16
Procreation and Ethical Dilemmas

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Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Discuss the 1973 Supreme Court ruling in Roe v. Wade and the continuing controversy over abortion.
• Describe the flow of abortion cases beginning with Roe v. Wade, concentrating on counseling, spousal consent, parental consent, and funding.
• Define and explain the legal issues of sterilization, artificial insemination, and surrogacy.
• Describe the legal and moral issues of wrongful birth, wrongful life, and wrongful conception.
It’s Your Gavel…
PICKETING PHYSICIANS—PRIVACY ISSUE
Two physicians in Murray v. Lawson1 brought separate actions to obtain injunctions against antiabortion protesters who had been picketing their residences. In the first action, the defendant discovered the personal address of Dr. Murray and visited the house, where the physician’s 14-year-old son answered the door. The defendant told the son to tell his father to stop performing abortions. A month later picketers walked on the sidewalk in front of Murray’s home, carrying posters stating, among other things, that he scars and kills women and their unborn children. Murray filed suit seeking damages and injunctive relief. After the hearing, the medical center where Murray performed abortions was burned to the ground. After a bomb threat, the defendant and another picketer protested in front of the Murray house.
The chancery division ordered a permanent injunction prohibiting the defendant and all others from picketing within 300 feet of the Murray home. The defendants appealed, claiming that the injunction impinged upon their freedom of speech. The appellate division affirmed, finding that the injunction did not violate freedom of speech. On appeal the case was heard by the New Jersey Supreme Court.
WHAT IS YOUR VERDICT?
There are numerous ethical questions involving the entire life span, from the right to be born to the right to die. This chapter reviews a variety of issues of procreation, with the primary emphasis on abortion. Discussed to a lesser extent are issues relating to sterilization; artificial insemination; and wrongful birth, wrongful life, and wrongful conception.
This chapter focuses on some of the common questions facing healthcare providers where both ethics and the law intersect. When reviewing this chapter, the reader should apply the ethical theories, principles, and values previously reviewed.

16.1 ABORTION

We shall have to fight the politician, who remembers only that the unborn have no votes and that since posterity has done nothing for us we need do nothing for posterity.
—William Ralph Inge (1860–1954)2
Abortion is the premature termination of pregnancy. It can be classified as spontaneous or induced. It may occur as an incidental result of a medical procedure, or it may be an elective decision on the part of the patient. In addition to having substantial ethical, moral, and religious implications, abortion has proven to be a major political issue and will continue as such in the future. More laws will be proposed, more laws will be passed, and more lawsuits will wind their way up to the U.S. Supreme Court.
A consensus as to when life begins has not been reached. There has been no final determination as to the proper interplay among a mother’s liberty, the interests of an unborn child, and the state’s interests in protecting life. In abortion cases, the law presupposes a theory of ethics and morality, which, in turn, presupposes deeply personal ideas about being and existence. Answers to such questions as when life begins define ethical and religious beliefs, and these beliefs often determine how we govern ourselves. Abortion in this context is less a question about constitutional law and more about who we are as a people. This is a decision the Supreme Court cannot make. Taking these issues out of the public discourse threatens to foment hostility, stifle the search for answers, distance people from their Constitution, and undermine the credibility of that document.3
With more than 1 million abortions performed annually in the United States, it is certain that the conflict between “pro-choice” and “pro-life” advocates will continue to pervade America’s landscape. The issues are numerous, and emotions run high. Common ethical concerns include: when does life begin; who decides; who protects the unborn fetus; what are the rights of the child or woman who has been raped; what are the rights of the spouse; what are the rights of the father of an unwed child or woman; what are the rights of society and the state to interfere with another’s rights; should the principles of autonomy and right to self-determination prevail; should an abortion be considered murder; can the use of contraception be considered a form of killing by preventing a birth that might have otherwise occurred; what are the religious implications for a woman who chooses to undergo an abortion; is it morally acceptable to save the life of the mother by aborting the fetus; is an abortion for mere convenience morally wrong; should a child or woman who has been raped have a right to abortion; what role should education play in the woman’s decision to undergo an abortion; what alternatives should the woman be taught before undergoing an abortion; at what age should the decision to abort be that of the mother; how should the feelings of guilt that may accompany an abortion and how those feelings may haunt the mother through the years be discussed; should the feelings that might occur after giving birth be explained to the victim of a rape (e.g., anger, resentment); and when does control over one’s body begin, and when does it end.
These are but a few of the many questions yet to be fully resolved. As the following pages point out, for each new issue decided in the courts, numerous new issues arise, all of which seem to involve both legal and moral questions as to what is acceptable behavior in American society.
Right to Abortion
In Roe v. Wade in 1973, the Supreme Court gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end.4 However, the Supreme Court also has recognized the interest of the states in protecting potential life and has attempted to spell out the extent to which the states may regulate and even prohibit abortions.
In Roe v. Wade, the U.S. Supreme Court held the Texas penal abortion law unconstitutional, stating: “State criminal abortion statutes … that except from criminality only a lifesaving procedure on behalf of the mother, without regard to the stage of her pregnancy and other interests involved, is violating the Due Process Clause of the Fourteenth Amendment.”5
First Trimester
During the first trimester of pregnancy, the decision to undergo an abortion procedure is between the woman and her physician. A state may require that abortions be performed by a licensed physician pursuant to law; however, a woman’s right to an abortion is not unqualified because the decision to perform the procedure must be left to the medical judgment of her attending physician. “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”6
Second Trimester
In Roe v. Wade, the Supreme Court stated, “[f]or the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”7 Thus, during approximately the fourth to sixth months of pregnancy, the state may regulate the medical conditions under which the procedure is performed. The constitutional test of any legislation concerning abortion during this period would be its relevance to the objective of protecting maternal health.
Third Trimester
The Supreme Court reasoned that by the time the final stage of pregnancy has been reached, the state has acquired a compelling interest in the product of conception, which would override the woman’s right to privacy and justify stringent regulation even to the extent of prohibiting abortions. In the Roe case, the Supreme Court formulated its ruling as to the last trimester in the following words: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother.”8
Thus, during the final stage of pregnancy, a state may prohibit all abortions except those deemed necessary to protect maternal life or health. The state’s legislative powers over the performance of abortions increase as the pregnancy progresses toward term.
Abortion Review Committee Too Restrictive
1973: The Supreme Court went on to delineate what regulatory measures a state lawfully may enact during the three stages of pregnancy. In the companion decision, Doe v. Bolton,9 where the Court considered a constitutional attack on the Georgia abortion statute, further restrictions were placed on state regulation of the procedure. The provisions of the Georgia statute establishing residency requirements for women seeking abortions and requiring that the procedure be performed in a hospital accredited by The Joint Commission were declared constitutionally invalid. In considering legislative provisions establishing medical staff approval as a prerequisite to the abortion procedure, the Court decided that “interposition of the hospital abortion committee is unduly restrictive of the patient’s rights and needs that … have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State.”10
The Court was unable to find any constitutionally justifiable rationale for a statutory requirement of advance approval by the abortion committee of the hospital’s medical staff. Insofar as statutory consultation requirements are concerned, the Court reasoned that the acquiescence of two copractitioners has no rational connection with a patient’s needs and, further, unduly infringes on the physician’s right to practice.
Thus, by using a test related to patient needs, the Court, in Doe v. Bolton, struck down four preabortion procedural requirements commonly imposed by state statutes: (1) residency, (2) performance of the abortion in a hospital accredited by The Joint Commission, (3) approval by an appropriate committee of the medical staff, and (4) consultations.
Funding
Some states have placed an indirect restriction on abortion through the elimination of funding. Under the Hyde Amendment, the U.S. Congress, through appropriations legislation, has limited the types of medically necessary abortions for which federal funds may be spent under the Medicaid program. Although the Hyde Amendment does not prohibit states from funding nontherapeutic abortions, this action by the federal government opened the door to state statutory provisions limiting the funding of abortions.
Not Required for Elective Abortions
1977: In Beal v. Doe,11 the Pennsylvania Medicaid plan was challenged based on denial of financial Helpance for nontherapeutic abortions. The Supreme Court held that Title XIX of the Social Security Act (the Medicaid program) does not require the funding of nontherapeutic abortions as a condition of state participation in the program.12 The state has a strong interest in encouraging normal childbirth, and nothing in Title XIX suggests that it is unreasonable for the state to further that interest. The Court ruled that it is not inconsistent with the Medicaid portion of the Social Security Act to refuse to fund unnecessary (although perhaps desirable) medical services.
