key: cord-0806108-ryr5ouw7 authors: Gan-Or, Nofar Yakovi title: Going Solo: The Law and Ethics of Childbirth During the COVID-19 Pandemic date: 2020-10-06 journal: J Law Biosci DOI: 10.1093/jlb/lsaa079 sha: 5bbf49de2ddf0ff98cee1b4430ba05177addc36e doc_id: 806108 cord_uid: ryr5ouw7 nan Among the many devastating effects of the COVID-19 pandemic has been its impact on reproductive health and rights. In particularly outrageous fashion, several states across the United States, including Ohio, Texas, Iowa, Alabama, and Oklahoma, saw the pandemic as an opportunity to curtail women's access to abortion care by trying to characterize these procedures as non-essential medical services, barring doctors from providing them until further notice. 1 In some states, such as Ohio and Alabama, abortion providers won temporary injunctions against these restrictions; but in Texas and others, abortions remain restricted. 2 Women have also faced reproductive restraints in their access to contraceptive care. This became a global concern after many countries imposed national lockdowns-disrupting the manufacturing of key components of contraceptive methods, delaying the transportation of such methods, or shutting down clinics providing reproductive health services by deeming them non-essential. 3 Yet, the spread of the novel coronavirus put a strain on another aspect of women's reproductive lives: childbirth. 4 One illustrative example comes from New York, which has become the epicenter of the American coronavirus outbreak. On March 18, 2020, the New York State Department of Health issued an advisory for hospitals regarding visitation protocols. It advised hospitals to "suspend all visitation except when medically necessary (i.e. visitor is criticized it for being "uninformed and unethical", putting at risk labor and delivery hospital staff and their patients. 10 Considering that many states and hospitals have faced and are likely to face similar decisions, this Essay maps the ethical and legal issues raised by hospital visitation rules that require women to give birth alone. Part I begins by outlining the principal ethical argument in favor of the ban, namely, protecting the health and safety of obstetric care providers, patients, and newborn babies from COVID-19. It then discusses the countervailing ethical argument, that such bans can exacerbate difficulties already inherent in the experience of childbirth. These difficulties primarily appear in three areas: the emotional hardship that childbirth may impose upon women and their partners, the physical needs of women both during and after labor and delivery, and the complexities surrounding the medical decision-making process childbirth involves. Part II considers both national and international legal frameworks through which women's birthing rights may be affirmed, also pointing out where they fall short. Part III makes three recommendations for how women's rights during childbirth, including the right to a support person, may be better addressed by different legal actors, including scholars, courts, and legislators. After it was discovered that two women were infected with the virus at the time they gave birth in one of their hospitals, the New York-Presbyterian hospital network instituted a new policy barring partners and other support people from labor and delivery rooms. 11 According to one report, the mothers' conditions deteriorated soon after the babies were born, and they had to be admitted to the intensive care unit. 12 More than 30 health care workers were exposed to these two patients, who showed no signs of infection upon arrival, before they were diagnosed with Indeed, the principal argument in favor of banning partners and support people was that it was necessary in order to protect the health and safety of medical staff, obstetric patients, and S C R I P T 9 mother, and even the decision not to have further children. 34 Having a traumatic birth experience may impact not just the mother, but also the whole family, as "women may blame their partners for the events that took place" or find it harder to develop strong bonds and secure attachments with their baby, who continues to be a reminder of traumatic experiences. 35 It is within this fuller context that the implications of requiring women to birth alone should be evaluated. Each of the above-mentioned factors, known to contribute to an environment in which women may experience a traumatic birth, can in some way be linked to the absence of a support person while giving birth. Having another person by one's side during childbirth may mean, for example, a greater ability to voice and communicate the mother's concerns to the medical staff; it may reduce the risk that the mother will be left alone during childbirth because medical staff are limited and/or overworked; and it may contribute to a greater sense of control over a situation that is rather chaotic in nature. More importantly, the adverse effects of not having a support person present during childbirth are being exacerbated by general strains on the system caused by the current pandemic. Not only do pregnant women report feeling more stressed and anxious about the prospect of giving birth, 36 but hospitals are evidently already overworked, short staffed, and underequipped in ways that may directly affect their ability to tend to birthing women's needs. This ethical argument, therefore, also includes a consideration of the harm that results from the practical consequences of giving birth without a support person when obstetrics care staff have a 34 Id. at 55-56. 