Last week, a mid-level court of appeals in NJ avoided deciding the question of whether or not a pregnant woman's decision-making during labor and childbirth may be the basis for a finding, under state civil child welfare laws, of abuse and neglect. While the decision is a victory of sorts, it nevertheless reveals how extraordinarily unsettled and contested pregnant women's rights are.
In this case, called New Jersey Division of Youth and Family Services v. V.M. and B.G., In the Matter of J.M.G., (view a pdf of the decision) a woman's refusal to sign a consent form for cesarean surgery led to hospital interventions and a report of abuse to child welfare authorities. This resulted in a child welfare investigation, the state's decision to remove the child from her parent's custody at birth, and a court finding that both parents had committed medical neglect. Ms. M., by the way, would have consented to cesarean surgery when and if it became necessary, never in fact needed cesarean surgery and delivered a health baby, vaginally.
Pregnancy Justice learned about the case shortly before the mid level court of appeals was to hear the case. With attorneys Lawrence S. Lustberg and Jenny-Brooke Condon of Gibbons, P.C., and attorney Susan Jenkins, we filed an amicus brief on behalf of 20 organizational and individual experts in the fields of maternal/health health and child welfare. The amicus brief brought to the Court's attention research regarding the risks of unnecessary cesarean surgery, the legal and ethical impropriety of seeking to coerce pregnant women into consenting to unnecessary procedures, the dangers to both maternal and fetal health of threatening pregnant women with child welfare interventions, and the legal precedent that makes clear that states may not consider a woman's refusal to consent to cesarean-surgery in the context of child welfare laws.
The majority opinion concluded that the court did not have to address the question of whether or not refusing to consent to cesarean-surgery could be a basis for finding civil child abuse because "there was substantial additional evidence of abuse and neglect that supported the ultimate findings" as to the mother but not the father of the child.
A concurring opinion by one of the three judges, however, expressly addressed the issue of women's moral and constitutional authority to maintain their human rights during pregnancy, concluding that "decisions. . . made with regard to prenatal treatment and surgery cannot form the basis of a finding of abuse and neglect." The judge further explains that, "The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation... ".
The amicus is specifically mentioned in the concurring opinion and all of the amicus are listed.
We are relieved that the decision does not validate the notion that a woman's exercise of her fundamental constitutional right to make health decision during labor can provide the basis for a finding of child abuse or neglect. The opinion, in other words, is consistent with a recognition of the fact that women do not lose their civil and human rights at any stage of pregnancy. Moreover the decision did acknowledge a critical fact in public discussions about the extraordinary overuse of cesarean surgery in the US today - that medical claims that cesarean surgery is "necessary to avoid imminent danger to the fetus" often turn out to be wrong.
We are, however, very disappointed that the Court upheld the finding of abuse and neglect against the mother based on "additional evidence." In fact, the "additional" evidence is inextricably linked to the hospital's attempt to coerce Ms. M. into giving consent for unnecessary cesarean surgery and other interventions during labor and delivery. The decision repeatedly indicates that child welfare workers and hospital staff are presumed to be credible witnesses with significant expertise, while pregnant women's decision-making is effectively dismissed as uninformed or irrational. Moreover, as with many other child welfare interventions, an initial report to child welfare authorities that has no foundation too often becomes the excuse for massive invasions of family privacy, giving child welfare authorities license, in effect, to fish for any information that might be used to justify their intervention in the first place.
We expect that Ms. M. will appeal the finding of neglect and we will be there to support her. Ms. M is also appealing the companion decision terminating her parental rights. We are seeking permission to file an amicus in that case as well.
In the meantime, focusing on the positive language in the concurring opinion will help discourage other hospital and child welfare personnel from attempting to misuse the child welfare system in support of bad maternity care practices.