1977: In Maher v. Roe,13 the Supreme Court considered the Connecticut statute that denied Medicaid benefits for first-trimester abortions that were not medically necessary. The Court rejected the argument that the state’s subsidy of medical expenses incident to pregnancy and childbirth created an obligation on the part of the state to subsidize the expenses incident to nontherapeutic abortions. The Supreme Court voted six to three that the states may refuse to spend public funds to provide nontherapeutic abortions for women.
Not Required for Therapeutic Abortions
1980: The Supreme Court, in Harris v. McRae,14 upheld five to four the Hyde Amendment, which restricts the use of federal funds for Medicaid abortions. Under this case, the different states are not compelled to fund Medicaid recipients’ medically necessary abortions for which federal reimbursement is unavailable, but may choose to do so. Justice Marshall, dissenting, stated that the Court’s decision marked a retreat from Roe v. Wade and represented a cruel blow to the most powerless members of our society.
Funding Bans Unconstitutional in California
The California Supreme Court held that funding bans were unconstitutional; the court asked rhetorically:
If the state cannot directly prohibit a woman’s right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right? Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government? Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?15
Funding Discrimination Prohibited in Arizona
2002: The Arizona Supreme Court, in Simat Corp. v. Arizona Health Care Cost Containment Sys.,16 found that the state’s constitution does not permit the state and the Arizona Health Care Cost Containment System (AHCCCS) to refuse to fund medically necessary abortion procedures for pregnant women suffering from serious illness while funding such procedures for victims of rape or incest or when the abortion was necessary to save the woman’s life (A.R.S. § 35-196.02. AHCCCS). After the state has chosen to fund abortions for one group of indigent, pregnant women for whom abortions are medically necessary to save their lives, the state may not deny the same option to another group of women for whom the procedure is also medically necessary to save their health. An example is cancer, for which chemotherapy or radiation therapy ordinarily cannot be provided if the patient is pregnant, making an abortion necessary before proceeding with the recognized medical treatment. Other therapy regimens that must at times be suspended during pregnancy include those for heart disease, diabetes, kidney disease, liver disease, chronic renal failure, inflammatory bowel disease, and lupus. In many of the women suffering from these diseases, suspension of recognized therapy during pregnancy will have serious and permanent adverse effects on their health and lessen their life span. In such a situation, the state is not simply influencing a woman’s choice but is actually conferring the privilege of treatment on one class and withholding it from another.
A woman’s right to choose preservation and protection of her health and, therefore, in many cases, her life is at least as compelling as the state’s interest in promoting childbirth. The court’s protection of the fetus and promotion of childbirth cannot be considered so compelling as to outweigh a woman’s fundamental right to choose and the state’s obligation to be evenhanded in the design and application of its healthcare policies. The majority of states that have examined similar Medicaid funding restrictions have determined that their state statutes or constitutions offer broader protection of individual rights than does the U.S. Constitution, and they have found that medically necessary abortions should be funded if the state also funds medically necessary expenses related to childbirth. The case was remanded to the trial court for further proceedings consistent with this opinion.
States May Protect Viable Fetus
1979: The Supreme Court, in Colautti v. Franklin,17 voted six to three that the states may seek to protect a fetus that a physician has determined could survive outside the womb. Determination of whether a particular fetus is viable is, and must be, a matter for judgment of the responsible attending physician. State abortion regulations that impinge on this determination, if they are to be constitutional, must allow the attending physician the room that he or she needs to make the best medical judgment.
Consent
Missouri: Parental Consent Statute Ruled Unconstitutional
1976: The Supreme Court ruled in Danforth v. Planned Parenthood18 that a Missouri statute requiring all women under age 18 to obtain written consent of a parent or person in loco parentis prior to an abortion is unconstitutional. The Court, however, failed to provide any definitive guidelines as to when and how parental consent may be required if the minor is too immature to fully comprehend the nature of the procedure.
Massachusetts: Parental Consent Statute Ruled Unconstitutional
1979: The Supreme Court, in Bellotti v. Baird,19 ruled eight to one that a Massachusetts statute requiring parental consent before an abortion could be performed on an unmarried woman under age 18 was unconstitutional. Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun, concluded that the Massachusetts statute was unconstitutional because under that statute as written and construed by the Massachusetts Supreme Judicial Court, no minor, no matter how mature and capable of informed decision making, could receive an abortion without the consent of either both parents or a superior court judge, thus making the minor’s abortion subject in every instance to an absolute third-party veto.
Utah: Notifying Parent for Immature Minor Constitutional
1981: The Supreme Court, in H. L. v. Matheson,20 by a six to three vote, upheld a Utah statute that required a physician to “notify, if possible” the parents or guardian of a minor on whom an abortion was to be performed. In this case, the physician advised the patient that an abortion would be in her best medical interest but, because of the statute, refused to perform the abortion without first notifying her parents. The Supreme Court ruled that although a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter’s abortion, a statute setting out a mere requirement of parental notice, when possible, does not violate the constitutional rights of an immature, dependent minor.
Consent Not Required for Emancipated Minor
1987: The trial court in In re Anonymous21 was found to have abused its discretion when it refused a minor’s request for waiver of parental consent to obtain an abortion. The record indicated that the minor was within 1 month of her 18th birthday, lived by herself most of the time, and was employed full time.
Parental Notification Not Required
2000: The issue in Planned Parenthood v. Owens22 was whether the Colorado Parental Notification Act (Colorado Revised Statute §§ 12-37.5-101, et seq. [1998]), which requires a physician to notify the parents of a minor prior to performing an abortion upon her, violates the minor’s rights protected by the U.S. Constitution. The act, a citizen-initiated measure, was approved at Colorado’s general election. The act generally prohibits physicians from performing abortions on an unemancipated minor until at least 48 hours after written notice has been delivered to the minor’s parent, guardian, or foster parent.
The U.S. District Court decided that the act violated the rights of minor women protected by the Fourteenth Amendment. The Supreme Court, for more than a quarter of a century, has required that any abortion regulation except from its reach an abortion medically necessary for the preservation of the mother’s health. The act fails to provide such a health exception.
Minor’s Decision to Abort Found Sufficient
2006: In another case, the minor in In re Doe23 was determined to be sufficiently mature to decide whether to terminate her pregnancy, thus precluding notification of her pregnancy to a parent or guardian, which placed her less than 1 year from being outside the scope of notification law. The minor was a good student, was employed part time, and had formulated a plan for her future. Although she admitted that her pregnancy was the result of an immature decision, her acknowledgment supported her belief that she had sufficient maturity concerning whether or not to terminate pregnancy.
Justices Send Abortion Case Back to Lower Court
2006: The U.S. Supreme Court, in a unanimous ruling, determined that the U.S. Court of Appeals for the First Circuit erred when it declared unconstitutional a state law requiring that a minor notify her parents before obtaining an abortion. The Court sent the case, Ayotte v. Planned Parenthood of Northern New England,24 back to the appeals court and told it to find a way to include an exception to the law for a medical emergency. Justice Sandra Day O’Connor wrote the majority opinion, her last as an associate justice.
Minor’s Decision to Abort Not Sufficient
2008: Proceedings were brought in In re petition of Doe,25 in which the juvenile sought judicial waiver of a statutory requirement that the physician notify her parent or guardian prior to terminating her pregnancy. The juvenile failed to prove by clear and convincing evidence that she was sufficiently mature to warrant waiving the requirement for parental notification of the abortion. A U.S. District Judge in Tallahassee upheld a Florida law requiring abortion providers to notify a minor’s parent or legal guardian prior to performing an abortion. The law requires doctors to notify in person or by phone the parents or legal guardians of minors seeking an abortion at least 48 hours in advance of performing the procedure or 72 hours in advance by certified mail if the parents or guardians cannot be reached. The law allows for exceptions in cases of medical emergency, if the minor is married or has children, if a judge determines the minor is mature enough to make her own decision, if the juvenile is a victim of abuse, or if notification is not in the juvenile’s best interests. The juvenile in this case failed to demonstrate any knowledge regarding specific immediate or long-term physical, emotional, or psychological risks of having an abortion. Furthermore, there was no evidence that the juvenile had sought advice or emotional support from any adults or that she had considered what she would do should any physical or emotional complications arise from abortion. The juvenile’s concerns that her parents would not understand and would be upset about her pregnancy amounted to nothing more than generalized fear of telling her parents and did not establish that notification would not be in her best interests.