35 Id. at 56-57. 36 10 limited ability to tend the physical needs of patients during and after birth, such as helping them get on and off the bed, go to the bathroom, and feed their babies. 37 Admittedly, only a small portion of women develop PTSD following childbirth. However, a substantial number of women suffer from clinically significant PTSD symptoms, even though their symptoms remain below the diagnostic threshold level. 38 And a much greater number-up to one-third of women who have given birth-perceive their delivery as traumatic. 39 But beyond the trauma, when discussing the emotional impact of the ban, there also has to be an acknowledgment of the loss that may be experienced when birthing plans are thwarted by the pandemic and the new policies it has prompted. Pregnant women and their families spend months preparing for childbirth: they read pregnancy books and websites, take childbirth education courses, and hire doulas. Those hoping for a less medicalized birth are even encouraged to create a written birth plan. 40 To minimize the "pregnant women's sense of loss of agency in the birth process", 41 these plans often allow the laboring person to detail their preferences regarding the use of an epidural, their desired birthing position, and the use of a fetal heartrate monitor. 42 Even before childbirth moved to the hospital, "birth plans were made with the help of family and friends. Who will be with me? How will I cope with the pain of labor? birth?" 43 However, it was during the 1980s that the written birth plan was introduced in order to help women clarify their desires and communicate these to their caregivers in an "increasingly medicalized maternity environment". 44 But even without a written document, and notwithstanding the fact that only few births actually go according to plan, 45 people's vision of their birthing experience usually includes, at the least, their partner by their side. Partners, and more specifically expectant fathers, have not always been part of the hospital birth experience. Indeed, "for most human history, childbirth was exclusively a woman's event. When a woman went into labor, she 'called her women together' and left her husband and other male family members outside". 46 It was mostly during the twentieth century, when childbirth moved from the home and into the hospital, 47 that women became more vocal about wanting their husbands to stay with them through hospital labor and delivery. 48 According to one account, because of the "physical move from their own homes to the physician's institutions", women "missed the companionship that had been theirs at home, and they often felt alone and alienated by the sterile and impersonal hospital environment". 49 This change was arguably a reflection of marriages becoming emotionally closer, but also of men's growing interest in becoming involved in this reproductive event. 50 At the time women were giving birth alone, "men sat, also alone, a few rooms away, in maternity waiting rooms"- 12 an experience an increasing number of them found "frustrating and unsatisfactory". 51 The expectant fathers found themselves "increasingly curious about what the women were doing, concerned about their suffering, and eager to share the experience with the women they loved". 52 Even the men who did not choose to join their wives in the delivery room appreciated the opportunity to decide for themselves. 53 Soon, even obstetrics physicians sought more flexible hospital policies, "as they saw the benefits to the hospital staff and to themselves of having the men in the labor rooms supporting their wives". 54 "Because of the intermediary position doulas occupy, the negotiations they perform are often highly loaded exchanges that almost always involve some measure of both resistance to and accommodation of mainstream obstetric practice." 62 Although such obstacles remain, medical facilities are now built to accommodate several people in the delivery rooms, and medical students are being taught how to "manage a crowd" around the delivery bed. 63 Indeed, family members and other supports persons are considered by many hospitals as "an important and necessary role in helping patients recover". 64 This is especially true for obstetric departments across the country that in pre-coronavirus days prided themselves in providing overnight accommodations for partners or support persons and family-centered environment for siblings and other family members, as well as welcoming doulas. 65 Another factor that contributed to the mid-twentieth century entrance of spouses into labor rooms is that medical treatments, interventions, and procedures had been carried out 14 without the woman's full knowledge and consent. 