Multiple pregnancy: legal and ethical issues

Multiple pregnancy is increasingly considered a complication of in vitro fertilization (IVF) and ovarian stimulation for natural fertilization. Harms to fetuses, newborn and older children, mothers, families, and healthcare systems are encouraging single embryo transfer. When patients knowingly accept multiple pregnancy risks from IVF or ovarian stimulation, they are unlikely to succeed in litigation against healthcare providers for wrongful pregnancy or wrongful birth. More challenging are impaired children's claims for "wrongful life." These are unlikely to succeed against parents, but courts are ambivalent to claims against healthcare providers. Historically, courts rejected these claims, under the principle that live birth is not a legal injury. European and other courts, however, have been more sympathetic to these claims. Multiple pregnancy treated by fetal reduction is not usually found to offend abortion laws. This poses ethical concerns, however, of "lifeboat ethics," involving how fetal reduction choices are made.     

The legal effects of fetal monitoring guidelines

The new American College of Obstetricians and Gynecologists’ (ACOG) monitoring guidelines introduce a new category of interpretation of fetal heart rate tracings between reassuring and nonreassuring, namely intermediate. The purpose is to reduce unnecessary cesarean deliveries. The legal role of medical guidelines is ambivalent. Providers are expected to be familiar with such guidelines, but also to exercise clinical judgment in their patients’ interests. Practice departing from guidelines requires justification, but simple compliance without regard to patients’ circumstances may constitute negligence. Some courts defer to medical professional guidelines, but others hold that professional standards are set as a matter of law, not by the profession itself. Unlike conclusions in medical science, which are open to continuing review, courts determine facts in a case only once, at trial. Litigation to compel patients’ compliance with medical advice based on guidelines may fail, as may prosecutions, more common in the US, of patients who defy such advice.     

Provider "conscience" questions re-emerge in wake of managed care's explosion

This review of conscience-clause legislation opens by noting that in the first years after the US Supreme Court issued its decisions that protected abortion rights, more than half of the states and the federal government adopted provisions permitting individuals and some medical facilities to invoke religious, ethical, or moral objections as a reason to decline to perform certain procedures. After a period of dormancy, 4 states considered conscience clauses in 1997, with 2 of these adopting provisions. While the emergence of managed care conglomerates, some of which merged religious and secular institutions, raises new questions about this issue, the fact that informed consent requires that a patient understand all treatment options has not changed. Abortion-related laws are on the books in 42 states that have conscience clauses covering individuals and facilities, and 4 states with clauses covering only individuals. A table illustrates whether specific state laws covering individuals apply to participation and/or information dissemination, are limited to religious/moral objections, and/or require notification; and whether other state laws apply to all or only private facilities, to participation and/or information provision, and/or require notification. Legislation applying to contraceptive service and/or information provision is on the books in 13 states and applies to individuals in 5 states, public employees in 7, and medical facilities in 6. Sterilization-specific laws exist in 11 states, 10 of which have statutes applying to individuals and 10 to facilities. A table illustrates the range of legislation covering contraceptive services and sterilization. The review ends by analyzing which state laws cover managed care explicitly or implicitly and by noting the reemergence of conscience-clause issues on the federal level.     

Refusal to consent: Can it be ignored?

The common law has long recognised the right of competent adults to autonomy and self determination and this has been held to apply to the right to refuse medical and surgical treatment even when refusal could lead to severe detriment to the individual's life and health.Those who work with patients in a health profession can be faced with a refusal to consent to treatment when the best clinical opinion is that the treatment is appropriate and necessary, and considered to be in the patient's best interests. There have been no clear guidelines which health professionals can follow in deciding to treat or not treat in the presence of a patient's refusal. Where the patient continues to be competent there is an opportunity to take the matter up again with him or her as circumstances change However, when the patient loses competence, a clinical dilemma arises.There are documented legal cases in which courts have authorised treatment of competent adults even when they have refused or are refusing treatment. Some of these cases involve saving the life of an unborn child. The question which arises is whether different principles apply when an unborn child is involved.To date most of the cases have been heard in North American courts. However, there have been two recent cases in England where courts have authorised treatment without consent when the subjects have apparently had the capacity to make a decision to refuse treatment. These two cases must be contrasted with a Canadian decision in which a doctor was ordered to compensate a woman for administering a blood transfusion to her at a time she was incompetent to consent to treatment and he had written notice that she was against being the recipient of a blood transfusion in any circumstances.The purpose of this article is to discuss the relevant cases and to draw some conclusions from their outcomes.     

