Does Refusing a C-Section = Child Abuse?

Amie Newman

A woman comes into a hospital, in labor, refuses to pre-consent to a c-section, and has her baby whisked away under charges of child neglect?

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.

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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 Rewire,

“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 Rewire, 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.

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to Philly.com, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.