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A jury in New Jersey recently handed down a decision that is very troubling. They directed Dr. James Delahunty, founder of the American Association of Pro-Life OB/GYN’s, to pay $1.85 million in damages. A woman who said that Dr. Delahunty did not offer her an amniocentesis sued him after he detected an abnormality suggesting that her baby would have Downs Syndrome. He insisted that he did offer the mother amniocentesis. The jury, however, sided with the mother, stating that Dr. Delahunty was skewed by his anti-abortion stance, and was negligent for failing to discuss the results of the test. This is known as a wrongful birth suit. Twenty-seven states allow such lawsuits, which pose a significant dilemma for pro-life physicians.
To understand it more thoroughly, let’s review a typical diagnostic effort. Let’s assume, for one reason or another, the pregnant woman wants the test to be sure that her baby does not carry a fetal abnormality. In this case, the first thing done is a blood test for Alpha-Fetoprotein. This tests the mother’s blood and can reveal, or at least suggest, that the baby she carries has an open spine or is anencephalic. This blood must be drawn between her 16th and 18th week of pregnancy. Of 1,000 women, 50 will have positive results. The blood test should then be repeated for it is frequently false. On the repeat, only 30 will still be positive. There will typically be one or more women in the 20 who have been cleared who don’t believe the test or don’t want to take the chance of aborting a normal baby.
On the 30 who are positive, an ultrasound test will be done. It will clear 15, leaving 15 still positive. Again, some of these women who are cleared will be so nervous that they may get abortions, again killing normal babies.
These 15 mothers then will undergo an amniocentesis test, which itself carries a risk. British studies have shown that 1% of the babies whose mothers are given this test will die. It takes 4 weeks to get the results from the amniocentesis tests, and these will typically narrow down and pinpoint 1 or 2 babies who have handicaps. These babies will be approximately 5 months along and weigh 1 to 1 _ pounds each.
Even after all of this testing, some of the babies aborted will be normal and some of the normals will be born with a handicap, as the test is not always 100% accurate. However, the test is available, is being used and it is required by law in some states. The main problem, even for those who favor abortion, is the level of anxiety created as the elimination process continues. As mentioned, many of those who are cleared still don’t believe they’re okay, and get abortions on suspicion that the tests were wrong. A report in the New England Journal of Medicine in 1986 found that from amniocentesis, false positive and false negative results varied from 4% to 17.5%.
The above applies to open spine, spina bifida and anencephalus. For Downs Syndrome there are several tests that point toward it but are not definitive. The final test for it and other genetic problems is amniocentesis.
So let us now discuss the pro-life dilemma. The most typical happening is that a pro-life couple is being seen by their obstetrician. Let’s assume Downs Syndrome is suspected and the doctor immediately says that amniocentesis should be done. Let’s assume these particular parents are aware of the fetal mortality rate from the test, and are also staunchly opposed to abortion. They tell the doctor they don’t want the test done, for after all, all it does is confirm a diagnosis and satisfy their curiosity. Typically the doctor will insist. One reason, he says, is that it will help them get ready to accept such a baby, and he will minimize any worries about danger from the test. Unfortunately, some pro-life couples will then go ahead with the test. I have a daily radio program, and every time I discuss this problem I receive a number of letters recounting the needless loss of normal babies from the test.
Incidentally, fetal diagnosis also includes an earlier test, Chorionic Villi sampling, which diagnoses genetic problems but does it earlier in the pregnancy. Why do doctors insist on these? They do it to protect their wallets. As noted above, doctors have been sued because they did not do the test to discover a handicapped fetus so she could kill that baby. This has produced a compulsion among doctors to have the test done so as to protect themselves. They worry that, even though the couple now states that they would never have an abortion, they could change their minds if they do deliver a handicapped child and might still sue him later.
What do you do if you are that pro-life couple? The answer is to tell your doctor that you don’t want to risk the life of your baby to satisfy your curiosity. Tell him to enter into his records that he has offered the test to you, explained it and that you’ve refused it. Then sign his record and have a witness also sign. This will relieve him of any possible liability and he’ll quit asking you to have the test.
What should the pro-life doctor do? In the current legal climate in the 27 states permitting such lawsuits, the doctor must inform the patient that these tests are available. The doctor can certainly tell them about the 1% fetal mortality rate from amniocentesis. The doctor could also explain to them that there is no real preparation for receiving a child who’s handicapped. Preliminary diagnoses aren’t that accurate, and all this does is cause a continuing heartache for the parents for the balance of the pregnancy. There isn’t anything to do ahead of time that can’t be done when you discover such a child at birth, nothing that could be done better if you knew the child was handicapped before the delivery.
And so the doctor should tell the parents the tests are available and record that in the history, as noted above. But the doctor is certainly free to give his own opinion, free to note that while he doesn’t do these tests, if the parents insist, he can refer them to someone who can.