66 Even research from recent years indicates that informed consent, which requires that patients understand the benefits and risks of proposed procedures and provide their consent, is not consistently obtained during childbirth. 67 Although this requirement of informed consent "is deeply enshrined in both U.S. moral and legal doctrine", 68 women's birth stories reveal that they have been induced and sedated, and have even undergone cesarean sections without having given consent. 69 The pervasiveness of the phenomena prompted several scholars to underscore the idea that childbirth, in and of itself, does not constitute a "medical emergency" as defined in the informed consent doctrine, 70 and that despite the pain of labor, women do retain the capacity to give informed consent during childbirth. 71 The importance of informed consent, specifically in the context of childbirth, provides therefore a third element of the ethical argument against requiring women to give birth alone. The presence of a support person may be able to ensure that the laboring woman's medical autonomy is not violated. For those who must give birth alone, not only is the person they would usually confide in and turn to when making reproductive health decisions missing; there is also no one close by to ensure that they receive the care they have agreed to. This may affect routine birth-related decisions about induction, pain relief measures, episiotomy, artificial rupture of 15 membranes, and whether to be admitted to the hospital in the first place. 72 But it is even more critical for decisions about whether to undergo surgical delivery, or other types of emergency medical procedures. 73 Lastly, for each of these considerations within the ethical debate over banning partners and support people from being present at childbirth, it is important to acknowledge the disproportionate effect such regulations may have across race, class, and gender. In a 2013 survey of American women who gave birth in 2011 and 2012, 13% of respondents indicated that they experienced discrimination due to race, ethnicity, language, or culture during their hospitalization for childbirth. 74 A more recent study found, inter alia, that "Black women who delivered by cesarean reported strikingly lower levels of shared decision making compared to White women", and that the "decision making process leading up to cesarean delivery was more likely to be problematic for Black women". 75 As one obstetric physician from California explained, with regard to the effect hospital policies may have on women of color and at-risk people: "The marginalized just become more marginalized when there is stress on the system". 76 Underscoring the differential effects the pandemic may have on those giving birth, a recent New York Times article described how some expectant mothers who can afford to do so 16 have chosen to leave the state and give birth in areas "with less besieged hospitals and fewer coronavirus cases". 77 In a more recent article, a New York-based physician explained that "[t]he hospitals that have been most overwhelmed by the pandemic are the same hospitals that Black and brown women in New York City are predominantly giving birth in". 78 It is within this social context of medical provision that any policy meant to regulate the childbirth experience should be evaluated-understanding all of the potential harms before weighing them against the benefits. In addition to the ethical issues raised by the decision to regulate women's labor and delivery experience, there are also legal considerations about the nature of the rights at stake and the laws that protect these rights. As mentioned above, in 2004 the WHO released a statement that helped bring much-needed global attention to the fact that women experience various forms of disrespect and abuse during childbirth. 79 In a more recent statement, the organization stressed that "[e]very woman has the right to the highest attainable standard of health, which includes the right to dignified, respectful health care throughout pregnancy and childbirth, as well as the right to be free from violence and discrimination". 80 woman's fundamental human rights, as described in internationally adopted human rights standards and principles". 81 These include such rights as autonomy, dignity, and bodily integrity. 82 Guidelines issued by the WHO and other organizations, including the International Federation of Gynecology and Obstetrics, the White Ribbon Alliance, and the International Pediatric Association, have proposed several criteria for establishing mother−baby friendly birthing facilities, which include allowing "all birthing women the comfort of at least one person of her choice (e.g. father, partner, family member, friend, and traditional birth attendant as culturally appropriate) to be with her throughout labor and birth". 