Yes we can! Successful examples of disallowing ‘conscientious objection’ in reproductive health care

Reproductive health care is the only field in medicine where health care professionals (HCPs) are allowed to limit a patient’s access to a legal medical treatment – usually abortion or contraception?– by citing their ‘freedom of conscience.’ However, the authors’ position is that ‘conscientious objection’ (‘CO’) in reproductive health care should be called dishonourable disobedience because it violates medical ethics and the right to lawful health care, and should therefore be disallowed. Three countries – Sweden, Finland, and Iceland – do not generally permit HCPs in the public health care system to refuse to perform a legal medical service for reasons of ‘CO’ when the service is part of their professional duties. The purpose of investigating the laws and experiences of these countries was to show that disallowing ‘CO’ is workable and beneficial. It facilitates good access to reproductive health services because it reduces barriers and delays. Other benefits include the prioritisation of evidence-based medicine, rational arguments, and democratic laws over faith-based refusals. Most notably, disallowing ‘CO’ protects women’s basic human rights, avoiding both discrimination and harms to health. Finally, holding HCPs accountable for their professional obligations to patients does not result in negative impacts. Almost all HCPs and medical students in Sweden, Finland, and Iceland who object to abortion or contraception are able to find work in another field of medicine. The key to successfully disallowing ‘CO’ is a country’s strong prior acceptance of women’s civil rights, including their right to health care.     

Management of menstrual problems and contraception in adolescents with mental retardation: a medical, legal, and ethical review with new suggested guidelines

The controversial history of the reproductive rights of the mentally retarded has led to the formulation of laws in the past century designed to protect women from forced sterilization. Significantly, however, in their official ethical guidelines, The American College of Obstetricians and Gynecologists states that "sterilization should not be denied to individuals simply because they also may be vulnerable to coercion" (Int J Gynaecol Obstet 1999; 65:317). Recent advances in medical and surgical methods of contraception and control of menstrual abnormalities have led to a re-evaluation of the management of adolescents with special needs. Physicians, the courts, parents, and caretakers need to be aware of the latest medical and surgical options available, the current applicable laws in each state if such exist, and the ethical guidelines to determine what treatment option is in the best interests of the patient. This review examines the history of the sterilization of the mentally retarded, the latest surgical and pharmacologic treatments available, and the current legal environment and proposes an algorithm to facilitate the management of menstrual hygiene and contraception.     

Human in vitro fertilization and the law

Physicians who intend to perform in vitro fertilization--or the newer alternative, in vivo fertilization and embryo transfer--should be aware of the plethora of laws that potentially cover their work. In perhaps no other area of medicine are there so many separate statutes and regulations that potentially apply. State fetal research laws, abortion statutes, human subject protection laws, and specific in vitro fertilization statutes can determine whether and how the procedure can be undertaken. When donor gametes or a surrogate carrier is used, additional laws governing artificial insemination, paternity, or adoption may come into play to determine the child's legal status and its relationship to the parties involved. This article is designed to guide physicians through the legal maze.     

Midwifery negligence: A case study

A professional health practitioner can be found in law to be liable to compensate clients when the practitioner causes harm to the client through a negligent act or omission. To date, most health-related litigation has been directed toward the medical profession. A minority of cases are taken against health institutions with respect to nursing and midwifery practice. In recent years there have been a few cases in England in which midwifery practice has been an issue. The purpose of this article is to report on one such case. It is important for all midwifery practitioners to be aware of the facts and circumstances in which midwives have been found to be negligent, and the way in which the courts have dealt with the matters in dispute.     

Achieving transparency in implementing abortion laws.

National and international courts and tribunals are increasingly ruling that although states may aim to deter unlawful abortion by criminal penalties, they bear a parallel duty to inform physicians and patients of when abortion is lawful. The fear is that women are unjustly denied safe medical procedures to which they are legally entitled, because without such information physicians are deterred from involvement. With particular attention to the European Court of Human Rights, the UN Human Rights Committee, the Constitutional Court of Colombia, the Northern Ireland Court of Appeal, and the US Supreme Court, decisions are explained that show the responsibility of states to make rights to legal abortion transparent. Litigants are persuading judges to apply rights to reproductive health and human rights to require states' explanations of when abortion is lawful, and governments are increasingly inspired to publicize regulations or guidelines on when abortion will attract neither police nor prosecutors' scrutiny.     

