Analysis Maternity and Birthing

Holding Pregnant Women and Providers to a Dangerous, Unattainable Standard

Miriam Pérez

There is a disturbing trend on the rise in the U.S., one that crosses into many arenas — from legislation to insurance policy to our judicial system to the way individuals interact with their medical providers. The trend? Making women responsible for healthy birth outcomes and jailing them when they don't meet this unattainable standard.

As of today, Bei Bei Shuai is out on bail, thanks to the efforts of thousands of people who wrote on her behalf. Charges against her, however, are still pending and the prosecution of Bei Bei for feticide is still a reality. This issue is far from over. We will keep you updated.

There is a disturbing trend on the rise in the United States. It’s a trend that crosses into many arenas — from legislation to insurance policy to our judicial system to the way individuals interact with their medical providers.

This trend has the potential to seriously inhibit the rights of a major percentage of our population during portions of their life — turning their health and well-being into a matter of public concern and investigation, litigation, and incarceration.

The group? Pregnant women.

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This trend goes way farther than restrictions on abortion rights. This trend goes much farther than limitations on access to contraception, the morning after pill, RU 486. This trend goes farther than limitations on sex education.

The trend? Holding pregnant women responsible for guaranteeing a healthy pregnancy outcome.

Let me say this more plainly: women are at risk of being punished for not being able to guarantee a healthy birth.

Forget the fact that no one can guarantee a healthy pregnancy or birth. Pregnancy and birth have always involved death — an estimated 10 to 15 percent of pregnancies end in miscarriage. Stillbirths, early infant death, developmental problems, and disease have all have been a constant fact of life. Modern medicine has not solved any of these problems entirely — the best doctor in the world cannot guarantee a healthy pregnancy outcome for every woman.

So why are women being held to that unattainable standard?

As a society we have absorbed the myth that the right doctor and the right use of modern medicine can circumvent illness and death in pregnancy and birth. Some of the blame for this myth falls on doctors and the medical industry. Although new technologies, particularly developments in neonatal medicine, have significantly improved chances of survival for newborns, we still cannot guarantee a healthy pregnancy and birth outcome for every pregnancy.

Modern medicine makes a lot of promises, many of which cannot always be guaranteed. The result? Our incredibly litigious and destructive malpractice culture. The lack of trust among providers and patients, the promises that cannot be kept, plus the litigious streak of our society has created a culture of fear and financial burden within which the care of pregnancy and birth resides.

Just ride the New York City subway and it won’t take long to see an advertisement from a law firm looking for clients who believe a doctor is at fault for their child’s cerebral palsy, or other birth outcome.

Doctors have some protection from these standards — they have insurers who back them, employers who support them, and worse comes to worse, they might have to stop attending births, which many of them are choosing to do. Hospitals are shutting down maternity wards because they don’t want to deal with the costs. Midwives often feel the brunt of these penalties because they lack the protections that obstetricians have from professional associations and institutions. Some midwives even end up in jail.

But these expectations don’t stop with providers — they’ve now extended to women themselves, who do not have the support of insurers, or employers, to protect them when they fail to live up to these expectations. We also believe the myth that pregnant women can guarantee a healthy birth outcome.

If doctors are expected to perform heroic acts to save the lives of newborns, women are expected to do even more to make the impossible possible — often expected to put their own life and well-being on the line.

And the punishment for not achieving perfection in pregnancy and birth goes way beyond a lawsuit, a multi-million dollar settlement, or even the loss of employment. Increasingly, the punishment is imprisonment.

Bei Bei Shuai is a recent example. Shuai has been in prison for well over a year now, after a failed suicide attempt during her pregnancy (the result of a desperate depression resulting from abandonment by her partner) eventually ended in the death of her child three days after birth.

The Indiana Supreme Court just refused to hear Shuai’s appeal of the charges, meaning she will likely go on trial for murder under new feticide laws. The laws themselves were meant to target third parties who murdered or attempted to murder pregnant women—increasing the charges that could be brought against them because of the pregnancy. But Shuai’s case is the beginning of these laws being brought against the pregnant women themselves.

Shuai’s situation is an extreme example — but it’s not only the extreme cases that will fall into this trend.

We’ve already seen it with pregnant women who have been penalized for using drugs while pregnant. We’ve seen it with women who are imprisoned after labor when their children test positive for drug exposure — even if there are no apparent health problems.

Women aren’t just being expected to be perfect during pregnancy, expected to overcome any mental health, drug addiction or other difficult to overcome situations. Pregnant women are even expected to risk their own lives.

In 1987, Angela Carder was one of these women. She had battled terminal cancer since the age of 13, and 27 years later, cancer free, she decided to attempt a pregnancy. When at 27 weeks they discovered a tumor in her lung, aggressive cancer treatment was begun. At some point during her hospitalization, though, hospital administrators stepped in and forced her doctors to attempt a caesarean section — even though Angela didn’t want to risk the surgery, which her doctors said might kill her. A court order forced the c-section anyway and Angela and the child both died as a result. The courts eventually ruled in her favor — but of course for Angela it was too late. And unfortunately for us, the legal climate for these cases has only worsened in recent decades.

The reason I harp on this trend is this: if we don’t see the kind of unreasonable standard to which we as a society are holding pregnant women and their caregivers, we won’t ever have a chance of fighting the many efforts that enforce and penalize those who fail to meet these standards.

There are two things at play here. One is the unrealistic standard that any person — medical provider or pregnant woman — can guarantee that every pregnancy will end in a healthy birth. Second is the issue of autonomy for pregnant women. These women are expected to put aside their own life, health and desires in order to prioritize this standard. Now failing to meet these expectations can actually land you in prison.

We must both understand that pregnancy and childbirth are complicated, complex life processes that, despite all our medical advances, cannot be controlled. That understanding, while difficult, sad and hard to accept, might ease our compulsion to police both providers and pregnant women when the outcomes are not ideal. We must accept that death, disease, and imperfection is likely. We must adapt to these realities with support for families and providers.

Second, we must also understand that pregnancy does not remove an individual woman’s autonomy. Whatever we might think of an individual’s decisions while pregnant—she is an independent being with all the rights afforded to such an individual. Her pregnancy does not negate that.

We are entering a truly frightening phase of policing and criminalization for pregnancy and birth. Both women and providers are being held to an absolutely unrealistic and unattainable standard — no one can guarantee a healthy pregnancy outcome, and the project of assigning blame when such an outcome is not achieved is absolutely hazy at best.

The real question underlying all of this is: What good comes from incarcerating providers or pregnant women who do not guarantee healthy pregnancy outcomes? It does nothing to improve the likelihood of perfect pregnancy outcomes, and in the end we simply send the message to women that they will be penalized for doing what even God cannot do — prevent death and illness in pregnancy. 

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