Louise Austin and Sheelagh McGuinness

Our recent article in the Northern Ireland Legal Quarterly arose out of research conducted as part of the Death Before Birth (DBB) Project.[1] The DBB research examined the extent to which Human Tissue Authority (HTA) guidance on disposal of pregnancy remains[2] has been incorporated into hospital policies.[3] The guidance sets out different options for disposing of pregnancy remains and requires that women are informed of all options before their consent to disposal is sought. However, the DBB research revealed a wide variation between hospital trusts as to which options were offered, with women who miscarried at home often being excluded from information about disposal even when they had sought medical advice.[4]

This variation and exclusion arose from the lack of a mandatory legal obligation to seek consent to disposal of pregnancy remains. Pregnancy remains are regarded as the woman’s tissue. The HTA has a statutory function to regulate those who remove, store, or use human tissue through a system of licensing and inspection. Disposal of human tissue, however, is not subject to the same statutory rules as removal, storage, and use – ie consent to the specific disposal practice is not required. As a consequence, the extent to which women receive information on the different disposal options available varies according to the hospital attended or, if she miscarries at home, where advice is sought. Following a request from the Chief Medical Officer in 2014, the HTA produced guidance on disposal of pre-24-week pregnancy remains with a view to improving consistency of practices across hospitals. The DBB research revealed that these differences impact women in different ways leading to confusion as to what options are available, or affecting the grieving process when women later discover other options were available for disposal which they were not made aware of.

Our article explores how Montgomery v Lanarkshire Health Board – the leading case on informed consent to medical treatment – can be used to overcome this gap and to ensure women (including those miscarrying at home) are fully informed about the disposal options available. In setting out this argument, the article makes three key points.

Firstly, we endorse a feminist, person-centred approach to understanding pregnancy loss which allows for the recognition and acknowledgment of the range of views different people may have towards pregnancy loss. Such an approach is consistent with the patient-centred approach to healthcare endorsed in Montgomery.

Secondly, drawing upon the approach to informed consent to medical treatment outlined in Montgomery, explanations of the different options available for the management of miscarriage should include a discussion of the different methods available for disposal of the pregnancy remains after miscarriage. Such information forms part of ensuring the pregnant person knows what to expect from the different management options available, and the choice of miscarriage management may impact the disposal options available.

Finally, the article proposes ways in which consistency of information provision in the context of disposal of pregnancy remains could be achieved through the provision of standardised policies, information leaflets and consent forms.

Miscarriage has been and remains an area of cultural silence which has impacted the healthcare people experiencing miscarriage receive. Failing to address the disposal of pregnancy remains can have a negative psychological effect on people experiencing miscarriage. This article seeks to contribute to the improvement of miscarriage healthcare by providing a clear legal foundation to overcome the gap in the legal requirement for information provision about disposal of pregnancy remains when reproductive loss occurs.

Notes

[1] Information can be found on the DBB Project website. 

[2] Human Tissue Authority, Guidance on Remains: The disposal of pregnancy remains following pregnancy loss or termination (March 2015).

[3] Sheelagh McGuinness and Karolina Kuberska, Report to the Human Tissue Authority on Disposal pf Pregnancy Remains (less than 24 weeks’ gestational stage) (2017) (Project Reference: ES/N008359/1).

[4] Ibid.