Menstrual therapies in commonwealth Asian law

This review of the application of abortion laws confines itself to the 900 million people--20% of the world's population--who live under the commonlaw tradition of the British Commonwealth. One of the historic ties to the British Commonwealth is the commonlaw tradition, which is reflected in reference to common leading cases and approaches taken to case precedents. There are 2 Commonwealth legal traditions concerning penal legislation, and they differ on an issue of major significance regarding abortion. Under English law, acting with the intention to procure an abortion whether a woman is pregnant or not is a crime. In Asian Commonwealth jurisdictions, and Pakistan, menstrual therapies are not as restricted as they may be in England. Menstrual therapy, a generic term, describes medical and surgical procedures performed on the uterus for diagnostic and therapeutic indications. This includes menstrual aspiration and the use of drugs as well as the more traditional dilatation and curettage. Diagnostic biopsy of the uterine lining may be indicated upon a variety of clinical grounds, including apparent infertility, dysfunctional bleeding, and suspected uterine cancer. Treatment of incomplete abortion is a common medical procedure and involves the operator in no liability under abortion laws. Uterine evacuation initiated for purposes of abortion in a woman known to be pregnant must conform to the abortion law of the jurisdiction, but some procedures will be undertaken before pregnancy can be diagnosed by the routinely available methods. A woman may occupy 1 of 3 positions: 1) she may clearly be pregnant; 2) it may be unclear whether she is pregnant or not; and 3) she may clearly not be pregnant. English abortion law applies to the first 2 positions but the Penal Code abortion provisions applies only to the 1st position. Thus, performing menstrual therapy in a woman in position 2 may be illegal abortion under English law (unless pregnancy would endanger her life or health) but not under the Penal Codes of the Commonwealth Asian jurisdictions. Menstrual therapy undertaken as a means of abortion in a case of proven pregnancy must conform to local abortion law, but menstrual therapy undertaken for another purpose need not conform to such a law. Without clear and compelling evidence of pregnancy in the individual case, the physician may proceed on the presumption that the woman is not pregnant. Any mistake of fact made in good faith constitutes a good legal defense.     

No. 361-Caesarean Delivery on Maternal Request

A maternal request for an elective CS in the absence of a maternal or fetal indication may raise risk-benefit considerations and ethical concerns for a health care provider. Appropriate counselling of the patient on the risks and benefits in proceeding with a CDMR without medical indication is essential. Providers should have a clear knowledge of the risks and benefits of providing an elective CS without medical indications compared to the risks and benefits of supporting an attempt at vaginal delivery, so that the patient may reach an informed decision. The principle of patient autonomy should be respected but other ethical principles (beneficence, non-maleficence and justice) need to be taken into consideration during the counselling process. There are no studies to estimate maternal and neonatal risks in CDMR. Often studies on CS before the onset of labour are used as surrogates to determine risks and benefits.After exploring the reasons behind the patient's request, and discussing the risks and benefits, if a patient insists on her choice a physician may pursue one of the following two options: 1) Agree to perform the CS after 39+0 weeks gestation; 2) Disagree and refer the patient for a second opinion.     

Ethical concerns and career satisfaction in obstetrics and gynecology: a review of recent findings from the Collaborative Ambulatory Research Network

Obstetricians-gynecologists (ob-gyns) are frequently confronted with situations that have ethical implications (e.g., whether to accept gifts or samples from drug companies or disclosing medical errors to patients). Additionally, various factors, including specific job-related tasks, costs, and benefits, may impact ob-gyns' career satisfaction. Ethical concerns and career satisfaction can play a role in the quality of women's health care. This article summarizes the studies published between 2005 and 2009 by the Research Department of the American College of Obstetricians and Gynecologists, which encompass ethical concerns regarding interactions with pharmaceutical representatives and patient safety/medical error reporting, as well as ob-gyn career satisfaction. Additionally, a brief discussion regarding ethical concerns in the ob-gyn field, in general, highlights key topics for the last 30 years. Ethical dilemmas continue to be of concern for ob-gyns. Familiarity with guidelines on appropriate interactions with industry is associated with lower percentages of potentially problematic relationships with pharmaceutical industries. Physicians report that the expense of patient safety initiatives is one of the top barriers for improving patient safety, followed by fear of liability. Overall, respondents reported being satisfied with their careers. However, half of the respondents reported that they were extremely concerned about the impact of professional liability costs on the duration of their careers. Increased familiarity with guidelines may lead to a decreased ob-gyn reliance on pharmaceutical representatives and free samples, whereas specific and practical tools may help them implement patient safety techniques. The easing of malpractice insurance and threat of litigation may enhance career satisfaction among ob-gyns. This article will discuss related findings in recent years. TARGET AUDIENCE: Obstetricians & Gynecologists and Family Physicians. LEARNING OBJECTIVES: After the completing the CME activity, physicians should be better able to analyze how interactions with pharmaceutical industry may pose ethical dilemmas, examine current barriers to implementing patient safety initiatives, and evaluate the factors that influence career satisfaction among obstetrician-gynecologists.     

