That ruling, by the Court of Appeal yesterday, makes it clear that a foetus has no greater rights than those of its mother and that the medical profession should only turn to the courts for permission to operate without consent where the woman lacks the capacity to decide for herself.
While Miss MB, the woman involved in the case, lost her appeal, the guidance was viewed as a potential brake on the eagerness of doctors to resort to the courts in the face of a woman's refusal to undergo an unwanted caesarean, and on the willingness of judges to authorise non-consensual surgery.
Future cases, however, will still turn heavily on whether individual women in the final stages of pregnancy are judged "competent" to withhold consent or not.
The judges were giving their reasons for deciding at a late-night emergency hearing five weeks ago that doctors could carry out necessary treatment, using any "reasonable force" necessary, on Miss MB, whose baby was in the footling breech position. Lady Justice Butler-Sloss and Lords Justice Saville and Ward decided against her on the facts of her case because she had refused at the last minute to have her baby by caesarean when suffering temporary mental incompetence caused by needle phobia.
The fear of needles, which caused her to refuse an anaesthetic, dominated her thinking and made her incapable of making a decision, the judges said.
Beverley Lawrence Beech, chairman of the Association for Improvements in the Maternity Services, castigated a "gagging" order which bans identification of the hospital, health authority and doctors involved in the case as well as the mother and child. She said: "Women need to know which hospital was involved, and which consultant."
The appeal court, however, overruled two earlier statements by senior judges. Lord Donaldson, former Master of the Rolls, had been wrong to suggest in a 1992 case that the death of a viable foetus might be a valid consideration in deciding a dispute over medical treatment when this had never been sanctioned by Parliament, and Sir Stephen Brown, the President of the Family Division, wrongly allowed "the interest of the foetus" to prevail in a later case the same year, they said.Reuse content