Does Refusing a C-Section = Child Abuse?


Is it willful ignorance? A lack of education? Or some sort of untouchable mysticism that surrounds that which we all share and though rarely speak of?

I’m talking about childbirth and the endless misunderstandings and misinformation that go along with birth – especially in this culture. From what women experience emotionally and physiologically during labor to what women’s legal and ethical rights look like during the same period, the impact of not only our ignorance about birth but our desire to control what we don’t know or don’t understand, serves no one.

Case in point.

The National Association for Pregnant Women (NAPW) recently acknowledged a victory in which they played a part related to a woman who had given birth three years ago and had her newborn swiftly whisked away by a child protective authority claiming child endangerment for refusing to “pre-authorize” a cesarean section. The victory came in the form of a court decision last week reversing a lower court’s decision to terminate the mother’s parental rights (Ms.M aka V.M.) and remove the baby from her custody at birth, because she didn’t consent to a c-section, even though it was never medically necessary. According to NAPW staff attorney Farah Diaz-Tello, the issue of whether refusal of a cesarean section can be fashioned as medical neglect of a child was essentially “put to bed” in an opinion by the Appellate Division last year. However, Judge Carchman, writing in this recent decision confirms that the refusal to consent to a c-section has “no place” in the proceedings, stating that the term “child/ren” does not extend to fetuses for the purposes of the abuse/neglect statute under which Ms. M’s parental rights were terminated.

According to NAPW,

Even though Ms. M delivered a healthy baby vaginally, and would have consented to a cesarean if it ever became necessary [emphasis added], this resulted in a child welfare investigation, the state’s decision to remove the child from her parent’s custody at birth, and termination of parental rights. In the decision published today (PDF), the Appellate Division reversed the lower court’s termination of Ms. M’s parental rights and ruled that the child protective authority had failed to meet its burden of showing that Ms. M was “unwilling or unable to eliminate the harm facing the child” and that “termination of parental rights will not do more harm than good.”

Ms. M entered St. Barnabas Hospital in New Jersey, in 2006, after experiencing contractions. She was immediately asked to sign consent forms for “the administration of intravenous fluids, antibiotics, oxygen, fetal heart rate monitoring, an episiotomy and an epidural anesthetic” but she refused to essentially pre-consent to “any other invasive treatment.” Kathrine Jack, staff attorney with NAPW involved in the case from the beginning, told RH Reality Check,

“This occurred in a New Jersey hospital that has a 50 percent c-section rate. The hospital policy is that whenever a maternity patient comes in the door, they immediately are asked to pre-authorize any intervention. It’s standard practice and it’s not uncommon.”

Jack’s colleague, Farah Diaz-Tello, a fellow NAPW attorney continued,

“A lot of hospitals have these. From a legal perspective, however, they are questionable. Can you have informed consent, pro-forma?”

It’s an excellent question and it’s precisely in a case like this where that idea gets tested. Can a woman exercise informed consent to a medical intervention during labor if the situation under which she may consent to the intervention hasn’t happened yet? This hospital has a c-section rate that is well above what the World Health Organization deems a safe c-section rate; if women are consenting to a c-section right off the bat (not to mention fetal heart-rate monitoring, antibiotics, episiotomies, and epidurals!) regardless of whether one is actually medically indicated, it’s certainly blurring the lines between what’s medically necessary and the power of suggestion from a medical “authority.” Where does an individual’s right to make an informed choice begin and hospital legal policy end?

Ms. M had a history of psychiatric issues, having been on a range of medication including Zoloft and Prozac and in psychotherapy prior to her pregnancy. Not unlike millions of Americans, she suffered from what was characterized at different times in the court decision as depression, a panic disorder, post traumatic stress disorder and bipolar disorder. She went off her medication during her pregnancy for fear of its effect on her fetus. Prior to coming to the hospital to give birth, there was no indication that she was a danger to herself or to others. V.M. sought prenatal care, according to the records, from Dr. Ted Stevens, an ob-gyn.

This all changed, according to the lower court ruling, during her labor. Ms. M suddenly became a danger to her as-of-yet unborn child when she a) refused to consent, before it was necessary, to a c-section and b) became, what was referred to in the court decision as “combative.”

According to the decision,

“In the hospital records, V.M. is described as “combative,” “uncooperative,” “erratic,” “non-compliant,” “irrational” and “inappropriate.” 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. She told a nurse that “no one is going to touch my baby.”

As Diaz-Tello told RH Reality Check, when asked about what kind of “combative behavior” Ms. M/V.M. displayed during and immediately after birth,

“The ‘combative behavior’ was in relation to things that happened after the delivery…you have to see them in the context of when they told her they were taking her baby away.”

