Bioethics for Breakfast: Addressing Maternal Mortality in the Childbearing Year

Bioethics for Breakfast Seminars in Medicine, Law and SocietyEvery woman who dies during or after pregnancy has a story to tell, a story that can teach us how to prevent other maternal deaths.

Renée Canady, PhD, MPA, and Cheryl Larry-Osman, RN, MS, CNM, presented at the February 21st Bioethics for Breakfast event, offering perspectives and insight on the topic “Just Caring for All Michigan Mothers: Addressing Maternal Mortality in the Childbearing Year.” Drawing from the 2018 Michigan Maternal Mortality Surveillance report, the speakers reminded the audience that “every woman who dies during or after pregnancy has a story to tell, a story that can teach us how to prevent other maternal deaths.” The presenters introduced the session with compelling personal experiences, illustrating the scope and scale of the problem. Using an ethics yardstick Dr. Canady then invited the 33-member audience to respond to graphic depictions of the U.S. maternal mortality death rate – the highest rate within the developed world. Those numbers give evidence of a profound social injustice and a need to modify resource allocation accordingly.

Yet as in much of the U.S., evidence suggests that Michigan has not met the mark. As the speakers noted, race matters – a lot. From 2011-2015 Black women in Michigan were found to be three times more likely than white women to die of a pregnancy-related cause; upon review nearly half (44%) were considered preventable. Black mothers in Michigan were twice as likely to die from a pregnancy-associated cause; upon review, 39% were deemed preventable. Social and medical advances have disproportionately failed to address pregnancy needs for Black mothers. Sociodemographic variables do not fully explain the observed gap – the disparities are rooted in multilevel (system, practitioner, patient) inequalities including place, communication, and discrimination. A health equity approach recognizes that one must comprehensively address institutional racism, class oppression, and exploitative gender discrimination.

As a just and caring society we have an obligation to ensure safe and healthy pregnancy and birth experiences for all mothers. Ms. Larry-Osman noted that a virtue ethics approach leans on the character of health professionals to engage compassion, reason and discipline in the interest of maternal well-being. In concert, a communitarian ethics approach emphasizes shared values, ideals and goals to identify barriers to care as well as interventions and solutions. As reported by attendee Lynette Biery, Maternal Child Health Director at the Michigan Department of Health and Human Services, maternal mortality reviews such as the Michigan Maternal Mortality Surveillance Program provide data necessary to address changes that would improve women’s health before, during and after pregnancy. Michigan has seen some improvement after the 2016 implementation of hemorrhage and hypertension “safety bundles” and the MI-AIM (Alliance for Innovation on Maternal Health) is now working on opioid bundles as well. But given the scale of the problem, are such efforts enough?

Approximately 50% of Michigan women rely on Medicaid for prenatal care and give birth in a Medicaid supported hospital, but that program is targeted for cuts under the current federal administration. What is the state/physician obligation to address this? Should the state ensure the availability of labor support “doulas” as part of standard maternity care as is being done in other states? Mortality reviews help, but are they sufficient to raise awareness and address the multilevel problems? What structural strategies might best pave the way for continuity of care and community care? How can solutions avoid racist calls for “personal responsibility for heath”? What are the effects of pervasive racism and how might the state best address them? Many in audience lingered past the session’s end to continue discussing these questions. Our thanks to health law firm Hall, Render, Killian, Heath & Lyman for generously supporting these important conversations.

Renée Canady
Renée Canady, PhD, MPA, is Chief Executive Officer of the Michigan Public Health Institute. She is a nationally recognized thought leader in health disparities and inequities, cultural competence, and social justice. She additionally is Assistant Professor in MSU’s Division of Public Health within the College of Human Medicine. In her scholarly work, she emphasizes the social context of mental and physical health, and the pregnancy experiences of African-American women.

Cheryl Larry-Osman
Cheryl Larry-Osman, RN, MS, CNM, is a Perinatal Clinical Nurse Specialist at Henry Ford Hospital (Detroit). She additionally is trained as a Healthcare Equity Ambassador for the hospital and serves as a cultural competency and healthcare equity expert within that system. She has over 18 years of experience in obstetrics and is a passionate advocate for the optimal and equitable care of women and children.

About Bioethics for Breakfast:
In 2010, Hall, Render, Killian, Heath & Lyman invited the Center for Ethics to partner on a bioethics seminar series. The Center for Ethics and Hall Render invite guests from the health professions, religious and community organizations, political circles, and the academy to engage in lively discussions of topics spanning the worlds of bioethics, health law, business, and policy. For each event, the Center selects from a wide range of controversial issues and provides two presenters either from our own faculty or invited guests, who offer distinctive, and sometimes clashing, perspectives. Those brief presentations are followed by a moderated open discussion.

Signed Off: Unconsented-To Cesarean Section, A Quarter Century After A.C.

Bioethics-in-the-News-logoThis post is a part of our Bioethics in the News series. Visit this page for more information.

By Deborah Fisch, JD

The Texas case awaiting a decision from the Supreme Court heralds a new understanding of abortion rights in the line of cases from Roe (1973) through Casey (1992). However, another reproductive rights case about having children is also worth revisiting.

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Image description: text under an illustrated image of a uterus reads “don’t tread on me.” Image by Liz McDaniel.

The subject of In re A.C. (1990) is Angela Carder, a cancer patient in her last days of life, who refused a c-section at 26 weeks’ gestation. A physician unrelated to her case obtained a court order that authorized the hospital to proceed. Both Carder and the baby died within two days after surgery. An appeals court overturned the order, thereby setting a precedent for the right of a pregnant patient1 to refuse care. Although this precedent was limited to the District of Columbia, it was felt to be sufficiently influential to guide other state court decisions. In the intervening years, however, A.C. has often failed to provide the envisioned protection.