83 Indeed, in the days following the publication of hospital policies that responded to the pandemic by banning partners and support people from obstetric departments, many reports and commentaries have pointed out the fact that such policies may not conform with international standards of care. 84 In some countries, forcing women to birth alone could also violate national laws that safeguard women's rights at childbirth. Argentina, for example, in 2004 adopted a legal framework that "introduced a human rights-based approach to childbirth that was meant to ensure to women a more dignified and respectful experience in facility-based childbirth". 85 And in 2007, Venezuela passed a law protecting the "right of women to a life free of violence", which included specific provisions addressing the problem of obstetric violence, placing it within the 18 broader context of gender-based violence. 86 The term "obstetric violence" is defined 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". 87 Despite this broad definition, in practice, the term obstetric violence has been construed narrowly in Venezuelan jurisprudence to focus on the misuse of medical interventions and ensuring "a more humanized approach to childbirth that supports childbirth as a physiological process". 88 In stark contrast, legislatures and courts in the United States have done very little to address maternal health care. To begin, the U.S. has often failed to comply with or even acknowledge international standards related to maternal care, including those set forth by the WHO. Consider, for example, maternal mortality, which continues to be a problem in the United States. Human rights groups around the world have been calling on the U.S. to do more "to keep its mothers from dying" since 2008, 89 pointing out that this failure may in fact violate "a variety of human rights, including the right to life, the right to freedom from discrimination, and the right to the highest attainable standard of health," all of which are guaranteed by international treaties the U.S. has ratified. 90 Furthermore, a "huge international effort" to reduce maternal mortality rates has been in the works since 2000, when the United Nations included this among its Millennium Among constitutional rights, those of reproductive autonomy and bodily integrity may intuitively seem to encompass women's rights during childbirth-potentially even the right to have a support person present during delivery. Yet a deeper examination reveals that neither is able to effectively safeguard or even articulate these rights. The constitutional right to reproductive autonomy developed through a series of Supreme Court cases dating back to 1942, which identified marriage and procreation as fundamental rights. 95 A "zone of privacy created by several fundamental constitutional guarantees" 96 was found to encompass a right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 97 However, these cases, while recognizing the right to 91 reproductive autonomy, do not elaborate upon "the legal rights of the pregnant mother, especially those of the laboring or birthing women". 98 The constitutional right to bodily integrity similarly fails to articulate or protect women's rights in childbirth. Often framed as the right to refuse medical treatment, this right has been protected both by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution 99 and by the common law. 100 Its development has occurred, inter alia, within court decisions resolving obstetric conflicts, 101 i.e., cases in which medical staff seek judicial intervention to require that pregnant patients undergo treatment ostensibly in the best interest of the mother or the fetus or both. 102 Such proposed interventions have included a blood transfusion, induction of labour, a forceps delivery, or, more commonly, a caesarean section. 103 Nevertheless, in most cases these decisions merely reiterate the principal that a "pregnant woman has the right to decide whether or not to consent to medical treatment". 104 Indeed, these cases not only fail to enumerate additional rights pregnant women may be entitled to before or at the time of delivery, but some courts have even found in favor of the medical staff, thereby undermining birthing rights and interests. As one author explained: "If courts ignore a woman's interest in her birthing plan, doctors can do the same. By providing a justification for forcing a woman to undergo an unconsented medical procedure, doctors, regardless of their true reasons, may ignore a woman's birthing plan if it is not in accordance with their recommendation, ultimately offering negligible deference to a woman's birthing plan." 105 Avenues that may be available through the common law-namely, the doctrine of informed consent and fiduciary law-fare no better in substantiating women's birthing rights, including the right to a support person during delivery. Application of the informed consent doctrine, which protects the right to bodily integrity by guaranteeing a patient's right to control medical decision making, is complicated by the physical and emotional elements of childbirth. These aspects of the experience have led some to conclude that birthing women inherently lack the competence to make decisions concerning their care. 106 The doctrine is further complicated by the presence of the fetus, especially in states where it is considered an independent legal entity. 