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. [
Sarosi v. Sobol,
155 A.D.2d 125, 553 N.Y.S.2d 517 (N.Y.A.D. 3 Dept. 1990).]
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.
