ABSTRACT
Pregnant women know that some things that can go wrong in their pregnancies. They know of the chance of miscarriage, the reason most women do not even publicly share their happy news until after twelve weeks. They also know of the chance of certain chromosomal abnormalities, including fatal ones, as doctors’ disclosure of and screening for these abnormalities has become routine in prenatal care. But empirical studies confirm that pregnant women are ignorant of the chance of stillbirth, the death of the unborn child in the woman’s womb after twenty weeks of pregnancy but before birth. Women are ignorant that stillbirth means the woman will have to give birth to her dead baby. Women remain ignorant of the chance and reality of stillbirth because of medical paternalism—doctors think pregnant women do not need to and should not know of the chance of stillbirth.

This Article argues that a woman has a right to know of the chance of stillbirth before it happens to her child, a right enforceable through an informed consent medical malpractice tort claim. The application of modern informed consent law to define this right is novel, but not difficult. The risk of stillbirth is easily material and no evidence supports the myth that disclosure will cause pregnant women anxiety. Doctors are not protecting anyone, except maybe themselves, by failing to disclose stillbirth. To the contrary, numerous countries other than the United States have reduced their stillbirth rates through initiatives that include requiring doctors to disclose the risk of stillbirth to women and to educate women on the known, simple preventative measures. A tort claim enforcing a woman’s right to disclosure of stillbirth could have a similar effect in the United States.

Citation:
Lens, Jill Wieber, Medical Paternalism, Stillbirth, & Blindsided Mothers (February 28, 2020). Iowa Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3546183

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Jill Wieber Lens

University of Arkansas School of Law

Jill Wieber Lens is a professor at the University of Arkansas School of Law. She is a leading expert on legal recognition and treatment of stillbirth. She has written about stillbirth within the contexts of tort law, remedies law, criminal law, maternal health care, and reproductive rights and justice. She has also published extensively on tort remedies, mainly punitive damages. Her work is forthcoming or has appeared in the Washington University Law ReviewIowa Law ReviewBoston University Law ReviewFlorida State University Law ReviewUtah Law Review, and BYU Law Review, and has been cited by the United States Court of Appeals for the Fifth Circuit and the United States District Court for the Southern District of New York. She has also been quoted in the New York Times and the Los Angeles Times.

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