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New
Laws in Virginia Concerning OB/GYNs
I.
Parental Consent For Abortion
Prior
to the new law, Virginia deemed minors (i.e., individuals under
18 years of age) to be adults for the purpose of giving written
informed consent to terminate a pregnancy. Under this former law,
a physician terminating the pregnancy of a minor was required to
provide notification to a parent or authorized person, but no parental
consent was necessary. However, physicians must now obtain consent
from a parent or authorized person in order to perform an abortion
on a minor, with few exceptions. Failure to obtain proper consent
places the physician at risk of being charged with a Class 3 misdemeanor.
A.
Procedure
Generally,
consent from an authorized person is required when terminating
the pregnancy of a minor. An “authorized person” is
a parent, legal guardian or custodian, or a person standing in
loco parentis, including but not limited to a grandparent or adult
sibling with whom the minor regularly and customarily resides
and who has care and control of the minor. In order to obtain
proper consent, a physician should ensure that the following steps
have been taken before performing the procedure:
1. The physician must give notice of the intent
to perform the abortion to an authorized person. This means
that (i) actual notice of the intent to perform the abortion
has been given, either in person or by telephone, at least 24
hours before the procedure, or (ii) after reasonable but unsuccessful
efforts to notify in person or by telephone, notice is sent
to an authorized person by certified mail at least 72 hours
before the procedure is performed.
2. The physician must receive authorization
from the authorized person. “Authorization” means
a notarized, written statement signed by an authorized person
stating that the authorized person knows of the minor’s
intent to have an abortion and so consents to the abortion.
3. Alternately, the physician may get direct
written authorization from the authorized person if that authorized
person is physically present with the minor seeking the abortion.
The physician must witness the authorization.
4. Written authorization from an authorized person must be
kept in the medical records of the minor.
B. Exceptions
There are three situations in which parental consent is not required:
1. Medical emergency: A physician does not need
to obtain parental consent when an abortion is being performed pursuant
to a medical emergency. “Medical emergency” means any
condition that, on the basis of the physician’s good faith
clinical judgment, so complicates the medical condition of the pregnant
minor as to necessitate the immediate abortion of her pregnancy
to avert her death or for which a delay will create a serious risk
of substantial and irreversible impairment of a major bodily function.
In the case of medical emergency, the physician must certify in
the minor’s medical records the facts justifying the exception.
2. Abuse or neglect: A physician does not need
to obtain parental consent when the minor declares that she is an
abused or neglected child and the physician has reason to suspect
abuse or neglect and properly reports it. “Abused or neglected
child” means any child less than 18 years of age whose parent
or parents or other person responsible for her care: (i) creates
or inflicts or threatens to create or inflict or allows to be created
or inflicted a physical or mental injury by other than accidental
means, or creates a substantial risk of death, disfigurement, or
impairment of bodily or mental functions; (ii) neglects or refuses
to provide care necessary for her health; (iii) abandons the child;
or (iv) commits or allows to be committed any act of sexual exploitation
or any sexual act upon the child in violation of law. It also means
a child who is without parental care or guardianship caused by the
unreasonable absence or the mental or physical incapacity of the
child’s parent, guardian, legal custodian or other person
standing in loco parentis.
3. Judicial order: A physician does not need to
obtain parental consent when the minor delivers to the physician
a court order and the physician provides notice required by the
order, if any.
II. Postpartum Information
Another law impacting OB/GYN departments concerns
the dissemination of postpartum information. The new law requires
that, prior to releasing each maternity patient, hospitals must
make “information about the incidence of postpartum blues
and perinatal depression” available to the patient and relevant
family members. Although not yet available, informational brochures
from the Virginia Department of Health are being developed.
The law requires direct discussion of the information
with the patient herself. This discussion must be documented.
Relevant information should be made available to family members
as appropriate.
III. Birth Injury Fund
Inova Alexandria Hospital, Inova Fairfax Hospital,
and Inova Fair Oaks Hospital are participants in Virginia’s
birth-related neurological injury compensation program, the Birth
Injury Fund. Many Inova-credentialled physicians are program participants
as well. Accordingly, you should familiarize yourself with the
following changes to the program that were implemented by law
as of July 1, 2003:
1. Each physician, hospital, and nurse midwife
must disclose in writing to their obstetrical patients whether
such physician, hospital, or nurse midwife is or is not a program
participant.
2. In addition to any other postpartum materials
provided to the mother or other appropriate person, every hospital
must provide an informational brochure describing the rights
and limitations under the program for each infant in a neonatal
intensive care unit.
The Board of Directors of the program has approved
two new brochures for patient distribution regarding the above
changes. Both brochures, as well as additional information concerning
the Birth Injury fund, are available online at http://www.vabirthinjury.com.
IV. Partial Birth Infanticide
In addition to alerting you to the above changes
in the law, I would also like to bring to your attention an important
potential change in the law. Among the bills passed by the Virginia
2003 General Assembly was the partial birth infanticide law. This
legislation essentially prohibits physicians from knowingly killing
a fetus once its head has emerged from the birth canal or, in a
breech presentation, the fetus has emerged as far as its navel.
Any physician so doing may be found guilty of a Class 4 felony.
Excepted from the law are suction curettage, suction
aspiration, and dilation and evacuation abortions. Also excepted
is an abortion performed in order to save the life of the mother.
The law does not, however, explicitly include an exception to protect
merely the mother’s health.
Almost immediately after the bill went into effect,
a federal judge issued a preliminary injunction preventing, temporarily,
enforcement of the law. Thus, until the case is resolved, Virginia’s
partial birth infanticide law is unenforceable. In the event that
the law is found to be enforceable, however, many OB/GYN practitioners
may be affected.
Please bear in mind that the above changes relating
to parental consent for abortion, dissemination of postpartum information,
and the Birth Injury Fund became effective July 1, 2003. As the
validity of the partial birth infanticide law is in question, I
will continue to monitor the situation and keep you abreast of new
developments as they unfold.
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