1 On language: this article refers to “pregnant patients” or “pregnant people,” with the goal of including those who give birth who do not identify as women.

Court-Ordered C-Section

Consent-graphic
Image description: text on a green colored background reads “It’s not consent if you make me afraid to say no.” Image by Liz McDaniel.

In 1999, Laura Pemberton sued a Florida hospital that procured a court order to forcibly transport her to the hospital for a c-section. The court’s analysis in finding against her was telling: in response to Pemberton’s claim that her constitutional rights had been violated to bodily integrity, refusal of treatment, and family privacy, the court conducted a cursory balancing test between Pemberton’s right to bodily autonomy and the safety of the fetus – in opposition to A.C., which explicitly rejected such a test. The opinion cited A.C. only once, to distinguish Pemberton’s situation from Carder’s: it claimed that because surgery did not risk Pemberton’s death, the hospital was justified in making the decision for her based on the relative risks to parent and fetus.

In addition to disregarding A.C., this finding turns the medico-legal doctrine of informed consent on its head. Under it, providers bear a duty to inform the patient of the risks and benefits of proposed treatments, while patients possess the right to consent or refuse, based on their risk perception as combined with their values and circumstances. If relative medical risk were the sole criterion for decision-making, as the Pemberton Court seems to suggest, a patient’s consent would be irrelevant.

The Pemberton Court justified its decision with Roe, which grants the state an interest in the fetus late in pregnancy – and thus, an ability to intervene. Roe, of course, addressed abortion rights, whereas Pemberton was a pregnant patient who wished to bear her child. This misapplied doctrine continues to follows the offspring of A.C.

Physician-Ordered C-Section

Court-ordered c-sections are now rare, perhaps thanks to A.C. More common are medical malpractice cases that challenge unconsented-to c-sections performed without court authority. Most such cases are still in process through the courts.

The New York case filed by Rinat Dray in April 2014 immediately made headlines. An on-call physician forcibly performed a c-section, noting (unwisely!) in Dray’s chart, “The woman has decisional capacity. I have decided to override her refusal to have a c-section.”

The A.C. Court reaffirmed that failure to provide informed consent is considered malpractice. However, patients like Dray are hard-pressed to find a willing attorney. The contingency fee model of financing requires the prospect of a significant damage award to offset the $50,000 average cost of mounting a case. Attorneys, judges, and juries alike generally do not acknowledge a recompensable injury when both parent and baby emerge from birth alive and nominally healthy. Sadly, Dray may have succeeded in bringing her case to court in part because she suffered an additional physical injury during surgery.

Physician-Coerced C-Section

ScarboroughSwitzer_Lindsay Askins
Image description: Lindsay Scarborough Switzer is seated on a couch with her hands in her lap, looking directly at the camera. Image by Lindsay Askins/spotofserendipity.com.

A refinement on c-sections performed without consent are those in which consent was obtained by coercion. New Jersey attorney Lindsay Scarborough Switzer was already in the pushing phase of her son’s birth when the on-call physician arrived and abruptly demanded a c-section. After the physician warned of brain-damage to the baby, threatened calls to a magistrate to compel the surgery, withheld requested pain medication, and alluded to a possible removal of Switzer’s older child by child welfare services, Switzer finally signed the consent form that was put in front of her.

Switzer is a healthy, educated, determined attorney, who was attended in labor by her husband, a nurse-midwife, and a doula. It is difficult to imagine a patient better situated to hold out against coercion. That she could not indicates that patients in labor are particularly vulnerable to this sort of intimidation, as perhaps may be better understood by considering coercion in sexual assault. Switzer made the full records of her case available to the public before it was settled in late 2015.

Michigan Law on Unconsented-To C-Section

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Image description: Michigan state seal. Public domain image.

Although Michigan statute does not grant child welfare authorities jurisdiction over children not yet born, the state’s interpretation of relevant case law suggests that when a fetus is believed to be in danger, that barrier may be demolished. A 1987 bioethics article explored several Michigan cases, one of which had been explored in depth in 1984. The possibility of court-ordered c-sections in Michigan is real; the existence of coercive c-sections is already a reality.

Conclusion

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Image description: an illustrated silhouette of a pregnant person. Image source.

In spite of the legal authority of A.C., the right of competent parents to refuse surgery is often compromised, and their ability to seek redress is limited. Those who reach court are members of relatively privileged classes; what does this mean for everyone else?

By asking these questions, this article does not suggest we vilify physicians or deify patients; we are all influenced by the systems in which we live and work – and give birth. Extensive practice guidelines and other resources are in place to support physicians with concerns about possible conflict between patient autonomy rights and physician duty to patients. Institutions ranging from hospitals to the courts must reinforce the policy that the best decision-maker for a potential child is its parent, particularly the one in whose body it resides.

deb-fischDeborah Fisch is a Michigan attorney with a solo practice that offers defense of health care providers against state disciplinary actions. She is also employed at AwakenMichigan: Reproductive and Sexual Justice Project. Her interest in childbirth and maternity care is expressed through her legislative work on midwife licensure through Friends of Michigan Midwives, her legal advocacy and organizational efforts through Birth Rights Bar Association, and her intermittent pronouncements at Mama’s Got a Plan. She was a contributing author to the amicus curiae brief submitted by Human Rights in Childbirth for the Rinat Dray case.

Join the discussion! Your comments and responses to this commentary are welcomed. The author will respond to all comments made by Thursday, April 21, 2016. With your participation, we hope to create discussions rich with insights from diverse perspectives.

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