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J. Perinat. Med.

2017; 45(9): 991–997

Academy’s Paper

Frank A. Chervenak*, Alexander Makatsariya, Viktoriya Bitsadze and Laurence B. McCullough

Perinatal critical care and ethics in perinatal


medicine: the role of the perinatologist
DOI 10.1515/jpm-2016-0324
Ethics, medical ethics and ethical
Introduction principles
Ethics has been understood in the global histories of phi-
Critical care management of life-threatening conditions
losophy and theology to be the disciplined study of moral-
during pregnancy is an indispensable component of peri-
ity. Morality addresses what our behavior ought to be.
natal medicine [1, 2]. Ethics is an essential dimension of
Ethics aims to improve morality. Medical ethics is under-
perinatal critical care [3]. Like other aspects of critical care
stood as the disciplined study of morality in medicine with
medicine, perinatal critical care is an area of clinical prac-
the goal of improving medical morality by clearly identify-
tice with considerable potential for ethical conflict. Rather
ing the obligations of physicians to patients. Medical ethics
than wait for such conflict to occur, it is far better for
should not be confused with the many sources of moral-
patients, their families and perinatologists to ­anticipate
ity that exist globally. These include, but are not limited
and seek to prevent ethical conflicts. In this paper, we
to, law, the world’s religions, ethnic and cultural tradi-
therefore emphasize a transcultural, transnational and
tions, families, the traditions and practices of medicine
transreligious preventive ethics approach that appreci-
(including medical education and training) and personal
ates the potential for ethical confiicts and adopts ethically
experience. Medical ethics since the eighteenth century
justified, clinically applicable strategies to prevent those
European and North American national Enlightenments
confiicts from occurring. Preventive ethics helps to build
has been secular [1, 3, 5, 6]. It makes no reference to God
and sustain a strong physician-patient relationship [4],
or revealed tradition, but to what reasoned discourse
which is especially important in perinatal critical care [2,
requires. At the same time, secular medical ethics is not
3]. We first define ethics, medical ethics, and the funda-
intrinsically hostile to religious beliefs. Therefore, ethical
mental ethical principles of medical ethics beneficence
principles and virtues should be understood to apply to
and respect for autonomy. Second, we define the ethical
all physicians in all countries, regardless of their personal
concept of the fetus as a patient. Third, we define critical
religious and spiritual beliefs [1, 3, 5, 6]. The resulting
care as a trial of management, with short-term and long-
professional responsibility models of obstetric ethics [2]
term goals. Fourth, we provide an ethical framework for
and perinatal ethics [3] is transnational, transcultural and
a preventive ethics approach to perinatal critical care to
transreligious.
guide perinatologists in patient care.
The traditions and practices of medicine are based
on the professional obligation to protect and promote
the health-related interests of the patient. This obligation
tells physicians what morality in medicine ought to be,
but in very general, abstract terms. Providing a clinically
applicable account of that obligation is the central task of
*Corresponding author: Frank A. Chervenak, M.D., Given Foundation
Professor and Chairman, Department of Obstetrics and Gynecology, medical ethics, using ethical principles [1, 3, 5, 6].
Weill Cornell Medicine, 525 East 68th St, Room J-130, New York, NY The ethical principle of beneficence in general
10065, USA, Tel.: 212 746 3012, E-mail: fac2001@med.cornell.edu requires one to act in a way that is expected reliably to
Alexander Makatsariya and Viktoriya Bitsadze: Department of produce the greater balance of benefits over harms in the
Obstetrics and Gynecology of Medical Prophylaxis Faculty, I.M.
lives of others. To put this principle into clinical practice
Sechenow First Moscow State Medical University, Moscow, Russia
Laurence B. McCullough: Adjunct Professor of Ethics in Obstetrics requires a reliable account of the clinical benefits and
and Gynecology, Department of Obstetrics and Gynecology, harms relevant to the care of the patient, and of how those
Weill Cornell Medcine, New York, NY, USA clinical goods and harms should be reasonably balanced

