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04/24/2017

Fetuses and Full Disclosure

Medicine has a notoriously long history of paternalism, particularly with regards to reproductive health. The past century has seen everything from forced sterilization of people of color and those with intellectual disabilities to nondisclosure of sexually transmitted diseases. Physicians have fought to regain the trust of the community through disclosure of key medical information and shared decision making, both of which are essential underpinnings of the bioethical principle of autonomy. Given the incredible emphasis on these concepts in contemporary medical training, it is surprising that the following law has now passed Texas Senate approval:

SB 25. A cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted. (b) This section may not be construed to eliminate any duty of a physician or other health care practitioner under any other applicable law.

In short, there can be no legal penalty against physicians who knowingly choose to withhold information from pregnant patients if the physician thinks it will prevent an abortion. This does not absolve the physician in question from professional consequences, like action from the Texas Medical Board. However, it does set an important precedent – namely, that the belief structure of the physician takes precedence over the rights of the patient. From a bioethical standpoint, this is an inexcusable violation of autonomy. Disclosure of all relevant information is critical to informed decision making, which is the bedrock of autonomy in the complex, jargon-laden world of modern medicine. One of our key roles as clinicians is to promote patient autonomy by translating this jargon into information that can be easily understood by the patients, family members, or anyone with medical power of attorney. Her decisions about the future of her pregnancy hinge on information about fetal status, whether she decides to terminate or simply wants to be able to prepare for the effects of an abnormality. Clearly, allowing one’s own beliefs surrounding abortion to supersede a patient’s right to know about the status of her fetus is an obvious ethical transgression.
Furthermore, legal actions that protect doctors who fail to disclose important information to their patients harm the medical community at large. These laws undermine the trusting relationship between doctor and patient that we continue to build, particularly in vulnerable populations that have historically been ignored or exploited by medical professionals. Trust is especially important in sexual and reproductive healthcare as patients entrust their physicians with some of the most intimate details of their lives when seeking treatment in these matters. SB 25 is akin to codifying mistrust into law. 
Patients’ values may differ drastically from our own and the decisions they make may not reflect what we would do in similar situations. Almost all physicians have had patients make decisions with which they disagree thoroughly. However, it is our duty to behave in an ethically responsible way and to help patients make these decisions in a way that is consistent with their own belief structure, regardless of our own feelings. This means providing all relevant information in a nonjudgmental way and respecting the informed, autonomous decision of the patient. Passing a law exempting physicians from the legal consequences of paternalism doesn’t change what is right. Rather, it serves only to further divide patients from their providers in a way that harms us all. 
The Alden March Bioethics Institute offers a Master of Science in Bioethics, a Doctorate of Professional Studies in Bioethics, and Graduate Certificates in Clinical Ethics and Clinical Ethics Consultation. For more information on AMBI’s online graduate programs, please visit our website.

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