Her “combative” and “non-compliant” actions, then, were in response to being told by the hospital that the baby she had just given birth to would be taken from her. The decision states:

She would not allow Dr. Mansuria to touch the baby or perform an ultrasound examination. . . . V.M. “was very boisterous and yelling and screaming at the top of her lungs.”

Is this potentially what the in the first court, ruling against Ms. M, also meant by “uncooperative”, “erratic” and “irrational”? Well, that pretty well describes many women’s behavior during birth but most especially for women who may not abide by what a doctor’s and others’ vision is for her labor and delivery. In fact, notes NAPW,

“…the court itself cites a clinician’s opinion that “it is not surprising that she panicked at the time of delivery . . . [after] being approached about the possibility of a Cesarean section” given her particular emotional vulnerability.”

Ms. M had been evaluated by a psychiatrist because of her refusal to consent to a c-section (“She thrashed about to the extent that it was unsafe…to administer an epidural”); and because, from the record, she was “very boisterous…yelling and screaming at the top of her lungs.” The psychiatrist spoke with her for an hour to make sure she understood the risks and complications of having a c-section or refusing one; Ms. M was honest about her psychiatric history, according to the notes, and was clear about her choice. The psychiatrist concluded that:

“…V.M. (Ms. M) was not psychotic and had the capacity for informed consent with regard to the c-section.”

Not only did the psychiatrist find she had the capacity for informed consent and therefore was capable of saying no to the surgery but mental health, says Diaz-Tello, is not a reason in and of itself for taking a child away from her or his parents.

Despite the psychiatrist’s finding, however, and despite having no apparent legal basis, the initial decision to remove the newborn from Ms. M’s and her husband’s care was specifically related to her decision not to pre-authorize a cesarean section. An amicus brief, filed on behalf of more than 20 organizations and experts including many individual physicians called the lower court’s decision an “injustice and misuse of the child welfare laws” and notes:

“The record is clear that hospital staff referred V.M.’s case to the Division of Youth and Family Services    (“the    Division”    or    “DY FS”)    at    least    in    part    because    of concerns regarding V.M.’s decisions during labor, including her decision not to preauthorize consent to cesarean surgery.”

Unfortunately, the lower court also relied entirely on hearsay evidence to keep Ms. M, her husband, and their baby apart for three years. The series of events were recounted in court, seemingly, to highlight her “combative” and “erratic” behavior without giving rise to the real reasons behind her actions. Jack explains:

“None of the people who were present during her labor and delivery actually testified to anything. The only evidence was the testimony of the child welfare case worker testifying about what the people in the hospital told her after the fact. For example, the evidence of combative behavior is pretty subjective and it was the care providers giving information to a case worker who gave it to the lower court judge…it was a hearsay problem. They may have conflated her adamant refusal [to consent to a c-section] at the time with her anger afterwards and wanting to call the police [after they said they were taking her baby from her].”

It’s not just the fact that the plaintiff (the New Jersey Division of Youth and Family Services) relied on hearsay evidence to prop up its position and ultimately ensure a newborn was separated from her parents but that there seemed to be no legal basis for the decision. According to the amicus brief, not only is the right to refuse consent of a c-section constitutionally protected but the New Jersey statute (N.J.S.A. 30:4C-15.1(a)) used by the court to terminate Ms. M’s parental rights does not pertain to pregnant women. From the amicus brief,

“…family court judges may not consider pregnant women’s medical decisions in terminating parental rights” because, says the amicus brief, “that law does not apply to pregnant women or their fetuses.”

What would the fall-out have been, therefore, had the Superior Court of NJ not ruled in the mother’s favor, last week? 

“Our thought in taking this case was to prevent a precedent that would allow for the consideration of a woman’s decision-making process during labor or about labor to have any place at all in neglect or termination of parental rights,” says Jack of NAPW.

Diaz-Tello goes on,

“…the concern that this would be used as precedent to force women to have c-sections was taken care of at the Appellate level last year.  What made this case a continuing problem was the “other factors” were all either precipitated by or discovered as a result of the refusal. The current case doesn’t resolve that problem, but at least it directly states in the majority opinion that the refusal of the cesarean had “no place” in the termination proceeding.The reason we stayed with the case, is that her refusal [to consent to a c-section] opened up a fishing expedition because of the nature of the child welfare proceeding. Once the door is open you can have field day with every aspect of a woman’s life – that even though they can’t technically use that as the finding, they can use it in some capacity…”

It’s certainly a valid concern given how women’s choices are judged and then used as reasons to deny us our rights. From the cases of women who have given birth to stillborn babies being convicted of homicide because of a history of drug-use while pregnant, to women who are raped only to see their own sexual history used against them in court, courts have used personal biases and pre-conceived notions of how society believes women should behave to justify legal decisions with profound and very real consequences.

