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.