By Gemma McKenzie.

In England a pregnant woman – like any adult with mental capacity – enjoys the rights to autonomy and bodily integrity. As a result, she can only be subjected to a medical intervention with her informed consent. The law does not consider a human fetus as a separate legal entity; therefore, a pregnant woman has the right to decline a medical intervention even if it would result in her death or the death of her unborn baby. The fallout of this is that antenatal care is voluntary, and women are under no legal obligation to give birth with doctors or midwives present. Consequently, although the law is clear on these points, policies regarding concealment of pregnancy raise ethical questions about whether these rights are understood and respected in medical and midwifery practice.

I explored this phenomenon in my study of women’s experiences of freebirthing in the UK. When women decided to give birth without medical or midwifery attendance, they may have had some, all or no antenatal care. In the interviews I carried out with sixteen freebirthing women, most did engage with antenatal services at some point. However, three women commented on their fear of getting “done” for concealment of pregnancy if they did not access maternity provision.

This raises two questions: are women under a legal obligation to inform healthcare professionals of their pregnancy status, and if they do not, is this a criminal offence? Given the rights outlined above, the law cannot – and does not – demand both the respect of a woman’s autonomy and her submission to medical authority; the two requirements simply cannot co-exist. Further, from a criminal law perspective, whilst there is no offence of concealment of pregnancy, there is an offence of concealment of birth. This requires a defendant to have secretly disposed of the body of a dead baby with the aim of concealing its birth. The salient point therefore, is that concealment of pregnancy and concealment of birth are two very different phenomena and only the latter is a criminal offence.

Returning to concealment of pregnancy, it is associated with crisis pregnancies. There is no accepted academic definition, but one often used is that it takes place when someone “through fear, ignorance or denial, does not accept, or is unaware of, the pregnancy in an appropriate way”. The concept aims to ensure vulnerable people can be recognized and supported.

In policy documents however, the definition used to describe concealment extends its academic reach, perverts the reality of the law and casts suspicion on all women who do not conform to expected standards of behaviour. One example appears in the Greater Manchester Safeguarding Policy:

A concealed pregnancy is when a woman knows she is pregnant but does not tell any health professional; or when she tells another professional but conceals the fact that she is not accessing antenatal care; or when a pregnant woman tells another person or persons and they conceal the fact from all health agencies. (para.2.1) (bold in original).

The implicit presumption in this policy is that all women are under an obligation to inform health carers when they are pregnant. This perceived obligation has no legal foundation. The policy also implies a duty on women to access antenatal care and if they do not access it, to inform a professional of their decision. Again however, the law imposes no such duty. When a woman does not act according to the policy, its wording suggests that she is engaging in suspicious behaviour.

A similar sentiment is seen in a policy from NHS Norfolk and Norwich University Trust which states that a concealed pregnancy “is one where the mother deliberately conceals the fact she is pregnant from health care professionals and sometimes their family as well” (p.2). The policy continues, stating specifically that if a freebirthing woman did not access antenatal care and then arrived at hospital in labour, she should be treated as if she had concealed her pregnancy (p.4-5). This would require an investigation into her circumstances and a safeguarding referral if the midwife considered it necessary (p.3).  Similar approaches are rife in child protection policies throughout the UK (see for example, Suffolk Safeguarding Partnership , Knowsley Safeguarding Children Partnership and  Cambridgeshire and Peterborough Safeguarding Partnership) with the decision not to inform medical staff of a pregnancy automatically being labelled with the emotive word “concealed.”

In none of these policies is it stated that maternity care is voluntary, nor that all people with mental capacity whether pregnant or not have the right to autonomy and bodily integrity. Whilst it is understood that there will be vulnerable people who have crisis pregnancies and who will require extra support, the very basic legal starting point is never elucidated. Further, as there is no legal obligation to access maternity services, ethical questions arise when women fear investigation if they fail to engage with those services. Policies such as those outlined above generate that fear and present health care staff and other professionals with a skewed view of the law.

In summary, there must be policy that outlines how to recognise vulnerable women with crisis pregnancies.  However, this must be presented in a way that respects mentally competent women’s rights to autonomy and bodily integrity. Achieving both can only be done with policy that is legally accurate and ethically sound.

Author: Gemma McKenzie

Affiliation: King’s College London

Competing interests: None declared

Social media: @Childbirth_UK Website: www.gemmamckenzie.co.uk