State Interest Not Compelling
1975: A provision of the Florida Therapeutic Abortion Act that required a married woman to obtain the husband’s consent before abortion was found to be unconstitutional. The state’s interest was found not to be sufficiently compelling to limit a woman’s right to abortion. The husband’s interest in the baby was held to be insufficient to force his wife to face the mental and physical risks of pregnancy and childbirth.26
Spousal Consent: Requirement Unconstitutional
1975: In Doe v. Zimmerman,27 the court declared unconstitutional the provisions of the Pennsylvania Abortion Control Act, which required that the written consent of the husband of a married woman be secured before performing an abortion. The court found that these provisions impermissibly permitted the husband to withhold his consent either because of his interest in the potential life of the fetus or for capricious reasons.
Father of Unborn Fetus Could Not Stop Abortion
1988: The natural father of an unborn fetus in Doe v. Smith28 was found not entitled to an injunction to prevent the mother from submitting to an abortion. Although the father’s interest in the fetus was legitimate, it did not outweigh the mother’s constitutionally protected right to an abortion, particularly in the light of the evidence that the mother and father had never married. The father had demonstrated substantial instability in his marital and romantic life. The father was able to beget other children and, in fact, did produce other children.
Spousal Consent Undue Burden
1992: In the 1992 decision of Planned Parenthood v. Casey,29 the Supreme Court ruled that spousal consent would be an undue burden on the woman.
Restricting Right to Abortion Affirmed
1992: In Planned Parenthood v. Casey, the Supreme Court affirmed Pennsylvania law restricting a woman’s right to abortion. The Court was one vote shy of overturning Roe v. Wade. The Supreme Court ruling, as enunciated in Roe v. Wade, reaffirmed:
• the constitutional right of women to have an abortion before viability of the fetus, as first enunciated in Roe v. Wade;
• the state’s power to restrict abortions after fetal viability, as long as the law contains exceptions for pregnancies that endanger a woman’s life or health; and
• the principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.
The Supreme Court rejected the trimester approach in Roe v. Wade, which limited the regulations states could issue on abortion depending on the development stage of the fetus. In place of the trimester approach, the Court will evaluate the permissibility of state abortion rules based on whether they unduly burden a woman’s ability to obtain an abortion. A rule is an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. The Supreme Court ruled that it is not an undue burden to require that:
• a woman be informed of the nature of the abortion procedure and the risks involved;
• a woman be offered information on the fetus and on the alternatives to abortion;
• a woman give her informed consent before the abortion procedure;
• parental consent be given for a minor seeking an abortion, providing for a judicial bypass option if the minor does not wish to or cannot obtain parental consent; and
• there be a 24-hour waiting period before any abortion can be performed.
Abortion Counseling
Physician Counseling of Patient Upheld
1983: The Supreme Court, in City of Akron v. Akron Center for Reproductive Health,30 voted six to three that the different states cannot (1) mandate what information physicians give abortion patients or (2) require that abortions for women more than 3 months pregnant be performed in a hospital.
With respect to a requirement that the attending physician must inform the woman of specified information concerning her proposed abortion, it is unreasonable for a state to insist that only a physician is competent to provide the information and counseling relative to informed consent. A state may not adopt regulations to influence a woman’s informed choice between abortion and childbirth. With regard to a second-trimester hospital requirement, this could significantly limit a woman’s ability to obtain an abortion. This is especially so in view of the evidence that a second-trimester abortion may cost more than twice as much in a hospital as in a clinic.
Prohibition of Abortion Counseling Not Unconstitutional
1991: Federal regulations that prohibit abortion counseling and referral by family planning clinics that receive funds under Title X of the Public Health Service Act were found not to violate the constitutional rights of pregnant women or Title X grantees in a five to four decision by the Supreme Court in Rust v. Sullivan.31 Proponents of abortion counseling argued (1) that the regulations impermissibly burden a woman’s privacy right to abortion and (2) that by prohibiting the delivery of abortion information, even as to where such information could be obtained, the regulations deny a woman her constitutionally protected right to choose under the First Amendment. The question arises: How can a woman make an informed choice between two options when she cannot obtain information as to one of them? In Sullivan, however, the Supreme Court found that there was no violation of a woman’s or provider’s First Amendment rights to freedom of speech. The Court extended the doctrine that government need not subsidize the exercise of the fundamental rights to free speech. The plaintiff had argued that the government may not condition receipt of a benefit on the relinquishment of constitutional rights.
24-Hour Waiting Period Not Burdensome
1992: The Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey,32 determined that in asserting an interest in protecting fetal life, a state may place some restrictions on previability abortions, as long as those restrictions do not impose an “undue burden” on the woman’s right to an abortion. The Court determined that the 24-hour waiting period, the informed consent requirement, and the medical emergency definitions did not unduly burden the right to an abortion and were therefore constitutional.
1993: The Utah Abortion Act Revision, Senate Bill 60, provides for informed consent by requiring that certain information be given to the pregnant woman at least 24 hours prior to the performance of an abortion. The law allows for exceptions to this requirement in the event of a medical emergency.
The Utah Women’s Clinic, in Utah Women’s Clinic, Inc. v. Leavitt,33 filed a 106-page complaint challenging the constitutionality of the new Utah law. It was determined that the 24-hour waiting period did not impose an undue burden on the right to an abortion. On appeal, a U.S. District Court held that the Utah abortion statute’s 24-hour waiting period and informed consent requirements do not render the statute unconstitutionally vague. Because Senate Bill 60 is less restrictive than the Pennsylvania abortion statute, the plaintiffs may not prevail unless they can show material differences between the circumstances of Utah and Pennsylvania.
It would be extremely difficult in light of the Casey decision to bring a good faith facial challenge to the constitutionality of Utah’s 24-hour waiting period and informed consent requirements. In an emergency situation, there is no requirement of informed consent or a 24-hour waiting period. The plaintiffs’ contention that Senate Bill 60, when read together with provisions from Utah’s 1991 abortion law, does not clearly provide that a woman can obtain an abortion in a medical emergency, is without merit.
The abortion issue is obviously one that invokes strong feelings on both sides. Individuals are free to urge support for their cause through debate, advocacy, and participation in the political process. The subject also might be addressed in the courts so long as there are valid legal issues in dispute. Where, however, a case presents no legitimate legal arguments, the courthouse is not the proper forum. Litigation, or the threat of litigation, should not be used as economic blackmail to strengthen one’s hand in the political battle. Unfortunately, the court sees little evidence that this case was filed for any other purpose.34
Senate Bill 60, the duly enacted law of the people of Utah, has not been enforced for nearly nine months. That will change today. The court hereby adopts the report and recommendation of the magistrate judge, lifts the injunction, and dismisses plaintiffs’ case in its entirety with prejudice.35
Incompetent Persons
1987: An abortion was found to have been proper by a family court in In re Doe36 for a profoundly retarded woman. She became pregnant during her residence in a group home as a result of a sexual attack by an unknown person. The record supported a finding that if the woman had been able to do so, she would have requested the abortion. The court properly chose welfare agencies and the woman’s guardian ad litem (a guardian appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy, mental incompetence, etc.) as the surrogate decision makers, rather than the woman’s mother. The mother apparently had little contact with her daughter over the years.
Viability Test Required
1989: Webster v. Reproductive Health Services37 began the U.S. Supreme Court’s narrowing of abortion rights by upholding a Missouri statute providing that no public facilities or employees should be used to perform abortions and that physicians should conduct viability tests before performing abortions.
Partial-Birth Abortion
Plan Constitutionally Vague
1998: The Supreme Court, in Women’s Medical Professional Corp. v. Voinovich,38 denied certiorari for the first partial-birth case to reach the federal appellate courts. This case involved an Ohio statute that banned the use of the intact dilation and extraction (D&E) procedure in the performance of any previability or postviability abortion. The Sixth Circuit Court of Appeals held that the statute banning any use of the D&E procedure was unconstitutionally vague. It is likely that a properly drafted statute will eventually be judged constitutionally sound.
Partial-Birth Abortion Ban Unconstitutional
1999: The defendants in Little Rock Family Planning Services v. Jegley39 appealed a district court decision holding Arkansas’s Partial-Birth Abortion Ban Act of 1997 unconstitutional. The act prohibited knowingly performing a partial-birth abortion. Arkansas code defines partial-birth abortion as an abortion in which the person performing the abortion partially vaginally delivers a living fetus before taking the life of the fetus and completing the delivery. Under this definition, any physician who knowingly partially vaginally delivers a living fetus and then takes the life of the fetus and completes delivery would violate the act. Because both the D&E procedure and the suction curettage procedure used in second-trimester abortions often include what the Act prohibits, physicians performing those procedures would have violated the Act. The Act provided that, in addition to committing a felony, a physician who knowingly performed a partial-birth abortion would be subject to disciplinary action by the state medical board. The federal district court held the Act unconstitutional because it was unconstitutionally vague, imposed an undue burden on women seeking abortions, and did not adequately protect the health and lives of pregnant women. The circuit court agreed, holding the Act unconstitutional.
