SB 25: RELATING TO ELIMINATING THE WRONGFUL BIRTH CAUSE OF ACTION
“Sec.A71A.001. A WRONGFUL BIRTH. A cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.”
“If, for example, an OB-GYN discovered during an ultrasound that a fetus had severe abnormalities and failed to inform his or her patient ― knowing the mother might choose to terminate the pregnancy ― that mother would be prevented from later bringing what is known as a “wrongful birth” suit.”
On March 21, 2017, SB 25 passed in the Texas Senate. The letters and numbers that label this bill seem innocuous enough… some might even call them “boring”. Despite its mundane title, be careful not to be misled. The characters within its title represent legislation that holds great power, and the potential for significant pain.
SB 25, is otherwise known as [a bill] “Relating to Eliminating The Wrongful Birth Cause of Action”.
In simpler terms, it gives me as a physician, and as an Obstetrician, the power to withhold information from a pregnant woman regarding whether or not her unborn baby has a birth defect. Not only does it give me the power to do this, but it exonerates me of any legal burden to inform her. And that means that it strips her of the ability to successfully sue me because I chose not to share sensitive and relevant information with her.
Maybe you feel that this does not apply to you because I am referring to a hypothetical patient. Maybe you have no intention of having children, and, therefore, feel immune to the potential aftershock of this proposed legislation.
Perhaps I should make it a bit more personal.
Let’s pretend, for a moment, that my patient IS you. And let’s pretend that you have undergone a prenatal ultrasound which documents that your unborn child has multiple severe congenital defects that are incompatible with life outside of the uterus.
Now, let’s pretend that I decide not to share this information with you, because you might choose to terminate your pregnancy; and I do not agree with that potential decision. So, I have preemptively made the decision for you.
Now imagine that you ask me if your baby is alright. And imagine that I tell you that he or she is.
And every time that you come in for a visit, I tell you that you’re doing just fine. And perhaps you have one or two additional ultrasounds, and I tell you about everything EXCEPT the birth defects.
And imagine that during all of this time you, your family and loved ones, are anticipating the birth of your child… and anticipating the celebration that will occur… and anticipating the wonderful life with all of its hope and promise, that await this child.
And then imagine, that after many hours in labor, your baby is born and you get to meet him or her. You get to see him or her for the very first time. But seeing your baby does not happen right away.
Consider that the nurse does not hand him or her to you, as you thought that they would have. Instead your baby is whisked away to an examining table for a few minutes, where several members of the medical team are gathered. And you look over, and see your child’s providers working feverishly on your child, and you get the distinct impression that something may be amiss; but no one has said anything yet… not even “Congratulations”. And the absence of that word and the absence of levity in the room further suggest that something is, indeed, wrong. What you will notice is that the room remains surprisingly quiet, despite the number of medical professionals present and attending to your child. The silence is impenetrable and deafening all at once. And you keep thinking that something is wrong, but you’re praying that it isn’t; and because no one has said anything at all to you, you find the courage to ask,
“Is my baby alright?”
And the factual answer to that is “no”, but, still, no one has said it.
And now it is time for the physician that you trusted with your life and that of your child’s, takes off his or her operating gown, and approaches your bed. And they begin to tell you what they have known all along.
Your baby has a syndrome in which he or she has very specific defects… and these defects will disable him or her, at the very least. There may be certain things that he or she will never accomplish.
Or maybe he or she explains that your child’s birth defects will not allow him or her to live for long after birth, and that you will need to meet your child for the first time, and hold him or her, and then say “goodbye”.
If SB 25 becomes a law, it will usher in scenes like the one described above.
It will remove your right to know, and, therefore, your right to prepare… mentally, emotionally, spiritually, financially. It will thrust you into a devastating and chaotic state of affairs on a day that you thought would be one of the happiest of your life.
In addition to throwing a family into a sudden state of pain and upheaval, this bill may carry with it other profound and pervasive consequences. It is an example of the proverbial “slippery slope”. This has the potential to herald the erosion of patients’ rights as they relate to other diagnoses and illnesses. It will confer power to your physician to make decisions that impact your life in a manner that he or she should never be able to do, based upon their anticipation of the actions that you may take.
If this is acceptable to us, why not, then, enact legislation that would eliminate the need for your doctor to tell you that you have a terminal illness that is in its final stages? It would allow him or her to decide that you don’t need to know because maybe you are too infirm to do anything useful with the information.
Issues like these make us acutely aware of the need to distinguish what is legal from what is ethical. While some lawmakers seek to make the failure to inform a woman of her unborn child’s birth defects legal, there is nothing that can be done to make the unethical ethical. Ever.
The Modern Day Hippocratic Oath, however, is quite clear regarding the ethical duties that a doctor has to his or her patients.
“I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person’s family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.”
If and when a physician deviates from this understanding of how he or she should serve their patients, dignity and respect are then denied their patients. Further, a physician’s power becomes over-reaching with the potential for disastrous consequences, yet the freedom to walk away unscathed.
Physicians are entrusted to be analyzers and presenters of information. They are to recommend, but never compel or coerce. They are to execute the least restrictive and least invasive practices, and to always respect a patient’s autonomy in ALL issues surrounding their health.
When that patient is deemed unfit to legally represent him or herself, then the physician is to share information and confer with said patient’s legal representative… whether that is a parent, sibling or the executor of an estate. The point is that, ALL pertinent information should be communicated OPENLY, and at all times. The principle of autonomy should never be violated and there ought always be transparency regarding the options available for a patient’s health and well being.
And when we, as physicians, are empowered to deceive our patients and manipulate the outcomes that we believe should be, the essence of the provider-patient relationship is undermined. And when that happens, the good that can be done is corrupted.
This issue transcends the question of abortion.
Instead, it is about preserving the right that a patient has to remain autonomous in decisions about his or her own health.
I challenge you to think beyond the propaganda and the political agendas. Look outside of the realm of small crowds with picket signs at abortion clinics and large crowds with pink genitalia hats outside of government buildings. Consider for a moment, not the individual controversy, but the implications and full impact of what legislation like SB 25 will portend. And ask yourself:
Which personal rights are you willing to relinquish? And which personal rights are you willing to have snatched away?