Do Laboring Women Retain Their Right to Make Medical Decisions about Their Care?

by | Jul 5, 2017 | Reproductive Rights

You might be thinking this is a silly question because every competent adult has the right to make decisions about their medical care, but, in fact, doctors, hospital administrators, and lawyers don’t see it that way. I give you Exhibit A: “An ongoing fight for more control over birth in Atlanta.”

According to the caption under the headlining photo, DeKalb Medical Center has “changed its policy on vaginal birth after cesarean sections. Some mothers, wanting more control over the way they give birth have protested the new policy.” Labor, of course, is the inevitable outcome of pregnancy, so what that bland sentence means is that the hospital has deprived pregnant women of the right to refuse major surgery. Think about that for a moment. Under no other circumstances would someone who isn’t a child, mentally incapacitated, or in life-threatening danger and unable to give consent be forced to undergo surgery because doctors have decided that’s the best course of action.

The reporter uses one woman’s story to illustrate the conflict, and her story makes clear just how appalling the hospital’s decision really is. Ashley Brown, one of the protestors, was planning a VBAC, but midway through her pregnancy, DeKalb changed its policy. Brown must have assumed all she had to do was decline cesarean surgery once she arrived in labor, but she found out that DeKalb staff wouldn’t take “no” for an answer:

Every time I requested an epidural, they were quick to bring me a piece of paper and tell me that once I would consent to having a C-section, THEN, I would be provided with pain relief. I remember it feeling very much like you imagine an interrogation gone wrong in a movie scene, where they’re trying to get information out of somebody and they’re using pain as a means to get that information.

Eventually, Brown gave in and had the cesarean. Think about that for a moment. Hospital staff essentially tortured Brown—her descriptor for the experience—by withholding an epidural to force her to agree to the surgery.

Let’s see what the reporter’s experts had to say about Brown’s story.

Shawn Steiner, an attorney with the National Advocates for Pregnant Women, explained that people, pregnant or not, have an absolute right to refuse surgery, but it doesn’t work out that way in practice. Mostly, the pressure is subtle because the power imbalance in the doctor-patient relationship ensures that few women will go against their doctor’s recommendations. When they do, though, pressure can escalate to such tactics as threatening women with child protective services, especially if the woman is low income.

DeKalb Medical Center spokesperson Cheryl Iverson refused to comment on Brown’s case except to say, “Patient safety is our first priority, and we routinely review our policies, and our policies are currently aligned with the accepted standard of care.” In other words, hospital staff can override a pregnant woman’s refusal in the name of “patient safety” if she’s making a choice they don’t like. But whose safety is the hospital talking about? Certainly not the woman’s. Surgery is surgery, after all, and, as noted, people have the right to refuse it even if their doctors don’t think that’s wise. Now we come to it. The rationale for denying vaginal birth after cesarean (VBAC) is the small possibility of the uterine scar giving way in labor and the even smaller possibility of the baby suffering permanent neurologic injury or not surviving as a result. On the surface that would seem a compelling argument for repeat cesarean, except that under no other circumstances can a person be forced to undergo any invasive procedure, let along major surgery, to benefit someone else, not even when there is a 100% chance that the other person will die, which is far from the case here.

Next up is, Leslie Wolf, a professor of law and medical ethics at Georgia State University. Wolf acknowledges that women should be the decision makers, “but the hospitals are also driven on some level by safety and litigation.” Wolf adds that guidelines aside, hospitals are businesses that could be out millions of dollars in a lawsuit over a bad outcome. “Here the hospitals are saying essentially, ‘it’s not a reasonable risk, or certainly not one we’re willing to take in our hospital.’” So, because it’s in their financial interest, hospitals assert the right to subject women to a major operation against their wills.

Last on the list is Aaron Caughey, head of the Department of Obstetrics & Gynecology at Oregon Health & Science University, who helps formulate the American College of Obstetricians & Gynecologists policies and guidelines. He says:

I think what is tricky and confusing about [VBAC] in general is that labor in a woman with a prior C-section carries with it risks. And you say, well, gosh, it’s got risks, why don’t we just do another C-section. But honestly labor in everybody, even those without a prior C-section, carries with it risks” [emphasis mine].