107 Indeed, "the fetus has become the dominant putative plaintiff in modern obstetric malpractice cases, distorting and diminishing the rights and remedies of birthing women as patients and as plaintiffs". 108 Fiduciary law offers another potential legal framework for the regulation of childbirth. Because "the moral themes of power, vulnerability, and dependence [are] at the heart of fiduciary law", 109 it can be a useful lens through which to analyze claims of mistreatment during childbirth, which violates a patient's trust and leads to physical, emotional, or psychological harms. 110 Even though physicians were not originally recognized as fiduciaries, courts have subsequently found that fiduciary principles "are at the heart of the doctor-patient relationship". 111 However, fiduciary law, like the informed consent doctrine, has its limits when applied to maternity care and childbirth. 112 Courts hold physicians liable only when they breach their duties "to keep information confidential, to disclose financial interests in medical research, and to refrain from abandoning patients, as well as the duty to obtain informed consent." 113 However, licensing boards and medical associations have not explicitly defined any further fiduciary duties owed by physicians or the legal consequences of violating such duties; this "limit[s] the utility of fiduciary principles to address misconduct that is currently beyond the reach of tort law". 114 As this overview of U.S. law suggests, not only are women's birthing rights not protected by the Constitution, but even doctrines from other areas such as tort and fiduciary law fail to provide recourse for patients who suffered an emotional or physical harm due to hospital policies like those that ban support persons. In this sense, part of the anger and confusion that many people experienced after learning of the new policies may have come from realizing that to date, there are no U.S. laws that would prevent a hospital from forcing women to birth alone. The 24 generally understood to encompass the right to procreate and the right not to procreate. 116 But if the content and scope of this right were reconsidered, reproductive autonomy could arguably include decisions as to where and how to give birth-in addition to the decisions whether and when. "[The] freedom to control every activity related to procreation-to determine how conception will occur, to manage the pregnancy, to decide how, when, where, and with whom parturition occurs, or how the neonatal period will be managed-may be of great significance to individuals and may also deserve protection." 117 Of the two constitutional rights discussed above, an expanded interpretation of reproductive autonomy would have more potential to substantiate childbirth rights, including the right to a support person, than any attempt to try and make the constitutional right to bodily integrity fit onto issues of childbirth. Nevertheless, even if reproductive autonomy were expanded to include women's rights during childbirth, the extent of those protections would still depend on how courts interpret and weigh each newly-incorporated right. In the context of compelled cesareans, for example, courts have applied abortion jurisprudence to their analyses, balancing women's reproductive liberty against the state interest in protecting potential life. 118 Some courts have explained their decision to apply this legal standard to childbirth as well by reasoning that, if "the state's interest is sufficiently compelling to force a woman to carry to term an unwanted pregnancy, it certainly is enough to override her choice of childbirth procedure". 119 As a result, "the reproductive liberty jurisprudence that has expanded women's ability to control when they become pregnant is often invoked to limit pregnant women's rights to make their own treatment decisions". 120 Finally, maternal rights will be able to develop more fully within existing legal frameworks if there is more legal recognition of both physical and emotional reproductive harms. In assessing the potential for remedies through tort law, Professor Jamie Abrams notes that "obstetric malpractice cases reveal fetal-focused consequentialist decision-making whereby, when the child is born healthy, … birthing women's rights to tort remedies are subsumed within the positive birthing outcome. Healthy babies negate maternal harms." 121 As a result, women "rarely bring negligence cases for maternal harms". 122 One way to restore the balance, according to Abrams, is for more women to pursue damages for maternal harms, even if the awards are insignificant, which may "push courts to consider more carefully the harms to mothers and perhaps influence the standard of care". 123 Yet another option, which might be less taxing for plaintiffs, is for courts to apply the same fiduciary principles to medical and nonmedical contexts. 