Editor’s Note: Congratulations, Bobby, and welcome to the world, baby Stroup!
By Bobby Stroup
If you give a law student a baby, they’re going to look for legal risk. And if they live in the Bay State, they’re going to want a class on ‘MILK’ (Massachusetts Infant Legal Knowhow).
Then, after learning about the relevant law and policy, they’re probably going to want to write a legal blog post. They’ll need to do additional research to see how they can legally imitate a popular children’s book. Their research will show that “fair use” allows them to parody the book series by exaggerating its format in a new story.
The student will find that the “If You Give” series starts with a sweet treat and then considers the subsequent events inevitable. This idea will remind them of the torts concept, proximate cause. In fact, they’ll remember that the quintessential example of a ridiculous torts plaintiff is one blaming “a pregnancy that led to the defendant’s birth.”
Antenatal Tort Mitigation
If a law student is having a baby, they’ll start preparing long before the baby is born.
Health Care Proxy
Before the child is born, the student will recall that medical procedures require informed consent. These procedures requiring informed consent will include the labor and delivery process. The law student will be on the lookout for decisions requiring consent.
Despite the student’s vigilance, they’ll know the birthing person may lose the ability to grant consent. So, they will make sure to discuss with their partner the health care proxy included in the hospital’s pre-admissions forms. They might be particularly emphatic because Massachusetts law is currently ambiguous about rights when a health care proxy doesn’t exist.
If legal ambiguity exists, the student will realize there are many problems the law has yet to solve. They’ll see pending legislation is attempting to address this specific issue. Yet, they’ll also see that legislators have been trying to pass a similar bill for at least 9 years. For now, this student will want to rely on contract law of a health care proxy, rather than statutory rights, to ensure their decisions have legal protection.
Distress in Delivery
When the law student looks into the matter of health care proxies, they might realize consent during incapacitation is not their only worry. They’ll recognize a birthing person is put in a particularly vulnerable position throughout the entire labor process. That strain could mean consent is challenging to refuse. They could also find the CDC statistic that “almost half (45%) of moms reported holding back from asking questions or sharing concerns during their pregnancy or delivery.”
The law student will conclude advocacy is essential to support the one who is giving birth. They will be sure to talk with their partner about both legal rights and personal preferences, like a birthing plan.
Newborn Law
When the law student starts analyzing birthing law, they might get carried away and start researching the laws applicable after the baby is born. They may even look at efforts to reform these laws as well!
Newborn Screening
If the baby is born in a hospital, a health care provider is going to follow certain statutes. The law will require them to conduct a “Blood Screening of Newborns for Treatable Diseases and Disorders.” This will need to happen between 24 and 48 hours after birth. The parents may also decide to sign their child up for optional blood tests, too.
The student will wonder what other screening tests are conducted on babies. As if to answer their question, a nurse will arrive to conduct a hearing test. This will likely be the baby’s first neurotech experience.
Inevitably, the student will discover Massachusetts General Law Ch. 119 §51A, a law intended to screen for child abuse. They’ll read the law mandates medical professionals report when they find a child has been harmed by parental substance abuse. They’ll also discover that the law is derived from a federal requirement found in CAPTA.
Cleaning Up Legal Messes
To understand how Ch. 119 §51A affects newborns, the student will read the Massachusetts Medical Society’s comments. They’ll learn about how the law can sometimes cause harm. The student will understand the importance of medical professionals accurately interpreting signs of abuse to prevent “unwarranted, misguided, and potentially harmful interventions – particularly for families of color.”
And if the law student learns 51A might cause problems, they’re going to want to read more. If they want to read more, they’ll find out how parents in recovery can be subject to DCF intervention. They’ll read studies showing some parents are “so scarred by this experience that they stop taking their medication to treat their addictions.”
If parents are forgoing life-saving medicine, the law student is going to search for ways to change the policy. The student will find there are multiple bills to reform 51A currently under review.
Finding out about these bills will make the student want to find the bills’ text on the Commonwealth’s website. When they find the draft text, they’ll learn the bills have been combined into a single bill. That might give them hope that a coalition is being formed.
Circling Back
If the law student begins to have hope for legal reform, they might think about celebrating. Though it will be too early to celebrate policy reform, they’ll probably want to celebrate their baby’s birth.
If they’re celebrating their baby’s birthday, they’re going to need a cake. That cake will inevitably make them think of other desserts, like brownies, ice cream, and tortes. And if a law student thinks about babies and tortes…
…they’re probably going to look for legal risk.
