Is a Woman in Labor a "Person"? New Assaults on Pregnant Women's Civil Rights in a NJ Case

Yet another ruling is providing legal support for the false belief that obstetricians are infallible and stripping pregnant women of basic civil rights that are then accorded to other individuals. In the case, New Jersey Division of Youth and Family Services v. V.M. and B.G., the New Jersey appellate court found that V.M. and B.G. had abused and neglected their child, based on the fact that the mother, V.M., refused to consent to a cesarean section and behaved erratically while in labor. The mother gave birth vaginally without incident, and the baby was "in good medical condition." Then she was never returned to her parents, and the judge in the case approved a plan to terminate their parental rights and give custody of the child to foster parents. What, beyond the obvious, is wrong with this picture?

First, from a legal perspective, individuals have a right to informed consent and bodily integrity. In obstetrics, informed consent is a blurry concept since many hospitals perform obstetric procedures on laboring women without informing them of the evidence concerning those procedures or their risks. Perhaps this legal case illustrates how paternalistic hospitals can be with respect to pregnant women -- assuming that the hospital staff know best and that informed consent is unnecessary. Never mind that hospitals tend to be run with organizational efficiency, rather than patient interests, in mind. In this specific case, one obstetrician who tried to convince the mother to consent to a c-section concluded that she was not psychotic and had the capacity for informed consent with regard to the c-section. It is clear within the law there is no informed consent without informed refusal, so this obstetrician's conclusion should have made V.M.'s refusal to consent to the c-section her decision alone. If this mother is not legally permitted to refuse major abdominal surgery, then she is clearly stripped of her civil rights to informed consent.

In fact, individuals are not legally required to consent to invasive procedures even to save other individuals, including fetuses that lack full legal status. But in this case the district and appellate courts subverted a pregnant woman's informed medical decision-making in the name of fetal rights, arguing that her refusal was a form of abuse and neglect of the child that had not yet been born. This is another dangerous precedent, along with other court-ordered cesarean cases, that will allow all pregnant women to lose their rights to bodily integrity and informed consent. It may be understandable, if not excusable, that the courts don't understand medicine or recognize that medical judgment is fallible, but it is hard to understand how they could so fundamentally misinterpret the law, in which performing surgery on an individual without that person's permission can constitute criminal "battery" under common law.

The court's opinion also suggests that lawmakers have no concept of what it is like to be in labor. Women in labor tend to find themselves on a different mental plane, where they have to focus inward and work with their bodies to give birth. As midwives know, some women become belligerent. Some seek privacy and seclusion. Most women in labor are likely to find the routine and usually unnecessary procedures of hospitals to be invasive and unwelcome. Yet the courts that decided this case didn't seem to be aware that women are unlikely to behave the same way when they are in labor as when they aren't. The decision cites hospital records that describe the mother, V.M., as "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." Also, her husband indicated that the way she was acting was not her "normal manner and that she is not as 'tranquil.'" Why would anyone expect a woman in labor to be compliant, tranquil, or rational? What kinds of expectations does our society have for women undergoing a powerful physiological process, often with an absurd amount of poking, prodding and general interference? This mother was uncooperative with hospital staff, but clearly her uncooperativeness had nothing to do with the well-being of her baby. There is no reason to believe that she did not have the well-being her baby as her top priority, even though she was not a model patient. There is also no reason to believe that everything the hospital staff wanted to do was essential or even beneficial for the well-being of either mother or baby. In fact, typical obstetric care engages in many procedures that are unnecessary and often harmful, more out of habit and for the convenience of hospital staff than in the best interest of patients.

While the court opinion also focuses on the parents' psychiatric diagnoses (which are fallible medical judgments) and their history of care in determining their fitness as parents and abrogating their parental rights, their psychiatric state would never have been questioned if the mother had not refused invasive abdominal surgery -- which was entirely within her rights. The tragic consequence for this family was separation from their infant daughter from the moment of her otherwise uneventful vaginal birth. That kind of injustice can't have been good for the psyche.

Follow Louise Marie Roth on Twitter: www.twitter.com/louiseroth

Comments

[GBGB]

Ms. Roth, You should be ashamed. Your entire article is based upon a lie.

You argue that a woman should be allowed to refuse invasive medical procedures (btw, I completely agree). However, your article is premised upon a case where a "New Jersey appellate court found that V.M. and B.G. had abused and neglected their child, based on the fact that the mother, V.M., refused to consent to a cesarean section."

