The third trimester growth scan and the legal upgrade of its importance

Review

HJOG 2025, 24 (1), 13-16| doi: 10.33574/hjog.0579

Nikolaos Dagklis, Apostolos Mamopoulos

Third Department of Obstetrics and Gynecology, School of Medicine, Faculty of Health Sciences, Aristotle University of Thessaloniki, Greece

Correspondence: Dagklis Nikolaos, Konstantinoupoleos 49, 54642, Thessaloniki, Tel: +30 2313312120 and Fax: +30 2310 992950, e-mail: ndagklis@yahoo.gr


Keywords: Third trimester, growth scan, fetal abnormality, pathological neonate, termination of pregnancy

The aim of the third trimester ultrasound, likewise other prenatal screening tests, has evolved due to technological advances and accumulating experience. Its original purpose was to examine fetal growth and diagnose deviations in estimated fetal weight, associated with possible pathological conditions of the mother and/or the fetus. The intention, following the recognition of such growth deviations, was to investigate possible causes and offer appropriate monitoring and interventions that could improve perinatal outcome. Additional goals included the assessment of placental and fetal position for early identification and appropriate management of cases of placenta previa or abnormal fetal presentation, respectively (1).

Two crucial recent developments, one international and one domestic, have upgraded the third trimester scan’s legal importance within Greece. The first is the clearer description of the third trimester ultrasound’s aims by the relevant guideline of the International Society of Ultrasound in Obstetrics and Gynecology (ISUOG) (2). This guideline explicitly proposes a systematic anatomical check during the ultrasound examination of the third trimester of pregnancy, in relation with the corresponding diagnostic approach in the second and the first trimester anomaly scans (3,4). This was the result of studies showing that certain fetal defects become apparent later than the time the second trimester anomaly scan occurs (5). It should be noted, however, that during gestational progression the ability to effectively recognize the standard anatomical views deteriorates.

The second development appertains to the introduction of the new Greek Criminal Code in the year 2019 (law 4619/2019 enforced on 1/7/2019). According to the new law, the permissibility of terminating a pregnancy exceeds the pre-existing time limit of 24 weeks, in cases where indications of a pathological neonate are detected through the means of prenatal testing. Under the previous law context, termination of pregnancy for eugenic reasons was prohibited after the 24th week (6). In the explanatory report of the new Criminal Code, it is stated that it was considered appropriate to extend the time limit for the application of the so-called eugenic indication and justify the termination of pregnancy due to it throughout all its duration, in order to comply with the model of other European Codes. In this way, an attempt was made to resolve the issue that emerged in practice, whenever serious fetal abnormalities were detected later than the 24th week of pregnancy. Thus, the article 304 of the Greek Criminal Code now states that the termination of pregnancy for eugenic reasons is not an unjust act, as long as all the following preconditions are met:

  • Evidence of a major fetal abnormality leading to the birth of an abnormal neonate has been detected by means of prenatal diagnostic methods and a relevant certificate from an appropriately qualified doctor is issued.
  • It is carried out with the consent of the pregnant woman or the persons who have her parental care or custody, if she is unable to consent.
  • It is performed by an obstetrician-gynecologist with the participation of an anesthesiologist.
  • It is conducted in an organized nursing unit.

This reform has two major consequences:

  1. An explicit one: The physician is not criminally responsible for the termination of pregnancy based on the eugenic indication, even after the 24th week of pregnancy, provided that the above legal requirements are met.
  2. An implicit one: The physician is liable to medical malpractice claims in cases of wrongful birth, due to negligent failure to detect signs of serious fetal abnormalities, throughout all the gestational period.

Regarding the second consequence, it is noted that, pursuant to the article 304 of the Greek Criminal Code, it is recognized that pregnant women are entitled to weigh freely, within the constitutional framework, whether they will continue their pregnancy, accepting the birth of a “pathological neonate” or will terminate it leaning on their freedom and justified human interest in having a healthy infant. The option of any pregnant woman to terminate such a pregnancy lies on the grounds of the provision of article 5 para. 1 of the Greek Constitution, that guarantees the right of free development of an individual’s personality and consequentially all the deriving individual rights and some of their extensions. The choice of maternity is considered as such an extension, as long as it is not forbidden. If, therefore, a pregnant woman is prevented (by an act or omission of a third party) from exercising this legal right, her personality is unlawfully offended within the meaning of article 57 of the Greek Civil Code and, if this infringement is culpable, she is entitled as a plaintiff to claim monetary compensation as a remedy for the induced moral damage, according to article 59 of the same Code [Council of State (Supreme Administrative Court) decision no. 621/2021, Court of Appeal of Athens decision no. 748/2024, Court of Appeal of Athens decision no. 2480/2023]. Furthermore, it has been ruled that her partner is also entitled to the same claim, even though he is not the directly offended party, since continuance or termination of the pregnancy is a mutual concern in the couple’s companionship and the consequences reflect on both [Council of State (Supreme Administrative Court) decision no. 621/2021, Areios Pagos (Supreme Court) decision no. 10/2013].

Of course, it should be noted that all the above refer to the cases where, due to medical malpractice, signs of major fetal abnormalities that led to the birth of a pathological neonate were not detected. Reasonably, the establishment of a list of such “serious fetal abnormalities” is not feasible in advance, due to their great variety and the constant development of medical science that increasingly deducts incurable diseases and expands the possibilities of corrective interventions. Hence, the responsibility for the interpretation of the legal terms “serious fetal abnormality” and “pathological neonate” is vested to the courts.

According to the Greek case law, “serious abnormality of the fetus”, that entails the birth of a “pathological neonate”, is acknowledged only in those cases where a child is to be born, that will suffer from a particularly serious disease or damage to its health, in any case incurable or not treatable medically with corrective intervention, so that it is appraised particularly cruel and abusive to demand from a pregnant woman to continue her pregnancy [Council of State (Supreme Administrative Court) decision no. 621/2021, Court of Appeal of Athens decision no. 748/2024]. In this regard, it has been ruled that phocomelia, as a developmental malformation of the upper limb, does not constitute a serious abnormality of the fetus that induces the birth of a pathological neonate within the meaning of the law (Court of First Instance of Athens decision no. 1821/2011).

In light of the above, the physician is not criminally liable for the termination of pregnancy based on the eugenic indication, even after 24 weeks, as long as the premises described in the article 304 of the Greek Criminal Code are met. On the other hand, inexorably, the civil liability in cases of wrongful birth now extends to the end of the pregnancy. Under the previous legal framework, if a serious fetal abnormality had not been detected after the 24th week of pregnancy, the physician had no liability, since its termination, based on these grounds, was no longer permissible. According to the current law, under which the termination of pregnancy due to eugenic reasons is not forbidden even later than 24 weeks, the issue of depriving the pregnant woman’s right to opt for or against continuing her pregnancy may arise throughout all its duration.

In conclusion, the combination of the recent developments, beside the obvious clinical aspects, highlights the major medicolegal importance of carrying out the third-trimester ultrasound efficiently. Nonetheless, the relevant guideline of HSOG does not explicitly specify (as they do for the second trimester anomaly scan) whether the third trimester scan should be performed by a physician specialized in fetal medicine. Consequently, the referral of the pregnant woman to a specialist rests with the unguided attending obstetrician’s discretion.

Disclosure of conflicts of interest:

The authors report no conflicts of interest

Funding

No funding

Acknowledgments

None

References 
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