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

of in vitro fertilization if the success rate were only 3% to 4%. Physicians have a
duty to ensure that patients understand this trade-off between success and the
attendant risk of multiple births.
The physician should also discuss the possibility of amniocentesis on the individual
fetuses and the termination of those with genetic diseases. This is a dangerous
process, however, because it is usually done later in the term, and retained fetal
tissue can cause disseminated intravascular coagulation, with fatal consequences for
the mother. [Novick LF, et al. New York State HIV Seroprevalence Project,
Chapter II Newborn Seroprevalence study: methods and results. Am J Pub Health
Supp. 1991;81:15–21.]
3. Artificial Insemination
Artificial insemination has been widely practiced for decades, so many of the legal
problems have been worked out. The issues of child custody are often covered by
statute. There may be questions of malpractice involving either genetic disease or
infection. There is also a societal problem because artificial insemination usually
involves the rights of four people: the wife, the husband, the sperm donor, and the
resulting child. Physicians should know and understand the laws of their states and
the standard of care before working in this area.
As in any other area of medical practice, patients should not be given guarantees
about the outcome of attempts at artificial insemination. If an unknown donor is
used, the patient should understand that the donors are screened for disease, not for
social desirability. Reasonable effort is made to ensure that the donor does not carry
HIV or Huntington’s chorea; no effort can ensure that the child will be smart or
beautiful. Accepting artificial insemination carries most of the same risks as picking
out a spouse.
a) Consent
This is a rare area of medical care in which the consent of the patient is not
sufficient. The consent of the husband should be obtained before a married woman
is impregnated by artificial insemination. Legal questions can arise when a married
woman is artificially inseminated with donor sperm. In most states, this child is
legally defined as legitimate to the husband. This presumption can be defeated if
the physician fails to follow the statutory requirements. If the statute requires the
permission of husband and wife, failing to obtain the husband’s permission could
allow him to deny paternity. Unconsented artificial insemination can have the same
legal consequences as adultery. Although the courts might view this as strictly
between the husband and wife, they might honor a suit against the physician for any
mental pain and suffering the unconsented insemination caused the husband.
b) Choosing a Donor
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