This is completely false. The three appellate judges expressly stated that they DID NOT consider the mother's refusal to consent to a c-section in reaching their decision.

In fact, one of judges wrote a long argument explaining why he believed the law prohibited him from considering the mother's refusal to consent to a c-section in this type of case. (The other two judges did not weigh in on that issue, but they did not disagree with him either.)

If anything, this case supports a woman's right to refuse invasive medical procedures. Yet, you claim that the decision does exactly the opposite.

Apparently it is easier to fan the flames of hatred against the pro-life crowd by claiming that a NJ court has limited a women's right to make decisions regarding the birth of her child. Apparently it doesn't matter if you have to lie about what actually occurred in the case.

You have done serious damage to your credibility and (unfortunately) the credibility of the movement that you support.

[GrannyMiller]

This woman's big mistake is that she's black, poor, has been treated for mental illness and went to the hospital to have her baby.

The moral to the story is :

Be rich, white, don't seek help and stay home to have your baby.

If you decide you want to go to the hospital for childbirth, better put duct tape on your mouth, try to not "act up" too much while in labor and let the staff do whatever they want to you and your unborn baby.

If you don't, your newborn just might be kidnapped by CPS and given to someone else.

[undrgrndgirl]

nope, that gets you in trouble, too...

after all, don't you uppity women know the government and men know what's good fer ya!

http://www.alternet.org/sex/141499/my_womb_for_god%27s_purposes%3A_the_perils_of_unassisted
_childbirt­h_in_the_q­uiverfull_­movement_/

be sure to read the comments, too...

[lcrown]

Shame on you and Huffington Post for pitching this story in a way to incite fear and rage that establishment medicine's only goal is to exploit and manipulate women, and then punish them when they don't comply.

Apparently unlike you, I read the court findings and here's what they reveal:. The mother presented with some risk being 42 years old, and baby was in distress. The mother refused O2, refused the fetal heart monitor and was thrashing about so much so that the epidural [which she requested] could not be administered. She called the police saying that she was being abused and denied treatment.. While you pitched this as an "every mom during delivery" moment the doctors were suspecting this woman of psychiatrically decompensating [she had been treated for 15 years for PTSD/schiz­oaffective disorder/bipolar disorder] and the baby was in distress. I can completely understand their judgement to try and deliver this baby in the safest and least chaotic way.

BOTH parents claimed the mother had never received psychiatric treatment, denied that they refused a c-section, and denied that they had ever been seen by a hospital psychiatrist. In fact, she was being evaluated by a hospital psychiatrist to determine her capacity for making an informed decision when she gave birth.

The father has refused to interact with DYFS, to get the assessments requested by the court, or to attend parenting classes so that the child can be returned to him.

[unnecesarean]

lcrown: " I can completely understand their judgement to try and deliver this baby in the safest and least chaotic way."

The court docs read that Dr. Mansuria testified that an examination revealed a “nonreassuring fetal status.” According to the doctor, the recommendation of the cesarean was to avoid "brain damage, mental retardation and fetal death."

However, you believe that the doctor was ACTUALLY just trying to get the baby out in the "safest and least chaotic way" because the patient was, what, behaving too wildly? Did you see that the baby was born safely without incident? She was healthy. V was not subjected to unnecessary surgery and the baby was fine. Vaginal birth was the safest way to give birth in this case.

Your scenario proposes that it is ok for health care professionals to lie to their patients in order to coerce them into unnecessary procedures. This places the self-interest of the physician before the bodily autonomy and rights of the patient. Surely you're not advocating that this practice is acceptable.

lcrown: "In fact, she was being evaluated by a hospital psychiatrist to determine her capacity for making an informed decision when she gave birth."

You say you read the findings. You probably saw that V had already had a psych consult during labor and was found to be competent! She was on the SECOND psych consult (because they apparently didn't like the first opinion) when she gave birth normally.

[lcrown]

That the baby was born naturally without incident was a miracle, rather than the basis of this blog's entire argument that the docs/hospitals have some nefarious intention to control women's bodies.

