We are happy to report that the Appellate Division of the Superior Court of New Jersey has ruled in favor of VM in New Jersey Division of Youth and Family Services vs. V.M. and B.G.. In the Matter of J.M.G.
In this case, a VM's refusal to sign a consent form for cesarean surgery led to hospital interventions and a report of abuse to child welfare authorities.
Even though Ms. M delivered a healthy baby vaginally, and would have consented to a cesarean if it ever became necessary, this resulted in a child welfare investigation, the state's decision to remove the child from her parent's custody at birth, and termination of parental rights. In the decision published today (PDF), the Appellate Division reversed the lower court’s termination of Ms. M’s parental rights and ruled that the child protective authority had failed to meet its burden of showing that Ms. M was “unwilling or unable to eliminate the harm facing the child” and that “termination of parental rights will not do more harm than good.” Although the case now goes back to the lower court, the decision appears to be a step towards Ms. M’s reunification with her child.
Pregnancy Justice, along with Lawrence S. Lustberg and Jenny-Brooke Condon of Gibbons, P.C., and attorney Susan Jenkins, filed an amicus curiae brief on behalf of 20 organizations and individual experts in the fields of maternal/health health and child welfare. Our brief argued that the trial court improperly considered Ms. M’s refusal to preauthorize cesarean surgery. While the decision predominately turned on other issues, the court reaffirmed the idea that a mother’s decision to refuse or delay a cesarean section has “no place” in a proceeding for the termination of parental rights.
We are pleased to hear that the New Jersey court found that J.M.G. “is entitled to the benefit of permanency with parents who hopefully will be in a position both physically and mentally to sustain her.” Nonetheless, we are concerned that the court noted her “combative behavior during delivery (excluding her refusal to consent to the c-section)” in determining that V.M. was not “in a proper mental state to safely care for J.M.G.” This parenthetical serves as a reminder that courts may not understand the range of emotional and psychological responses to the labor process. For instance, the court itself cites a clinician’s opinion that “it is not surprising that she panicked at the time of delivery . . . [after] being approached about the possibility of a Cesarean section” given her particular emotional vulnerability. We are celebrating a victory for V.M., B.G., and J.M.G., and are all the more motivated to ensure that women’s medical decision-making around childbirth is not a factor in child welfare cases.
Organizations and experts who signed on include: Howard Minkoff, M.D., Henci Goer, International Cesarean Awareness Network's (ICAN), Dr. Anne Lyerly, M.D., M.A., Dr. Lisa Harris, M.D., Dr. Marsden G. Wagner, M.D., Nicette Jukelevics, Dr. Elizabeth M. Armstrong, Ph.D., American Association of Birth Centers (AABC), American College of Nurse-Midwives (ACNM), The New Jersey Chapter of the American College of Nurse Midwives, The Big Push for Midwives Campaign, BirthNet, Inc., Child Welfare Organizing Project (CWOP), Choices in Childbirth, Citizens for Midwifery (CFM), The National Latina Institute for Reproductive Health (NLIRH), The National Association of Nurse Practitioners in Women's Health (NPWH), National Organization for Women of New Jersey, National Women's Health Network (NWHN) and Statewide Parent Advocacy Network (SPAN) and the Tatia Oden French Memorial Foundation.