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992      Chervenak et al., Perinatal critical care and ethics in perinatal medicine

against each other when not all of them can be achieved There is an inherent risk of paternalism in benefi-
in a particular clinical situation, such as a request for an cence-based clinical judgment that must be responsibly
elective cesarean delivery. In medicine, the principle of managed. Beneficence-based clinical judgment, when it
beneficence requires the physician to act in a way that is is, mistakenly, considered to be the sole source of moral
reliably expected to produce the greater balance of clini- responsibility and therefore moral authority in medical
cal benefits over clinical harms for the patient [1, 3, 5, 6]. care, invites the unwary physician to conclude that benef-
Beneficence-based clinical judgment has an ancient icence-based judgments can be imposed on the preg-
pedigree, with perhaps its earliest expression in the Hip- nant woman in violation of her autonomy. Paternalism
pocratic Oath and accompanying texts [7]. Beneficence- is a dehumanizing response to the pregnant woman and,
based clinical judgment claims to interpret reliably the therefore, should be avoided in the practice of perinatal
health related interests of the patient from medicine’s critical care.
perspective. This perspective is provided by evidence- The ethical principle of respect for autonomy obligates
based clinical reasoning, based on accumulated sci- the physician to empower the patient to make informed
entific research, clinical experience and reasoned decisions about her medical care and to implement her
responses to uncertainty. As rigorously evidence-based, value-based preferences, unless there is compelling
beneficence-based judgment is not the function of the ethical justification for not doing so [1, 3]. The pregnant
individual clinical perspective of any particular physi- woman increasingly brings to her medical care her own
cian and therefore should not be based merely on the perspective on what is in her interest. The principle of
clinical impression or intuition of an individual physi- respect for autonomy translates this fact into autonomy-
cian. Put another way, beneficence-based clinical judg- based clinical judgment. Because each patient’s perspec-
ment is not a matter of personal opinion. Appealing to tive on her interests is a function of her values and beliefs,
the best available evidence, beneficence-based clinical it is impossible to specify the benefits and harms of
judgment identifies the benefits that can be achieved ­autonomy-based clinical judgment in advance. Indeed, it
for the patient in clinical practice based on the com- would be inappropriate for the physician to do so, because
petencies of medicine. The benefits that medicine is the definition of her benefits and harms and their balanc-
competent to seek for patients are the prevention and ing are the prerogative of the patient. The result is that
management of disease, injury, disability and unneces- autonomy-based clinical judgment is strongly antipater-
sary pain and suffering, and the prevention of prema- nalistic [1, 3, 5, 6].
ture or unnecessary death. Pain and suffering become Beneficence and respect for autonomy both shape
unnecessary when they do not result in achieving the the informed consent process. The physician has the
other goods of medical care, an especially important beneficence-based obligation to identify and present to
dimension of perinatal critical care ethics [1, 3]. the patient all of the medically reasonable forms of clini-
Nonmaleficence is an ethical principle that obli- cal management for the management of her condition,
gates the physician to prevent causing clinically unjusti- disease, or injury. “Medically reasonable” means that
fied harm and is understood as expressing the limits of a form of clinical management is physically available,
beneficence. Nonmaleficence is better known to physi- technically possible and supported in evidence-based
cians as “Primum non nocere” or “first do no harm”. This reasoning as having an outcome that, on balance, will be
commonly invoked dogma is really a Latinized misin- clinically beneficial. There is no ethical obligation to offer
terpretation of the Hippocratic texts, which emphasized clinical management that meets only the first two crite-
beneficence while avoiding harm when approaching the ria. Failure to recognize this creates preventable ethical
limits of medicine to alter clinical outcomes, another conflict in perinatal critical care. The physician should
especially important dimension of perinatal critical care describe the nature and expected outcomes of medically
ethics. Nonmaleficence should be incorporated into reasonable alternatives in perinatal critical care, along
beneficence-based clinical judgment: when the physician with their expected clinical risks and how these will be
approaches the limits of beneficence-based clinical judg- managed should they occur.
ment, i.e. when the evidence for expected benefit dimin- The patient’s role has iterative steps. She should (a) pay
ishes and the risks of clinical harm increase, then the attention, (b) absorb, retain and recall information about
physician should proceed with great caution. The physi- her condition and the medically reasonable alternatives for
cian providing perinatal critical care should be especially managing it, (c) understand these matters, (d) understand
concerned to prevent serious, far-reaching and irrevers- that these matters apply to her, (e) evaluate the outcomes
ible clinical harm to the patient [1, 3]. of the medically reasonable alternatives based on her own