You don't think that a woman refusing O2 and refusing fetal heart monitoring while thrashing about when it was determined that the baby was already in distress is sufficient for doctors to decide to "ACTUALLY" try and deliver the baby in the safest and least chaotic way???? I do. I mean, please, put yourself in the position of the delivery room staff. A woman who has a long history of psychiatric treatment is losing it and the baby is in distress. They want to do a c-section and she refuses and they evaluate her to make sure she's competant. What is the problem here? Nobody was forcing her to have a c-section.

They took the baby away bc they couldn't determine the competancy of the family, not because she refused a c-section, and if YOU read the court transcripts you'd know that. The judge in this ruling expressed his frustration by saying that he's trying his best to reunite this family but the family's inaction is snatching defeat from the jaws of victory.

[Rebecca Wimberley-m]

Thank you so much for posting this comment, lcrown. You saved me a lot of typing. I am so disappointed in Huffington Post's spin on this story. That mother displayed many red flags and if I were the DYFS I also would've taken her baby. The fact that the parents would not comply with simple caseplans requests demonstrates their lack of proper parenting skills and shows how little they truly care about their child.

[lcrown]

I wouldn't say the family doesn't care about their child, only that their competancy to care for the child is questionable. There could be developmen­tal/psychi­atric/othe­r medical reasons.

.Playing on the fear of women, this blog is even more exploitative and manipulative of women than what the author is claiming of the courts/hospital.

The issue is the controversy over c-sections, the research interest of the author. I am a female clinical exercise physiologist who works mostly in women's health, and who after years of trying to function within the broken hospital system now works outside it. I can certainly appreciate the problems with the system.

Is the high rate of c-sections an indication of an exploitative medical machine against women? I don't think so.The rate of c-sections has increased concomitant with the rate of women presenting for birth who are in poor health from metabolic disease.We now see young moms birthing with high blood pressure and pre-diabetes, and one in two women of child-bearing age is obese, increasing delivery complications. The shortage of ob-gyns bc they can't afford liability insurance is in direct relationship to this population of women who have higher risk.This is mostly due to poverty effects on health.

This blog was devious and inflammatory and every blog that riffed off it exponentially increased the sensationalism.I don't care that you're on my side of the political spectrum, it was irresponsible.

[undrgrndgirl]

first of all, people aren't caseplans...(one of the reasons i left healthcare)...i worked l & d for 3 years and saw the doctors scheduling to induce patients so they would deliver after office hours but before "bedtime"...more of our patients delivered as induced or c-section than delivered on the babies' NATURAL schedules...YES ob's often put their OWN self interests before the needs and wishes of patients and manipulate women to comply with what is convenient for the doctor - hospital and doctors DO have some nefarious intention to control women's bodies...i've seen it first hand many, many, many times.

[Libilou]

I see this as another case of hospitals, doctors and, to an extend, men trying to take over control of women's bodies.

And if we don't agree with them, we're called mentally ill and punished.

Incredibly sad and incredibly wrong. Morally and ethically wrong. Why are doctor's allowed to continue this assault on women? Both OB's and Psyc docs? So often, the trauma of labor is seen as a mental illness.

I'd like to see one of those doctors, lawyers or judges (all men) try and push an 8 pound object out a hole the size of a golf ball and not make some noise and maybe even not make total sense to everyone around. (trying to be as delicate as possible and still make my point.)

[undrgrndgirl]

docs have been doing this since pregnancy was medicalized in the 1920s...before that pregnancy and childbirth were strictly in the women's realm...

women have always been deemed mentally ill (in that they are not men)...or at the very least hysterical (root word hyster = womb)...it seems thought that after a few decades of women taking back child birth (at least to some degree) the pendulum is swinging back in favor of the hospitals and doctors (who, ironically, are now are mostly women who have been brainwashed by the system) sad, sad state of affaris....glad i won't be having any more visits to the delivery room !!!

[GBGB]

"And if we don't agree with them, we're called mentally ill and punished."

Actually, the mother in this case was called mentally ill due to her 15 years or so of psychiatric treatment. You really should read the actual case, not Ms. Roth's distortion.

[KaylyNuke]

The point that I don't think is being stressed enough is the innacurracy of the science of psychiatry. In this case there is a different diasgnosis and opinion from every single doctor consulted, but the "worst" (read "scariest") diagnosis is somehow plucked from the list by the court and the woman is labelled unfit because of what is, in essence, the *court's* medical diagnosis.