Caughey’s position sounds reasonable on the surface too, although it seems to argue that planned cesareans might be a good idea for everyone, but it leaves out that cesareans carry risks too, including quite serious risks for mothers, babies, and subsequent pregnancies, not to mention the pain and recovery time of major surgery.

Caughey allows that planning VBAC after multiple cesareans should be permitted “if a patient and her doctor are comfortable” with it, which sounds supportive until you notice the hidden assumption that if the doctor isn’t “comfortable” with it—and few obstetricians are comfortable with VBAC even after one cesarean—the woman is out of luck. The doctor gets to make the call.

You might be thinking that since everyone agrees that the bottom line is that pregnant women, like everyone else, have the right to refuse surgery, women would have recourse to the courts when deprived of that right. Think again. Says Brown, “I don’t have the resources to hire an attorney to take on a hospital. They could tie me up for longer than my resources would sustain to have attorney fight it.” Moreover, Steiner, the NAPW lawyer, says Brown probably wouldn’t win if she pursued the case because “They end up with a healthy baby and the woman ends up with no visible physical injury and it’s hard to recover money in a case where you can’t show that.”

Actually, Brown isn’t uninjured. Five months after her forced cesarean, she’s displaying classic symptoms of PTSD:

I have to keep it pushed really far down to function. On days that I allow my mind to go back to that place or on mornings when I wake up with nightmares remembering the experience, it’s all-consuming.

And why wouldn’t she be, seeing as she was subjected to what in any other context would be considered extortion, torture, and assault?

The Take-Away

Unfortunately, DeKalb Medical Center’s views on the rights of laboring women are all too common. You would be wise to investigate whether your care provider or hospital shares them.

You want a care provider who respects your right to informed refusal. Accordingly,

  • Ask your doctor or midwife what happens if, after discussion, you turn down a recommendation. Hopefully, she or he will continue to work with you should you do that.
  • Doctors and midwives generally work in groups; if the answer is satisfactory, ask how you can ensure that whoever attends the birth has the same attitude.

If either answer is unsatisfactory, you would be well advised to look elsewhere for your care.

You also want your hospital to respect your rights. Accordingly,

  • Ask the Labor & Delivery nurse-manager whether the hospital has routine labor management policies, and if so, what they are and what happens if you decline to follow them or want to do things differently, for example, you decline having a routine IV, choose to eat and drink in labor, want staff to listen to the baby’s heart rate periodically rather than have continuous fetal monitoring, or intend to push and give birth in positions other than on your back.
  • Request a copy of the hospital’s admission consent form. Some forms give blanket permission to perform any treatment or procedure, including cesarean surgery, without seeking further permission. If your hospital’s form is one of those, ask if the form can be modified to stipulate that barring emergency circumstances that deprive you of the capacity to do so, you will give consent or refusal on a case-by-case basis for any proposed medications, treatments, tests, or restrictions after you have been informed of its potential benefits and harms and the potential benefits and harms of your alternatives.

Again, if the answers are unsatisfactory, think long and hard about whether this is where you want to have your baby because informed consent, which necessarily includes informed refusal, is your inalienable right.


Take Charge of Your Birth

Labor Pain What's Your Best Strategy Henci Goer

The first in Henci’s new Take Charge of Your Birth Series, Labor Pain: What’s Your Best Strategy? delivers up-to-date access to the best medical research plus practical strategies for developing your plan and putting it into action. Also available in audiobook.

Get Our Free E-Book

The Thinking Woman's Guide To Optimal Maternity Care

This groundbreaking ebook provides pregnant people and their partners benchmarks for choosing a birth place and guidance on how to select care providers who support an evidence-based, physiologic approach. It identifies the gaps between typical labor management and optimal care and gives sage advice on how to find care they can trust.