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values, i.e. what is important to her and (f), express a value- futile attempts to understand the ethical concept of the
based preference. The physician has a role to play in sup- fetus as a patient in terms of independent moral status of
porting each of these steps. The physician should recognize the fetus [1, 3].
the capacity of each patient to deal with medical informa- These models take an alternative, clinically appli-
tion (and not to underestimate that capacity), provide infor- cable approach based on the concept of the dependent
mation (i.e. disclose and explain all medically reasonable moral status of the fetus: the role of being a patient gen-
alternatives) and recognize the validity of the values and erates obligations to the fetus. This approach is based on
beliefs of the patient. The physician should not interfere the recognition that being a patient does not require that
with but, when necessary, assist the patient in her evalua- one possess independent moral status. Rather, being a
tion and ranking of diagnostic and therapeutic alternatives patient means that one can benefit from the applications
for managing her condition and then elicit and implement of the clinical skills of the physician. Put more precisely, a
the patient’s value-based preference [1, 3]. human being becomes a patient when two conditions are
met: that a human being (1) is presented to the physician
(or other healthcare professional), and (2) there exist clini-

The ethical concept of the fetus cal interventions that are medically reasonable, in that
they are reliably expected to result in a greater balance of
as a patient clinical benefits over harms for the human being in ques-
tion. These two criteria are obviously transcultural, trans-
In the professional responsibility models of obstetric national and transreligious. This is the sense in which the
and perinatal ethics, the ethical concept of the fetus as a ethical concept of the fetus as a patient should be under-
patient is fundamental. Developments in fetal diagnosis stood in all cultural, religious and national ­settings [1–3].
and management to optimize fetal outcome have become Two of us (FAC, LBM) have argued elsewhere that
widely accepted, encouraging the development of this beneficence-based obligations to the fetus exist when
concept. This concept has clinical significance, because, the fetus is reliably expected later to achieve independ-
when the fetus is a patient, directive counseling, that is, ent moral status as a child and person [1, 3]. The fetus
recommending a form of management, for fetal benefit is becomes a patient when the fetus is presented for medical
appropriate. When the fetus is not a patient, nondirective interventions, whether diagnostic or therapeutic, that
counseling, that is, offering but not recommending a form reasonably can be expected to result in a greater balance
of management for fetal benefit, is appropriate. However, of goods over harms for the child and person the fetus
there can be uncertainty about when the fetus is a patient. can later become during early childhood. The ethical sig-
One approach to resolving this uncertainty would be to nificance of the concept of the fetus as a patient, there-
argue that the fetus is or is not a patient by virtue of per- fore, depends on links that can be established between
sonhood, or some other form of independent moral status. the fetus and its later achieving independent moral
We now show that this approach fails to resolve the uncer- status.
tainty, and we therefore defend an alternative approach One such link is viability. Viability, however, must be
that does resolve the uncertainty. understood in terms of both biological and technological
One prominent approach for establishing whether or factors. It is only by virtue of both factors that a viable
not the fetus is a patient has involved attempts to show fetus can exist ex utero and thus later achieve independ-
whether or not the fetus has independent moral status. ent moral status. When a fetus is viable, that is, when it is
Independent moral status for the fetus means that one of sufficient maturity so that it can survive into the neo-
or more characteristics that the fetus possesses in and natal period and achieve independent moral status given
of itself and, therefore, independently of the pregnant the availability of the requisite technological support,
woman or any other factor, generate ethical obligations and when it is presented to the physician, the fetus is a
to the fetus on the part of the pregnant woman and patient.
her physician. Despite an ever-expanding theological Viability exists as a function of biomedical and tech-
and philosophical literature on this subject, there is no nological capacities, which are different in different parts
authoritative account of the independent moral status of the world. As a consequence, there is, at the present
of the fetus. In terms of the independent moral status of time, no worldwide, uniform gestational age to define via-
the fetus, the fetus as a patient has no clinically appli- bility. In developed countries, we believe, viability pres-
cable meaning. The professional responsibility models ently occurs at approximately 24 weeks of gestational age
of obstetric and perinatal ethics therefore abandon these [8]. Clearly, in less developed countries viability can occur

