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Louise Marie Roth

Louise Marie Roth

Posted: July 21, 2009 05:35 PM

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

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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.

 

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