For Ms. M, her husband and their now three-year old child, however, the story isn’t over.

With this recent victory, the case has hit a happier note but there is a possibility that the NJ Department of Youth and Family Services will repeal the Appellate court decision; they have thirty days to do so. If they don’t appeal, says Jack, the case goes back to the lower court which will hopefully take steps towards reuniting the family. But because they have been separated so long, says Diaz-Tello, this is certain to be a long process.

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  • nycprochoicemd

    Thanks for your excellent analysis of this case.  It’s shocking and tragic that this family has been through so much for no good reason.  It’s amazing that in this most benign of cases (a healthy live birth with no need for surgical intervention AND a psychiatric consult revealing her capacity to make decisions for herself) an overzealous Department of Youth & Family Services was able to remove a child from custody for this long.

     

    I would also go so far as to say that even if a c-section had been medically indicated according to any physician, and even if there were a fetal demise resulting from not performing a c-section, that a woman has a right to her body and to do with it as she desires (as long as she is found competent).  The real test for our right to control our bodies will come when the lines are harder to draw.

  • amie-newman

    Your comment is so insightful and I appreciate the links you make. Whether one talks about autonomy over one’s body regarding abortion, pregnancy or birth – it’s critical that we understand and advocate for a woman’s right to autonomy over her body.

    Thank you!

  • snrkyfeminist

    I wrote about this court case in a biomedical ethics class in my last year of law school.  In my research on the ability of women to refuse medical treatment during pregnancy, I discovered a few gems: one is a study on the correlation between the financial incentives for a hospital to perform cesareans over vaginal births (http://bit.ly/a4KQ35), and another discusses how physicians and health attorneys are more likely to attempt to override a laboring woman’s refusal of a medically indicated cesarean based on external factors: the woman’s profession, whether her husband agrees with her decision, whether the fetus has downs syndrome, etc.  (http://www.whijournal.com/article/S1049-3867%2806%2900136-8/abstract). This second study was based off of a previous study published in the New England Journal of Medicine in 1987 that surveyed women forced to undergo cesareans by court order, finding that of those women 81% were minorities, and 24% did not speak English as their first language.

    These studies clearly show that the medical decisions of pregnant women are being overridden based on non-medical standards.  Doctors, lawyers, and judges are scrutinizing whether a competent pregant woman fits a rigid standard, determined by them, for refusing medical treatment–something that does not occur for any other competent adult patient.  Not only that, but physicians are imposing their personal beliefs on pregnant women–the study on obstetricians and attorneys also found that those who are self-identified as “conservatives,” “Republicans,” and “pro-life” are much more likely to attempt to override  a woman’s refusal of a cesarean in court. 

     

    Women are facing a hostile birthing environment, to say the least.  The paternalism that rages through the obstetrics industry is not only harmful to women, it violates tenets of general patient autonomy. 

  • melgarvey

    That is a scary case. Thanks for your detailed report.

  • ack

    I want to have kids some day. Reading articles like this just reinforces my belief about having upfront conversations with my OB/GYN as well as the hospital about their policies on childbirth. I think that having a doctor shove a bunch of consent forms in your face when you’re having contractions is ridiculous. I’m terrified of going into labor and not being able to choose the hospital… and I’m enormously privileged to have access to several that take my insurance in the urban area I live in. For now.

     

    I have a lot of issues with CPS policies, and this very clearly demonstrates why careful monitoring and public access to information is vital. In many states, they are virtually immune to investigation. Some of their written and unwritten policies are more about holier-than-thou assholishness than about protecting children.

  • mersiepoodle

    Though they’d love to criminalize that too, probably. I refuse to have any prenatal care or brain damaging ultrasound, I guess I’m going to be accused of being a criminal too. Jeez. Just because she was on antidepressants doesn’t mean she’s totally insane. Giving birth unprepared in a hospital setting is not comfortable, they just were mad because she didn’t roll over and let them do whatever intervention they wanted. Never mind that the USA is one of the WORST countries in regards to maternal and infant death rates.

  • randy-raptor

    NJ has severely abused and hurt this family.  Maybe a jury will assign punitive damages appropriate to discouraging such mindless arrogance in the future.

  • cnm3789

    For your best chance of having a physiologic labor and birth, why not consider getting your future maternity care from a midwife?  OB/GYNs are great for what they do best, which is surgery and care in high-risk situations, but midwives are the experts in care for normal pregnancy and birth.  Many certified nurse-midwives and certified midwives provide well woman health care so you needn’t wait until you’re pregnant to find one.  I encourage you to investigate this option in your area.  Try the Find a Midwife function at http://www.midwife.org. and best wishes!

