Hostname: page-component-745bb68f8f-mzp66 Total loading time: 0 Render date: 2025-01-11T12:48:33.146Z Has data issue: false hasContentIssue false
  • English
  • Français

Distinctions in Disclosure: Mandated Informed Consent in Abortion and ART

Published online by Cambridge University Press:  01 January 2021

Judith Daar
Get access Rights & Permissions [Opens in a new window]

Extract

Transparency and disclosure in the health care realm occupy a vital link between the delivery of medical services and patient autonomy. In her article, “Disclosure Two Ways,” Erin Bernstein skillfully explores this link in the context of abortion and assisted conception services, keenly observing the rise in mandatory disclosure laws in both arenas. Her thesis, as I understand it, is that laws that require enhanced disclosure above traditional informed consent thresholds can be understood as neutral tools in the name of patient protection, even — or perhaps especially — when their effect is to persuade a patient to forego the requested treatment. She combats the critique that pre-abortion required disclosures are sui generis, arguing against their uniqueness by analyzing them alongside a swell of mandated disclosure laws in the assisted reproductive technologies (ART) context.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 43 , Issue 2 , Summer 2015 , pp. 255 - 258
Copyright
Copyright © American Society of Law, Medicine and Ethics 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Bernstein, E. B., “Disclosure Two Ways,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 245–254.Google Scholar
See Bernstein, E., “The Upside of Abortion Disclosure Laws,” Stanford Law & Policy Review 24, no. 1 (2013): 171–214 (detailing number of states requiring disclosure of inaccurate information about abortion and future fertility, breast cancer risk and suicide).Google Scholar
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882 (1992).Google Scholar
See Vandewaler, I., “Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics,” Michigan Journal of Gender & Law 19, no. 1 (2012): 1–70.Google Scholar
Tex. Health & Safety Code §171.012.Google Scholar
Tex. Dep’t Health, “A Woman's Right to Know” (2003), at 17, available at <http://www.dshs.state.tx.us/wrtk/default.shtm> (last visited March 30, 2015). Studies have repeatedly found no link between induced abortion and later infertility. See, e.g., Atrash, H. K. Rowland Hogue, C. J., “The Effect of Pregnancy Termination on Future Reproduction,” Ballière's Clinical Obstetrics & Gynecology 4, no. 2 (1990): 391–405.Google Scholar
Arato v. Avedon, 858 P.2d 598, 605 (Cal. 1993).Google Scholar
Minkoff, H. Marshall, M. F., “Government-Scripted Consent: When Medical Ethics and Law Collide,” Hastings Center Report 39, no. 5 (2009): 21–23, citing Post, R., “Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” University of Illinois Law Review 2007, no.3 (2007): 939–990.Google Scholar
See Bernstein, , supra note 1, at note 38.Google Scholar
Cal. Health & Safety Code §125325 (West 2012).Google Scholar
See, e.g., Cal. Health & Safety Code §125335 (West 2012) (requiring egg donors for medical research receive “standardized medically accurate written summary of health and consumer issues associated with” oocyte retrieval. The guide is published by the American Society for Reproductive Medicine, not the State of California, though the state health department has authority to approve substitute pamphlets).Google Scholar
See Casey, , supra note 3, at 882–883.Google Scholar
See Bernstein, , supra note 2, at 197 (footnotes omitted).Google Scholar
Gonzales v. Carhart, 550 U.S. 124, 159 (2007).Google Scholar
Cockrill, K. Weitz, T., “Abortion Patients’ perception of Abortion Regulation,” Women's Health Issues 20, no. 12 (2010): 12–19.Google Scholar
Id., at 15.Google Scholar
See, e.g., Knoppers, B. M., “From the Right to Know to the Right Not to Know,” Journal of Law, Medicine & Ethics 42, no. 1 (2014): 6–10.CrossRefGoogle Scholar
See, e.g., Okla.Stat. Ann. tit. 63, §§ 1–738.2, −741.12 (2011).Google Scholar
See Tuller, D., “Payment Offers to Egg Donors Prompt Scrutiny,” New York Times, May 10, 2010.Google Scholar
Cal. Health & Safety Code §125325 (West 2012).Google Scholar
See Cal. Health & Safety Code §125118(c) (West 2012) (supporting existing requirements of informed consent, tailoring them to new research utilizing human oocytes).Google Scholar
See, e.g., Tex. Med. Providers Performing Abortion Servs. V. Lakey, 667 F.3d 570 (5th Cir. 2012) (upholding Texas disclosure law); Planned Parenthood Minn., ND, SD v. Rounds, 662 F.3d 1072 (8th Cir. 2011) (invalidating “risk of suicide” disclosure); Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999) (upholding “fetal heartbeat” disclosure).Google Scholar
See Borgmann, C. E., “Roe v. Wade 40th Anniversary: A Moment of Truth for the Anti-Abortion Rights Movement?” Stanford Law & Policy Review 24, no. 1 (2013): 245–70.Google Scholar
Though many argue ART should be regarded within the reproductive liberty realm. See, e.g., Robertson, J. A., Children of Choice (Princeton: Princeton University Press, 1994).Google Scholar
For example, commercial surrogacy is banned in 9 states. See Daar, J., Reproductive Technologies and the Law, 2d ed. (New Providence: Matthew Bender & Company, Inc., 2013): At 439.Google Scholar