Birth Plans as Advance Directives

By Nadia N. Sawicki

There is growing public recognition that women’s autonomy rights during labor and delivery are being routinely violated. Though such violations rarely rise to the level of egregious obstetric violence I described in an earlier blog post, women recognize that hospital births, even for the most low-risk pregnancies, often involve cascades of medical interventions that lack evidence-based support and can have negative health consequences for both mother and child. Indeed, evidence suggests that an increasing number of women are pursuing options like midwife-assisted birth, delivery in free-standing birthing centers, and even home birth in an effort to avoid interventionist hospital practices. According to the 2013 Listening to Mothers Survey, nearly six in ten women agree that birth is a process that “should not be interfered with unless medically necessary.”

One tool that women frequently use to increase the likelihood that their autonomous choices will be respected during labor and delivery is the birth plan, a document that outlines a woman’s values and preferences with respect to the birthing process, and serves as a tool for facilitating communication with care providers. However, while most women view the creation of a birth plan as empowering, there is little evidence to suggest that the use of birth plans actually improves communication, increases women’s feelings of control, or affects the process or outcome of childbirth. In fact, there appears to be some resistance within the medical community to women’s reliance on birth plans, with one article describing “the two words ‘birth plan’ strik[ing] terror in the hearts of many perinatal nurses.” 

Obviously, the preferences set out in birth plans are not absolute. Some degree of flexibility is required to accommodate emergent medical risks and unforeseen conditions. But the frequency with which women share narratives of being pressured to accept interventions like induction of labor, epidural analgesia, Cesarean sections for low-risk deliveries, continuous electronic fetal monitoring, and episiotomy – in many cases without clear clinical justification – is striking. Surely there must be a better way to ensure that laboring women’s autonomous choices during childbirth are respected.

And here is where it may be helpful to draw an analogy to advance directives. Like advance directives, birth plans developed as a response to routine, but often unwanted, interventionist medical practices. Both documents are used to ensure that care providers understand the patient’s values and preferences. Both are used to ensure that the patient’s autonomous choices are respected at a time when the patient, who may be unable to communicate her preferences clearly, is undergoing an irreversible biological process of great personal and cultural significance.

While there are certainly differences between the two contexts, I suggest that is worth considering whether birthing patients might also benefit from more formal legal recognition of written birth plans, in much the same way as dying patients benefit from legal recognition and enforcement of advance directives. Currently, the greatest liability risks for health care providers in the context of childbirth arise from negligently caused fetal harm, which can result in a lifetime of damages for an injured child. When compared to the limited liability risks associated with violating a birthing woman’s autonomous choices, it is clear that providers wishing to minimize legal risk are acting rationally when they prioritize fetal interests over maternal interests. Would greater legal recognition of birth plans serve to more appropriately balance these tort law incentives and change provider behavior, or would such an experiment fail? I plan to continue exploring this issue in future publications, and I welcome your thoughts and criticisms.

Nadia Sawicki

Nadia N. Sawicki is a Georgia Reithal Professor of Law at Loyola University Chicago, and Academic Director of Loyola’s Beazley Institute for Health Law and Policy. Her research focuses on patient decision-making and the informed consent process, particularly in the areas of end-of-life and reproductive care. Her work has been published in a variety of peer-reviewed journals - including the New England Journal of Medicine; Law & Policy; the Journal of Law, Medicine & Ethics; the American Medical Association Journal of Ethics; the Journal of Clinical Ethics; the American Journal of Bioethics; and the Journal of Legal Medicine – as well as in many academic legal journals. She has previously served as a member of the American Bar Association’s Special Committee on Bioethics and the Law, and was the co-chair of the American Society for Bioethics and the Humanities’ Law Affinity Group. Prof. Sawicki received her J.D. from University of Pennsylvania Law School, and her Masters in Bioethics from University of Pennsylvania School of Medicine. She is a graduate of Brown University, with a concentration in biomedical ethics. Prior to joining the Loyola faculty, Prof. Sawicki held the inaugural George Sharswood Fellowship at the University of Pennsylvania Law School, served as a lecturer in History and Sociology of Science at the University of Pennsylvania's School of Arts and Sciences, practiced law with Wolf, Block, Schorr & Solis-Cohen, and clerked for the Honorable J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania.

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