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New York - A New York woman, Rinat Dray, has filed suit against Staten Island University Hospital because she says doctors there forced her to have an unwanted caesarean section.
According to The New York Times, Dray has had two C-sections prior to this pregnancy, and she wanted to give birth vaginally. After hours of labour, Dray says she was pressured into a C-section by doctors, who told Dray her uterus would rupture and that, if she didn't submit to the procedure, “she would be committing the equivalent of child abuse and that her baby would be taken away from her.”
Though Dray's doctor claims he did not force her to have a C-section, her hospital record included a note signed by the hospital's director of maternal and foetal medicine that said, “I have decided to override her refusal to have a C-section.” Per the Times, the note added that the hospital lawyer had agreed.
The American Congress of Obstetricians and Gynecologists is crystal clear about how they feel about forced C-sections: Their ethics committee says it simply “cannot currently imagine” a situation in which any pregnant woman should be forced by the judicial system or her doctors to have surgery she does not want. It doesn't matter if the doctors believe a C-section is in the best interest of the foetus - the mother's autonomy trumps that.
With a few exceptions, the judicial system agrees. According to Farah Diaz-Tello, a staff attorney at the National Advocates for Pregnant Women, the Supreme Court has interpreted the right to liberty as the right to make one's own decisions about her medical care. “There is no law anywhere that says that pregnant women lose this right upon becoming pregnant or at any point in pregnancy including during labour and delivery,” Diaz-Tello writes in an email.
So how does a situation like Dray's happen? Mary Faith Marshall, a bioethicist and professor at the University of Virginia School of Medicine, speculates that it's probably a combination of a doctor's hubris and a hospital lawyer not knowing the law. “I think that doctors perhaps get caught up in the moment, there is maybe a rescue fantasy,” Marshall says. “There are incorrect clinical judgments made about risk, and it's just a paternalistic approach to medicine in most other ways we've gotten beyond.”
That the hospital lawyer allegedly agreed to force a C-section is evidence that he or she did not know the law very well. Arthur Caplan, a bioethicist and professor at NYU says, “Without a court order, no procedure can be done against a patient's will even if a fetus might be harmed.”
Diaz-Tello adds that the law is firmly on the side of pregnant women. “I can only imagine that the hospital didn't attempt to obtain a court order because they knew that no New York court would issue one.”
Court orders are rare, but they happen. National Advocates for Pregnant Women documented 30 cases where pregnant women were forced by a court order to undergo C-sections or other medical procedures they did not consent to between 1973 and 2005.
The fact is that the vast, vast majority of pregnant women will do anything to protect their babies, and as Marshall puts it, the mother is “better positioned than anyone else in the world to have her foetus' and her family's interest at heart.”
But even if you think there are situations in which a doctor's judgment should override a mother's when it comes to C-sections, any law that would take the right to refuse medical treatment away from a mother leads down a very scary path to foetal rights laws.
Unfortunately, some states are trying to move in the direction of those laws. There was a case in Utah in 2004 where a woman who delayed a C-section was charged with murder because one of her twins was stillborn. The woman ended up pleading to a lesser charge of child endangerment, and other women have been arrested for child endangerment because they did drugs while pregnant - in other words, because they made a choice about themselves that may have harmed their foetuses. Unsurprisingly, poor and minority women are more likely to be arrested in these cases.
Though Diaz-Tello says that her organisation gets calls every day from women who feel that they experienced some level of coercion when it comes C-sections, cases that go as far as Dray's are very rare.
“Most women will go along with anything that promotes the health of their baby if the doctor says a procedure, pill or lifestyle change is needed,” Caplan says. It should go without saying, but we need to continue to trust pregnant women as rational, adult actors who can make their own medical decisions. - Washington Post/Slate.
* Grose is a frequent Slate contributor and the author of the novel Sad Desk Salad.