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Posted on April 26, 2016 at 11:40 PM

by Craig Klugman, Ph.D.

On this week’s episode of ChicagoMed (Season 1; Episode 15) issues of consent was the main focus. The first major storyline concerned a 16-year-old in abdominal pain who enters the ED with her father, a heroin addict. Although in pain and in need of a diagnostic endoscopy, the patient refuses any and all medications: She fears that even one dose will turn her into the addict that her father has been for her entire life. The doctors try the endoscopy without anesthetic or pain medications and they are unable to get through the procedure. Dr. Charles, the psychiatrist, does a capacity examination of the patient and finds that not only is she rational and reasonable, but given her father’s history, she has reason to be wary.

Not liking the patient’s response, Dr. Natalie Manning—a pediatric trauma specialist—goes to the father and asks him to step up to plate and make the decision to consent to the drugs for his daughter. He states that they have a deal where she makes her own decisions and he doesn’t interfere. In the end, she convinces him and the patient is given fentynal, an opiate more powerful than morphine. After the drug is given and the endoscopy finds no physiological cause of the pain, Dr. Charles reprimands Manning for (1) ignoring the patient’s interest in staying away from opiates and narcotics and (2) for not asking whether the father was capacitated (i.e. not high or someone who really knows his daughter) when Manning asked for his consent. He tells her that she may have done what was best for the doctors, but not what was in the patient’s interest.

This would have been a good case for an ethics consult—for asking people who know about consent and who can facilitate communication to assist. For example, an ethicist might have suggested that if the teen had said, “yes, give me the drugs you think I need,” no one would have questioned whether she could or even should consent because she would be agreeing with her doctors. That she was going against their advice is when the issue of who should consent even arises. Except in a few circumstances, a minor cannot consent for her own medical treatment. An ethicist may have suggested that with a father who has not been helping raise this child and may not be sober, who can consent? Is there a mother or grandparent in the picture? Should a court order to consent for the drug administration be sought? And since no one is taking care of this teen, shouldn’t child protective services be consulted?

In the end, the doctors diagnose a rare (but treatable) genetic disorder responsible for all of the symptoms,. And lo and behold, dad has it too and his drug abuse has partly been self-medicating of the condition. Charles tells the dad that he can help with quitting heroin now that they know why he did it, but the father refuses, leaving the hospital.

In a second storyline, a young pregnant woman comes to the ED with two small children in tow. She is experiencing preeclampsia and if she does not deliver the 32-week-old fetus, both she and the fetus will die. The complicating factor is that she is a surrogate carrying a couples genetic child. If she does not deliver a full term, healthy baby, she does not get paid. Having spent the winter in a shelter, she needs the money for her kids. The department administrator, Epatha Merkerson, meets with the surrogacy firm and learns that the contract has a bonus for full term delivery as an incentive for the surrogate to maintain healthy habits. We also learn that if the baby is not delivered full-term or healthy, then the couple are under no obligation to adopt the baby (despite being the genetic parents). The surrogate then has first right of refusal, she can keep the baby or put it up for adoption..

Five states and Washington DC have legislation or case law forbidding surrogacy or that consider such contracts (especially for a fee) unenforceable. Seventeen states permit surrogacy, 7 have case law that upholds surrogacy and 21 have no law or cases on the matter. Given that this show takes place in Illinois, it is interesting to note that Illinois is highly favorably toward surrogacy. However, the contract discussed in the show would actually violate Illinois law (750 ILCS 47/1), which states that the contracting parents are considered the mother and father of the child at the time of birth.   The contract can stipulate agreement to undergo medical procedures for the health of the baby as well as to avoid any activities that the contracting parents or a physician feel is harmful to the fetus. The law requires that the surrogate have had independent legal counsel before signing the document, a condition that seems to be lacking in the storyline. Payments to the surrogate need to be placed in escrow to avoid exactly the situation that develops in this storyline.

Merkerson appears to know her stuff because she calls out the surrogacy company for it’s unethical approach after learning the contracting parents feel they cannot provide for the premature baby and thus are passing on adopting it. The company does say that it will try to find a couple willing to adopt the baby. As Merkerson points out, that is probably the best outcome possible here. No one suggests getting counsel for the surrogate.

As Merkerson also points out, in this case, the contract is nothing more than “human trafficking” which is the reason many states give for forbidding surrogacy. This is also an example of wealthy people taking advantage of the less well off, using money to buy use of another person’s body. In a sense, this is gestational slavery.

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