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LEGAL ASPECTS OF PARENTAL RIGHTS

In most areas of medical practice, adult patients are entitled to make their own medical decisions. The state may limit these decisions, and the patient must make the decisions in consultation with a physician, but other private persons have no right to interfere with the patient's decisions. In reproductive medicine, however, a woman's partner has the right to veto her medical decisions that would lead to the conception of a child. Once the child is born, the legal parents have responsibility for the child's care and well-being. The legal parents, however, are not always the biological parents. Some of the most bitter ethical and legal disputes in reproductive medicine center on the determination of legal parentage and the subsequent right to custody of the child.

New reproductive technologies exacerbate the problem of determining parental rights rather than creating unique new problems. Although relatively few physicians are involved in providing high-technology reproductive services, most physicians who deal with families face the traditional problems raised by parental rights determinations. These include investigations of child abuse, examination of children and parents to determine medical and psychological fitness before termination of parental rights or adoption proceedings, and questions about the privacy of adoption records. Additionally, physicians are faced with questionable private placement adoptions and attempts to use reproductive technologies to avoid state restrictions on adoptions. These creative alternatives to state-regulated adoptions have been driven by the declining pool of infants available for adoption. If physicians involved with such practices violate the state laws governing adoption proceedings, they may be prosecuted for baby selling and be subject to discipline by the board of medical examiners and to adverse publicity:

Petitioner, a physician licensed to practice in New York, is an obstetrician/gynecologist with a subspecialty in infertility. In May 1988, petitioner was arrested and charged with the unclassified misdemeanor of unlawfully placing a child for adoption in violation of Social Services Law sec. 374(2) and sec. 389. Petitioner pleaded guilty to the charge admitting that he had, in June 1986, arranged for the placement of a baby boy, now known as Travis Smigiel, for adoption by Joel Steinberg and Hedda Nussbaum without complying with the appropriate provisions of the Social Services Law.

The mother of the baby boy, Nicole Smigiel, was an unwed teenager whose mother became suspicious of the pregnancy only a few days prior to the infant's birth. ... Petitioner was contacted and he agreed to deliver the child and to cooperate with the adoption plans in secrecy. He insisted that the child be placed with Steinberg, his attorney and business associate. Petitioner had been treating Steinberg and Nussbaum for infertility for some time. ... Petitioner did not seek or receive a fee for delivering or placing the boy and this was the only time he had ever participated in arrangements for an adoption. Petitioner told Smigiel that Steinberg and Nussbaum were a "wonderful couple" and the baby would be well taken care of. Petitioner learned otherwise when Steinberg was arrested and ultimately convicted of manslaughter in connection with the death of Steinberg's other illegally adopted child, Lisa. ...

In connection with the criminal charge against petitioner, Criminal Court of the City of New York sentenced petitioner, an individual with no criminal history, to three years of probation, 100 hours of community service and a $1,000 fine. In its decision, the court noted that, although many physicians in New York were unfamiliar with Social Services Law sec. 374(2) and sec. 389 and may have unwittingly violated these provisions, "ignorance of the law is no excuse". Based on this criminal conviction, the Office of Professional Medical Conduct initiated a disciplinary proceeding against petitioner charging him with professional misconduct for having been convicted of an act constituting a crime. ... The report by the Regents Review Committee ... recommended ... that petitioner's license to practice medicine be suspended for three years, with the last 30 months of said suspension to be stayed at which time petitioner would be placed on probation for 30 months.[157]

The Board of Regents (the medical licensing board in New York State) went beyond the committee's recommendation. Taking "a more serious view of petitioner's misconduct," it revoked the physician's license to practice medicine. The physician appealed this sanction, and the court found that the revocation was unnecessarily harsh, given the criminal sentence and adverse publicity that the physician had already endured. The court reiterated, however, that the defendant's good intentions and lack of knowledge of the technical requirements of the law were no defense to the charges. They served only to mitigate the physician's punishment.

[157]Sarosi v. Sobol. 155 A2d 125 (1990).

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