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

contraception, but contraception has become so widely accepted that its use
generates no moral outrage comparable to abortion.) Even persons who support a
woman’s right to choose to terminate an unwanted pregnancy are not necessarily
proabortion but see it as a necessary evil. As a matter of public policy and individual
patient welfare, it is preferable that reproductive decisions be made before
conception.
In a failure of preconception counseling, the parents must prove that had they been
properly informed of the risk of having an injured child, they would have chosen not
to conceive the child. In contrast, when the information is sought after conception,
the parents must convince the jury that they would have aborted the fetus had they
known of the risk. Juries are clearly more sympathetic to decisions not to conceive
than to decisions to abort. As a result, they are willing to believe that a couple would
choose not to conceive based on the risk of minor conditions such as congenital
deafness. Conversely, it is be much more difficult to convince a jury that the same
condition, discovered postconception, would justify an abortion.
2. Patients’ Views about Abortion
A patient’s personal beliefs about abortion change the risk–benefit determinations for
genetic counseling and, to a lesser extent, for fertility treatment. Physicians must not
assume, however, that a patient who is opposed to abortion in the abstract will not
consider abortion if she is personally faced with a high probability of giving birth to
a child with a severe defect. All women, even those who are opposed to abortion,
should be offered all appropriate testing and counseling. This does not mean that a
physician should advocate abortion. Ideally, a patient should receive the necessary
information about genetic diseases and the risks of fertility treatment without
reference to either her or her physician’s views about abortion. The woman’s
personal views about abortion should shape the risks that she is willing to assume of
conceiving a child with a genetic disease, the prenatal testing to which she will
consent, and under which circumstances, if any, she will terminate a pregnancy.
Physicians who do not perform abortions because of personal ethical beliefs should
ensure that their beliefs do not compromise their patients’ right to choose an
abortion. In addition to providing every patient full information, the physician should
arrange an easy referral system so that a patient who chooses an abortion can obtain
it without unnecessary delay or expense. Conversely, physicians who support
abortion as a valid therapeutic technique must not force their views on their patients.
They must be prepared to respect the wishes of a woman who, after being fully
informed of the risks and benefits of pre- or postconception testing, chooses to bear
her child without regard to potential genetic diseases.
3. Creating Unreasonable Expectations
Marketing has a strong influence on obstetric services today. Many hospitals offer
special facilities and services to compete for the lucrative market in delivering well-
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