FEMINIST PERSPECTIVES ON HEALTH CARE LAW
CP Cavendish Publishing Limited
London • Sydney
FEMINIST PERSPECTIVES ON HEALTH CARE LAW
Edited by Sally Sheldon and Michael Thomson both of the Law Department, Keele University
CP Cavendish Publishing Limited
London • Sydney
First published in 1998 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom. Telephone: 44 (0) 171 278 8000 Facsimile: 44 (0) 171 278 8080 E-mail:
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© Cavendish Publishing 1998
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Sheldon, Sally Feminist perspectives on health care law. – (Feminist perspectives on law) 1. Medical laws and legislation – Great Britain 2. Feminist jurisprudence – Great Britain I. Title II. Thomson, Michael 344.4’1’041’082
ISBN 1 85941 397 8
Printed and bound in Great Britain
SERIES EDITORS’ PREFACE Anne Bottomley and Sally Sheldon
This book is the first in a series of collections which gather together feminist perspectives on different areas of the law curriculum. There is now a large and ever-expanding body of literature on feminist perspectives on law. Many law departments teach courses under the title of ‘women and law’, ‘gender and law’, ‘feminist perspectives on law’ or (more adventurously) ‘body politics and law’. The task which has inspired this series of books is to explore the contribution which feminists could make to an understanding of the foundational subjects of law and other popular optional subjects – to break out of the ghetto of the discrete third year option and infiltrate the mainstream of the law curriculum. This refusal of ‘ghettoisation’ is also relevant within disciplines. For that reason, a scan down the contents list of this book might bring some surprises. Whilst this volume includes new perspectives on the kinds of subjects which have been of interest to feminists for some time, these sit alongside subjects which are terra (relatively) incognita including: administrative law, medical research, confidentiality, medical negligence, and death and dying. In all these cases, it is shown that a feminist perspective has something new to say. Moreover, the contributors to this volume would argue that feminism should not only be of interest to women. Rather, the lawyer who ignores the feminist critique will consequently have an impoverished understanding of the legal situation as it concerns both women and men. The series editors would like to thank Cavendish Publishing for their support in producing this project and all our colleagues, in our own institutions and elsewhere, who have given us such encouragement and help in this project.
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FOREWORD IS THE PATIENT POSITION INEVITABLY FEMALE? Katherine O’Donovan Feminist jurisprudence has altered the way in which some traditional areas of the legal curriculum are researched, taught and understood. Can it do the same for health care law? The essays in this collection suggest that the answer is yes. This answer is not confined to the ‘reproductive ghetto’,1 that is to issues of gender and physical differences, of particular female conditions, of uteri and ovaries. Broader issues of methodology, the constitu