  • ack

    Midwifery is something I’ve considered, as well as having a doula. I will definitely utilize additional support beyond the sterility of an OB/GYN, and will likely explore alternative birth options. I’m excited to have kids when we decide we’re ready, and I’m privileged to currently live in an area where I would have those options; I hope that when I’m ready we will have choices available. Thank you for the website!

     

    And my mom rocks, so she’ll be there so I can break a finger or two. ;)

  • julie-watkins

    I have to share this on facebook. There are 1185 who have already shared! I can see why. Horrible!

  • prowomen

    This couple should sue them for taking their baby.  This whole episode is unimaginable.  I can’t imagine any mother who wouldn’t be ranting and raving at such an outrage.  They illegally took her baby and denied it the loving care of its parents.  Apparently it was, also, denied the healthful benefits of being nursed.  Since C-sections are far more debilitating and life-threatening and it’s her ultimate decision, this hospital was totally wrong.


    Some judges are overstepping their legal authority by interfering with a woman’s right to informed consent, which is described by the American Medical Association as “a process of communication between a patient and physician that results in the patient’s authorization or agreement to undergo a specific medical intervention.” “The main purpose of the informed consent process is to protect the patient….a capable adult cannot be forced to take any type of medical treatment.”  (American Cancer Society)   
     

    In 2004, a hospital obtained a court order to force a woman to have a C-section because her seventh baby was oversized, but the order was too late. The mother, whose first six children each weighed nearly 12 pounds at birth, went to another hospital and delivered an 11-pound, 9-ounce girl naturally.

    Another pregnant woman didn’t feel she was receiving the care needed and, instead of being allowed to leave or go to another hospital, was ordered by a judge to remain and “submit to all medical care” whether she agreed with it or not.  She appealed the judge’s order in hopes of keeping her case from setting a precedent for legal control over women with problem pregnancies.  

    Pregnant women are not wards of the state.  Their constitutional rights are repeatedly being denied.  It may be time for women to start marching in the streets for the right to make their own informed medical decisions without interference from judges, politicians or religious zealots.
  • queenyasmeen

    You’ve all said it far better and more thoroughly than I could, but I just wanted to recommend that you see The Business Of Being Born, if you haven’t yet.  I saw it very recently and having the film as context for this chilling article was pretty helpful.  It’s available to view instantly on Netflix and of course it’s on DVD. 

     

    This family definitely deserves some form of reparation for what happened to them, although nothing will make up for their loss of the first three years of their daughter’s life, her lost chance to bond with her rightful parents as an infant, and probably the pain of a foster family that may have cared for her and bonded with her and then had to surrender her.  This whole incident is so frightening, and as demonstrated by the commenter before me, not an isolated incident.  Too many people on the street treat pregnant women as if they’re public domain — feeling the belly, nasty looks if they don’t approve of a pregnant woman’s behavior they’re witnessing or think they’re witnessing, unwelcome and intrusive comments that no sane person would thrust upon a stranger in any other situation, and so forth.  Now we’ve got bodies of authority, the medical establishment and Child Protective Services, shoving their way into pregnant women’s bodies and lives.  Disgusting.

  • aussiegirl

    Seriously, is it willfull ignorance you either didn’t bother to check your facts, or are you deliberately trying to mislead people. Other?  Really what is your excuse?

    This  case has *nothing* to do with c-sections and everything to do with serious mental illness and genuine concerns about the welfare of the child, which you would know if you bothered to read the court documents.  It’s all documented there in every painful detail.  It’s a very sad story but has nothing to do with c-sections.

    Read the decision which is posted on this site.  The site says the complete opposite of the actual court documents they posted.

     

    http://advocatesforpregnantwomen.org/blog/2010/08/post.php

    pg 60 of court decision.

    //Although there was evidence presented at the guardianship
    trial regarding V.M.’s refusal to consent to a c-section, the
    judge did not rely on that evidence in finding that DYFS had
    established prong one. In contrast to the Title 9 trial, V.M.’s
    failure to consent to a c-section did not form a major portion
    of the evidence presented in the guardianship trial, nor was it
    a “major consideration” in the court’s decision. V.M., supra,
    408 N.J. Super. at 249. Moreover, despite the Title 9 court’s
    reliance on V.M.’s conduct in refusing the procedure, on appeal
    the majority determined that it need not address this issue
    because there was sufficient other evidence to support the trial
    court’s finding of abuse and neglect as to V.M. Id. at 224. We
    need not address this issue here except to note that to the
    extent the judge considered the issue, it has no place in this
    termination proceeding. //

    Read the entire document and make an *informed* opinion.