While theologians, jurists and social activists debate the issue of when a fetus becomes a person, some politicians and expectant parents are now using new forms of imaging to define personhood photographically. But ultrasound technology, which can reveal embryonic facial features as early as 10 weeks into a pregnancy, is not without its objectors and potential health hazards. The Idaho Legislature's recent passage of H.B. 248 and the intensified publicity for a commercial fetal ultrasound business in Meridian have both brought attention to the growing practice of using the technique for non-medical or, at best, quasi-medical reasons.
Physicians have used ultrasound to scan for complications and birth defects and to check on fetal movement and heartbeat since the 1960s. First developed solely for application to high-risk pregnancies, routine prenatal ultrasound (RPU) became standard procedure a decade later. Similar in some ways to radar, RPU depends on the generation of sound waves in the 10 million to 20 million cycles per second range, and their reflection back into an imaging scanner. Unlike X-rays, ultrasound radiation is considered "non-ionizing" and, therefore, a safer method for detecting birth defects, determining due dates and checking on fetal growth. Recent upgrades to both equipment and software have allowed for more sophisticated 2-D, 3-D and even live-motion 4-D images. This all gave way to the sale of "keepsake," "entertainment," or even "vanity" sonograms, made to encourage parental bonding with what pro-life advocates call "the unborn child."
"The studies we saw indicate that 60 to 70 percent of women coming for abortions decided to keep the baby after seeing their ultrasound," said Rep. Lynn Luker, a Boise Republican who was a co-sponsor of H.B. 248. The legislation, praised by pro-lifers as "a woman's right to view" bill, requires all physicians who use ultrasound equipment in the performance of an abortion to inform the patient that she has the right to view the image of her unborn child before an abortion is performed and provide the sonogram on request. Similar legislation, some also with mandating language, has been passed in South Carolina, Missouri and Texas.
"Our basic motivation is to preserve life and provide that opportunity," Luker said. "Most young people in that situation don't appreciate its gravity. It's a last chance for an informed decision, before taking an action that might have consequences for them 10 or even 20 years down the road when they often have troubled memories about that."
During the public hearings on his bill, Luker said, there was little response from the medical community, except for one physician from Gooding.
"And he was very favorable for it," Luker said. "He had some experiences that brought him to that conclusion, because the woman he was treating opted to keep the child."
Don Bich, executive director of the Ada County Medical Society, confirmed that neither his organization nor the Idaho Medical Association took a stance on the legislation because, he said, "there were no issues raised by physicians" from the law.
Despite the lack of explicit methods for insuring compliance or even accurate record-keeping, Luker said, "it's our hope that physicians follow the law.
"It's more a self-policing type of mechanics, but if it isn't working, we may revisit it," he said. "It's a win for everybody, an opportunity for people faced with that decision to have all the information they would like to have, and hopefully, it will preserve the life of a few that the mothers decide to keep."
Pro-choice advocates, not surprisingly, take a different view.
"It's a piece of legislation designed to manipulate the emotions of women," said Rebecca Poedy, president and CEO of Idaho Planned Parenthood. "The intent is to place guilt and manipulate women facing an unplanned pregnancy. They're already facing a difficult decision, and when women come in having made the decision, to put guilt or shame on them is unconscionable."
Poedy said that Planned Parenthood does believe that all children should be wanted, loved and fully supported. "We are pro-family, but the issue is really looking at the intention of this law, which was written for 'guilting out' women and manipulating them emotionally over decisions they have made." Her organization would prefer, she said, that the Legislature focus on access to contraception and prevention methods, "for a change."
Other civil-rights groups weighed in against the bill, including the Idaho chapter of the American Civil Liberties Union.
"We opposed it mainly because they're usurping the judgment of the attending physician," said Hannah Saona, lobbyist for the American Civil Liberties Union of Idaho. "It doesn't add anything, because the informed-consent laws already require the doctor to show the woman a sonogram if she asks. If the woman had decided to carry the pregnancy, but then changed her mind because of a serious fetal anomaly, it may in fact even be cruel to ask her" to view the image of a severely deformed fetus in her womb.
