Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making

49 Pages Posted: 4 May 2018 Last revised: 4 Oct 2018

See all articles by Elizabeth Kukura

Elizabeth Kukura

Drexel University Thomas R. Kline School of Law

Date Written: 2018

Abstract

In 2006, a pregnant woman in labor went to Saint Barnabas Hospital in New Jersey; upon admission, she consented to administration of IV fluids, antibiotics, oxygen, fetal heart rate monitoring, an episiotomy, and an epidural, but she declined to consent to other invasive treatment, including a cesarean or fetal scalp stimulation. The hospital staff urged her to sign the consent form “in the event of an emergency,” but there was no medical indication that a cesarean was necessary. She experienced a high degree of pressure from her care providers and had her mental state questioned to determine whether she was competent to refuse treatment, which the hospital psychiatrist concluded she was. She eventually had a healthy baby by vaginal delivery without complication. Nevertheless, the hospital reported her to the Division of Youth and Family Services (DYFS) based on her refusal to consent to a cesarean. DYFS put the newborn into foster care and ultimately secured termination of her parental rights, a decision that was upheld on appeal.

Although the appellate court technically avoided answering the question of whether a cesarean refusal can be grounds for a finding of neglect and abuse in family court — concluding instead that other evidence supported terminating the woman’s parental rights — it is clear that her cesarean refusal triggered the investigation by child welfare authorities. This woman’s experience adds an additional factor to the balancing of risks involved in deciding whether to choose a cesarean delivery: possible intervention by child welfare authorities and loss of one’s child. The potential chilling effect of this type of state intervention on women’s decision-making in childbirth is troubling, as some women are likely to submit to an unwanted cesarean or other unnecessary medical treatment out of fear of similar consequences. The stakes are particularly high for poor women, women of color, and young women, as they are more likely to have their parental fitness, good judgment, and even the appropriateness of their pregnancies called into question and scrutinized by third parties in positions of authority. Threatened with state intervention, such women face difficult decisions about whether to accept unwanted treatment — and an increased risk of physician and emotional harm, as well as greater financial burden — in order to avoid the risk of losing their children.

A number of scholars have examined the use of court orders to compel pregnant women to undergo medical treatment, examining constitutional questions related to religious liberty and reproductive freedom. Others have critiqued the way that pregnancy seems to create exceptions to established legal norms governing consent and the right to refuse unwanted medical treatment. This paper adds to the existing scholarship by considering the threat of state involvement in maternity care with a focus on health care providers. The paper uses the example of health care providers relying on health-based justifications to threaten involvement of child welfare authorities in order to examine how coercing consent violates physicians’ legal and ethical responsibilities and may also have broader negative public health implications. Ultimately, the paper challenges the pregnancy exceptionalism that tolerates coercion in the provider-patient relationship and identifies several interventions in research and advocacy to help shape efforts to eliminate coercion in maternity care decision-making.

Keywords: Health Care, Child Welfare Law, Maternal Health, Medical Ethics, Reproductive Rights

JEL Classification: I1, K32, K36

Suggested Citation

Kukura, Elizabeth, Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making (2018). University of Baltimore Law Review, Vol. 47, No. 2, 2018; Drexel University Thomas R. Kline School of Law Research Paper No. 2018-A-10. Available at SSRN: https://ssrn.com/abstract=3173458

Elizabeth Kukura (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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