Medical Law: Text, Cases, and Materials

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UK law and international commercial surrogacy: "the very antithesis of sensible"' (2016) 4 Journal of Medical Law and Ethics197-214.

When healthcare professionals tell patients that their risk of chronic pain is ‘small’, 82 or that their condition is ‘treatable’, they should not assume that their patients’ understanding of these words is the same as theirs. To a healthcare professional, ‘treatable’ may simply mean that there is some treatment available, while patients may hear that their condition can be cured. As Batten and others explain: Abortion: Medical Paternalism or Patient Autonomy?’ in Abortion: Whose Right? (Hodder and Stoughton, 2002) 1-15 Regulating Non-Invasive Prenatal Testing: the view from the UK' (2014) 50 Japanese Journal of Law and Political Science 9-19. Also available as an e-book with functionality, navigation features, and links that offer extra learning support Extensive past experience in consumer protection suggests that standard consumer ‘informed consent’ techniques fail. They are not read nor used, and they are beyond most people’s care or understanding… People do not pay attention to standard forms, neither long nor short, in plain language or in legalese, written or oral, separately signed or unified into one document, handed out in advance or ex post. 51

The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based on medical paternalism. They also point away from a model based on a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. 10 Like Lachlan, Lauren, another interviewee involved in a surrogacy arrangement in Australia, expressed a desire to pay her surrogate, and an anxiety about the ‘fuzzy’ definition of expenses in Australia: One response to the issues raised by overseas travel is to try to educate people about the implications of undertaking CBR, by providing information about clinical standards of care and the legal status of children born from such arrangements. Counsellors and patient support group representatives interviewed by Culley et al in the UK, for example, thought the only feasible response to reproductive travel is to educate people, and ensure that ‘they go into it with their eyes open and fully aware of the implications’. 52 The behavioral critique strikes EU consumer law at its heart, by questioning its preferred regulatory approach: the information paradigm, which has characterized EU consumer law since it came into existence. 47 What we might describe as the Montgomery model of informed consent assumes that, following information disclosure and discussions with their doctor, patients will understand the risks associated with treatment, and any alternatives to it, and will decide whether to proceed after having considered this information, in the light of their values. 70 In practice, however, there is evidence that medical decisions are not always made in this rational, linear way. Patients may not understand what they have been told, and the information they receive may have little impact upon their choices. This should not be surprising. If psychologists and behavioural economists are right about the limitations on human beings’ reasoning capacities and their decision-making biases, it would be peculiar if these had no impact at all in other decision-making contexts.

I think I just really liked the way — I think we have covered this off before as well, but the agency is very respectful to the surrogate in what they call the fourth trimester, meaning, dealing with her effectively and caring — in a caring way about the fact that — how’s she’s going to feel post separation after the birth. I think for us, it’s really important to have a sense that we’re doing the right thing and that we’re not exploiting anyone. One is I knew that technically by the law of New South Wales, we were breaking that law. [Another parent] kind of put my feelings in that regard at ease in saying "well, if they arrest you for it, they’re going to arrest hundreds of other people who have done exactly the same thing that you’re thinking of doing", which made me feel better about being more open about it. Jill Peay'Mental Health, Mental Disabilities and Crime' in A. Liebling, S. Maruna and L. McAra (eds) The Oxford Handbook of Criminology6th Editon, (2017) [FORTHCOMING]The Ambiguities of “Social” Egg Freezing and the Challenges of Informed Consent'(2018) 14 Biosocieties 21-40