of adjudicating maternal / foetal issues.

Item Type: Thesis (PhD)
Status: Unpublished
Schools: Law
Subjects: K Law > K Law (General)
ISBN: 9781303201462
Date of First Compliant Deposit: 30 March 2016
Last Modified: 10 Oct 2017 15:24
URI: http://orca.cf.ac.uk/id/eprint/54554

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