But the owner of Fetal Fotos in Meridian, Scot Halladay, said he'd never heard of the new law, much less supported it, until he was asked about it by BW. The prenatal imaging center is located just off Eagle Road in Meridian. Although he works in real estate (he owns Specialty Group Inc.), Halladay took over the Fetal Fotos business last November. Halladay himself stays away from the actual operation.
"I don't go anywhere near the ultrasound machine," he said. "I went with my own wife, and that's it."
Nevertheless, he said, from what his technician tells him, customers are ecstatic about the product.
"People seem to love it, some fathers are 'Wow!'" Halladay said. "It's a great experience for the fathers, and some of them get pretty emotional. Often they don't feel part of the pregnancy until they see an actual baby in there."
Halladay said his office has had some people come in from organizations that are working with young women considering abortions. In those cases, he said, his staff perform the ultrasounds, and let the patient and her counselor discuss the matter. While demurring on his own feelings about the topic, Halladay said that "we know of some women who have given up smoking, or taken better care of themselves, gone on a better diet or done some more exercising, just realizing they have a baby in there and their behavior has an impact on them."
All Fetal Foto sonograms are reviewed by a physician in Salt Lake City, Halladay said. Electronic files are transmitted over a secure Web link to Fetal Fotos Inc. founder Leon Hansen, a board-certified obstetrician, who licenses franchises in six other states.
It's a growing industry. Fetal Fotos' competition across the United States and Canada includes United Imaging Partners, Prenatal Peek Ultrasound, First Look Sonogram, Advanced Imaging Consultants, Mama Mio Pregnancy Spa, Stork Vision, Baby Insight and others, some of which operate in shopping malls. Some franchises are for resale, with prices listed anywhere between $100,000 and $500,000, with advertised annual net profits of $64,000 and upwards. The parent corporation for Fetal Fotos does not list a telephone number on its Web site, and requests for an interview were not answered.
Halladay said his franchise covers all of Idaho. People travel to his shop from as far away as Mountain Home, Twin Falls, eastern Oregon and McCall. Tourists pass through from the Midwest. He estimated that his shop performs between 30 and 50 ultrasounds per month, and is hoping for more.
To that end, Hallady has been advertising more publicly, including sending congratulatory cards to customers.
"We obviously know the due dates," he said.
Other marketing efforts include a booth at a kids' fair and a kiosk in an area mall. "We actually have a nurse that goes out and visits doctors and tries to inform them and their office staff," Halladay said. His business is now on a parental information search engine site, www.4d-ultrasounds.com, and he's done some trade with other "baby-type businesses," he said.
Halladay said that a majority of obstetricians remain unaware of the business, or see it as competition, while others refer their patients directly to him.
"If you're strapped for money, go to your doctor, because they're the ones doing it for medical purposes," he said. "We're doing it more for a bonding experience for the family and the unborn child." Customers appear to prefer Fetal Fotos because a hospital can feel like a sterile environment.
"They get what they want and that's it," Halladay said. "People want a more friendly environment that we can provide because we will take the time" with them.
Medical ultrasounds usually cost around $160 to $280. Fetal Fotos offers packages ranging from a basic pregnancy verification without gender determination at $50, to 4-D videos at $175 per session, including DVD and color prints.
Although Halladay is aware that the federal Food and Drug Administration (FDA) has condemned the non-medical use of fetal ultrasound, he deferred questions to his technician, Lisa Gilleard.
The mother of four herself, Gilleard proudly shows off an album of fetal sonograms while sitting on a comfortable couch in a portrait-studio type of setting. Gilleard is clearly enthusiastic about her work.
