Family Judge Intervenes to Protect Unborn Child of HIV-Positive Mother

In rare and exceptional cases, family courts have to intervene to protect the welfare of children even before they are brought into the world. A judge did just that in the case of a baby boy who was at high risk of being born HIV positive.

The boy's mother, who was 37 weeks pregnant with him, was infected with the virus during her childhood. She declined anti-retroviral treatment during her pregnancy in the firm belief that he would escape infection and that such treatment would not be good for him. She said that she had lived a normal life without treatment and had controlled her condition by adopting a good diet and taking vitamins.

However, doctors in charge of her case took the view that her baby was very likely to be born with HIV. The day before she was due to undergo a planned caesarean delivery, the NHS trust responsible for her care sought a judicial declaration that it would be lawful to give her baby anti-retroviral drugs immediately after his birth. The prospects of such treatment succeeding critically depended on it being commenced within four hours of his delivery.

Ruling on the matter, the judge noted that the mother was one of a cohort of children infected with the virus overseas during a programme of routine childhood vaccination that must have involved infected needles. In those circumstances, it was not difficult to see why she might have a pervasive distrust of medical advice. Her anxieties concerning treatment were deep-rooted and pervasive.

On the sole occasion when she underwent anti-retroviral treatment herself, she felt very unwell, enduring vomiting and dizziness. There was no doubt that she wanted the best for her baby and the Family Court emphasised that her objection to medication should not be construed otherwise. During her pregnancy, she had prevaricated as to whether to accept treatment. She had repeatedly attended hospital, apparently prepared to comply with medication, before changing her mind.

Granting the declaration sought, the Court noted that it was certainly not possible to be confident that she would cooperate with her baby's proposed treatment following his birth. It was beyond argument that such treatment offered him the best hope of avoiding infection. Although HIV is happily not the death sentence it once was, the fact that the boy might be able to live with HIV did not mean that he should. Treating doctors viewed his treatment in the immediate post-natal period as imperative and the Court had no doubt that it would be in his best interests.

The case had a happy ending in that, following his ruling, the judge was informed that the boy's birth went well and that his mother had complied with anti-retroviral medication prior to the caesarean. She and the boy's father had expressed clear consent to his proposed treatment. The judge congratulated the couple on the birth of their son.