2002: The U.S. Supreme Court, in Stenberg v. Carhart,40 struck down a Nebraska ban on partial-birth abortion, finding it an unconstitutional violation of Roe v. Wade. The court found these types of bans to be extreme descriptive attempts to outlaw abortion—even early in pregnancy—that jeopardize women’s health. Following Stenberg v. Carhart, a Virginia statute that attempted to criminalize partial-birth abortion was also held to be unconstitutional under the Fourteenth Amendment because it lacked an exception to protect a woman’s health.41
Partial-Birth Abortion Statute Vague
2000: New Jersey’s partial-birth abortion statute was void for vagueness, in that it did not define the proscribed conduct with certainty and could be easily construed to ban the safest, most common, and most readily available conventional abortion procedures. The statute also was unconstitutional because it created an undue burden on a woman’s right to obtain an abortion, in that its broad language covered many conventional, constitutionally permissible methods of abortion and it failed to contain a health exception.42
Partial-Birth Abortion Act: First Federal Restrictions
2003: President George W. Bush, on November 6, signed the first federal restrictions banning late-term partial-birth abortions. The partial-birth abortion, also referred to as the D&E procedure, is a late-term abortion involving partial delivery of the fetus before it is aborted. The ban, referred to as the Partial-Birth Abortion Act of 2003, was passed by both houses of Congress. The ban permits no exceptions when a woman’s health is at risk or the fetus has life-threatening disabilities. A U.S. District Court in Nebraska issued a restraining order on the ban.
Partial-Birth Abortion Act: Supreme Court Asked to Review
2005: On September 26, 2005, the Bush administration asked the Supreme Court to review an appellate court’s decision holding the Partial-Birth Abortion Act of 2003 unconstitutional.
Partial-Birth Abortion Ban Unconstitutional
2006: The Partial-Birth Abortion Act, 18 U.S.C. Section 1531, in National Abortion Fed’n v. Gonzages,43 was found to be unconstitutional because it lacked any exception to preserve the health of the mother, where such exception was constitutionally required. Also, the act was unconstitutional because it imposed an undue burden on a woman’s right to choose previability abortion and was constitutionally vague.
Physicians Feeling the Heat: Publication of Physician’s Picture
1991: Physicians are feeling the heat and are concerned about the ongoing abortion controversy. In Beverly v. Choices Women’s Medical Center,44 a physician, whose picture was published in an abortion calendar without her consent, brought a civil rights action against the for-profit medical center for publication of her picture. The calendar was disseminated to the public by the center. The center derived approximately 50% of its income from abortions. The plaintiff was awarded $50,000 in compensatory damages and $25,000 in punitive damages. The physician testified that the publication of her picture caused her to suffer physical and mental injury. She also testified as to the effect of the publication on her lifestyle and career decisions.
Antiabortion Demonstrations
1994: In March 1989, the San Diego police became aware that Operation Rescue planned to stage several antiabortion demonstrations in the city.45 The purpose of the demonstrations was to disrupt operations at the target clinics and ultimately to cause the clinic to cease operations. In each of the three demonstrations at issue, protesters converged on a medical building, blocking entrances, filling stairwells and corridors, and preventing employees and patients from entering.
For each arrest, the officers warned the demonstrators that they would be subjected to pain-compliance measures if they did not move, that such measures would hurt, and that they could reduce the pain by standing up, eliminating the tension on their wrists and arms. The officers then forcibly moved the arrestees by tightening Orcutt police nunchakus (two sticks of wood connected at one end by a cord used to grip a demonstrator’s wrist) around their wrists until they stood up and walked. All arrestees complained of varying degrees of injury to their hands and arms. Several subsequently filed suit, claiming that the police violated the Fourth Amendment by using excessive force in executing the arrests. The judge allowed the case to proceed to the jury to determine whether any particular use of force was unconstitutional. After viewing a videotape of the arrests, the jury concluded that none involved excessive force and returned a verdict for the city. An appeal was taken.
The U.S. Court of Appeals for the Ninth Circuit held that the police did not use excessive force. The videotape created an extensive evidentiary record: “Thanks to videotaped records of the actual events, plus the testimony of witnesses on both sides, the jury had more than a sufficient amount of evidence presented to them from which they could formulate their verdicts. The extensive use of video scenes of exactly what took place removed much argument and interpretation of the facts themselves.”46 The city clearly had a legitimate interest in quickly dispersing and removing the lawbreakers with the least risk of injury to police and others. The arrestees were part of a group of more than 100 protesters operating in an organized and concerted effort to invade private property, obstruct business, and hinder law enforcement.
Obstructing Access to Abortion Clinics
1993: Abortion clinics and others sought enforcement of an injunction precluding antiabortion groups from blockading or obstructing access to abortion clinics. The order required the defendants to appear before the court to show cause why each of them should not be cited for contempt for violating and inducing others to violate an injunction order. The defendants, Tucci, Terry, and Mahoney, spoke at a rally. Tucci was introduced as a leader of Operation Rescue National and spoke about how the group successfully had closed down clinics. He also solicited funds for his organization. Terry said that they needed contributions to keep their work going. The defendants appeared before the court at two hearings to show cause why they should not be cited in contempt for violating the court’s injunction.47 The questions posed are: (1) Can antiabortion leaders and groups be fined for violating an injunction barring them from blockading or obstructing access to abortion clinics? and (2) Can antiabortion groups be ordered to pay damages to compensate an abortion clinic for property damage resulting from an abortion clinic blockage that violated an injunction?
The U.S. District Court for the District of Columbia held that leaders and groups would be fined for violating the injunction. In addition, antiabortion groups are liable to abortion clinics for property damages resulting from blockades. The defendants violated provisions of the injunction “barring all defendants and those acting in concert with them ‘from inducing, encouraging, directing, aiding, or abetting others’ to trespass on, blockade, or obstruct access to or egress from facilities at which abortions are performed and other medical services are rendered.”48 In blockading the clinics, the defendants violated District of Columbia trespass law, which states, “Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling … against the will of the lawful occupant or of the person lawfully in charge thereof … shall be guilty of a misdemeanor” (D.C. Code § 22-3102).
The participants in the blockades were under court order not to trespass on the clinics and were ordered by clinic personnel and the police at the time of the blockades to leave the property. Their presence on the property clearly constituted trespass.
2014: The Supreme Court in McCullen v. Coakley49 unanimously struck down a Massachusetts law barring protests near abortion clinics. The law, enacted in 2007, created 35-foot buffer zones around entrances to abortion clinics. State officials said the law was a response to a history of harassment and violence at abortion clinics. The court ruled that buffer zones around abortion clinics in Massachusetts violated the First Amendment. The court left open the possibility that states may use other methods to address harassment and violence at clinics.50
Continuing Controversy
Right-to-life advocates argue that life comes from God and that no one has a right to deny the right to life. Pro-choice advocates argue that a woman has a right to choose preservation and protection of her health and, therefore, in many cases, her life is at least as compelling as the state’s interest in promoting childbirth. The protection of a fetus and promotion of childbirth cannot be considered so compelling as to outweigh a woman’s fundamental right to choose and the state’s obligation to be evenhanded in the design and application of its healthcare policies.
Pa. Abortion Provider Convicted of Murder
The case, which has unfolded since early March inside Court-room 304 here, has garnered national attention and inflamed passions on all sides of the abortion divide.
“Some abortionists may have cleaner sheets then Gosnell, and better sterilized equipment and better trained accomplices, but what they do—What Gosnell did—kill babies and hurt women is the same,” Rep. Christopher H. Smith (R-NJ) said in a statement.
Meanwhile, abortion-rights groups insisted that Gosnell’s crimes are an anomaly and that the abysmal conditions inside his clinic persisted only because numerous regulators ignored red flags for years.
—Brady Dennis, The Washington Post, May 14, 2013
Although pro-choice advocates are arguing the rights of women to choose, they are also pointing out the fact that legalized abortions are safer. In 1972, for example, the year before Roe v. Wade was upheld, the number of deaths from abortions in the United States is estimated to have reached the thousands; by 1985, the figure was six.51 In addition, pro-choice advocates argue that women who have a right to an abortion when pregnancy threatens the life of the mother also have the right to an abortion when pregnancy is the result of incest or rape. There will most likely be a continuing stream of court decisions, as well as political and legislative battles, well into the 21st century. Given the emotional, religious, and ethical concerns, as well as those of women’s rights groups, it is certain that the controversies and ethical dilemmas surrounding abortion will continue for many years to come.
