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

consistent with public health and safety. If the physician has doubts about the
mother’s fitness to care for the baby, they should be reported to the child welfare
department. Such beliefs are not an excuse for helping the patient by participating in
obtaining her waiver of parental rights so the baby can find a good home. Improper
participation by physicians is grounds for setting aside the termination of parental
rights. This imperils whatever good a physician seeks to do by expediting the child’s
placement in an adoptive home.
a) Risks to Health Care Practitioners
In most areas of medical practice, adult patients are entitled to make their own
medical decisions. The state may limit these decisions, and the patient must make
the decisions in consultation with a physician, but other private persons have no
right to interfere with the patient’s decisions. In reproductive medicine, however, a
woman’s partner has the right to veto her medical decisions that would lead to the
conception of a child. Once the child is born, the legal parents have responsibility
for the child’s care and well-being. The legal parents, however, are not always the
biological parents. Some of the most bitter ethical and legal disputes in
reproductive medicine center on the determination of legal parentage and the
subsequent right to custody of the child.
New reproductive technologies exacerbate the problem of determining parental
rights rather than creating unique new problems. Although relatively few
physicians are involved in providing high-technology reproductive services, most
physicians who deal with families face the traditional problems raised by parental
rights determinations. These include investigations of child abuse, examination of
children and parents to determine medical and psychological fitness before
termination of parental rights or adoption proceedings, and questions about the
privacy of adoption records. Additionally, physicians are faced with questionable
private placement adoptions and attempts to use reproductive technologies to avoid
state restrictions on adoptions. These creative alternatives to state- regulated
adoptions have been driven by the declining pool of infants available for adoption.
If physicians involved with such practices violate the state laws governing adoption
proceedings, they may be prosecuted for baby selling and be subject to discipline
by the board of medical examiners and to adverse publicity:
Petitioner, a physician licensed to practice in New York, is an
obstetrician/gynecologist with a subspecialty in infertility. In May 1988,
petitioner was arrested and charged with the unclassified misdemeanor of
unlawfully placing a child for adoption in violation of Social Services Law
sec. 374(2) and sec. 389. Petitioner pleaded guilty to the charge admitting
that he had, in June 1986, arranged for the placement of a baby boy, now
known as Travis Smigiel, for adoption by Joel Steinberg and Hedda
Nussbaum without complying with the appropriate provisions of the Social
Services Law.
The mother of the baby boy, Nicole Smigiel, was an unwed teenager whose
542