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later, because of variation in the technological ability to goals are unlikely to be met [3]. This may seem a jarring
support premature infants. This variability may affect concept when a younger, previously healthy popula-
decision making about intrapartum management and tion of patients, such as pregnant women, is concerned.
resuscitation of the neonate. However, conditions, diseases, or injuries that warrant
The only possible link between the previable fetus and admission of a pregnant patient to a critical care unit are
the child it can become is the pregnant woman’s auton- by definition very serious, which means that the limits of
omy. This is because technological factors cannot result medicine to alter the course of disease or injury may be
in the previable fetus becoming a child. The link, there- reached in the course of a critical-care admission [10–14].
fore, between a fetus and the child it can become when the Losing sight of this clinical reality sets up the physician,
fetus is previable can be established only by the pregnant the critical care team, the patient, and her family for pre-
woman’s decision to confer the status of being a patient ventable ethical conflict. Critical care may reach such
on her previable fetus. The previable fetus, therefore, has limits with respect to either its short-term or long-term
no claim to the status of being a patient independently of goals.
the pregnant woman’s autonomy. The pregnant woman is Critical care has a short-term goal, the prevention of
free to withhold, confer, or, having once conferred, with- imminent death [3]. Critical care is usually very effective
draw the status of being a patient on or from her previable at achieving this goal. When it is no longer reasonable in
fetus according to her own values and beliefs. The previ- evidence-based reasoning to expect that imminent death
able fetus is presented to the physician as a function of the can be prevented, there is no beneficence-based obliga-
pregnant woman’s autonomy [1–3]. tion to continue.
When the fetus is a patient, directive counseling for Critical care also has a long-term goal, survival with
fetal benefit is ethically justified. “Directive counseling” an acceptable outcome. “Acceptable outcome” should
means that the physician should make recommenda- be understood from a clinical and then the patient’s per-
tions that would benefit the fetus, the strength of which spective. The clinical perspective is beneficence-based.
is a direct function of the strength of evidence about out- When critical care is no longer expected to achieve sur-
comes. Directive counseling for fetal benefit must always vival with at least some interactive capacity, there is no
occur in the context of balancing beneficence-based beneficence-based obligation to continue. The patient’s
obligations to the fetus against beneficence-based and perspective is autonomy-based. When critical care is
autonomy-based obligations to the pregnant woman. Any expected to achieve survival with at least some inter­
such balancing must recognize that a pregnant woman is active capacity but with a quality of life not acceptable
obligated only to take reasonable risks of medical inter- to the patient, there is no autonomy-based obligation to
ventions that are reliably expected to benefit the viable continue. “Quality of life” means engaging in valued life
fetus or child later. tasks such as family life and pursuing meaningful activi-
Obviously, any strategy for directive counseling for ties and deriving satisfaction from doing so. There is no
fetal benefit that takes account of obligations to the preg- philosophical theory to support any claim about what life
nant woman must be open to the possibility of confiict tasks are worth pursuing and how much satisfaction from
between the physician’s recommendation and a pregnant doing so is enough. These are matters for each patient to
woman’s autonomous decision to the contrary. Such con- determine for herself.
fiict is best managed preventively through the informed The stopping rules for critical care as a trial of inter-
consent process as an ongoing dialogue throughout a vention should be based on whether the short-term goal
woman’s pregnancy, augmented as necessary by negotia- can be achieved. When it is no longer reasonable to expect
tion and respectful persuasion [1, 3, 4]. It is impossible to this goal to be achieved, the beneficence-based obligation
over-emphasize the importance of good communication to continue critical care as a trial of intervention no longer
in this process [9]. exists. The stopping rules should also be based on the
whether the long-term goals can be achieved. When it is no
longer reasonable to expect that the long-term goals, from

Critical care as a trial of either a clinical or patient’s perspective, can be achieved,


then, respectively, the beneficence-based obligation or the
management autonomy-based obligation to continue critical care as a
trial of intervention no longer exists.
Critical care should be understood as a trial of man- Perinatal critical care is ethically more complex when
agement that can justifiably be discontinued when its the fetus is a patient. After viability, discontinuation of