State Abortion Statutes
As noted in the previously mentioned cases, the effect of the Supreme Court’s 1973 decisions in Roe and Doe was to invalidate all or part of almost every state abortion statute then in force. The responses of state legislatures to these decisions have been varied, but it is clear that many state laws had been enacted to restrict the performance of abortions as much as possible. Although Planned Parenthood v. Casey was expected to clear up some issues, it is evident that the states have been given more power to regulate the performance of abortions.
Hundreds of Thousands March to Support Abortion Rights (2004)
Hundreds of thousands of both men and women from more than 60 countries marched in Washington, DC, on April 25, 2004, supporting women’s reproductive rights. The slogans at the rally included slogans such as “Pro Choice–Pro Child,” “It’s Your Choice … Not Theirs,” “My Family My Choice,” “My Body My Choice,” “Justice for All,” “Who Decides?,” and “Keep Abortion Legal.”
Abortion and Conflicting Beliefs
Two or more ethical principles in conflict with one another are considered “ethical dilemmas,” such as in the case of abortion. Further complication of ethical dilemmas occurs when laws and regulations affect the decision-making process and, further, when the courts enter the melting pot by interpreting laws and regulations while recognizing the rights of individuals as provided under the Constitution.
To help us make choices in the resolution of ethical dilemmas, it is often necessary to value one ethical principle more than another. The difficulty in the abortion dilemma arises because beliefs, religion, culture, education, and life experiences can differ from person to person. Good people cannot be considered bad people merely because their beliefs differ from another’s beliefs. Values differ, and, therefore, determinations of morality may differ.
The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, ethics, and theology. It is a subject over which reasonable people can, and do, adhere to vastly divergent convictions and principles. Our obligation is to define the liberty of all, not to mandate our own moral code.52

16.2 STERILIZATION
Sterilization is a surgical technique that is used to prevent a male or female from having the ability to produce offspring. Sterilization often is accomplished by either a vasectomy for men or a tubal ligation for women. A vasectomy is a surgical procedure in which the vas deferens is severed and tied to prevent the flow of the seminal fluid into the urinary canal. A tubal ligation is a surgical procedure in which the fallopian tubes are cut and tied, preventing passage of the ovum from the ovary to the uterus. Sterilizations are often chosen for such reasons as birth control, economic necessity to avoid the additional expense of raising a child, therapeutic purposes to prevent harm to a woman’s health (e.g., to remove a diseased reproductive organ), and genetic reasons to prevent the birth of a defective child.
Elective Sterilization
Voluntary or elective sterilizations of competent individuals present few legal problems, as long as proper consent has been obtained from the patient and the procedure is performed properly. Civil liability for performing a sterilization of convenience may be imposed if the procedure is performed in a negligent manner, as was the case in McLaughlin v. Cooke,53 where the physician was found negligent for mistakenly cutting a blood vessel in the patient’s scrotum while he was performing a vasectomy. Excessive bleeding at the site of the incision was found to have occurred because of the physician’s negligent postsurgical care. On appeal, the jury’s finding of negligence was supported by testimony that the physician’s failure to intervene sooner and to remove a hematoma had been the proximate cause of tissue necrosis.
Negligent Sterilization
The parents in Goforth v. Porter Medical Associates, Inc.54 brought a medical malpractice action for expenses resulting from the negligence of the physician in performing a sterilization. The physician assured the plaintiff that she was sterile. The patient subsequently became pregnant and delivered a child. The plaintiff argued that as a result of the physician’s negligence, she incurred $2,000 in medical bills and will incur $200,000 for the future care of the child. The district court dismissed the case. On appeal, the Oklahoma Supreme Court held that the parents could not recover the expenses of raising a healthy child; however, they could maintain an action for expenses resulting from the negligent performance of sterilization and the unplanned pregnancy.
In a 2003 case, Chaffee performed a partial salpingectomy on Seslar. The purpose of the procedure was to sterilize Seslar, who had already borne four children, so that she could not become pregnant again. After undergoing the surgery, however, Seslar conceived and delivered a healthy baby. Seslar sued Chaffee. The trial court permitted Seslar to seek damages including the expenses of raising and educating her child born following the unsuccessful sterilization procedure and Chaffee appealed.
The court of appeals held that damages for the alleged negligent sterilization procedure could not include the costs of raising a normal healthy child. Although raising an unplanned child is costly, all human life is presumptively invaluable. A child, regardless of the circumstances of birth, does not constitute harm to the parents so as to permit recovery for the costs associated with raising and educating the child. As with a majority of jurisdictions, the court held that the value of a child’s life to the parents outweighs the associated pecuniary burdens as a matter of law. Recoverable damages may include pregnancy and childbearing expenses but not the ordinary costs of raising and educating a normal, healthy child conceived after an allegedly negligent sterilization procedure.55
Therapeutic Sterilization
If the life or health of a woman may be jeopardized by pregnancy, terminating her ability to conceive or terminating her husband’s ability to impregnate may avoid the danger. Such a procedure is referred to as a therapeutic sterilization—one performed to preserve life or health. The medical necessity for sterilization renders the procedure therapeutic. Sometimes, a diseased reproductive organ has to be removed to preserve the life or health of the individual. The operation results in sterility, although this was not the primary reason for the procedure. Such an operation technically should not be classified as a sterilization because it is incidental to the medical purpose.
Involuntary: Eugenic Sterilization
The term eugenic sterilization refers to the involuntary sterilization of certain categories of persons described in statutes without the need for consent by, or on behalf of, those subject to the procedure. Persons classified as mentally deficient, feeble minded, and, in some instances, epileptic are included within the scope of the statutes. Several states also have included certain sexual deviates and persons classified as habitual criminals. Such statutes ordinarily are said to be designed to prevent the transmission of hereditary defects to succeeding generations, but several statutes also have recognized the purpose of preventing procreation by individuals who would not be able to care for their offspring.
Although there have been many judicial decisions to the contrary, the U.S. Supreme Court, in Buck v. Bell,56 specifically upheld the validity of such eugenic sterilization statutes provided that certain procedural safeguards are observed.
Several states have laws authorizing eugenic sterilization. The decision in Wade v. Bethesda Hospital57 strongly suggests that in the absence of statutory authority, a state cannot order sterilization for eugenic purposes. At the minimum, eugenic sterilization statutes provide: a grant of authority to public officials supervising state institutions for the mentally ill or prisons and to certain public health officials to conduct sterilizations; a requirement of personal notice to the person subject to sterilization and, if that person is unable to comprehend what is involved, notice to the person’s legal representative, guardian, or nearest relative; a hearing by the board designated in the particular statute to determine the propriety of the prospective sterilization (at the hearing, evidence may be presented, and the patient must be present or represented by counsel or the nearest relative or guardian); and an opportunity to appeal the board’s ruling to a court.
The procedural safeguards of notice, hearing, and the right to appeal must be present in sterilization statutes to fulfill the minimum constitutional requirements of due process. An Arkansas statute was found to be unconstitutional because it did not provide for notice to the incompetent patient and opportunity to be heard or for the patient’s entitlement to legal counsel.58
Current statutes do not authorize castration and often specifically prohibit it. Most eugenic sterilization statutes provide for vasectomy or salpingectomy. This prohibition against castration, along with provisions granting immunity only to persons performing or Helping in a sterilization that conforms to the law, is an added safeguard for persons subject to sterilization. Civil or criminal liability for assault and battery may be imposed on one who castrates or sterilizes another without following the procedure required by law.
Sterilization for Convenience
Like abortion, voluntary sterilization is the subject of many debates concerning its moral and ethical propriety. Some healthcare institutions have adopted policies restricting the performance of such operations at their facilities. The U.S. Court of Appeals for the First Circuit ruled, in Hathaway v. Worcester City Hospital,59 that a governmental hospital may not impose greater restrictions on sterilization procedures than on other procedures that are medically indistinguishable from sterilization with regard to the risk to the patient or the demand on staff and facilities. The court relied on the Supreme Court decisions in Roe v. Wade60 and Doe v. Bolton,61 which accorded considerable recognition to the patient’s right to privacy in the context of obtaining medical services. The extent to which hospitals may prohibit or substantially limit sterilization procedures is not clear, but it appears likely that hospitals will be allowed considerable discretion in this matter.
