The relationship a consumer has with a retailer will almost always be less intimate and trusting than the doctor–patient relationship. Not only are doctors in a relationship of trust with their patients, they are also under a professional duty to make the care of their patient their first concern. 18 It is unusual for a retailer to be under a duty to question a consumer’s choices, 19 whereas a healthcare professional should query a patient’s decision, if it seems to be at odds with her previously expressed wishes. 20 In Mordel v Royal Berkshire NHS Foundation Trust, 21 for example, Ms Mordel had initially decided to undergo all six standard prenatal screening tests, but then answered ‘no’ when asked whether she wanted the test for Down’s syndrome. Jay J found that the sonographer had been negligent in failing to question whether Ms Mordel, whose English was not perfect, had understood the question, given that it contradicted her earlier choice. Feminists have long been interested in how men and women's uneven reproductive roles have influenced their relative status in society. Women's place in the home, workforce and civil society has been directly traced to the biological fact that it is women and not men that have babies. 1 I cannot improve upon the description given by Hale L.J., as she then was, in Parkinson v. St James and Seacroft University Hospital NHS Trust, 2 of the sheer hard work involved in pregnancy, childbirth and in being a mother: Jill Peay'An awkward fit: offenders with mental disabilities in a system of criminal justice' in M. Bosworth. C. Hoyle and L.Zedner (eds) (2016) Changing Contours of Criminal Justice: Research, Politics and Policy(Oxford: OUP, 2016) In Montgomery v Lanarkshire Health Board ( Montgomery), 1 Lords Kerr and Reed referred to the increasing tendency to treat patients ‘as consumers exercising choices’. The question of whether it is helpful to regard patients as consumers is not a new one, but it arises most frequently in discussions about the commercialisation of healthcare. 2 Comparing patients with consumers in relation to informed consent, as the UK Supreme Court did in Montgomery, is an interesting development. The purpose of this article is to explore this comparison, in the light of the growing body of contract and consumer law scholarship which questions the extent to which information disclosures to consumers produce informed choices.

DIY Abortion and Harm Reduction' in G Laurie and P Ferguson (eds) Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean (Ashgate, 2015) 25-36 Thirdly, the purpose of pre-contractual disclosures may be different from medical disclosures in two important ways. First, although, as Howells points out, ‘regulatory policy is no longer fixated with the idea of a malevolent trader trying to con consumers but, rather, focuses on the asymmetries of information between trader and consumer’, 33 retailers are nevertheless trying to sell their products and services to consumers. If retailers are under an obligation to disclose certain information to potential consumers, they may deliberately include it in their ‘small print’ terms and conditions, which they know are seldom read. 34

Medical Law: Text, Cases, and Materials (6th edn)

According to Loewenstein and others, and with obvious resonance for patients as well as consumers, there are ‘serious limitations on the amount of information to which people can attend at any point in time. Bounded attention renders many disclosures useless because consumers ignore them.’ 52 Too much information can be as much of an obstacle to informed choice as too little. 53 With Huseyin Naci et al ‘Generating comparative evidence on new drugs and devices before approval’ (2020) 395 The Lancet 986-997. Patients’ ‘pathologies of reasoning’ 85 are not confined to over-optimism. As King and Moulton explain, patient comprehension may also be affected by ‘availability bias’, where patients ‘overestimate their risk of contracting a condition that receives substantial media coverage, such as breast cancer’; ‘compression bias’, which involves ‘patients overestimating small risks and underestimating large ones’; ‘small numbers bias’ where patients ‘misinterpret their individual risk based on a small number of known cases (my two friends both had complications after their hysterectomies, so I probably will too)’; and ‘miscalibration bias’ which involves patients being ‘overly confident about the extent or accuracy of their knowledge’. 86 In contrast, a common theme among our interviewees is a rejection of the assumption that altruistic surrogacy is morally superior to commercial surrogacy because there are fewer financial incentives. Indeed, it was noted that there are aspects of altruistic surrogacy that might be described as coercive. For example, Beth had undergone a radical hysterectomy as part of her treatment for cervical cancer and, after an unsuccessful surrogacy arrangement in Australia, she travelled to California for an arrangement involving an egg donor and a surrogate mother. Beth found the assistance of the agency in California to be vital to the whole process. She was strongly critical of the Australian system and did not accept that altruistic surrogacy was less coercive than the commercial arrangements available in California: Some participants were also clear that they valued the service provision of commercial providers, not only to themselves, but also to the surrogate or egg donor. Gerry, who had used a surrogacy agency in Canada said:

Because ‘the adoption of information obligations for traders is a measure that intrudes upon the freedom of the marketplace and party autonomy only to a small extent’, 42 ‘“empowering” consumers through information has become a singularly important element in the regulatory toolbox’. 43

Some reported that fertility doctors were unwilling to provide any form of information at all. Dian, for instance, said: Like Lachlan, Lauren, another interviewee involved in a surrogacy arrangement in Australia, expressed a desire to pay her surrogate, and an anxiety about the ‘fuzzy’ definition of expenses in Australia: Medical Lawwas awarded first prize in the British Medical Association's ‘Basis of Medicine’ Book Awards, 2017. Essentially then, legal advice is ‘almost pointless’ for an unviable contract, which nevertheless is capable of going some way to protect the rights and liabilities of the parties throughout the arrangement. Then [my partner] Wayne mentioned the word—the phrase ‘commercial surrogacy’. At that point Dr C said ‘no’. He just doesn’t want to know anything about it. He said don’t talk to me about that. It’s illegal, it’s—basically, the door was shut at that point here in Australia.