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critical-care management should include delivery of the called “advance directives”, a concept and practice pio-
fetal patient. This is because there is beneficence-based neered in the United States. The practice of medicine in the
obligation to protect the fetal patient’s life and health and American federal system of self-government is regulated by
delivery, including immediate post-mortem delivery, does the individual states. Spurred by the famous case of Karen
not violate beneficence-based obligations to the pregnant Quinlan in New Jersey in 1976 [15], the first end-of-life case
woman. For the previable fetus, continuation of criti- to be adjudicated, all states have enacted advance directive
cal management for fetal benefit, should be undertaken legislation [16]. Some states do not allow an advance direc-
only when she has explicitly and clearly authorized this tive to be applied to limit life-sustaining treatment of a ter-
or when a valid surrogate authorizes it on the basis of minally or irreversibly ill pregnant woman. This restriction
the patient’s wishes and there is plan for the delivery of has not been challenged in the courts.
the viable fetal patient if continued critical care becomes The basic ethical idea of an advance directive is inde-
ineffective in maintaining the pregnant woman in a stable pendent of how it is implemented in law and public policy
condition. Continuation of pregnancy for fetal benefit after in the United States and other countries. The ethical idea
the pregnant woman is determined to be dead by accepted is that a patient, when autonomous, can make decisions
brain-function criteria should be considered experimental regarding her medical management in advance of a time
and thus not ethically obligatory. In such very rare cases, during which she becomes incapable of making her own
when the fetus is viable, it should be delivered before criti- health care decisions. The ethical dimensions of auton-
cal care interventions are discontinued. omy that are relevant here are the following. A patient
may exercise her autonomy in the present in the form of
a request for or refusal of life-prolonging interventions.
An autonomy-based request or refusal, expressed in the
A preventive ethics approach present and left unchanged, remains in effect for any
future time during which the patient becomes nonau-
to decisions about maternal tonomous, i.e. in the clinical judgment of her attending
critical care physician, she no longer has decision-making capacity.
That “advance” autonomy-based request or refusal there-
Preventive ethics uses the informed consent process to fore creates the physician’s obligations at a later time
anticipate and prevent ethical conflict between patients when the patient becomes unable to participate in the
and their physicians [1–3]. Preventive ethics should play informed consent process. In particular, refusal of life-
a very prominent role in perinatal critical care. There are prolonging medical intervention should translate into the
distinctive, but complementary, roles for the physician withholding or withdrawal of such interventions, includ-
and patient. ing discontinuation of perinatal critical care as a trial of
The physician’s role is to explain to the pregnant intervention. This ethical reasoning can be applied clini-
woman before critical care is initiated its nature as a trial of cally in countries without advance directive legislation,
management. The physician should explain both the short- guided by competent legal advice.
term and long-term goals and the possibility that they might The living will or directive to physicians is an instru-
not be achieved. The physician should explain that, if this ment that permits the patient to make a direct decision,
becomes the case, discontinuing critical-care management usually to refuse life-prolonging medical intervention
and transferring the patient to hospice care is the ethical in the future. The living will becomes effective when the
standard of care. The patient’s wishes should be elicited. patient is a “qualified patient”. Two conditions must be
The physician should make every effort to help patients met: the patient is terminally or irreversibly ill and the
who request that everything be done to understand that patient is not able to participate in the informed consent
not every reduction in the risk of mortality is worth the dis- process as judged by her physician. A court review is not
ease-related and iatrogenic morbidity that result, because required. Obviously, terminally or irreversibly ill patients
these can greatly reduce or even eliminate the ability of the who are able to participate in the informed consent
patient to experience a quality of life that she would want process retain their autonomy to make their own deci-
for herself. Seriously ill patients who “want everything sions. Some jurisdictions legally prescribe the wording of
done” often do not appreciate what this means in clinical the living will, and others do not. A living will, to be useful
reality, setting up preventable ethical conflicts. and effective, should be as explicit as possible. Readers in
It is now possible for patients to formally express their jurisdictions that sanction such advance directives should
wishes about maternal critical care in the form of what are become familiar with them and with organizational

