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.

Uterus-dont-tread-on-me
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

260px-Seal_of_Michigan.svg
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

pregnant-woman-silhouette-md
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.

You must provide your name and email address to leave a comment. Your email address will not be made public.

Click through to view references.

Murphy’s Breast: Lactation Law and Advocacy in 2014

Bioethics-in-the-News-logoThis post is a part of our Bioethics in the News series. For more information, click here.

By Deborah Fisch, JD

Nurse The Baby Poster
Children’s Bureau Centennial / Wikimedia Commons

Public fascination with the female [1] breast is nothing new, from Janet Jackson’s famous “wardrobe malfunction” to Angelina Jolie’s much-discussed preventive mastectomy. When, in addition, the breast is used in its reproductive capacity to nourish children, law especially sits up and takes notice. In 2014 the lactating breast was at the center of a number of issues, with implications not only for legal rights, but also medical practice, public health, and Reproductive Justice. The breast, so active last year, was propelled by interesting messages, ultimately arriving at unexpected places.

[1] The author recognizes that some people who breastfeed do not identify as women; in the absence of generally accepted non-specific language, this article will alternate the use of gender-specific and gender-neutral terms.

1. The Public Breast: Yes, You Can!

Passage of Michigan’s Breastfeeding Antidiscrimination Act represents an improvement on previous legal protections limited to the breastfeeding’s exclusion act no 197from municipal public indecency laws. The new Act broadly forbids the denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service to a woman because she is breastfeeding a child.” It also provides civil remedies in case of violation; in offering recovery of litigation costs, the law makes it possible for a greater number of injured parties to pursue legal redress.

The Act does not include the addition of breastfeeding as a fundamental right, a provision that might have shaped employment sex discrimination cases. Of more pressing concern is that although since 2012 breastfeeding mothers may be exempted from jury duty, no caregiver exemption exists. To suddenly locate full-time childcare for an indeterminate period of time may be even more challenging than coping with the interruption of breastfeeding. In other words, while breastfeeding is a biological act, it is its social context that can often determine its success or failure.

2. The Working Breast: We Think You Can!

Nowhere is breastfeeding’s social context more central than in the workplace. The absence of a national parental leave policy presents an immediate barrier to continued breastfeeding, as does the lack of workplace-centered childcare.

breast-milk-pump
Abgepumpte Muttermilch, Wencke g, Public Domain / Wikimedia Commons

The Affordable Care Act addressed this obstacle by requiring employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.” However, legal experts are skeptical of the provision’s effectiveness. Philadelphia attorney Jake Marcus has long pointed out the law’s lack of a clear enforcement provision and what that means. She also questions the extent of the law’s coverage, an issue addressed by Nancy Ehrenreich in a forthcoming article. While the law on its face covers hourly workers and excludes salaried workers, Ehrenreich believes that in practice, salaried workers are more likely to reap its benefits because of factors related to logistics, culture, and power dynamics. She argues that the (unpaid) “Break Time” provision may actually exacerbate systemic inequalities based on race and class: mothers abandonment of breastfeeding will be regarded as “evidence of ignorance and poor parenting – and therefore as deserving of disciplinary surveillance and regulation.”

Even were the provision a panacea, pumping milk is not identical to breastfeeding. Benefits and risks have yet to be clearly assessed for replacing feeding at the breast with from pumped milk. The degree of contamination and deterioration of the milk during pumping and storage are unknown, as are the consequences of imposing a pump between the physiological supply and demand relationship a mother and baby share. What is clear is that any convenience afforded by breastfeeding is eliminated when pumping is substituted for direct feeding, thus burdening mothers far beyond the considerable labor already required.

3. The Criminal Breast: Don’t–Or Else.

Lynne Paltrow and Jeanne Flavin write of the criminalization of pregnancy, the loss of civil or human rights when pregnant. Behavior that is permitted in non-pregnant people is forbidden when carried out by pregnant ones, with uneven enforcement based on socioeconomic status and race. Similarly, the disapprobation many Americans feel at the idea of public breastfeeding – thus the need for protective laws – often translates into moral policing and criminalization of breastfeeding women’s behavior.

The flip side of a cultural belief that the public breast is meant only for sexual consumption is the moral imperative that breastfeeding women be purer than pure. An Arkansas woman was arrested when a waiter phoned the police, complaining that she was drinking beer while breastfeeding, even though claims of harm to infants by breastfeeding mothers’ moderate drinking remain unsubstantiated.

At the same time, no amount of moral purity protects breastfeeding parents from the charge of harming their children – through breastfeeding! Anthropologist Katherine A. Dettwyler notes that “ … women have been accused of sexual abuse of their children simply for breastfeeding them for various lengths of time deemed inappropriate by others, including mothers of children as young as 2 months of age.”

When breastfeeding parents are found to have used drugs, including at times prescribed medications, they are held responsible for any harm to their infants, even without legal culpability – or indeed, a causal link between behavior and harm. This pattern is mirrored in the removal of children for alleged abuse and neglect based on the presence of marijuana in a household.

