Do Pregnant Women Have the Right to Refuse Surgery?


Last week, a firestorm erupted in the birth and reproductive justice advocacy world over a statement generated by the NIH Vaginal Birth After Cesarean (VBAC) Consensus Development panel implying that in some circumstances a pregnant woman cannot refuse cesarean surgery. (Audio files can be found here, videocast here and commentary here, here, and here). Panelist Laurence McCullough, the chair in Medical Ethics and Health Policy at Baylor University College of Medicine, spoke for the panel during the public comment session and in a press briefing, taking the position that a physician has an independent obligation to protect a fetus, which, it is claimed, is not dispensed by a laboring woman’s refusal to consent. The panelists’ comments indicated that a conclusion regarding the ethical question was beyond their scope, yet stated to the press and to the audience that the body of law and ethics that protects the right to refuse surgery was not written for, and may not include pregnant patients.

Are women who are pregnant simply a different form of person with a different set of rights?

The position taken by the consensus panel directly contradicts the thoughtful and comprehensive presentation given 24 hours earlier by Dr. Anne Lyerly of Duke University, the invited expert speaker on the ethics of vaginal birth after cesarean. Dr. Lyerly reminded the panel of “a lesson that we need to keep learning but should know by now.”

“In obstetrical decision making,” she said, “women retain their rights of bodily integrity, just as people do in all other situations. So when a woman declines a cesarean, even when it is absolutely indicated, she cannot be forced to undergo it, [n]or be punished for her decision not to. American jurisprudence supports that, as well as ACOG [the American Congress of Obstetricians and Gynecologists].”

Nevertheless, the panel’s written statement uses the language of honoring “patient preference” and “shared decision–making” between physician and patient, to the exclusion of respecting the woman’s right to bodily integrity.

The panel’s comments therefore represent one view — though it is certainly not the majority view —  in legal and ethical thought about how best to manage situations in which a woman’s decision is contrary to a doctor’s medical opinion. On other questions related to vaginal birth after cesarean, the consensus panel indicated when it found the data conflicting or incomplete. Why was it only in the matter of informed refusal, without which informed consent is meaningless, that the panel declined to either take a position reaffirming already-existing ethical standards, or highlight the alleged gap in evidence?

According to its website, the NIH Consensus Development Program provides “an unbiased, independent, evidence-based assessment of complex medical issues.” In keeping with this broader effort, the Eunice Kennedy Shriver National Institute of Child Health and Human Development and the NIH Office of Medical Applications of Research convened the Vaginal Birth After Cesarean: New Insights Consensus Development Conference. The purpose of the conference was to gather and review scientific evidence to advance understanding by the medical community and the public about the clinical risks and benefits of vaginal birth after cesarean, and how they interact with “legal, ethical, and economic forces” to shape provider and patient choices about whether to offer or choose VBAC instead of repeat cesarean. The three-day conference was free and open to the public, during which time the floor was opened for discussion, and comments were accepted online. Statements are independent reports of the panel and are not policy of NIH or the Federal Government, not intended as legal documents, practice guidelines, or as primary sources of technical data. Consensus statements therefore have no binding authority, but recommendations may impact professional organizations and may help to guide the direction of future NIH-funded research.

The draft statement and the attempts to clarify it fell prey to both of the challenges about which Dr. Lyerly warned in her discussion of ethics in decision-making about VBAC.  First, the consensus failed to note that aggregate preferences might not accurately reflect the preferences of the individual patients they are meant to represent. Individual preferences vary widely, and are both “morally and clinically relevant.” Second, the consensus did not meet the challenge to avoid “swamping,” whereby discrete outcomes, institutional goals, and provider views are permitted to become more important than patients’ goals and values.

Dr. Stuart Fischbein, an obstetrician from southern California embattled for his support of women seeking VBAC, posed “a question of ethics and math” to the panel during public comments at the beginning of the conference. He asked whether hospitals banning vaginal birth after cesarean, effectively forcing the 70 percent of women who will have a successful VBAC to the risks of repeated surgery, was “a violation of our oath… to first do no harm?” The conclusion that many women should be counseled to consider a trial of labor for subsequent deliveries, and that hospitals should endeavor to lift VBAC bans was a signal of agreement, a signal that the physician’s ethical duty to first do no harm means that physicians should work with patients to decide how to proceed based on the patient’s view of the risks and her own values.

One may hope and expect that the conference will result in many more women being offered the opportunity to give birth vaginally. A major barrier to VBAC access has been a requirement that surgical and anesthesia personnel be “immediately available” during a delivery where the woman has had a prior cesarean. The consensus statement recommends that the professional organizations of obstetricians and gynecologists as well as anesthesiologists reassess practice guidelines singling out vaginal birth after cesarean for the “immediately available” standard. The panel also recommended collaboration between practitioners, policymakers and advocates to develop strategies to mitigate medico-legal considerations that restrict access to care.

However, the consensus panel’s statement represents a dead end for women who are not considered “ideal candidates” or women who disagree with their physician’s assessment of which risks are actually “riskier” and to whom. Much ink has been spilled refuting the two-patient model of obstetric ethics, which conceptualizes the interaction between mother and fetus as a conflict capable of being decided by an outside arbiter (be it a judge, ethicist, or doctor), rather than a conflict between the mother and the doctor. The manner in which the panel has cast the problem of obstetric ethics as a maternal-fetal conflict, as opposed to a woman-doctor conflict could lead one to the conclusion that a physician’s ethical obligation to “first do no harm” applies to fetuses, but not to women — an untenable position for a profession devoted to caring for women, and a dangerous position for public health. The panel’s failure to condemn practices such as court-ordered
cesareans and child protective services intervention to coerce women’s
compliance with doctor’s orders poses major questions about whether
and how personal convictions may have been at play in this discussion.