[unnecesarean]

Someone told me on Twitter that they were disappointed that the previously posted links were dead. My blog took a big dive over the weekend.

Full court doc (in html, not pdf) posted on July 20)
http://www.theunnecesarean.com/blog/2009/7/20/superior-court-of-new-jersey-terminates-cesarean-refusing-mo.html

A summary of the court doc with and excerpt from a woman who knows V.M. and blogged about it first:
http://www.theunnecesarean.com/blog/2009/7/21/refusal-of-unnecesarean-leads-to-loss-of-custody-vs-story.html

The diametric opposition of the "expert" opinions in this case:
http://www.theunnecesarean.com/blog/2009/7/23/new-jersey-cesarean-refusal-case-the-system-is-schizophrenic.html

I'm also still perplexed by how many people see this as an example of the legal system doing a great job and not related at all to the refusal of a cesarean. In fact, Louise has been accused (me, too) of being misleading in saying so because the appellate court said that the previous trial judge shouldn't have factored it into his decision.

It seems to me that some people have a very strong need to believe that the system works. Doctors don't push unnecessary cesareans, the word of CPS and social workers always trumps that of the parents, mental health can be accurately assessed and babies are always protected from these mentally ill people who bore them. Are you sure about that?

[Missbfc]

If you haven't already seen the film Pregnant In America you should! I went to Canada to have my baby naturally because I was basically being forced to schedule my c-section. I had a c-section with baby #1 and there was no reason I could not try for a v-bac the second time around. Visit www.pregnantinamercia.com.

[CosetTheTable]

During labor, the mother kicked her doctor out of the room, and then called the police saying she was being denied care. That's... weird. Not worthy of having a child taken away, but certainly worth saying "that mother is not okay. we should have someone who knows more look into this."

This decision AGREES with the fact that the woman said no to the c-section shouldn't have had an affect on whether or not the child was taken away.

The parents didn't show up for the first court date-- which was before the child was released from the hospital-- despite being called to remind them.

When the parents did show up, the judge set out what the father would have to do to get custody back, even setting a reunification date. Father didn't comply.

The parents lied on several occasions to the court.

Now, I'm not sure if I think the child should have been PERMANENTLY taken away. But when you don't show up to court, lie to court, and then don't do what court asks you to do to get your kid back (when it's actually pretty reasonably and rational), I don't think you should be surprised when they don't give your kid back to you. And I think those things are pretty relevant to whether or not they should get their kid back.

[KaylyNuke]

Why were the father's rights terminated?
The court appointed "third party" lead the court to find "(1) '[i]t [was] not and will not be safe to return [J.M.G.] home in the foreseeable future because [of] mother’s . . . psychiatric condition [and] father’s unwillingness to accept mother’s psych[iatric] condition'; (2) DYFS made reasonable efforts to reunify the family; and (3) adoption was an appropriate plan because of V.M.’s psychiatric condition and non-compliance with treatment and B.G.’s lack of acceptance."
He wasn't unfit, abusive or neglectful but in denial of his partner's supposed mental illness. That is grounds for permanently terminating his parental rights??
Also VM did not exactly "[kick] her doctor out of the room, and then [call] the police saying she was being denied care." Slight, but important difference:
"She ordered the attending obstetrician, Dr. Shetal Mansuria, to leave the room and told her if she did not do what V.M. said, she would be off the case. V.M. then threatened to report the doctor to the police. In fact, at one point V.M. did call the Livingston Police to report that she was being abused and denied treatment."
Her rights were being violated. She was about to be assaulted and she was being denied the treatment she was legally within her rights to have. It was an emergent situation in which she did not have time to call a lwayer and let the court hash it out.

[CosetTheTable]

The father's rights were terminated because when he was required to do several things, one of which was get a psychologist (psychiatrist? ... It's on the last page of the decision iirc) to make a statement in support of his mental health, he didn't do it. There wasn't a disagreement of experts or anything. He just didn't do it.

... How do you know she was about to be assaulted? I'll grant you that I extrapolated a bit, but so did you. She asked for certain treatments, she didn't want others. It's somewhat unclear to me exactly what she was objecting to and exactly what she wanted, and it seems that the doctors were confused too--- hence the psych eval.