While not licensed or registered in the State of Idaho as a radiologist, Gilleard underwent Fetal Fotos Inc.'s in-house equipment training, "which is part of the reason for our affordability." Gilleard will go as far as estimating due dates and size, but makes no medical claims.
"A lot of it is based on experience, knowing what you're looking at when you look at the pictures," she said. "I feel like I'm more experienced as far as that goes because I do this all day, every day, whereas other technicians do a full range of scanning. I look at babies all the time. But we don't advertise that we do medical radiology."
Ultrasound has no known side effects or risks, and is considered to be very safe, according to the Saint Alphonsus Health Scene, a free newsletter distributed community-wide by the hospital.
But physician Clarence Blea, a senior partner with St. Al's Maternal Fetal Medicine, warns that "ultrasound is energy, and energy does destroy tissues." The safety of ultrasound, Blea said, "is not absolutely proven."
Blea emphasizes the intensive training required to become a registered radiological technician in Idaho. This includes four years of college, passing a certifying examination, staying current through continuing medical education, and being subject to unannounced quality control visits by officials from the American Institute for Ultrasound Medicine (AIUM). Blea cited one example of a non-registered technician who missed a baby who had no cranium in early pregnancy.
"Things like that happen, and other examples have been quoted by my colleagues around the country," Blea said. As to the growing business of keepsake sonography, Blea characterized it as "a turf battle."
"Obviously, it's market-driven," he said. "How many of these patients actually know what they're getting?" Because Idaho has no wrongful birth law that's been tested yet, he said, Blea strongly recommends that the public inform itself and seek medical advice before submitting to non-medical ultrasounds.
"There's a lot of concerns about entertainment ultrasound," said Joie Burns, M.S., who chairs the Department of Radiologic Sciences at Boise State University and serves as Program Director for its Diagnostic Medical Sonography Program. "The individuals who do the scans are not skilled or educated. They may see an abnormality and not recognize it, and therefore not refer the patient to proper medical attention."
Burns worries that unregistered technicians such as Gilleard, and uninformed parents, fail to understand that ultrasound focuses heat on the fetus.
"Why would we risk cooking the fetal tissue just to get a nice picture?" she said. "It's unfortunate." She also expressed concern that some parents substitute commercial ultrasound for medical examinations. A recent study conducted by the University of Utah indicated as much.
Blea and Burns both refer to the FDA's Center for Devices and Radiological Health, which has issued an official advisory against commercial 2-D, 3-D and 4-D imaging, because "ultrasound energy delivered to the fetus cannot be regarded as completely innocuous."
"Laboratory studies have shown that diagnostic levels of ultrasound can produce physical effects in tissue, such as mechanical vibrations and rise in temperature," the report states. "Viewed in this light, exposing the fetus to ultrasound with no anticipation of medical benefit is not justified." The updated 2006 advisory is available on the FDA's Web site, www.fda.gov.
Despite FDA warnings that the medically unsupervised use of these devices may contravene federal and state laws, ultrasound units are readily available for purchase or rent. Many vendors charge somewhere between $400 and $500 to sell or lease in-home units. One such device was famously used during the Tom Cruise/Katie Holmes pregnancy, and garnered critical press attention. One supplier not only guarantees that their units have been sterilized, but that "we also promise to pray for you and your baby."
There isn't much research on the use of non-prescriptive ultrasound in Idaho, admitted Nancy Kerr, executive director for the Idaho State Board of Medicine.
"We would not be as concerned with the ultrasound itself as with the information given with it," Kerr said. "If they're giving a diagnosis or recommending treatment, then we would become involved." Kerr said the Board never issues consumer advisories, and doesn't act until there's a consumer complaint that can be referred on to a prosecuting attorney for action. However, Kerr said she is personally aware of studies indicating a correlation between exposure to ultrasound and tissue damage to the mother.