The issue of reinfibulation

Reinfibulation is resuturing after delivery or gynecological procedures of the incised scar tissue resulting from infibulation. Despite the global fight against female genital mutilation/cutting (FGM/C), reinfibulation of previously mutilated or circumcised women is still performed in various countries around the world. A good estimate of the prevalence of reinfibulation is difficult to obtain, but it can be inferred that 6.5-10.4 million women are likely to have been reinfibulated worldwide. Women who undergo reinfibulation have little influence on the decision-making and are usually persuaded by the midwife or birth attendant to undergo the procedure immediately following labor or gynecological operation. Although medicalization of reinfibulation may reduce its immediate risks, it has no effect on the incidence of long-term risks. Reinfibulation is performed mainly for the financial benefit of the operator, and cultural values that have been perpetuated for generations. Reinfibulation has no benefits and is associated with complications for the woman and the unborn child. Its medicalization violates the medical code of ethics and should be abandoned. International and national efforts should be combined to eradicate this practice.     

Voluntary female sterilization

French law and the code of medical practice do not permit voluntary female sterilization for personal convenience. The relevant juridical references are well known: articles 309, 310 and 316 of the penal code relating to voluntary assault and battery and article 22 of the code of medical practice specifying that no mutilation be done without a serious medical reason. The 50-year-old case of nonphysician who performed some 15 sterilizations on anarchists and neomalthusians of Spanish origin for ideological motives set the precedent of illegality. The man, and Austrian named Bartosek, was condemned by the tribunal and the court of appeals of Bordeaux, where the operations occurred. The criminal chamber of the Court of Cassation, France's highest court of appeals, found that the consent of the sterilized men did not remove penal responsibility since they had no right to violate rules of public order by undergoing corporal injury with no medical or surgical justification. The case confirmed that sterilization violates public order according to articles 309 and 310 of the penal code, that a surgical intervention is only justified if the patient has some medical reason or undergoing it, and that the individual does not have the right to free disposition of his body. No other judgments concerning voluntary sterilization were made by the French courts until 1983, when a 28-year-old woman in precarious health who had had 5 previous pregnancies and had become pregnant once again within a month of her sterilization won a case against the physician performing the sterilization on the grounds that he had failed to inform her of the possibility of pregnancy after sterilization. The court judgment was limited to the failure to inform the patient and did not address the legitimacy of sterilization itself. The failure of the court to address the issue of legality stopped short of explicit recognition of the legality of voluntary female sterilization. The text of the court opinion nevertheless appears to suggest that human sterilization is governed by the same norms as other surgical interventions, in particular the obligation to provide full information to the patient. It appears that in order to protect themselves against civil suits if no longer against criminal prosecution, sterilization practitioners need informed consent of the patient and patient's spouse, which usually involves a waiting period of several months, complete information intelligible to the patient, and a document containing the information and mentioning in particular the risk of sterilization failure. The physician could use "scores" based on age, medical history, social and other factors to help decide whether to accept sterilization patients. The sterilization technique should involve the least possible damage and best chances for reversal if later desired.     

The role of the federal government

A review of the role of the federal government in abortion administration in view of prospective legalization of abortion. It is argued that abortion is a woman's right and should be considered purely a medical decision, but it is acknowledged that for political expediency, the majority of Congress is theoretically opposed to abortion. It is expected that this will change in the next 5 years. In the meantime the federal courts have taken the lead in repealing present abortion laws. In light of this, legislation has been introduced in Congress to guarantee safety standards in abortion procedures and equalize abortion laws across the country. The Family Planning Act is providing money to family planning clinics and Section 314 of the Public Health Services Act provides money to state health services where the state sees the need. These are 2 measures that can indirectly provide financial support for abortion. An addendum includes a review of New York State's experience with abortion in its first year of its liberalized abortion law, showing handling of a mass abortion program with increasing safety and efficiency.     