Kansas enacted legislation declaring that hospitals are not required to permit the performance of sterilization procedures and physicians and hospital personnel may not be required to participate in such procedures or be discriminated against for refusal to participate. Such legislation, which more frequently is enacted in relation to abortion procedures, often is referred to by the term conscience clause and was not found objectionable in Supreme Court decisions striking down most state abortion laws.

16.3 ARTIFICIAL INSEMINATION
Artificial insemination is the process by which sperm is placed into the reproductive tract of a female, for the purpose of impregnating the female by using means other than sexual intercourse. There are two sources of the sperm for impregnation of a female: (1) Homologous artificial insemination involves the use of the husband’s semen to impregnate the female, and Heterologous artificial insemination (HAI) involves the use of semen from a donor other than a woman’s husband. The absence of answers to many questions concerning HAI may discourage couples from seeking to use the procedure and physicians from performing it. Some of the questions concern the procedure itself; others concern the status of the offspring, the effect of the procedure on the marital relationship, and the risk of multiple births that can be financially challenging. Further complications include the potential for legal actions for multiple births and even lead to the loss of a physician’s license to practice medicine, such as occurred when the Medical Board of California revoked Dr. Michael Kamrava’s medical license. Dr. Kamrava had transplanted multiple embryos that resulted in the birth of octuplets. The Medical Board determined that Dr. Kamrava had acted beyond the reasonable judgment of a physician by implanting a number of embryos that exceeded existing guidelines. “The Board subsequently found Kamrava guilty of gross negligence, repeated negligent acts, and inadequate medical records in the first case. In the additional two cases, Kamrava was found guilty of gross negligence and repeated negligent acts in one case and guilty of repeated negligent acts in the other case.”62
Consent
The Oklahoma heterologous artificial insemination statute specifies that husband and wife must consent to the procedure.63 It is obvious that the wife’s consent must be obtained; without it, the touching involved in the artificial insemination would constitute a battery. Besides the wife’s consent, it is important to obtain the husband’s consent to ensure against liability accruing if a court adopted the view that without the consent of the husband, heterologous artificial insemination was a wrong to the husband’s interest, for which he could sustain a suit for damages.
The Oklahoma statute also deals with establishing proof of consent. It requires the consent to be in writing and to be executed and acknowledged by the physician performing the procedure and by the local judge who has jurisdiction over the adoption of children, as well as
by the husband and wife.
In states without specific statutory requirements, medical personnel should attempt to avoid such potential liability by establishing the practice of obtaining the written consent of the couple requesting the heterologous artificial insemination procedure.
Confidentiality
Another problem that directly concerns medical personnel involved in heterologous artificial insemination birth is preserving confidentiality. This problem is met in the Oklahoma heterologous artificial insemination statute, which requires that the original copy of the consent be filed pursuant to the rules for the filing of adoption papers and is not to be made a
matter of public record.64

16.4 SURROGACY
Surrogacy is a method of reproduction whereby a woman agrees to give birth to a child she will not raise but hand over to a contracted party, who is often unable to conceive a natural child of her own. A surrogate “may be the child’s genetic mother (the more traditional form of surrogacy), or she may, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.”65
Surrogacy raises many ethical and legal issues to consider before searching for a surrogate mother. For example, is it right to enter a contract with a woman, taking advantage of her circumstances by offering her money in exchange for bearing a child and then transferring all parental rights and physical custody of the child to the “commissioning couple”? Although the long-term effects of surrogacy contracts are not known, the adverse psychological impact could be detrimental to the child who learns that he or she is the offspring of someone who gave birth only to obtain money. Would the child want to search for his or her gestational mother? Should records be kept, and should the child have access to those? After the child is taken, the surrogate mother may be negatively impacted as her feeling of isolation is felt along with the reality of the sale of her body. One might ask this: How does this differ from those circumstances in which a donor would legally (which is not the case at present) be allowed to sell an organ strictly for financial purposes, thus allowing a donee to live as a result of
the purchase?
Finally, some believe that the surrogacy contract is based on principles that are contrary to the objectives of our laws. The surrogate contract is perceived to be illegal when a fee is involved because it is compared with baby selling, which is illegal in all states. Court decisions and legislation in the United States are split on the issue of whether to prohibit surrogacy
contracts.

16.5 WRONGFUL BIRTH, LIFE, AND CONCEPTION
There is substantial legal debate regarding the impact of an improperly performed sterilization. Suits have been brought on such theories as wrongful birth, wrongful life, and wrongful conception. Wrongful life suits are generally unsuccessful, primarily because of the court’s unwillingness, for public policy reasons, to permit financial recovery for the “injury” of being born into the world.
However, some success has been achieved in litigation by the patient (and his or her spouse) who allegedly was sterilized and subsequently proved fertile. Damages have been awarded for the cost of the unsuccessful procedure; pain and suffering as a result of the pregnancy; the medical expense of the pregnancy; and the loss of comfort, companionship services, and consortium of the spouse. Again, as a matter of public policy, the courts have indicated that the joys and benefits of having the child outweigh the costs incurred in raising a child.
There have been many cases in recent years involving actions for wrongful birth, wrongful life, and wrongful conception. Such litigation originated with the California case in which a court found that a genetic testing laboratory can be held liable for damages from incorrectly reporting genetic tests, leading to the birth of a child with defects.66 Injury caused by birth had not been previously actionable by law. The court of appeals held that medical laboratories engaged in genetic testing owe a duty to parents and their unborn child to use ordinary care in administering available tests for the purpose of providing information concerning potential genetic defects in the unborn. Damages in this case were awarded based on the child’s shortened life span.
Wrongful Birth
In a wrongful birth action, the plaintiffs claim that but for a breach of duty by the defendant(s) (e.g., improper sterilization), the child would not have been born. A wrongful birth claim can be brought by the parent(s) of a child born with genetic defects against a physician who or a laboratory that negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, therefore precluding an informed decision whether to have the child.
Recovery for damages was permitted for wrongful birth but not wrongful life in Smith v. Cote.67 The physician in this case was negligent because he failed to test in a timely fashion for the mother’s exposure to rubella and to advise her of the potential for birth defects. Therefore, she was entitled to maintain a cause of action for wrongful birth. However, for compelling reasons of public policy, the mother would not be permitted to assert on the child’s behalf a claim for damages based on wrongful life.
In Proffitt v. Bartolo,68 the parents of a handicapped child stated a cause of action for wrongful birth against a physician who allegedly failed to properly interpret a rubella test performed during the mother’s first trimester of pregnancy, thereby precluding the option of abortion. The physician had a duty to advise the parents so that they would have an opportunity to exercise the option of an abortion. If it could be established that the physician breached such a duty and that the parents would have terminated the pregnancy, the necessary causal connection would be demonstrated, and the parents would be entitled to recover for their extraordinary costs of raising the handicapped child and for any emotional harm that they might have suffered as a result of their child’s handicap.
Recovery for damages was permitted for wrongful birth in Keel v. Banach,69 where the Alabama Supreme Court held that a cause of action for wrongful birth is recognized in Alabama and compensable losses are any medical and hospital expenses incurred as a result of the physician’s negligence, physical pain suffered by the mother, loss of consortium, and mental and emotional anguish suffered by the parents. The basic rule of tort compensation is that the plaintiffs should be placed in the position where they would have been without the defendant’s negligence. A jury could conclude that the defendants, in failing to inform the mother of the possibility of giving birth to a child with multiple congenital deformities, directly deprived her and her husband of the option to accept or reject a parental relationship with the child and thus caused them to experience mental distress.
The Alabama Supreme Court said that it agreed with the Illinois Supreme Court, finding the following:
Many courts have accepted wrongful birth as a cause of action on the theory that it is a logical and necessary extension of existing principles of tort law…. Some courts have recognized the cause of action because of the expanding ability of medical technology to accurately detect and predict genetic or other congenital abnormalities before conception or birth. Imposing liability on individual physicians or other health care providers, these courts say, vindicates the societal interest in reducing and preventing the incidence of such defects…. Other courts have expressed concern that refusing to recognize this cause of action would frustrate the fundamental policies of tort law: to compensate the victim, to deter negligence, and to encourage due care…. The Alabama legislature passed a new Medical Liability Act in 1987, regarding medical negligence causes of action. Nowhere in that Act are wrongful birth cases excluded as they are in the laws passed in Missouri and Minnesota.70
The state of Georgia did not recognize a cause of action for wrongful birth filed by the parent of a child born with Down’s syndrome in Etkind v. Suarez.71 Throughout her pregnancy, Dr. Etkind was a patient of Dr. Suarez. After giving birth to a child with Down’s syndrome, she and her husband filed suit against Suarez and his partnership, asserting a wrongful birth claim. The claim, brought by the parents of an impaired child, alleged that but for the treatment or advice provided by the defendant, the parents would have aborted the fetus. The trial court granted the defendants’ motion for judgment on the pleadings. A cause of action for wrongful birth is not recognized in Georgia.
