Legal Rights and Protections for VBAC: Issues from the NIH Consensus Conference

By Rebecca Spence and Farah Diaz-Tello

This article is part of A Woman's Guide to VBAC: Navigating the NIH Consensus Recommendations, a collection of resources that address the most common and pressing questions women may have about their birth choices. View all sections in the guide, including a link to the authors, on the index page.

While the NIH VBAC Consensus Panel took a strong stand in favor of increasing access to VBAC, many advocates were concerned that the consensus statement did not explicitly state that a woman has the right to opt for a VBAC and say no to surgery. In fact, the panel's ethicist suggested that the body of law and ethics that protects the right to refuse surgery 'was developed [...] for non-pregnant patients,' and that the law recognizes 'distinct obligations to the fetal patient [...] from which the woman's refusal cannot release the doctor.'[1] According to the panelist, the right to refusal is not a 'settled matter of ethics and law' with respect to pregnant women.[2]

What Is this Body of Ethics and Law, and What Does it Mean for a Woman Making Decisions About Birth after Cesarean?

Ethics

The American Congress of Obstetricians and Gynecologists (ACOG) consistently confirms a pregnant patient's right to refuse medical intervention as a part of her basic right to privacy and bodily integrity. ACOG's Committee on Ethics' Opinions respect the pregnant patient as the person in the best position to make decisions about herself and her baby.[3] The American Medical Association (AMA) also recognizes that performing medical procedures against the pregnant woman's will violates her right to informed consent and her constitutional right to bodily integrity.[4] Yet, some providers may subscribe to the view, described by the NIH panelist, that separates a woman from the fetus she carries. This view may lead them to try to override the woman's decision-making authority based on the idea that the doctor, rather than the woman, is best situated to make decisions for the separate 'fetal patient' where there is any amount of perceived risk to the fetus. Nevertheless, this idea is not supported by ACOG or AMA guidelines.

Law

There is no law anywhere against VBAC. While there is no guaranteed right to healthcare under U.S. law, federal law prohibits a hospital from refusing to accept a woman in active labor as a patient, and there is no law permitting facilities to deny treatment to women with uterine scars. Any person, pregnant or not, has the right to refuse medical treatment'even in an emergency. The Constitution and court decisions recognize a person's right to informed consent and bodily integrity. Patients also have the right to change their minds about treatment and can revoke consent at any time. While the law does contemplate circumstances where these rights are not absolute, there is no legal basis for suggesting that women have fewer rights than other people upon becoming pregnant.

You may find these and other rights outlined in a 'Patient's Bill of Rights' or similar document from the hospital. You may also write your wishes for a VBAC in a birth plan that you review with your provider. However, it is important to remember that birth plans and patient's bills of rights are not legally binding documents, even if they are in your chart or your doctor signs them.

What About Cases of Court-ordered Medical Interventions?

There have been a few rare cases of court-ordered cesarean surgery reported. These cases are outliers and do not represent the law in the area. The only state appellate courts to have ruled on this issue on a non-emergency basis with all the evidence before them all conclude that pregnant women have the same right to informed refusal as any other adult. The few cases in which surgery was ordered were decided on an emergency basis, and the judge did not have the benefit of a full presentation of evidence or participation by experts that would have brought attention to the woman's rights. Often, the woman did not even have a lawyer, and was in labor during a quick 'hearing' over the telephone. Most of these cases are not binding precedent, for various reasons. The only places where a court might be required to follow the rulings are in the jurisdictions where the cases were decided (a legal concept called 'mandatory authority'). In other jurisdictions, they do not have to be followed, but they can be cited to try to persuade a court ('persuasive authority'). The fact that a few women were deprived of their rights is a terrible thing, but it does not mean that these cases are now the law.

How Can I Protect My Rights, and how Do they Protect Me?

You have a number of rights that protect your informed decision-making around birth after cesarean surgery; however, your rights are not protected by a court until after there has already been a threat to them. This is a situation you likely want to avoid, regardless of the outcome. Therefore, the very best way to protect your rights is to be proactive and work toward favorable VBAC policies through organizations like ICAN or NJ Worst to First before you are pregnant.

If you are already pregnant, it is just as important to know your provider as it is to know your rights. Having an in-depth conversation with your provider, with your clothes on, can help you avoid confrontation. Find out early in your pregnancy what your doctor and your hospital's policies are about VBAC. The VBAC Policy Database, compiled by ICAN volunteers, provides information collected from every U.S. hospital about their official and/or unofficial VBAC policies. It also includes most hospitals' usual procedures for handling cesarean refusal. Nevertheless, you should confirm the information by asking your hospital what will happen if you decline surgery; some hospitals with VBAC bans will attend women having a VBAC if they show up in labor. Even if this is not the case in your area, it is better to have the conversation early enough to give you time to prepare. Having a doula or other labor support apart from your birth partner can help to facilitate communication between you and your care provider if a tense situation arises, but note that a doula's role is generally never to speak for you.

The most important lesson is that the more due process (advance notice of legal proceedings, right to a lawyer, and opportunity to testify in court) a woman has, the more likely she is to have her rights protected. Therefore, it is important to determine as early as possible whether you might have a fundamental disagreement with your provider; this will not only give you the time you need to make informed decisions, it will also be helpful in the very unlikely event that you are faced with the possibility of court-ordered cesarean surgery. You should also keep detailed records of any statements threatening court order or other legal action, along with who said them.

Having these conversations and finding out this information well before labor begins can help you avoid the threat of a 3 a.m. hearing with a judge! If you can avoid having to be admitted through an emergency room ready to push, do so!

What About Parental Rights?

You do not lose your rights upon becoming pregnant, including your rights as a parent. Sometimes women are threatened with child protective intervention to coerce them to consent to unwanted procedures. Child protective services in most states cannot investigate until after a baby is born, but abuses of the system do occur, and sometimes result in investigation. National Advocates for Pregnant Women is collecting women's self-reports to document the extent of this problem. If you have experienced a threat of child protective intervention or any other legal action because of your exercise of your right to informed refusal please contact National Advocates for Pregnant Women at 212-255-9252, or e-mail info@advocatesforpregnantwomen.org.

References

1. Laurence McCullough, Remarks at the National Institutes of Health Consensus Development Conference on Vaginal Birth After Cesarean: New Insights (Mar. 10, 2010) archived webcast available at http://videocast.nih.gov/launch.asp?15696

2. Id.

3. ACOG Committee on Ethics, Maternal Decision Making, Ethics, and the Law: ACOG Committee Opinion No. 321 (2005)

4. Helene M. Cole, M.D., Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 JAMA 2663 (1990)