Abstract
In many respects, the law has failed to keep pace with the rapid advances being made in reproductive technology. New procedures for infertility treatment create legal issues that courts and legislatures have not addressed, and that existing law cannot address adequately. As a result, there is a great deal of uncertainty as to the physicians legal duties in treating an infertile couple and his or her potential liability for such treatment (1).
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References
For more detailed discussion of the legal issues discussed in this chapter see general comments in the following references. Artificial human reproduction: legal problems presented by the test tube baby, 28 Emory Law Journal 1045 (1979); Smith, Artificial insemination: disclosure issues, 11 Columbia Human Rights Law Review 87 (1979); Capron, Tort liability in genetic counseling, 79 Columbia Law Review 618 (1979); Black, Legal problems of surrogate motherhood, 16 New England Law Review 373 (1981); Note, Contracts to bear a child, 65 California Law Review 611 (1978); Comment, Surrogate Motherhood in California Legislative Proposals, 18 San Diego Law Review 341 (1981); Annas, Contracts to bear a child, 11 The Hasting Center Report 23 (April 1981); Comment, Surrogate mothers: the legal issues, 7 American Journal of Law and Medicine 323 (1981); Warren, The law of human reproduction: an overview, 3 The Journal of Legal Medicine 1 (1982); Smith, Artificial insemination redivivus: permatuations within a penumbra, 2 The Journal of Legal Medicine 113 (1981).
Intentional infliction of mental emotional distress and outrage involve intentional or reckless conduct that is against the accepted standards of conduct, that causes severe emotional distress.
In an action for battery the plaintiff need not present expert testimony with regard to the allegedly unauthorized treatment. The plaintiff need only show that the treatment was performed and that it was not authorized. In a negligence action the plaintiff usually must present expert testimony showing that the physicians treatment did not conform to the standards of the medical profession. Additionally, the plaintiff must show that she would not have undergone the procedure had she been fully informed. Some courts have held that a physician who does not fully inform a patient about a proposed treatment may be liable for battery. These courts have held that the physicians failure to fully inform the patient of all material risks negates the patients consent.
Comment, Artificial human reproduction: legal problems presented by the test tube baby, 28 Emory Law Journal 1045, 1046 fn. 10 (1979).
Doornbos v. Doornbos, 23 U.S.L.W. 2308 (Superior Court, Cook County, 111., December 13, 1954); Strand v. Strand, 190 Misc. 786, 78 N.Y.S. 2d 390 (Superior Court 1948); Gurskey v. Gursky, 39 Misc. 2d 1083, 242 N.Y.S. 2d 406 (Superior Court 1963 ); Anonymous v. Anony
Fitzgerald v. Ruekl, No. 11433 (Nevada 1981 ).
Curie-Cohen M, Luttrell MS, Shapiro S. Current practice of artificial insemination by donor in the United States. N Engl J Med 1979; 300: 585 - 590.
Doornbos v. Doornbos, 23 U.S.L.W. 2308 (Superior Court, Cook County, 111., December 13, 1954 ).
People v. Sorenson. Artificial human reproduction: legal problems presented by the test tube baby, 28 Emory Law Journal 1045, 1046 fn. 10 (1979).
C.M. v. C.C., 152 N.J. Superior Court 160, 377 A2d 821 (1977).
Del Zio v. Vande Wiele, unreported.
Cohen. The Brave New Baby and the law: fashioning remedies for the victims of in vitro fertilization. Am J Law Med 1978; 319.
C.F.R. Section 46. 204 (d) (1979).
Reported in the 1980 Report on Human Reproduction and Law II-A-1.
Willey v. Lawton, 8 111. App. 2d 344, 132 N.E. 2d 34 (1956).
Roe v. Wade, 410 U.S. 113 (1973).
In re Shirk, 186 Kan 311, 350 P.2d (1960).
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© 1984 Springer-Verlag New York, Inc.
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Hardwick, P.A. (1984). Legal Issues in Reproduction. In: Aiman, J. (eds) Infertility. Clinical Perspectives in Obstetrics and Gynecology. Springer, New York, NY. https://doi.org/10.1007/978-1-4613-8265-2_22
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DOI: https://doi.org/10.1007/978-1-4613-8265-2_22
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