Hostname: page-component-78c5997874-fbnjt Total loading time: 0 Render date: 2024-11-05T11:22:03.252Z Has data issue: false hasContentIssue false
  • English
  • Français

Reproductive Freedom and the Prevention of Birth Defects: A New and Developing Standard of Medical Care

Published online by Cambridge University Press:  01 January 2021

Barbara R. Grumet
Get access Rights & Permissions [Opens in a new window]

Extract

The past fifteen years have witnessed parallel advances in law and medicine which enable physicians and future parents to prevent the birth of many handicapped children. The right of reproductive freedom has been included as one facet of the constitutionally based right to privacy. Medical science has developed and refined techniques for detecting parental carriers of many handicapping conditions, as well as means to determine whether a particular fetus is afflicted. As these advances have progressed, a sort of mutual dependency has evolved: The parents' right to decide whether and when to have children cannot be fully exercised unless parents have the benefit of available medical knowledge. Nor can advances in detecting birth defects be fully implemented without legally sanctioned means of preventing or terminating pregnancy.

Along with these advances has come increased litigation over the issue of the standard of care a physician owes his or her pregnant patients. Several parents who have given birth to severely handicapped children have attempted to impose an additional duty on physicians: that is, to warn parents of the risks of having a handicapped child, and/or to diagnose the handicap in time for the parents to terminate the pregnancy.

Type
Article
Information
Medicolegal News , Volume 8 , Issue 5 , October 1980 , pp. 4 - 9
Copyright
Copyright © American Society of Law, Medicine and Ethics 1980

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

Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar
Id. at 485.Google Scholar
Id. at 486.Google Scholar
Eisenstadt v. Baird, 405 U.S. 438 (1972).Google Scholar
Carey v. Population Services International, 431 U.S. 678 (1977).Google Scholar
Roe v. Wade, 410 U.S. 113 (1973).Google Scholar
Id. at 153–55.Google Scholar
Id. at 164.Google Scholar
Id. at 164–65.Google Scholar
Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 70 (1976).Google Scholar
Id. at 75.Google Scholar
Doe v. Bolton, 410 U.S. 179 (1973).Google Scholar
Finley, W.H., Delivering Genetic Services, Pediatric Annals 7(6): 13–16, at 13 (June 1978).Google ScholarPubMed
Gerbie, A.B., Amniocentesis for Prenatal Detection of Genetic Defects, American Journal of Obstetrics and Gynecology 127(2): 158–61, at 158 (January 15, 1977).CrossRefGoogle ScholarPubMed
The decision in Roe v. Wade states that a state is justified in prohibiting abortion once the fetus reaches viability.Google Scholar
Golbus, M.S. et al., Prenatal Genetic Diagnosis in 3000 Amniocenteses, New England Journal of Medicine 300(4): 157–63 (January 25, 1979).Google ScholarPubMed
Gerbie, supra note 14, at 158.Google Scholar
Id. at 159–60. Also see, Milunsky, A., Genetic Disorders in the Fetus: Diagnosis, Prevention and Treatment (New York, Plenum Press) (1979).Google Scholar
Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978) (the companion case was Park v. Chessin).Google Scholar
Id. at 812.Google Scholar
Id.Google Scholar
Id. at 813. citing, Howard v. Lecher, 366 N.E.2d 64 (N.Y. 1977) (for policy reasons, physician who failed to test for Tay-Sachs disease is not liable for emotional suffering of parents of child born with the disease).Google Scholar
Becker v. Schwartz, supra note 19, at 812–14.Google Scholar
Berman v. Allan, 404 A.2d 8 (N.J., 1979).Google Scholar
Id. at 12–13.Google Scholar
Id. at 14.Google Scholar
Id. at 14–15.Google Scholar
Speck v. Finegold, 408 A.2d 496, 500 (Pa. Super, 1979).Google Scholar
Id.Google Scholar
Id. at 507.Google Scholar
Id. at 509.Google Scholar
See Robertson, G., Civil Liability Arising from “Wrongful Birth” Following An Unsuccessful Sterilization Operation, American Journal of Law & Medicine 4(2): 131–56 (1978).Google ScholarPubMed
Terrell v. Garcia, 496 S.W.2d 124 (Ct. Civ. App. Tex. 1973).Google Scholar
Id. at 128.Google Scholar
Troppi v. Scarf, 187 N.W.2d 511 (Mich. App. 1971).Google Scholar
Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977).Google Scholar
Karlsons v. Guerinot, 394 N.Y.S.2d 933, 938 (Sup. Ct., App. Div. 1977).Google Scholar
Stewart v. Long Island College Hospital, 313 N.Y.S.2d 502, 503–04, (Sup. Ct., App. Div. 1970).Google Scholar
Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975).Google Scholar
Id. at 850.Google Scholar
Dumer v. St. Michael's Hospital, 233 N.W.2d 372, 377 (Wis. 1975).Google Scholar
Id.Google Scholar
Report of the Special Advisory Panel on Medical Malpractice, State of New York at 167 (1974).Google Scholar
See Shaw, M.W., Genetically Defective Children: Emerging Legal Considerations, American Journal of Law & Medicine 3(3): 333–40 (1977); and Milunsky, , supra note 18.Google ScholarPubMed
Johnson v. Yeshiva University, 364 N.E.2d 1340, 1341 (N.Y. 1977).Google Scholar
Valenti, C. Schutta, E.J., and Kehaty, T., Prenatal Diagnosis of Down's Syndrome, Lancet 2:220 (July 27, 1968).CrossRefGoogle ScholarPubMed
NICHHD Study Group, Midtrimester Amniocentesis for Prenatal Diagnosis: Safety and Accuracy, Journal of the American Medical Association 236(13): 1471–76 (Sept. 27, 1976).CrossRefGoogle Scholar
Id. at 1475 (emphasis added).Google Scholar
Id. at 1476.Google Scholar
Id. at 1474.Google Scholar
U.S. Dept. of Health, Education and Welfare, Public Health Service, Health Resources Administration, Health, United States, 1976–77, at 148, Table 11.Google Scholar