Anyway, the fact that while the father clearly doesn't seem to have his act together in the eyes of the court makes me unsurprised that he did not receive custody, and I don't think getting a favorable psych report is that arduous or out of line on the court's behalf. As a layperson without a bone to pick, I think that permanently taking away parental rights from the father might be a bit far--- but not giving him rights until he does what the court ordered him to do? .... What else do you expect the court to do, exactly?

[MrsMastro]

The facts in this case seem pretty clear--this woman's ability to parent her child was questioned, at least partially, based upon her decision to refuse a c-section she felt (rightly) was unnecessary in her case.

Whether she was right or wrong or whether she is a good mother or not, she has a right to make medical decisions for herself up and to the point where a judge declares her incompetent to make them--something that did not happen in this case.

This case is troubling on a number of levels. It points to larger cultural issues--blatant sexism, questions of female bodily autonomy, the ways in which medical personnel restrict and wrongly interfere with the rights of patients, costs--at a time when the cost of health care is at the forefront of American politics, it is striking that we are not discussing these and other unnecessary procedures that come with astronomical prices, in terms of dollars and otherwise--the ways in which we view and conceptualize women and their bodies, what does or does not constitute "good motherhood", the ways that our society views, categorizes and deals with (or doesn't) mental health issues and abuse. The list goes on and on.

Kudos to Dr. Roth for bringing attention to this case. I look forward to hearing more of this discussion.

[ksong]

This case is a chillingly clear sign that women's rights during labor are indeed in danger. The last thing women need to worry about upon entering the hospital to give birth is a battle with their health professional as well as the state over their own body and baby. "The Rights of Childbearing Women" (http://www.childbirthconnection.org/article.asp?ck=10084) -- written by Childbirth Connection, a national not-for-profit advocating on behalf of women and families and for the practice of evidence-based maternity care -- applies widely accepted human rights to the specific situation of pregnant women. Although most of these rights are granted to women in the United States by law, many women are not fully aware of their maternity rights.
Know your rights.

[kguinness]

While I believe the rate of C-sections is something that needs to be addressed I DO NOT believe this is the correct way to do it. The reporting in the story was skewed to fit the message. If you read through all of the information on this case you might see that the C-section refusal had nothing to do with why this baby is not with it's parents. I think an injustice was done by the journalist by not reporting the story in a truthful and correct way. You should read more about this case instead of listening to the incorrect version from an irresponsible journalist.

[Amanda Troyer]

How can we do something? What can we do to make this huge? We can't sit around and let this kind of insanity continue.

[shannonkelley]

I think the sad fact of the matter is that, no matter what we do, women will always be judged. Harshly. In ways that men aren't. And often by each other. And I think every decision we make is made just a little bit harder, because, on some level, we're aware that we're putting ourselves up for judgment, no matter what we do. I wrote about this subject today on my blog (http://undecidedthebook.wordpress.com/2009/07/23/damned-if-you-do-damned-if-you-dont/), which is about analysis paralysis, grass is greener syndrome, longing for the road not traveled, and how the success of the women's movement has left women stumped in the face of limitless options.

[AmyTuteurMD]

How could this case be an example of an abrogation of a pregnant woman's civil rights when the appellate court agreed with you?

They said:

"The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings."

It turned out that VM, a paranoid schizophrenic, was incompetent to care for a child, but it had nothing to do with the C-section.

[minasmom]

While what you are saying is true, the whole reason it was brought into being was because she refused a c section. If she had not done that, nobody would have batted an eye at her parenting her own child.

[GBGB]

Minasmom, that is not accurate. The mother did not just refuse a c-section. She completely flipped out. Words cannot accurately describe someone's demeanor (and I obviously wasn't there) but the hospital staff deals with women in labor every day and this woman was acting way beyond the norm for a woman in labor. That led the hospital staff to call in a psych consult, wherein they learned that this woman had a long history of psychological problems. One thing led to another and her child was eventually taken from her.

So, it was the mother's hysterics (caused by a long history of psychological problems) that led to the final result, not her refusal of the c-section.

[leuce7]

One of the doctors diagnosed her (after she left treatment with him--which he said was fine, though he didn't advise it--not during the actual treatment) with schizoaffective disorder. That is NOT schizophrenia. They are different disorders. So, no, she isn't a paranoid schizophrenic, and on top of that, who knows what sort of meds she couldn't take precisely because she was pregnant?

[stephenpaine]

Would be nice to see names of the judges.