In a New Jersey case, Canesi ex rel. v. Wilson,72 the New Jersey Supreme Court reviewed the dismissal of an action for wrongful birth on the claim of the parents that, had the mother been informed of the risk that a drug, Provera, which she had been taking before she learned that she was pregnant, might cause the fetus to be born with congenital anomalies, such as limb reduction, she would have decided to abort the fetus. It was alleged that the physicians failed to disclose the risks associated with the drug. The physicians argued that the informed consent doctrine requires that the plaintiffs establish that the drug in fact caused the birth anomalies. The court rejected the argument and distinguished the wrongful birth action from one based on informed consent:
In sum, the informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff’s position would deem material to her decision. What is or is not a medically acceptable risk is informed by what the physician knows or ought to know of the patient’s history and condition. These causes of action, however, have important differences. They encompass different compensable harms and measures of damages. In both causes of action, the plaintiff must prove that a reasonably prudent patient in her position, if apprised of all material risks, would have elected a different course of treatment or care. In an informed consent case, the plaintiff must additionally meet a two-pronged test for proximate causation: she must prove that the undisclosed risk actually materialized and that it was medically caused by the treatment. In a wrongful birth case, on the other hand, a plaintiff need not prove that the doctor’s negligence was the medical cause of her child’s birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized, was reasonably foreseeable and not remote in relation to the doctor’s negligence; and, had plaintiff known of that risk, she would have terminated her pregnancy. The emotional distress and economic loss resulting from this lost opportunity to decide for herself whether or not to terminate the pregnancy constitute plaintiff’s damages.73
In addressing the issue of proximate cause, the court noted:
[T]he nature of the wrongful birth does not depend on whether a defendant caused the injury or harm to the child. Rather, the appropriate inquiry was viewed as to whether the defendant’s negligence was the proximate cause of the parent’s loss of the option to make an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child….
The appropriate proximate cause question, therefore, is not whether the doctor’s negligence caused the fetal defect; the congenital harm suffered by the child is not compensable. Rather the determination to be made is whether the doctor’s inadequate disclosure deprived the parents of their deeply personal right to decide for themselves whether to give birth to a child who could possibly be afflicted with a physical abnormality. There is sufficient evidence in the record of this case to enable the jury to make that determination.74
With the increasing consolidation of hospital services and physician practices, a case could be made for finding a hospital liable for the physician’s failure to obtain informed consent where the hospital actually owns or controls the physician’s practice or where both the hospital and the physician’s practice are owned or controlled by another corporation that sets policy for both the hospital and the physician’s practice.
Wrongful Life
Wrongful life claims are initiated by the parent(s) or child based on harm suffered as a result of being born. The plaintiffs generally contend that the physician or laboratory negligently failed to inform the child’s parents of the risk of bearing a genetically defective infant and hence prevented the parents’ right to choose to avoid the birth.75 Because there is no recognized legal right not to be born, wrongful life cases are generally not successful.
[L]egal recognition that a disabled life is an injury would harm the interests of those most directly concerned, the handicapped. Disabled persons face obvious physical difficulties in conducting their lives. They also face subtle yet equally devastating handicaps in the attitudes and behavior of society, the law, and their own families and friends. Furthermore, society often views disabled persons as burdensome misfits. Recent legislation concerning employment, education, and building access reflects a slow change in these attitudes. This change evidences a growing public awareness that the handicapped can be valuable and productive members of society. To characterize the life of a disabled person as an injury would denigrate both this new awareness and the handicapped themselves.76
A cause of action for wrongful life was not cognizable under Kansas law in Bruggeman v. Schimke.77 A child born with congenital birth defects was not entitled to recover damages on the theory that physicians had been negligent when, after a prior sibling was born with congenital anomalies, they mistakenly advised the parents that the first child’s condition was not because of a known chromosomal or measurable biochemical disorder. A fundamental principle of law is that human life is valuable, precious, and worthy of protection. A legal right not to be born rather than to be alive with deformities cannot be recognized. The Kansas Supreme Court held that there was no recognized cause for wrongful life.
A wrongful life action was brought against the physicians in Speck v. Finegold on behalf of an infant born with defects.78 The court held that regardless of whether the claim was based on wrongful life or otherwise, no legally cognizable cause of action was stated on behalf of the infant even though the defendants’ actions of negligence were the proximate cause of her defective birth. The parents could recover pecuniary expenses that they had borne and would bear for care and treatment of their child and that resulted in the natural course of things from the commission of the tort. The tort in this case was the failure of the urologist to perform a vasectomy properly and the failure of the obstetrician/gynecologist to perform an abortion properly. Recovery for negligence was allowed because the plaintiff parents did set forth a duty owed to them by the physicians and breached by the physicians with resulting injuries to the plaintiffs. Claims for emotional disturbance and mental distress were denied.
In Pitre v. Opelousas General Hospital,79 the parents of a child born with a congenital defect filed a malpractice suit seeking damages for themselves and their child, alleging that the surgeon had been negligent in performing a tubal ligation. The suit also claimed that the hospital and the physician failed to inform Pitre that the operation was unsuccessful. A pathology report revealed that the physician had severed fibromuscular tissue, rather than the fallopian tissue, during the surgical procedure. The parents were not informed of this finding. The mother became pregnant and gave birth to an albino child. The court of appeals dismissed the child’s claim for wrongful life and struck all the parents’ individual claims with the exception of expenses associated with the pregnancy and the husband’s loss of consortium.
The Louisiana Supreme Court held that the physician owed a duty to warn the parents regarding the failure of the tubal ligation, the physician did not have a duty to protect the child from the risk of albinism, and the parents were entitled to damages relating to the pregnancy and the husband’s consortium. Special damages relating to the child’s deformity were denied.
In Kassama v. Magat,80 Kassama alleged that Dr. Magat failed to advise her of the results of an alpha-fetoprotein blood test that indicated a heightened possibility that her child might be afflicted with Down’s syndrome. Had she received that information, Kassama contends, she would have undergone an amniocentesis, which would have confirmed that prospect. Kassama claims, if that occurred, she would have chosen to terminate the pregnancy through an abortion.
The Supreme Court of Maryland decided that for purposes of tort law, an impaired life was not worse than nonlife, and, for that reason, life itself was not, and could not, be considered an injury. There was no evidence that the child was not deeply loved and cared for by her parents or that she did not return that love.
Wrongful birth is based on the premise that being born, and having to live, with the affliction is a disadvantage and thus a cognizable injury. The injury sued upon is the fact that the child was born; she bears the disability and will bear the expenses only because, but for the alleged negligence of Magat, her mother was unable to terminate the pregnancy and avert her birth. The issue here is whether Maryland law is prepared to recognize that kind of injury—the injury of life itself.
The child has not suffered any damage cognizable at law by being brought into existence. One of the most deeply held beliefs of society is that life, whether experienced with or without a major physical handicap, is more precious than nonlife. No one is perfect, and each person suffers from some ailments or defects, whether major or minor, which make impossible participation in all the activities life has to offer. Our lives are not thereby rendered less precious than those of others whose defects are less pervasive or less severe. Despite their handicaps, the Down’s syndrome child is able to love and be loved and to experience happiness and pleasure—emotions that are truly the essence of life and that are far more valuable than the suffering that may be endured.
The right to life and the principle that all are equal under the law are basic to our constitutional order. To presume to decide that a child’s life is not worth living would be to forsake these ideals. To characterize the life of a disabled person as an injury would denigrate the handicapped themselves. Measuring the value of an impaired life as compared to nonexistence is a task that is beyond mortals.
Unless a judgment can be made based on reason, rather than the emotion of any given case, that nonlife is preferable to impaired life—that the child-plaintiff would, in fact, have been better off had he or she never been born—there can be no injury, and if there can be no injury, whether damages can or cannot be calculated becomes irrelevant.
The crucial question, a value judgment about life itself, is too deeply immersed in each person’s own individual philosophy or theology to be subject to a reasoned and consistent community response in the form of a jury verdict.
