Wednesday, April 18, 2012

Hospitals cannot legally conceal gender of fetus from mother

Apparently certain hospitals in Ontario are withholding the gender of a fetus from a mother to avoid a gender selective abortion. Ignoring any moral issues, is such withholding lawful?  No.

As a legal matter, absent legislation, such withholding is improper -- the patient is entitled to all medical information.

McInerney v. MacDonald [1992] 2 S.C.R. 138 held, in the absence of legislation, a patient is entitled, upon request, to examine and copy all information in her medical records which the physician considered in administering advice or treatment, including records prepared by other doctors that the physician may have received.

The physician-patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty, to hold information received from or about a patient in confidence, and to make proper disclosure of information to the patient.

The doctor also has an obligation to grant access to the information used in administering treatment. This fiduciary duty is ultimately grounded in the nature of the patient's interest in the medical records.
Information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one's own. While the doctor is the owner of the actual record, the information is held in a fashion somewhat akin to a trust and is to be used by the physician for the benefit of the patient.
The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue. The trust-like "beneficial interest" of the patient in the information indicates that, as a general rule, she should have a right of access to the information and that the physician should have a corresponding obligation to provide it.


Anonymous said...

This practice has been going on for years. There are signs in ultrasound labs that state the gender of the fetus will not be disclosed. This is different than, I suppose saying that hospitals will not give the gender to the "mother".

You chose to mention the moral issue. Clearly it is immoral. This is a slam dunk. For the Libs though they still adhere to the principal that ALL abortions should not only be legal but fully funded by the taxpayer. (Unless of, course the woman lives in the most Liberal province in the country PEI where they are forced to leave the province to get an abortion).

If you are nit-picking on the moral issue then I'd suggest you are legally wrong when you call the carrier of the fetus ie pregnant woman, a mother. Since a fetus under law is not a human then the women carrying a fetus is not legally a mother. (unless I suppose she has other children)

Q.) Is the sex of a fetus medically relevant? I suppose in rare circumstances it is but generally one could argue it is not and therefore not disclosing the gender is reasonable.

It seems that home medical kits that can easily determine the gender of the fetus will soon be available. So, this debate may be moot.

I saw at a dollar store (I believe thay were $1.25) home pregnancty test kits. The gender test kits cannot be far behind.

Anonymous said...

So, a certain group of society appear (I don't see any actual figures from actual abortions)to be taking action to ensure their offspring belong to the "favoured" gender.

Blame the mothers? How about blaming a society where it is acceptable to be "paid" by dowry to take a wife? How about blaming a society that is well behind the rest of the world in having women represented in upper mgmt and corporate boards? Why are women still earning 70% of that of men? If you had a choice, would you wish THAT on your children?

So, no one is willing to say that within certain societies where women cant drive, or must wear a sack over their heads, or regularly have sexual assault complaints dismissed because "sex was in the air", that preference isn't given to the male gender? What a surprise that the preference starts in utero.

James C Morton said...

The idea that a daughter is worth less than a son is morally reprehensible. It appalls me. My post deals only with the legal point!

Anonymous said...

Except that according to our society at large, a woman IS worth less than a man.

James C Morton said...

And that is wrong. (But, as a factual statement, correct)

Anonymous said...

They're all COMMUNISTS!!!!!

The Rat said...

Morality? That's rather ironic, don't you think? Aren't you on Progressive Blogs where there was just a huge argument about the morality of late term abortions and how any restriction was a violation of a woman's human right to control her body? If morality suddenly matters to you I wonder if you will now be bombarded by the same prog bloggers demanding that a woman's choice is not subject to your paternalistic views. If a woman's choice is inviolate then that must include her choice of gender to carry to term. And there's the irony, right? A woman's choice must include her ability to make the 'wrong' choice and selectively abort females.