Migrant Mother
Migrant Mother, Dorothea Lange, Library of Congress / Public Domain / Wikimedia Commons

The possibility of transmission through breast milk of a miniscule amount of a substance is often erroneously equated with a greater amount through placental transmission or direct ingestion by the newborn.  So a hospital might forbid breastfeeding by new mothers who have tested positive for marijuana, a specter that raises these questions: Which pregnant patients are most likely to be tested? Which babies are more likely to suffer the adverse affects of poverty, often mistaken in research for after-effects of maternal drug use? What impact will such testing and prohibitions have on mothers’ likelihood of seeking medical care for their children or themselves? Will these measures ultimately improve the health of infants?

4. The Profitable Breast: We Value You!

Stop Medolac
Used by permission of Breastfeeding Mothers Unite

Journalist Kimberly Seals Allers, a consultant to the Detroit Black Mothers’ Breastfeeding Association, describes reservations expressed by BMBA and other advocacy organizations at the plans of Medolac, an Oregon company, to solicit donations of breast milk at $1/ounce from lactating women in Detroit. Medolac hopes to re-sell milk to hospitals for use by preterm infants.

The commodification of body parts and fluids is a topic long disputed by advocates, ethicists, and scholars. Whether payment should be offered for breast milk is a question beyond the scope of this piece. Nevertheless, one wonders how Medolac could be so remarkably insensitive to the context and conditions of this particular business venture.

Residents of Detroit have endured shortages of the most basic necessities. The area suffers from an infant mortality rate over twice the national average. Pre-term births rose sharply in Detroit starting in 2008, at a time when the national rate was falling. African-Americans, who account for 82% of Detroit’s population, are three times more likely than their white counterparts to die of childbirth, and their children are twice as likely to die in the first year of life. Furthermore, women of color carry memories of the historical appropriation of their reproductive bodies, whether as coerced sexual partners, forced breeders of slave labor, or unpaid caregivers – including as wet nurses – to white women’s children to the detriment of their own.

It is hardly surprising that the women of Detroit, as represented by ‪Breastfeeding Mothers Unite, vociferously object to the commodification of their breast milk, when their own infants’ health so urgently requires that milk. Any benevolence Medolac originally intended notwithstanding, its campaign was tone deaf in the extreme.

As this article was going to press, Medolac announced the retirement of its campaign in Detroit.

Conclusion

A common theme is not so much national or state law as a combination of the Law of Unintended Consequences and Murphy’s Law. Various entities with good intentions have nevertheless not gone far enough, gone too far, or caused outcomes the reverse of their design. Part of the blame results from reliance on inadequate, incorrect, or changing evidence – but what is to be done? The responsibility of the legislature is to safeguard the public’s health. Medical providers are ethically bound to respect patient autonomy and do no harm. The ultimate legal rights inquiry is who decides, while Reproductive Justice demands that governments affirmatively assist people in accessing their rights. Consider also that no one is more concerned about the welfare of a child than its mother; no one holds the child’s interest closer to their heart.

liquid gold
Breastmilk – The Movie. CAVU Pictures.

These facts taken together suggest that consulting and following the wishes of breastfeeding parents will yield the best chance of identifying problems and arriving at solutions. Detroit mothers would eagerly have given input on the prospect of selling their breast milk, had they been asked. Parents who use substances can explain what policies would best support them in taking care of their children. The initiatives required to permit parents in the workplace to continue to breastfeed are to be most easily discovered by asking a variety of parents in the workplace. Whether a law protecting breastfeeding in stores and restaurants goes far enough is, again, best evaluated by people who struggle with integrating breastfeeding into their private and public lives.

When in doubt, trust and support breastfeeding parents. The breast that feeds the child is (usually) attached to the parent, after all. As much as we might wish to endow the breast with a separate identity and cause it to function – or malfunction, in Ms. Jackson’s case – at the behest of medicine, public health, or the law, it is the person behind the breast who can say what is needed, and tell us how to get there.

deb-fischDeborah Fisch, JD, is Senior Researcher at the Sexual Rights and Reproductive Justice Program at the University of Michigan. She is a founding member of the Birth Rights Bar Association and actively advocates for licensure of Certified Professional Midwives in Michigan. Her professional interests include the role of malpractice liability in determination of standard of care; the legal maternal-fetal relationship in pregnancy, labor, childbirth, and postpartum; regulation of out-of-hospital birth attendants and protocols for their interaction with in-hospital providers; and evolving access to maternity care under the Affordable Care Act. She writes on these subjects and many others at Mama’s Got a Plan and the associated Facebook page. She earned her AB in Linguistics from the University of Michigan and her JD from Wayne State University Law School. All opinions expressed in this article are her own.

Join the discussion! Your comments and responses to this commentary are welcomed. The author will respond to all comments made by Thursday, February 5, 2015. With your participation, we hope to create discussions rich with insights from diverse perspectives.