Reproductive justice advocates and attorneys are reviewing the strength of the legal precedent protecting pregnant women. Meanwhile, childbirth educators are showing the webcast of Dr. McCullough’s comments about informed refusal to their classes. Women who have had a cesarean and are planning future pregnancies are tuning in. What is a woman desiring a vaginal birth after a cesarean left to think? Likely, that the safest place for her to exercise her autonomy in birth is at home. Not only does the panel’s position miss an opportunity to protect a woman’s human right to informed refusal, it actively pushes women away from providers and out of hospitals, an ethical failure for all concerned.

Feminist theologian Mary Daly said that tokenism dulls the revolutionary impulse. In that sense, perhaps it is useful that the panel did not include even a token nod to a woman’s right to informed refusal of medical treatment if she happens to be pregnant. Indeed it offered nothing but a silencing of women pleading not to be put under the knife against their will, as a matter of civil and human rights, as well as a plea to the relationship of trust that ought to exist between provider and patient. And now, given this position, the impulse has been sharpened, and the revolution has been fueled.

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  • shewho

    I was in a NYS clinic program for prenatal care. I lost my right to prenatal healthcare for refusing an ultrasound. NYS said, ‘We can’t tell the doctor what standards to set.’ (Or how quickly to pay off the ultrasound machine, apparently).

    I doubt we’ll see anyone who argues with these surgeons. You have to know, when you walk into an OB/Gyn that you’re talking to a surgical specialist.

  • curtisp

     

    Forced surgery is akin to violent assault and should not be allowed under any circumstances.  The panel’s views are the moral equivalent of forcing a father to donate a kidney to save the life of his child.  Such beliefs are monstrous and do nothing to contribute to good health care.  Such attitudes create distrust of the medical community, which already runs very deep amongst many women.  To help remedy the situation women should start a coalition of doctors who take a position and sign an oath that, under no circumstances, would they force a pregnant woman to undergo medical treatment against her will. 

  • shewho

    Unless you’re prepared to repay their student loans and pay their malpractice insurance, almost no one will sign your pledge. Even then, the ones that signed probably wouldn’t be very good doctors. 

     

    Ego is a necessary component of people who make life and death decisions for other people.

  • curtisp

    “Ego is a necessary component of people who make life and death decisions for other people.”

    That is the problem.  It is not the place of doctors to make decisions against the will of patients and those who do cause more harm than good.  The old saying the road to ruin applies here.  Good doctors know this.

  • ctbirthadvocate

    It truly is a sad day in America when we have to actually write about these things. Which is why I wake up everyday with fight in me to help make people know that pregnant women, ARE women and have the rights to make their own choices in their medical care.

    It truly makes me sick that we have to fight for these rights.

  • darby

    I assure you that not every medical student is an arrogant ass concerned only about the green. We are not all drowning in debt or worrying excessively about it, we do not all go into it for the prestige and supposed money and yes, some of us do in fact care highly about patient rights. Many of us are women and are very likely to face these issues as patients ourselves someday. The American Med Edu system is particularly focused on lawsuit avoidance, IME, and that is a true failing, but doctors and med students, like their patients, are human beings too. The good ones don’t forget that.

  • darby

    “Ego is a necessary component of people who make life and death decisions for other people.”

    Except doctors are supposed to make those decisions WITH the patient, not for them. There’s still plenty of lousy old-fashioned practice out there but there’s hope that schools and teaching hospitals are stamping it out.

  • saab93

    Maybe the author should spend some time out of the law library and leave the conferences and spend some time with actual physicians, pregnant women, and fetuses.  Perhaps spending time in reality rather than in self congratulatory theorizing sessions would give her some perspective on what the real, ground level implications are of giving women the right to refuse surgery no matter what the situation is. But that would make too much sense. wouldn’t it.  It’s easier to proselytize and litigate than it is to understand reality.  If it wasn’t for lawyers, doctors and patients could make mutual decisions without worrying about the legal implications of their agreements. As it is, if something bad happens during a VBAC, and the familiy wants to sue, than that doctor and hospital are going to lose because of the precedent set by other lawyers.

  • gem

     

    taking the position that a physician has an independent obligation to protect a fetus,

    So, where is this physician’s obligation when he is performing an abortion?  Most OB’s do both.

     

     

  • rebeccaspence

    saab9-3, thank you for your comment. 

     

    When you say I need some perspective on what the “ground level implications are of giving women the right to refuse surgery no matter what the situation is” — I wonder—the implications for whom? I have spent a great deal of time on the ground with women who are denied the right to refuse and have stated here what the implications are for them: home birth, sometimes unattended, or forced surgery.

     

    Perhaps you are referring to the implications for providers, which I also find deeply troubling. Are you saying that it is an acceptable state of affairs for providers and hospitals to operate on non-consenting patients because they are afraid to get sued? I certainly don’t think it is acceptable. If you agree, I hope you’ll stand up and say so. “A lawyer made me do it” might be a reason, but it can’t be an excuse.

     

    I’m aware of the real medico-legal problems of consent and liability that restrict access to care. I know that the system, and my profession’s role in that system, fails a lot of people. This article says that violating people’s most basic rights to say who can touch their bodies and for what reason isn’t part of the solution.