2006 Code of Virginia § 18.2-76 - Informed written consent required; civil penalty

18.2-76. Informed written consent required; civil penalty.

A. Before performing any abortion or inducing any miscarriage or terminatinga pregnancy as provided in 18.2-72, 18.2-73 or 18.2-74, the physicianshall obtain the informed written consent of the pregnant woman. However, ifthe woman has been adjudicated incapacitated by any court of competentjurisdiction or if the physician knows or has good reason to believe thatsuch woman is incapacitated as adjudicated by a court of competentjurisdiction, then only after permission is given in writing by a parent,guardian, committee, or other person standing in loco parentis to the woman,may the physician perform the abortion or otherwise terminate the pregnancy.

B. For purposes of this section:

"Informed written consent" means the knowing and voluntary written consentto abortion by a pregnant woman of any age, without undue inducement or anyelement of force, fraud, deceit, duress, or other form of constraint orcoercion by the physician who is to perform the abortion or his agent. Thebasic information to effect such consent, as required by this subsection,shall be provided by telephone or in person to the woman at least 24 hoursbefore the abortion by the physician who is to perform the abortion, by areferring physician, or by a licensed professional or practical nurse workingunder the direct supervision of either the physician who is to perform theabortion or the referring physician; however, the information in subdivision5 may be provided instead by a licensed health-care professional workingunder the direct supervision of either the physician who is to perform theabortion or the referring physician. This basic information shall include:

1. A full, reasonable and comprehensible medical explanation of the nature,benefits, and risks of and alternatives to the proposed procedures orprotocols to be followed in her particular case;

2. An instruction that the woman may withdraw her consent at any time priorto the performance of the procedure;

3. An offer for the woman to speak with the physician who is to perform theabortion so that he may answer any questions that the woman may have andprovide further information concerning the procedures and protocols;

4. A statement of the probable gestational age of the fetus at the time theabortion is to be performed; and

5. An offer to review the printed materials described in subsection D. If thewoman chooses to review such materials, they shall be provided to her in arespectful and understandable manner, without prejudice and intended to givethe woman the opportunity to make an informed choice and shall be provided toher at least 24 hours before the abortion or mailed to her at least 72 hoursbefore the abortion by first-class mail or, if the woman requests, bycertified mail, restricted delivery. This offer for the woman to review thematerial shall advise her of the following: (i) the Department of Healthpublishes printed materials that describe the unborn child and list agenciesthat offer alternatives to abortion; (ii) medical assistance benefits may beavailable for prenatal care, childbirth and neonatal care, and that moredetailed information on the availability of such assistance is contained inthe printed materials published by the Department; (iii) the father of theunborn child is liable to assist in the support of her child, even ininstances where he has offered to pay for the abortion, that assistance inthe collection of such support is available, and that more detailedinformation on the availability of such assistance is contained in theprinted materials published by the Department; and (iv) she has the right toreview the materials printed by the Department and that copies will beprovided to her free of charge if she chooses to review them. Where the womanhas advised that the pregnancy is the result of a rape, the information inclause (iii) above may be omitted.

The information required by this subsection may be provided by telephonewithout conducting a physical examination of or tests upon the woman, inwhich case the information required to be provided may be based on factssupplied by the woman and whatever other relevant information is reasonablyavailable to the physician. If a physical examination, tests or theavailability of other information to the physician or the nurse subsequentlyindicates, in the medical judgment of the physician or the nurse, a revisionof the information previously supplied to the woman, that revised informationmay be communicated to the woman at any time prior to the performance of theabortion.

C. The physician need not obtain the informed written consent of the womanwhen the abortion is to be performed pursuant to a medical emergency."Medical emergency" means any condition which, on the basis of thephysician's good faith clinical judgment, so complicates the medicalcondition of a pregnant woman as to necessitate the immediate abortion of herpregnancy to avert her death or for which a delay will create a serious riskof substantial and irreversible impairment of a major bodily function.

D. On or before October 1, 2001, the Department of Health shall publish, inEnglish and in each language which is the primary language of two percent ormore of the population of the Commonwealth, the following printed materialsin such a way as to ensure that the information is easily comprehensible:

1. Geographically indexed materials designed to inform the woman of publicand private agencies and services available to assist a woman throughpregnancy, upon childbirth and while the child is dependent, including, butnot limited to, information on services relating to (i) adoption as apositive alternative, (ii) information relative to counseling services,benefits, financial assistance, medical care and contact persons or groups,(iii) paternity establishment and child support enforcement, (iv) childdevelopment, (v) child rearing and stress management, and (vi) pediatric andmaternal health care. The materials shall include a comprehensive list of thenames and telephone numbers of the agencies, or, at the option of theDepartment of Health, printed materials including a toll-free, 24-hour-a-daytelephone number which may be called to obtain, orally, such a list anddescription of agencies in the locality of the caller and of the servicesthey offer;

2. Materials designed to inform the woman of the probable anatomical andphysiological characteristics of the human fetus at two-week gestationalincrements from the time when a woman can be known to be pregnant to fullterm, including any relevant information on the possibility of the fetus'ssurvival and pictures or drawings representing the development of the humanfetus at two-week gestational increments. Such pictures or drawings shallcontain the dimensions of the fetus and shall be realistic and appropriatefor the stage of pregnancy depicted. The materials shall be objective,nonjudgmental and designed to convey only accurate scientific informationabout the human fetus at the various gestational ages; and

3. Materials containing objective information describing the methods ofabortion procedures commonly employed, the medical risks commonly associatedwith each such procedure, the possible detrimental psychological effects ofabortion, and the medical risks commonly associated with carrying a child toterm.

The Department of Health shall make these materials available at each localhealth department and, upon request, to any person or entity, in reasonablenumbers and without cost to the requesting party.

E. Any physician who fails to comply with the provisions of this sectionshall be subject to a $2,500 civil penalty.

(Code 1950, 18.1-62.1; 1970, c. 508; 1972, c. 823; 1975, cc. 14, 15; 1979,c. 250; 1997, c. 801; 2001, cc. 473, 477; 2003, c. 784.)