Fetal Gender and Abortion
Recently I put up a post asking if a state statute prohibiting doctors from disclosing the gender of a fetus to the parents would be constitutional. I received the following thoughtful reply from Margo Kaplan, a Visiting Assistant Professor at Brooklyn Law School. Here response is below the fold:
Your post on statutes prohibiting physicians from disclosing the sex of the child was interesting and timely. I recently read an article in the Canadian Medical Association Journal by Dr. Rajendra Kale advocating a similar policy for Canadian physicians. And I think the comments in response to your blog brought up some wonderful points about the potential constitutional problems this raises.
Another issue that I find fascinating that seems to receive less attention is the possibility that this may violate physicians’ ethical and legal requirements to obtain informed consent. The American Medical Association Opinion 8.08, for example, requires physicians to disclose “relevant medical information” and states that “[t]he quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients.” While these ethical guidelines are not law, several states use professional standards of conduct to determine if a physician has violated a patient’s legal right of informed consent.
This raises the really interesting question of whether and in what context sex of a fetus is relevant medical information. In his article, Dr. Kale dismisses sex as “not medically relevant” when sex-linked genetic diseases are not a concern. For most women obtaining an abortion, the sex of the fetus is not relevant and, in fact, might be something they would prefer not to know.
But, as morally abhorrent as many find it, the sex of the fetus is clearly relevant to many women choosing whether to undergo a medical procedure. For example, consider a woman who is obtaining an abortion based on her belief that the fetus is female. The physician who will perform the abortion, however, determines the fetus is male during a preliminary ultrasound. Is he ethically required to inform his patient of this information before the procedure? The question becomes particularly thorny where patients cannot obtain the information elsewhere.
Sex of the fetus is clearly relevant to many women making treatment decisions; but is it relevant medical information? Informed consent does not require physicians to disclose non-medical information that would be relevant to the patient’s decisionmaking, such as whether a patient’s spouse is planning to leave him should the surgery result in scarring. But sex of the fetus does not fall neatly into the category of “non-medical” information. On the one hand, barring genetic illnesses, sex of the fetus is not information that will influence the health of the mother or fetus. On the other hand, it is information about her pregnancy and its outcome that the physician obtains solely through treatment of the patient and to which he alone has access.
The answer to this question has implications in other contexts. For example, if sex is not medically relevant, is paternity? A particularly sympathetic hypothetical is that of a married woman who was raped by a man not her husband, and who only wants to continue the pregnancy if the child is her husband’s. Is it ethical for a physician to refuse to disclose her paternity test results until the choice of an abortion is foreclosed to her?
This also raises questions in the context of intersex children; if a physician is aware that a fetus is intersex, is he obligated to disclose that information to the mother? The answer reflects the current debate over whether the medical profession should view as a “disorder” sex that does not fit into the binary classification of male or female.
These questions reflect a deeper problem in the proposed policies. Our interpretations of “relevant medical information” in the context of these hypotheticals are often simply code for “appropriate reasons for terminating a pregnancy.” Even if the state can regulate these disclosures—or physicians can collectively agree to adopt a non-disclosure policy—without running afoul of informed consent principles, do we want them to?