In another case, the mother, in her capacity as guardian for her minor son, brought a wrongful life action on behalf of the child against a physician. It was alleged that because the physician failed to adequately and timely diagnose the child’s condition, the mother was denied the opportunity to decide whether to terminate the pregnancy while she was legally allowed to do so. The court, in deciding whether to render a verdict in the child’s favor or what damages, if any, should be awarded, a jury would be faced with an imponderable question: Is a severely impaired life so much worse than no life at all that the child is entitled to damages? The civil justice system places inestimable faith in the ability of jurors to reach a fair and just result under the law, but even a jury collectively imbued with the wisdom of Solomon would be unable to weigh the fact of being born with a defective condition against the fact of not being born at all—in other words, nonexistence. It is simply beyond the human experience to analyze this position. The court declined to recognize a cause of action for wrongful life brought by or on behalf of a child born with a congenital defect. It was untenable to argue that a child who already had been born should have the chance to prove it would have been better if he had never have been born at all.81
Wrongful Conception
Wrongful conception refers to a claim for damages sustained by the parents of an unexpected child based on an allegation that conception of the child resulted from negligent sterilization procedures or a defective contraceptive device.82 Damages sought for a negligently performed sterilization could include pain and suffering associated with pregnancy and birth, the expenses of delivery, lost wages, father’s loss of consortium, damages for emotional or psychological pain, suffering resulting from the presence of an additional family member in the household, the cost and pain and suffering of a subsequent sterilization, and damages suffered by a child born with genetic defects.
The most controversial item of damages claimed is that of raising a normal healthy child to adulthood. The mother in Hartke v. McKelway83 had undergone sterilization for therapeutic reasons to avoid endangering her health from pregnancy. The woman became pregnant as a result of a failed sterilization. She delivered a healthy child without injury to herself. It was determined that “the jury could not rationally have found that the birth of this child was an injury to this plaintiff. Awarding child rearing expense would only give Hartke a windfall.”84
However, the costs of raising a normal healthy child in Jones v. Malinowski85 were recoverable. The plaintiff had three previous pregnancies. The first pregnancy resulted in a breech birth, the second child suffered brain damage, and the third child suffered from heart disease. For economic reasons, the plaintiff had undergone a bipolar tubal laparoscopy, which is a procedure that blocks both fallopian tubes by cauterization. The operating physician misidentified the left tube and cauterized the wrong structure, leaving the left tube intact. As a result of the negligent sterilization, Mrs. Malinowski became pregnant. The court of appeals held that the costs of raising a healthy child are recoverable and that the jury could offset these costs by the benefits derived by the parents from the child’s aid, comfort, and society during the parents’ life expectancy. The jury was instructed not to consider that the plaintiffs “might have aborted the child or placed the child out for adoption [since] … as a matter of personal conscience and choice parents may wish to keep an unplanned child.”86
The cost of raising a healthy newborn child to adulthood was recoverable by the parents of the child conceived as a result of an unsuccessful sterilization by a physician employee at Lovelace Medical Center. The physician in Lovelace Medical Center v. Mendez87 found and ligated only one of the patient’s two fallopian tubes and then failed to inform the patient of the unsuccessful operation. The court held that:
[T]he Mendezes’ interest in the financial security of their family was a legally protected interest which was invaded by Lovelace’s negligent failure properly to perform Maria’s sterilization operation (if proved at trial), and that this invasion was an injury entitling them to recover damages in the form of the reasonable expenses to raise Joseph to majority.88
Some states bar damage claims for emotional distress and the costs associated with the raising of healthy children but will permit recovery for damages related to negligent sterilizations. In Butler v. Rolling Hills Hospital,89 the Pennsylvania Superior Court held that the patient stated a cause of action for the negligent performance of a laparoscopic tubal ligation. The patient was not, however, entitled to compensation for the costs of raising a normal healthy child. “In light of this Commonwealth’s public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child.”90
As the Court of Common Pleas of Lycoming County, Pennsylvania, in Shaheen v. Knight, stated:
Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff’s statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion, to allow such damages would be against public policy.91
Prevention of Wrongful Birth, Life, and Conception Lawsuits
The occurrence of an unplanned pregnancy is not necessarily the result of negligence on the part of a physician. Although slight, there is known to be a given failure rate of sterilizations. Physicians can prevent lawsuits by informing each patient, both orally and through written consent, as to the likelihood of an unsuccessful sterilization, as well as the inherent risks in the procedure.
The Court’s Decision
The New Jersey Supreme Court held residential privacy represents a sufficient public policy interest to justify injunctive restrictions. The court further held that because a state has a significant interest in protecting the residential privacy of its citizens, it is justified in imposing injunctive relief.

CHAPTER REVIEW
1. Abortion is defined as the premature termination of a pregnancy, either spontaneous or induced. Roe v. Wade is the Supreme Court’s ruling that, within certain guidelines, women are allowed to make decisions regarding how their pregnancies will end. According to Roe v. Wade:
• During the first trimester, an abortion decision is between a woman and her physician.
• In the second trimester, the state may regulate the medical conditions under which an abortion is performed.
• During the third trimester, the final stage of pregnancy, a state can prohibit all abortions except those deemed necessary to protect maternal life or health.
2. States’ and women’s rights regarding reproductive decision have been further shaped and defined by a number of landmark rulings.
• In the 1992 ruling in the case of Planned Parenthood v. Casey, the Supreme Court nearly overturned Roe v. Wade. It did reject the trimester approach in favor of the Court evaluating the permissibility of state abortion rules based on whether they unduly burden a woman’s ability to obtain an abortion.
• A rule is considered an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus is viable.
3. A partial-birth abortion is a late-term abortion that involves partial delivery of the fetus prior to its being aborted. An Arkansas statute failed to prohibit this manner of abortion largely as a result of its broad coverage. The Act was determined to be unconstitutional because it was unconstitutionally vague, imposed an undue burden on women seeking abortions, and did not adequately protect the health and lives of pregnant women.
4. In Utah Women’s Clinic, Inc. v. Leavitt, the court determined that imposition of a 24-hour waiting period—except in the event of a medical emergency—does not impose an undue burden on the right to an abortion.
5. In Doe v. Zimmerman, the court declared unconstitutional the provisions of the Pennsylvania Abortion Control Act, which required that the written consent of the husband of a married woman be secured before the performance of an abortion.
6. Individuals have a right to refuse to participate in abortions for reason of conscience or religious or moral conviction.
7. Several states have placed restrictions on abortions by reducing funding.
• The Hyde Amendment opened the door to such provisions within states.
8. Sterilization is defined as the termination of the ability to produce offspring.
• Vasectomy is a surgical procedure performed on men in which the vas deferens is severed and tied to prevent the flow of seminal fluid into the urinary canal.
• Tubal ligation is a surgical procedure performed on women in which the fallopian tubes are cut and tied. This prevents the passage of the ovum from the ovary to the uterus.
• Therapeutic sterilization is performed to preserve life or health.
• Eugenic sterilization—the involuntary sterilization of certain categories of persons—is often performed to prevent the transmission of hereditary defects and, in some states, is performed to prevent procreation by persons who would not be able to care for their offspring.
9. Artificial insemination most often takes the form of the injection of seminal fluid into a woman to induce pregnancy.
• Homologous artificial insemination is when the husband’s semen is used in the procedure.
• Heterologous artificial insemination is when the semen is from a donor other than the husband.
10. Surrogacy is a method of reproduction whereby a woman agrees to give birth to a child she will not raise but hand over to a contracted party.
11. Wrongful birth, wrongful life, and wrongful conception have led to a variety of lawsuits.
• Wrongful birth actions claim that, but for breach of duty by the defendant, a child would not have been born.
• Wrongful life suits—those in which a parent or child claims to have suffered harm as a result of being born—are generally unsuccessful.
• Wrongful conception actions claim that damages were sustained by parents of an unexpected child based on the allegation that the child’s conception was the result of negligent
sterilization procedures or a defective contraceptive device.

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16 Ethical Issues in Procreation

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Learning Objectives
The reader, upon completion of this chapter, will be able to: • Discuss the 1973 Supreme Court ruling in Roe v. Wade and the continuing controversy over abortion.
• Describe the flow of abortion cases beginning with Roe v. Wade, concentrating on counseling, spousal consent, parental consent, and funding.
• Define and explain the legal issues of sterilization, artificial insemination, and surrogacy.
• Describe the legal and moral issues of wrongful birth, wrongful life, and wrongful conception.
It’s Your Gavel…
PICKETING PHYSICIANS—PRIVACY ISSUE
Two physicians in Murray v. Lawson1 brought separate actions to obtain injunctions against antiabortion protesters who had been picketing their residences. In the first action, the defendant discovered the personal address of Dr. Murray and visited the house

12. Physicians can avoid liability in wrongful conception/pregnancy actions by obtaining oral and written consent that indicates that the physician has disclosed the inherent risks of the sterilization procedure.

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