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From North Wales, Pennsylvania.
| Correspondence to: Susan Kerr Bernal (e-mail: bernal{at}erols.com). Received for publication January 28, 2005; accepted for publication January 28, 2005. |
After conceiving the idea of using "ER" as a teaching tool, the professors contacted the creators for permission and any insight they might offer. Because one of the creators, David Wells, was a fourth year medical student in a large Boston hospital when he began writing plot lines and concepts for the show, many of the story lines were a medical series version of "Law and Order's" ripped-from-the-headlines format and thus a valid teaching tool based on real-life scenarios that students could analyze without the usual on-the-spot decision-making pressure. The week before a show would air, the professors would get the general script story lines specifically pertaining to the medical, legal, and ethical issues from the creators and present the potential juxtaposing conflicts to the class. The students would then write and discuss a medical, legal, and ethical matrix of solutions before watching the show to see which issues and conflicts were actually addressed and how, if at all, they were resolved.
One episode, for example, featured a surrogate mother who had gone into labor. The problem was the baby was breach and compromised. The contracting couple/parents-to-be who were by the surrogate's side during her labor were encouraging the surrogate to heed the advice of 1 male doctor who was animatedly encouraging her to have a C-section. The surrogate was adamantly against surgery and wanted to continue to try to deliver the baby vaginally. The doctors, 1 male and the 1 female, who finally delivered the baby explained the extensive risks to the fetus should the surrogate proceed with a vaginal delivery rather than having a C-section. Of paramount concern was the belief that the cord was wrapped around the baby's neck, jeopardizing her oxygen intake. The contracting couple/parents-to-be attempted every cajoling method to get the surrogate to submit to a C-section, but the surrogate believed the baby would be fine on the basis of information provided by the female doctor that in approximately 25% of such cases the baby suffered no ill effects from a vaginal birth.
As one can imagine, much drama ensued between the doctors, the surrogate, and the contracting couple/parents-to-be. The male doctor questioned the surrogate's sanity and wanted to rush her into surgery for an emergency C-section. The female doctor, while clearly conflicted, acknowledged that doing so would be an affront to patient autonomy and decision making, not to mention the potential lawsuit the surrogate could bring for battery. Additionally, the husband/father-to-be began yelling at the surrogate about the contract she had signed to give them a healthy baby, and the wife/mother-to-be tried to calm everyone down and focus them on the baby and getting her out safely even if by vaginal delivery.
One of the numerous medical, legal, and ethical issues presented by this case included, "Who is the patient?" The surrogate? The yet-to-be-born baby? Or could some quasi-legal principle of equity or contract law yield a decision-making say to the contracting couple/parents-to-be? Also, what about the visible and somewhat unprofessional conflict between the doctors in front of the "patient"—was it a factor in the final outcome? Can a surrogate contract to provide a "healthy" baby? What does "healthy" mean? Perfect? Free from disease? No genetic abnormality? Could the contracting couple/parents-to-be force the surrogate to have a C-section under the surrogacy contract in an effort to achieve both parties' desired intent? Given its history and vast complexity, should surrogacy be legal at all? Thus, it is easy to understand how the television show, "ER," could be a valuable teaching tool and a worthy topic herein.
An ethical-legal analysis of the above case could go as follows. First, determine who is the patient. In theory, both the fetus and surrogate could be considered the patient. With time permitting, a guardian ad litum (advocate/decision maker) could be appointed on behalf of the fetus and even the contracting couple/parents-to-be, especially if 1 or both had contributed gametes. Here, however, practicality and circumstances would dictate. The surrogate was cognizant, articulate, and made aware of the risks and benefits of her medical options and would not have been considered incompetent to make her own medical decisions. Without judicial authority, the doctors could not disregard the surrogate's wishes and perform a C-section to substantially decrease the likelihood that the baby would be deprived of oxygen and born brain damaged. If the doctors did so, they would clearly be breaking two of the three elements of a bioethical analysis: they would be disrespecting patient autonomy, and, from the surrogate's perspective, they would be doing her harm via surgery. Of course, one could argue that a physician's edict of beneficence-nonmalfeasance coupled with justice (the third principal of ethical analysis) to both the fetus of dramatically increasing her chances of being born healthy and to the contracting couple/parents-to-be of performing the C-section should outweigh the surrogate's autonomy. In real life, this argument would have explored the surrogates seemingly irrational trepidation to surgery to garner a better understanding of the wishes and concerns of the surrogate and possibly catalyze additional options.
Next, unless the surrogate was incapacitated and had a durable power of attorney for health care, whereby the contracting couple/parents-to-be were named decision makers, there is no legal or quasi-legal theory that puts a competent person's healthcare decisions in the hands of another.
As for the unprofessional and overt conflict between the doctors, one must consider the environment—a laboring woman in the emergency room with a tenuously compromised fetus vehemently opposed to a C-section without an articulated reason. In such circumstances, finesse and composure do not always dictate. Here, the primary treating physician ultimately controlled the process as appropriate. Of course, this is television, and stereotypes are often amplified to create suspense or drama or to delve into a character's psyche—hence, the clash between and sides advocated by the male and female doctors. Similarly, the arrogance and derisive attitude espoused by the husband/father-to-be toward the surrogate, aka his hired incubator, exemplifies both the occasional reality and a somewhat prevailing stereotype about people who use surrogates.
Just as a doctor cannot contract a perfect outcome to a procedure or surgery, neither will the law or common sense allow a surrogate to contract for a "perfect" child. She may however, contract to eat a specified healthy diet, attend prenatal appointments, and refrain from alcohol intake in an effort to increase the chances of birthing a healthy child. Even assuming there was a clause written into the surrogacy contract stating the surrogate would submit to a C-section, if necessary, a court of law would not enforce such a clause. A court of moral obligation to the fetus on the other hand might reach a different solution. The sheer uniqueness and complex emotions of surrogacy and the vast unknowns of any pregnancy have led to surrogacy contracts being banned in some states and unenforced in others. This might be one area in which, despite valiant efforts, the law cannot keep up with or resolve the successful use of medical advances, nor can mere ethical and moral edicts provide a clearly lighted path.
Ultimately, the surrogate gave birth to a little girl who had been severely deprived of oxygen. She was alive but predicted to have debilitating brain damage. The male doctor was beyond frustrated but issued no "I told you so" while holding the tiny fingers of the newborn. The female doctor was similarly devastated. The surrogate was speechless, but her eyes shouted of sadness and regret, whereas the father-not-to-be stormed out of the emergency room, dragging his wife behind him and abandoning his baby-to-be.
Footnotes
* Journal of Andrology welcomes letters to the editor
regarding "Forum" articles and other ethical and legal issues of
interest in your own practice or research. We also invite you to suggest
topics that deserve attention in future issues. Papers appearing in this
section are not considered primary research reports and are thus not subjected
to peer review. Unsolicited manuscripts are welcome, and will be reviewed and
edited by the Section Editor. All submissions should be sent to the
Journal of Andrology Editorial Office. 
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