The Use of Child Protective Services and Court Orders to Enforce Medical Compliance in the Labor and Delivery Room: How Threats of Legal Action Limit Reproductive Choice

The Use of Child Protective Services and Court Orders to Enforce Medical Compliance in the Labor and Delivery Room: How Threats of Legal Action Limit Reproductive Choice

by Alexa Richardson

Competent adults have a legally recognized right to complete control over health decisions that involve their bodily autonomy.[1] However, when patients make decisions during labor and delivery that diverge from what their provider believes is best, some doctors, nurses, and hospitals threaten to report the parent to child protective services or issue court orders to coerce compliance.[2] This practice employs the law to limit reproductive health decision-making during the birthing process, and enforces an already unequal power relationship between health care providers and pregnant patients.

Two recent cases are illustrative. In 2010, Michelle Mitchell’s physician recommended she have a cesarean section because of a large baby. After reviewing the evidence, which supports vaginal births for large babies, Mitchell decided she wanted a vaginal birth. However, when she presented at a hospital in labor, her new doctor pressured her to have a cesarean. Though Mitchell’s baby was never in distress—and she contends that labor was progressing normally—the doctor threatened to call child protective services if she would not consent to the cesarean. Ultimately, after hours of pressure and legal threats, Mitchell relented and had a cesarean. She sued afterward for assault and battery, lost at trial, and is currently appealing.

In another case, in 2014, Jennifer Goodall sought a vaginal birth after cesarean, which is supported by the American College of Obstetricians and Gynecologists as a safe option. Goodall’s doctors, however, opposed this choice. They threatened to report her to child protective services and to obtain a court order to mandate the cesarean section, and she was told that if she came to the hospital her providers would perform a cesarean “with or without [her] consent.” Goodall emphasized that she was not opposed to having a cesarean section if it became necessary during labor but wanted the opportunity to try to birth vaginally. When Goodall filed a complaint to restrain her providers from carrying out their threats, the judge denied the request, writing that Goodall had no “right to compel a physician or medical facility to perform a medical procedure in the manner she wishes against their best medical judgment.” Goodall ultimately found a hospital that supported her choice.

Proponents of legal enforcement of medical intervention during pregnancy ground their arguments in the physician’s duty of beneficent care and doing no harm toward the fetus. These arguments are premised on several assumptions. One is that the fetus and parent can have distinct, sometimes conflicting, interests. Another assumption is that we have clear medical evidence that supports making certain birthing decisions over others. Finally, there is the notion that doctors have the greatest stake in the fetus’ wellbeing and should the interests of the fetus “conflict” with the interests of the parent, doctors are better positioned than the parent to make a decision that will result in the net positive outcome between the two parties.

But these assumptions are faulty. The interests of parents and fetuses are intimately interwoven such that separating them into distinct and separate interests is senseless and impracticable. In her analysis of so-called “maternal-fetal conflicts,” Michelle Oberman writes that “[w]hen a pregnant woman resists medical advice, the doctor often invests the fetus with interests and rights that directly coincide with his own personal treatment preferences.”[3] Threats of court orders or calls to child protective services are often employed at an early point in decision-making, where the potential risk to the interest of the fetus is removed by several steps and relatively hypothetical. However, even in extreme emergencies where the life of the fetus is immediately at stake, the outcomes of medical interventions remain uncertain, and drawing a clear line between the fetus’ and parent’s interest in light of that intervention is not an obvious task. The parent is deeply invested and has to live long-term with the outcome of any decision to be made, both in terms of their wellbeing and that of the fetus.

Professional standards have proven insufficient to protect patients from such practices. The American College of Obstetricians and Gynecologists has ethical guidelines on the refusal of medically recommended treatment during pregnancy that strongly condemn the use of threats of legal intervention to compel consent to treatment. They urge: “The use of coercion is not only ethically impermissible but also medically inadvisable because of the realities of prognostic uncertainty and the limitations of medical knowledge. As such, it is never acceptable for obstetrician–gynecologists to attempt to influence patients toward a clinical decision using coercion. Obstetrician–gynecologists are discouraged in the strongest possible terms from the use of duress, manipulation, coercion, physical force, or threats, including threats to involve the courts or child protective services, to motivate women toward a specific clinical decision.”

The legal system also frequently fails patients that seek redress for the coercion they face in labor.[4] Child protective services often follow through on reports, and regularly use refusal of cesarean section as direct or circumstantial evidence of abuse or neglect. Regulatory and statutory protections against coercion are limited. Existing tort law often fails to include causes of action that encompass the harm experienced by a parent during labor, in the absence of harm to the baby. Lawyers, lacking experience with the issue and ambivalent about the chances of success, are often unwilling to take on these cases. Finally, juries may be unsympathetic to the violation of a parent when the baby is healthy and the physical injuries are minimal.

However, legal advocates have been organizing in recent years to enact change. The newly-formed Birth Rights Bar Association brought together lawyers nationwide to address the lack of legal protections in childbirth at its first conference in 2017. Founded in 2009, the Elephant Circle is working for birth and reproductive justice more broadly, while Human Rights in Childbirth works at the international level for rights in childbirth.

Critically, cultural awareness is growing as birthing parents and advocates increasingly organize at the grassroots level. Improving Birth, an organization formed in response to outrage over stories of routine coercion and violence during the labor process, has been active in raising the profile of the issue on the national stage. A documentary highlighting the issue, Mother May I?, is in the making, and the podcast “Birth Allowed Radio” amplifies stories that illuminate “the ways in which women and families are ‘allowed’ and ‘not allowed’ to give birth on their own terms.”

Like movements to curb workplace sexual harassment or domestic violence, it is likely that the law will evolve in conjunction with shifting cultural understandings and concerted efforts by lawyers, judges and legislatures to define an effective jurisprudence. With the growing awareness of the issues involved, and increasing efforts of activists and lawyers, the field of birth rights is ripe for such evolution.

Alexa Richardson is a first year student at Harvard Law School and a Certified Professional Midwife. She is an Online Content Editor for the Harvard Journal of Law & Gender.

[1] Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278

[2] For a full legal review of the issue, see Elizabeth Kukura, Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making, 47 U. Balt. L. Rev. 247, 251–64 (2018).

[3] Michelle Oberman, Mothers and Doctors’ Orders: Unmasking the Doctor’s Fiduciary Role in Maternal-Fetal Conflicts, 94 Nw. U. L. Rev. 451, 454 (2000).

[4] See Elizabeth Kukura, Obstetric Violence, 106 Geo. L.J. 721, 798 (2018).