Should informed consent include a definition of life?

In the Courts. By Tanya Albert, AMNews staff. Dec. 9, 2002. Additional information

A New Jersey jury next year could be asked to essentially answer a question that elicits heated debate in many circles: When does life begin?

The answer to the question that scholars and religious leaders have grappled with for years without coming to consensus could have an impact on what a doctor needs to tell a patient about an abortion procedure to obtain the patient's informed consent.

While about 30 states have laws that outline what constitutes informed consent for abortion procedures, New Jersey doesn't.

And a physician there now faces a lawsuit from a patient who says he didn't do enough to inform her before the procedure. Some say the outcome of the case could have effects beyond New Jersey.

On April 6, 1996, Rosa Acuna went to her physician complaining of abdominal pain. Obstetrician-gynecologist Sheldon C. Turkish, MD, told the 29-year-old mother of two that she was pregnant. A sonogram showed that the pregnancy was in the first trimester. Court records differ on whether the pregnancy was four or seven weeks along.

Acuna discussed the termination of the pregnancy with Dr. Turkish. Two days later, she returned and had the procedure.

The discussion that took place during the first visit is now the center of the lawsuit.

Several years after the procedure, Acuna sued Dr. Turkish saying he didn't get informed consent because he "failed to inform her that [the fetus], although a person unborn, was a complete, separate, unique and irreplaceable human being."

Acuna says that she knew she was pregnant, but in a deposition she said that she asked Dr. Turkish "if there was a baby already in me." She said he told her "it's only blood."

Dr. Turkish has testified that he didn't remember Acuna asking the question, but acknowledged that if a patient did ask that question he would have answered that a "seven-week pregnancy is not a living human being," court records show.

Acuna and her attorney say that when she asked the physician whether there was a baby already in her, the physician had an obligation to explain that the essential nature of an abortion procedure was to terminate the life of a living human being.

"The doctor imposes his decision and will on her when he says that it is not a human being or says it is just a ball of tissue," said Harold J. Cassidy, Acuna's attorney. "The physician should explain and then the mother can decide whether it is important to her that it is a human being."

Dr. Turkish's attorney would not comment on the record about the case, but court records show that the physician argues "there is no question that she [Acuna] knew and understood that her pregnancy would be ended and as a result she would not give birth to another child."

The big jury question

So what exactly constitutes informed consent from a patient?

The state laws dealing directly with informed consent for an abortion procedure vary. Some require a woman to talk to a health professional about the abortion procedure and then wait 24 hours before making a decision. Others require that the woman is told the gestation age of the fetus. And some require options such as adoption be discussed.

No states require a physician to tell a woman that an abortion would terminate the life of a human being.

If the case goes to trial as planned next year, Cassidy will ask the jury to decide that informed consent should include that statement. He will pose two questions. First, is it a biological fact that the embryo is a human being? Second, if so, wouldn't a reasonable person want to know?

"In New Jersey, even if the jury decides it isn't something that a reasonable patient would want to know, there would be a duty to give the information if the patient asks the question," Cassidy said. "And in this case, the patient did ask the question."

Others disagree with this legal argument.

"That involves a value judgment," said Jennifer Jaff, legal counsel for Voters for Choice, a nonpartisan pro-abortion rights political action committee. "Informed consent involves the risks and nature of a procedure. I know of no case in any area of medicine that requires informed consent to include a physician making a value judgment."

Physicians are divided on the issue, as well.

Christian Medical and Dental Assns. executive director David Stevens, MD, said that telling a woman seeking an abortion that the physician is going to take out a mass of tissue is like telling a woman that taking out her uterus is like taking out a mass of tissue. Dr. Stevens said in the latter case a physician would also tell the woman that she won't be able to have any more children.

"I would pray we would do better with women going through this procedure [abortion]," Dr. Stevens said. "Give them good, quality medical care and make sure they have all of the information. Medicine is best served by that."

He said that the politics surrounding abortion shouldn't interfere.

"Just because you have a right to abortion, it doesn't mean you should give up the right to informed consent," Dr. Stevens said.

Newark, N.J., obstetrician-gynecologist Natalie Roche, MD, said it is not the physician's place to answer a moral and ethical question for a patient. Informed consent for any procedure involves telling the patient about how the procedure is done.

"The issue of 'When does life begin?' is not in the purview of the physician," Dr. Roche said. "Where life begins for her [the patient] is a question she asks herself. It is the responsibility of the patient to make moral and ethical decisions."

Physicians have information about when a pregnancy can result in a life that can survive on its own outside of the womb, she said. But, she said, patients need to consult priests or other religious leaders to answer moral questions that have been debated for centuries.

"I don't know how we can be expected to counsel people about that," Dr. Roche said. "That is why there is individual choice -- to give people the chance to make their own decisions on who they are, morally and ethically."

The question will be up to a jury to decide.

Albert is a staff writer covering legal issues.

PROFESSIONAL ISSUES

Should informed consent include a definition of life?

The big jury question

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