Computerization of data: a person-based medical record system

The collection and evaluation of obstetric data is essential for assessing the effectiveness of the health and social services in a country. A computerized system in use on a national level is described. The person-based system aims to include all patients who encounter government medical services, including obstetric and infant data. The scope of the service is to make individual patient records easily available to the practitioner, but is designed to allow statistical analysis of the data.     

Voluntary and involuntary sterilization: denials and abuses of rights.

Laws that allow competent persons to make free and informed decisions for sterilization serve their entitlements to reproductive choice. Laws that allow others to consent to sterilization of disadvantaged persons who cannot freely consent risk oppression and denial of human rights. Laws that prohibit competent persons' choices for their own sterilization are comparably oppressive and violative of human rights to decide whether and how often to have children. Whether laws approach sterilization as a procedure done for patients, or to patients, is often ambivalent. Details of laws may indicate their liberating and oppressive potential. Programs offering inducements to persons to be sterilized may assist those who are disadvantaged to achieve their goals, but may appear to coerce those who, through poverty or dependency, cannot resist the inducement.     

Decision-making regarding place of birth in high-risk pregnancy: a qualitative study

Introduction: Women consider factors including safety and the psychological impact of their chosen location when deciding whether to give birth in hospital or at home. The same is true for women with high-risk pregnancies who may plan homebirths against medical advice. This study investigated women’s decision-making during high-risk pregnancies. Half the participants were planning hospital births and half were planning homebirths.

Methods: A qualitative study using semi-structured interviews set in a hospital maternity department in the UK. Twenty-six participants with high-risk pregnancies, at least 32 weeks pregnant. Results were analysed using systematic thematic analysis.

Results: Three themes emerged: perceptions of birth at home and hospital; beliefs about how birth should be; and the decision process. Both groups were concerned about safety but they expressed different concerns. Women drew psychological comfort from their chosen birth location. Women planning homebirths displayed faith in the natural birth process and stressed the quality of the birth experience. Women planning hospital births believed the access to medical care outweighed their misgivings about the physical environment.

Discussion: Although women from both groups expressed similar concerns about safety they reached different decisions about how these should be addressed regarding birth location. These differences may be related to beliefs about the birth process. Commitment to their decisions may have helped reduce cognitive stress.     

ACOG Committee Opinion. Number 365 May 2007. Seeking and giving consultation

Consultations usually are sought when practitioners with primary clinical responsibility recognize conditions or situations that are beyond their level of expertise or available resources. One way to maximize prompt, effective consultation and collegial relationships is to have a formal consultation protocol. The level of consultation should be established by the referring practitioner and the consultant. The referring practitioner should request timely consultation, explain the consultation process to the patient, provide the consultant with pertinent information, and continue to coordinate overall care for the patient unless primary clinical responsibility is transferred. The consultant should provide timely consultation, communicate findings and recommendations to the referring practitioner, and discuss continuing care options with the referring practitioner.     

Homosexuality and adoption in Brazil

Western societies are undergoing legal and policy changes in relation to laws governing the family, marital status, sexual orientation and the welfare of children, including in Brazil where, in the 1990s, the rights of homosexuals were incorporated into ongoing debates about what constitutes a family. This paper discusses the issue of adoption of children by homosexual men in Brazil, using information from court records from 1995-2000 in Rio de Janeiro, and from interviews with two judges, five psychologists and four social workers who evaluate those wishing to adopt. It uses the case records of one man's application to adopt, in which homosexuality became a central issue. Both the construction of masculinity in relation to parenting and concepts of the family were the parameters upon which the decision to allow him to adopt or not depended. Because the legislation does not specify what the sexual orientation of would-be adoptive parents should be, it is possible for single persons to adopt if they show they can be good parents. As more single people, alone or in couples, seek to adopt, it is important to clarify the criteria for judicial decisions on adoption applications. A dialogue is therefore needed on the meaning of family and whether and how it relates to sexual orientation. It is only on this basis that the courts can take a clear decision as to whether being homosexual is a relevant issue in regard to applications to adopt or not.