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.
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