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).