Dave Eisentrager, manager of the Laboratory Improvement Section of the Idaho Bureau of Laboratories' Department of Radiology, said the state has no regulations concerning devices such as commercial ultrasound devices, laser hair removal, tanning booth lamps and similar technologies as used by chiropractors, physiotherapists or others.
"It bothers me," Eisentrager admits. "Although there's no real evidence of any harm or danger done, and that may or may not be true, [ ]it's all in hands of the user right now, unfortunately." Eisentrager says that the state does not keep any master list of owners and operators of such nonmedical equipment.
"They're all over the state, but I just don't think that it's the thing to do," he said, even in the absence of "strong evidence that there's any problems" with prenatal ultrasound.
"It's upsetting that people would want to make a profit" out of fetal ultrasound, says Cindy Pearson, director of the National Women's Health Network, headquartered in New York City. In a telephone interview, Pearson (the daughter of Boise car dealer Lyle Pearson) said that her group acts as an independent watchdog and consumer advocate for infant and maternal health.
"When we look at all ultrasound, we ask, 'Is it safe?'" Pearson said. "We believe that it should only be used to check for fetal anomalies, and not for routine use in every pregnancy. There are time-tested ways to see how things are going." Those include the much-less technologically-impressive method of stethoscopes.
As to keepsake ultrasound, Pearson compared them to glamour photos taken in a mall, "just a trinket that's fun to have for the babybook."
"A keepsake is not a medical benefit," Pearson said. "To do it just to get the photo, that's just wrong."
Pearson added that "the FDA are not great communicators, and the fetus photo [businesses] are much better marketers" when it comes to convincing parents about weighing the risks and benefits of ultrasound. As an example, Pearson noted the free X-ray machines that were popular in shoe stores in the 1950s, something that would be unheard of today.
"Even though it's not illegal for fetus photo shops to be in business, it's not wise to use them," Pearson said. Legislation such as H.B. 248, she said "is really an anti-choice tactic."
"It's coercion by plucking on the heartstrings," she said.
Pearson referred to the official 2000 guidelines of the International Childbirth Education Association and to the writings of noted Australian physician Sarah J. Brady, M.D. In an exclusive preview of her newly revised book, Gentle Birth, Gentle Mothering, to be published by One Moon Press, Brady asserts that even routine ultrasound "is at best, ineffective," and at its worst dangerous, when used as a screening tool for every pregnant woman and baby. Countries such as the United States and Australia demonstrate no better birth or infant outcomes than those in which ultrasound remains largely unaffordable, she said.
Moreover, Brady cites data indicating that up to 10 percent of ultrasounds generate either false positives (images of nonexisting abnormalities) or false negatives such as undetected Down syndrome, bone underdevelopment and cysts in the fetal brain, heart or kidneys. Brady argues that such misdiagnoses only add to parental pain, anxiety and heartache.
Experiments on mice have documented ultrasound damage to development of the central nervous system, and Brady quotes peer-reviewed studies on correlations between ultrasound and miscarriage, or preterm labor, low birth weight, poorer condition at birth, perinatal death, dyslexia and delayed speech development. Even the professional journal Epidemiology, Brady says, urges more research and caution, especially since the effects of potential damage to DNA have not yet been evaluated across the generations.
Brady disputes the psychological well-being argument, too.
"By treating the baby as a separate being, ultrasound artificially splits mother from baby, well before this separation is a physiological or a psychological reality," she said. "This further emphasizes our culture's favoring of individualism over mutuality and sets the scene for possible—but to my mind artificial—conflicts of interest between mother and baby in pregnancy, birth and parenting."
Even Fetal Fotos' Gilleard concedes, "There's no way to ask the fetus if this hurts."
But even as the debate over fetal imaging explodes, and becomes a facet of the ongoing abortion debate, business continues to boom.
While the FDA, American Medical Association, World Health Organization and others explicitly discourage its use, Fetal Fotos continues its marketing in its brochures: "We bring families closer, sooner, using state-of-the-art systems to help you bond with your baby."