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policies for their preparation, documentation in the record to the patient, especially life tasks that she valued. The
and implementation. physician can then provide his or best judgment about the
The concept of a durable power of attorney for health projected functional status of the patient and its implica-
care or medical power of attorney is that any autonomous tions for undertaking those life tasks. Doing so helps the
adult, in the event that that person later becomes unable surrogate to make a reliable decision about whether the
to participate in the informed consent process, can assign long-term goal of critical care from the patient’s perspec-
decision-making authority to another person. The advan- tive can be achieved. When a surrogate cannot meet the
tage of the durable power of attorney for health care is that substituted judgment standard, the best interests standard
it applies only when the patient has lost decision-mak- applies. This standard is beneficence-based. The physician
ing capacity, as judged by her physician. A court review therefore plays a leading role in implementing this stand-
is not required. It does not, as does the living will, also ard. When the short-term goal of critical care cannot be
require that the patient also be terminally or irreversibly achieved, the physician should explain that this is the case
ill. However, unlike the living will, the durable power of and that it is consistent with good medical care to discon-
attorney does not necessarily provide explicit direction, tinue critical and transfer the patient to a hospice program.
only the explicit assignment of decision-making author- The physician’s role is the same when the long-term goal
ity to an identified individual or “agent”. Obviously, any from a clinical cannot be achieved.
patient who assigns durable power of attorney for health In some states in the United States, the living will
care to someone else has an interest in communicating her and durable power of attorney do not apply to pregnant
values, beliefs and preferences to that person. The physi- patients. The ethical challenges of this legal limitation,
cian can play a facilitating role in this process. In order to however, can be responsibly managed in perinatal critical
protect the patient’s autonomy, the physician should play care. The viable fetus should be delivered. In such clini-
an active role in encouraging this communication process cal circumstances, induction of labor or cesarean delivery
so that there will be minimal doubt about whether the aim to result in live birth and therefore cannot reasonably
person holding durable power of attorney is faithfully rep- be categorized as an abortion. The liveborn infant should
resenting the wishes of the patient. The pregnant woman be evaluated and cared for by the neonatology team. The
is free to name anyone of her choosing to act as her agent. patient is no longer pregnant and the legal limitation on
The main clinical advantage of these two forms of implementation of her advance directive or the surrogate’s
advance directives is that they encourage patients to think decision making no longer applies.
carefully in advance about their request for or refusal of
medical intervention. These directives, therefore, help to
prevent ethical conflicts and crises in the management,
especially, of terminally or irreversibly ill patients who Conclusion
no longer have decision-making capacity and for whom
the stopping rules of critical care as a trial of interven- Perinatal critical care is ethically challenging because it
tion apply. The reader is encouraged to think of advance involves recognizing the limits of perinatal critical care
directives as powerful, practical strategies for preven- medicine to alter the course of serious injury or disease
tive ethics for end-of-life care, and to encourage patients in the context of pregnancy. Physicians should respond
who are candidates for perinatal critical care to consider to these ethical challenges with a preventive ethics
them seriously. The use of advance directives prevents the approach. Like all critical care, perinatal critical care
experience of increased burden of decision making in the should be understood by physicians and presented to
absence of reliable information about the patient's values pregnant women or their surrogates as a trial of manage-
and beliefs [17]. ment with both short-term and long-term goals. The ethics
For patients without advance directives, surrogate deci- of perinatal critical care should become a component of
sion making should be undertaken with the legally desig- comprehensive perinatal critical care in order to respon-
nated individual. Two standards, in priority order, guide sibly prevent and manage inevitable ethical challenges.
surrogate decision making. The first is the “substituted
judgment” standard. This standard is autonomy-based and Author’s statement
calls for the surrogate, as best as he or she can, to make Conflict of interest: Authors state no conflict of interest.
decisions based on the values and beliefs of the patient. Material and methods: Informed consent: Informed
The physician can help surrogates to implement this stand- consent has been obtained from all individuals included
ard by asking the surrogate to describe what was important in this study.

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Ethical approval: The research related to human subject [8] Chervenak FA, McCullough LB, Levene MI. An ethically justified
use has complied with all the relevant national regula- clinically comprehensive approach to peri-viability: gynaeco-
logical, obstetric, perinatal, and neonatal dimensions. J Obstet
tions, and institutional policies, and is in accordance
Gynaecol. 2007;27:3–7.
with the tenets of the Helsinki Declaration, and has been [9] Chervenak J, McCullough LB, Chervenak FA. Surgery without
approved by the authors’ institutional review board or consent or miscommunication? A new look at a landmark case.
equivalent committee. Am J Obstet Gynecol. 2015;212:586–90.
[10] Makatsariya AD, Chervenak FA, Bitsadze VO. High-risk preg-
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­Akinshina S. Catastrophic antiphospholipid (Asherson's)
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