Photograph of a woman lying in a hospital bed holding her newborn wrapped in a blanket

Where Are the Legal Protections for People Mistreated in Childbirth?

By Alexa Richardson

A new study indicates that 28.1% of women birthing in U.S. hospitals experienced mistreatment by providers during labor, with rates even higher for women of color. The multi-stakeholder study, convened in response to World Health Organization efforts to track maternal mistreatment, included more than 2,000 participants, and defined mistreatment as including one or more occurrences of: loss of autonomy; being shouted at, scolded, or threatened; or being ignored, refused, or receiving no response to requests for help. The study newly highlights the lack of legal protections available to for pregnant and birthing people who experience these kinds of mistreatment by providers.

Campaigns like Exposing the Silence have chronicled the outpouring of people’s harrowing birth stories, riddled with abuse and violations of consent. In one typical account, a user named Chastity explained:

I had a room full of student doctors, an OB I never met come in and forcibly give me extremely painful cervical exams while I screamed for them to stop and tried to get away. They had a nurse come and hold me down. There was at least 10 students practicing on me. I was a teen mom and my partner hadn’t gotten off work yet so I was all alone.

Another user named Abriana recounted:

As I was pushing, I got on my side and it was then that I started to feel pain much different from labor pains. I asked, ‘What is going on?’ The nurse replied, ‘I am doing a perineal rub.’ I immediately said, ‘Please stop doing that. You are hurting me.’ The nurse argued, ‘It will help you’ and didn’t move. I asked her again to please stop. I then yelled, while pushing, ‘Get your hands out of me!’ The nurse continued.

The traditional modes of seeking legal recourse have little to offer those who experience these kinds of mistreatment.

Tort Law

Bringing a claim under medical malpractice, assault or battery initially seems plausible for these incidents. However, while some incidents of obstetric mistreatment can result in physical injury, most do not. Without the presence of a physical injury, these claims have little value, unless punitive damages can be obtained. Claims for lack of informed consent also require establishing identifiable harm or injury–in a society where highly medicalized births are the norm, demonstrating the harm, for example, of a forced and unnecessary cesarean birth has proven difficult. Finally, claims for intentional infliction of emotional distress (IIED) or negligent infliction of emotional distress (NIED) are notoriously difficult to bring in any realm, with standards that vary by state for how “outrageous” an act must be, the level of intent necessary on the part of the defendant, and whether the plaintiff must have been at risk for a physical injury from the conduct making such claims a long shot even in the most dire of cases.

Another problem is proving breach. In the case of medical malpractice, or where provider conduct is being judged, breach is typically defined in relationship to how a reasonably prudent provider would behave. In a system where certain types of mistreatment in labor are normalized as part of routine medical care, finding expert witnesses and proving that such conduct is a breach of care can be challenging. In many cases, providers cite concern for the fetus as a reason for overriding patients’ consent or mistreating them, and courts have been sympathetic to this narrative.

The above challenges, as well as a lack of literacy among lawyers about obstetric mistreatment, has made obtaining a lawyer to bring a tort claim a major barrier for plaintiffs. Kim Turbin, for example, a California woman whose doctor cut her perineum twelve times while she repeatedly refused the procedure, and who had a video fully documenting the incident, spoke to over 80 lawyers over the course of 18 months before finding one willing to represent her. Most of the lawyers she spoke to didn’t see an episiotomy as something that was the patients’ choice–rather, it was a decision for the doctor to make. The Birth Rights Bar Association, recognizing this barrier, provides a template to individuals seeking legal counsel, which helps potential plaintiffs explain their experiences in ways that might translate to lawyers unfamiliar with the issue.

Regulatory Bodies

Another possible route to accountability is through licensure boards, but these entities have been reluctant to respond to complaints for mistreatment. Advocates from Improving Birth report that licensing boards have been “glacially slow and investigations, if they are conducted, take place behind closed doors.” Studies on related licensing complaints for sexual misconduct by providers to medical boards show that 70% of providers facing such complaints are not disciplined, and that, of those disciplined, the vast majority keep their medical licenses. Action by licensing boards requires that providers be willing to police each others’ behavior, and that states devote resources to properly investigation incidents and complaints. These processes again raise issues around what kinds of provider acts are considered normal within the scope of U.S. obstetric care, where mistreatment is prevalent.

Legislative Solutions

While the U.S. has yet to put legislative solutions in place, Venezuela, Argentina, Brazil, and some Mexican states have passed obstetric violence laws criminalizing these abuses. The law in Venezuela, like many of the statutes, puts obstetric mistreatment in the context of broader gender-based violence, and describes the prohibited conduct as:

the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, an abuse of medication, and to convert the natural processes into pathological ones, bringing with it loss of autonomy and the ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women.

Under these laws, most of the conduct allows for civil penalties such as fines and licensing discipline, but some conduct, such as performing a cesarean section with out a patient’s voluntary consent, is criminalized. These laws have not been universally successful, as many courts have continued to treat the incidents like medical malpractice complaints, often siding with providers, despite the new laws. However, they have allowed for successful claims to be brought in cases of obstetric mistreatment, and have the potential to shift power dynamics in all births between providers and patients in favor of greater patient autonomy and respect.

Increasingly, advocates and scholars are endorsing such an approach in the U.S. This kind of legislation would radically reframe the incentives for providers in the birthing room, and offer the possibility of real accountability for mistreatment in labor. Substantial legal change of this kind feels a long way off in the current climate, however, increasing data on the prevalence of mistreatment, like that offered in the recent study, provides a step in the right direction to establishing the impetus for legal change in this arena.

Alexa Richardson

Alexa Richardson is a law student at Harvard Law School and a Certified Professional Midwife. Prior to coming to law school, Alexa cared for families as the Director of a private midwifery practice in Baltimore, and led successful efforts to license and regulate Certified Professional Midwives in Maryland in her roles as President of the Association of Independent Midwives of Maryland (AIMM) and Chair of the Direct-Entry Midwife Committee under the Board of Nursing. Her research interests center on pregnant and birthing people, with particular focus in expanding the legal rights and protections available to this population. At HLS, Alexa serves as an editor of the Harvard Law Review, and as a student attorney in the Prison Legal Assistance Project.

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