Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Introduction
There are special constitutional protections for reproductive medicine.
Family planning implicates the rights of fathers and mothers.
Surrogacy has legal implications for all participants.
Violation of adoption laws can result in criminal liability.
Full disclosure and careful investigation is critical in adoption and surrogacy.
Family planning issues have dominated medical law constitutional litigation for decades.
Most precedent-setting litigation on the medical care practitioner–patient relationship has
arisen in the context of contraception first, then abortion, and now surrogacy because
these are areas with no general political consensus on the proper reach of the law. Even
the Cruzan right-to-die decision was based on a law passed as part of an antiabortion
legislative package.
This section treats family planning and surrogacy together because of their interrelated
legal status. Adoption is included because it is a necessary legal building block for many
surrogacy issues: there cannot be a valid surrogacy transaction unless the state laws on
adoption and parental rights are appropriately considered. The legal controversies over
the topics transcend even abortion because they deal with most intimate relationships
and must balance the rights of three parties—mother, father, and child. Since the
interests of these parties are often at odds, this will remain a controversial area of law.
A. Ethical Dilemmas in Family Planning
Few other areas of medicine are as fraught with ethical and legal hazards as is
reproductive care. Some medical care practitioners see abortion and contraception as
sins; some find it immoral that women who are not able to support their existing
children are not prevented from having more children; most consider it unethical to
deny women medical control over their own bodies. Charting a legally and ethically
defensible path through this minefield is difficult. The fundamental principle that must
underlie all medical care is that of honesty:
The principle of autonomy requires that a patient be given complete and
truthful information about her medical condition and any proposed treatment.
Only with such information is she able to exercise her right to make choices
about medical care. If complete information is not available, existing
uncertainty should be shared with the patient. It is inappropriate for a medical
care practitioner to assume that he or she is better able to assess what the
patient would want to know than is the patient herself. In general, a patient
benefits from a full understanding of her medical condition, its prognosis, and
the treatment available. The perception that a medical care practitioner has
concealed the truth or has engaged in deception will weaken the patient trust
and undermine the medical care practitioner–patient relationship. Thus the
norm of honesty can be based on the principle of beneficence as well as on the
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