Years ago, I had the honor of meeting mothers who endured the terrible experience of giving birth to their children in shackles. Each of these mothers shared with me their birthing stories. One mother was chained to the bed as she struggled to birth her child. Another mother shared her terror of being transported at seven months pregnant, with a belly shackle strapped around her pregnant stomach. Other mothers confessed to me the shame of giving birth while restrained, the tug of the shackle as they reached to hold their newborn baby for the first time, or tried to nurse.
They were mothers who had been incarcerated for reasons related to untreated addiction. Like most mothers behind bars, they were not violent offenders, guilty of egregious crimes such as murder, rape or assault. They and other mothers behind bars are usually incarcerated for non-violent offenses.
But, regardless of how most incarcerated mothers are non-violent offenders, anyone who has given birth, indeed any person who has witnessed the labor and birthing process, knows that the prospect of a woman in child birth trying to run away or tackle a correction officer is almost comical. Shackling these mothers is simply a draconian and inhumane practice that cannot be justified in terms of security concerns.
At the time I documented the mothers' stories, it was standard procedure for federal and state correctional facilities to place restraints on mothers during labor, childbirth, and after childbirth. In 49 states and the District of Columbia, jails and prisons shackled mothers during labor and delivery regardless of whether a mother had a history of violence, regardless of whether she ever absconded or attempted to escape, and regardless of her state of consciousness.
These mothers' narratives, and how widespread the shackling of mothers appeared to be, led me as a human rights lawyer to try to end the draconian practice. I had the privilege of working with doulas, the ACLU, the U.S. Conference of Catholic Bishops, reproductive rights and justice advocates, and so many other good folks across the country to end the practice at first at the federal level, and then across the states. We were also, thankfully, supported in our efforts by the American College of Obstetricians and Gynecologists (ACOG). In June 2007, ACOG called for an end to the practice of shackling mothers in labor and delivery because "physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and fetus, and have similarly made the labor and delivery process more difficult than it needs to be, thus, overall, putting the health and lives of women and unborn children at risk."
Seven years later, as the result of so many advocates, lawmakers, mothers, and leaders in the correctional, human rights and faith-based communities, the practice of shackling mothers in all federal correctional facilities is prohibited. If a mother is ever restrained during childbirth, the use of restraints must be justified and documented. And, in 18 states, laws have been passed that ban shackling of mothers during labor, childbirth, and post-delivery in jails and state prisons.
Now, this week, the Department of Justice (DOJ) will release "Best Practices in the Use of Restraints with Pregnant Women and Girls." As part of the Human Rights Project for Girls, I had the opportunity to be on the task force with other lawyers, as well as advocates, correctional leaders, national associations, state and local policymakers, practitioners, health care providers, and federal agencies that informed DOJ's document on best practices regarding the use of restraints. I am especially pleased that the report follows the Human Rights Project for Girls' request that both women AND girls in custody are included in the recommendations for reform. Unfortunately, there are girls in custody who are pregnant and they are subject to being shackled at the time of labor and delivery.
While DOJ's report is not binding law, it is, as the document states, "a starting point" to what we hope will eventually be an overall prohibition on the use of restraints during labor, delivery, and post-delivery in all correctional institutions. In the meantime, the principles identified in the report are significant:
1. The use of restraints on pregnant women and girls under correctional custody should be limited to absolute necessity.
2. All service settings should have written policies and procedures on the use of restraints on pregnant, laboring, birthing, and post-partum women and girls.
3. Policies and procedures on the use of restraints should be developed collaboratively by correctional leaders and medical staff.
4. Policies and practices specific to the needs of pregnant women and girls are necessary to ensure health and safety for pregnant women and girls and their fetuses/newborns.
5. Policies and their associated procedures should clearly reflect the need to balance the safety, health, and well-being of pregnant women and girls and their fetuses/newborns with that of all other parties involved, and should be gender responsive
Mothers behind bars are rarely given voice. They languish in their prison cells, rarely visited by family members, and in deep grieving over the loss of their children. Perhaps Orange is the New Black gives us some connection to their world, although it is a world far more painful than the series depicts. In truth, these mothers suffer so many hidden, silenced injuries. But, at least we are closer today to giving mothers behind bars the opportunity that every mother deserves -- to give birth to their children with dignity.