You must provide your name and email address to leave a comment. Your email address will not be made public. Read more for the full bibliography

Watch every lecture from the 2013-2014 Bioethics Brownbag & Webinar Series

Largent-slideReye’s Syndrome: A Medical Mystery and a Modern Dilemma
This talk from Mark A. Largent, PhD, examines the history of Reye’s syndrome, the hunt to uncover its cause, and the debates that have emerged over last twenty years about the role of aspirin in Reye’s syndrome. View Webinar

Bosk-slideMedical Sociology as Vocation
This presentation from Charles L. Bosk, PhD, discusses what it means to speak of ‘medical sociology as a vocation,’ using Weber’s classic essay ‘Science as a Vocation’ as its departure point. View Webinar

 

Fisch-slideThe Declining Provider: Refusal, Responsibility, and Reasonableness
This presentation from Deborah Fisch, JD, examines how we arrived at our current VBAC position, its implications for maternal and child health, and the connection to other instances of declining providers. View Webinar

Loup-slideAre Researchers Ever Obligated to Provide Individual Research Findings to Non-participant Third Parties?
This presentation from Allan Loup, JD, addresses an emerging consensus that, in some circumstances, researchers have obligations to return individual research results to research participants. View Webinar

Normandin-slide

“Enlightened” Breath: Breathing and Biomedicine
While much is known of the physiological importance of breathing in biomedicine, there is almost no appreciation of its possible therapeutic role. This presentation from Sebastian Normandin, PhD, argues for a new era – an age of enlightenment – in the use of breath and breathing as a healing tool. View Webinar

Vercler-slidePlastic Surgery Ethics: An Oxymoron?
In this lecture, Dr. Christian J. Vercler examines the distinctions made between cosmetic and reconstructive surgery, discusses how plastic surgeons think about those distinctions, and uncovers the different ethical frameworks that support these practices. View Webinar

 

Click here to watch more lectures dating back to 2010, and save the date for the first webinar of the 2014-2015 Series: September 17, 2014.

Michigan’s New Abortion Insurance Rider Law: Challenges, Spin, and Justice

Bioethics-in-the-News-logoThis post is a part of our Bioethics in the News series. For more information, click here.

By Deborah Fisch, JD

In December 2013 the Michigan legislature passed the Abortion Insurance Opt-Out Act. Because of the Act’s origin as a petition to initiate legislation, the governor possessed no power to veto it. Thus, effective March 14, no health insurance plan offered for sale in Michigan may include coverage for “elective abortion.” Instead, consumers desiring such coverage must purchase an additional rider – before becoming pregnant. No insurance carrier is obligated to sell such a rider, nor is any employer-based insurance plan required to offer employees an opportunity to purchase one.

The outcry against the law has condemned the allegedly undemocratic process of its enactment, the predicted effect on access to abortion for Michigan women, and possible further restrictions on abortion rights. Less attention has been paid to potential challenges to the law, the use of extreme spin on both sides, and the role of abortion restrictions in the larger context of Reproductive Justice.

Continue Reading

Deborah Fisch, JD, to address the current VBAC position at December’s Brownbag Webinar

bbag-iconThe Declining Provider:
Refusal, Responsibility, and Reasonableness

Event flyer: Fisch Flyer

Evidence shows that most women who give birth by cesarean section can successfully – and safely – give birth vaginally in future pregnancies. Yet in the United States, most such patients instead undergo repeat c-sections, in large part because of the dearth of institutions and practitioners that offer VBAC (vaginal birth after cesarean). Are providers justified in refusing to support VBAC? Is it reasonable for mothers to demand this option? Whose responsibility is it to ensure that an evidence-based option is available? Weaving together threads of medical science, public health, bioethics, consumer advocacy, medico-legal concerns, and reproductive justice, Fisch will examine how we arrived at our current VBAC position, its implications for maternal and child health, and the connection to other instances of declining providers.

Dec-4-for-blogJoin us for Deborah Fisch’s lecture on Wednesday, December 4, 2013 from noon till 1 pm in person or online:

In person: The lecture will take place in C102 East Fee Hall on MSU’s East Lansing campus. Feel free to bring your lunch! Beverages and light snacks will be provided.

Online: Here are some instructions for your first time joining the webinar, or if you have attended or viewed them before, go to the meeting!

Deborah Fisch, J.D., is affiliated with the University of Michigan Program for Sexual Rights and Reproductive Justice, the Human Rights in Childbirth Legal Defense Network, and Legal Advocates for Birth Options and Rights (LABOR). Her professional interests include the role of malpractice liability in determination of standard of care; the legal maternal-fetal relationship in pregnancy, labor and childbirth; regulation of out-of-hospital birth attendants and protocols for their interaction with in-hospital providers; and evolving access to maternity care under the ACA. She actively advocates for licensure of Certified Professional Midwives in Michigan. She earned her AB in Linguistics from the University of Michigan and her JD from Wayne State University Law School.