124 In such case, the plaintiff would only need to show a breach of duty relating "to the maternal-doctor conflict … and various forms of coerced treatment", 125 not any resulting physical or economic harm. Applying this rule could provide women with another avenue beyond the "traditional tort framework to vindicate their rights." 126 In order for tort law more generally to protect the right to a support person during childbirth, it would need to recognize not only physical or economical harms, but also emotional harms that women may endure while giving birth. Nevertheless, tort law-and medical malpractice or emotional distress actions in particular-rarely awards damages for "standalone emotional harm". 127 This legal vacuum has led Professor Dov Fox to develop a new cause of 121 Abrams, supra note 108, at 1960. 122 Id. at 1995. 123 Id. at 1996. 124 Kukura, Obstetric Violence, supra note 25, at 791-792. 125 Id. 126 Id. provide recourse to women who were denied delivery support and even promote a standard of care that goes beyond protecting women against coercion and violence, to guarantee their emotional and physical well-being during childbirth. The pandemic is necessarily forcing people to make difficult decisions in response to truly pressing problems, including the risks COVID-19 poses to the health and safety of medical staff providing obstetric care. And yet, the potential for harm in the case of childbirth visitation bans must also be considered within a broader understanding of the devastating effects the pandemic has had on women's reproductive lives. Reflecting on the challenges that women routinely face during childbirth in the U.S. allows us to realize more fully the implications such bans may have on the emotional and physical well-being of birthing women and their families. This contextualized analysis of the ethical and legal considerations explains some of the backlash such short-lived policies have prompted among expectant parents and professional support 128 Id. at 153. 129 Id. 130 Id. at 167. people. Greater recognition that there is a lot at stake for women and their families when hospitals attempt to regulate their childbirth experience also makes the need to articulate and codify women's birth rights more pressing than ever before. The public debate prompted by the COVID-19 visitation bans presents an opportunity not only to reconsider the role of law in protecting women's rights during childbirth; it should also make us reconsider laws and policies that require some women to give birth alone, even outside of the looming threat of COVID-19. Incarcerated women are not permitted to have visitors or phone calls during their time in the hospital, and routinely give birth only in the presence of unfamiliar health care providers. 131 We should also direct the public's attention to the horrid conditions under which immigrant women give birth while held in Immigration and Customs Enforcement detention centers, and their implications for the mental and physical health of these women and their children. 132 Lesbian Experiences and Needs During Childbirth: Guidance for Health Care Providers Doulas as Agents of Social Change 99 Labor and Delivery Care An Exploration of Men's Experience and Role at Childbirth, 10 Childbirth Is Not an Emergency: Informed Consent in Labor and Delivery, 11 INT'L Bearing Witness: United States and Canadian Maternity Support Workers' Observations of Disrespectful Care in Childbirth Obstetric Autonomy and Informed Consent, 19 ETHICAL THEORY & MORAL PRAC One of the four major exceptions to a physician's requirement to obtain express informed consent is in the setting of a medical emergency…. [A] medical emergency occurs when the patient is incompetent to make medical decisions and immediate medical action is necessary to prevent significant harm or to save a human life See also Wolf & Charles, supra note 67 Partnering with Patients and Families during Childbirth: Confirming Knowledge for Informed Consent, 44 AM Assuming, of course, the laboring person is not incapacitated, in which case it may fall under one of the four exceptions of the informed consent doctrine Sandra Applebaum & Ariel Herrlich, Listening to Mothers III: Pregnancy and Birth, CHILDBIRTH CONNECTION Factors Influencing Women's Perceptions of Shared Decision Making During Labor and Delivery: Results from a Large-Scale Cohort Study of First Childbirth Coronavirus Threatens an Already Strained Maternal Health System Human Rights Law and Challenging Dehumanisation in Childbirth: A Practitioner's Perspective, in CHILDBIRTH, VULNERABILITY & LAW, supra note 26 White Ribbon Alliance, Int'l Pediatric Ass'n, World Health Org., FIGO Guidelines: Mother−Baby Friendly Birthing Facilities, 128 INT'L Irin Carmon, More Hospitals Are Banning Partners From Delivery Rooms, CUT America Is Failing Its Black Mothers A Human Rights-Based Approach to Maternal Mortality in the United States Strauss and Ward identify in particular "the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination See also Bradley J. Glass, A Comparative Analysis of the Right of a Pregnant Woman To Refuse Medical Treatment for Herself and Her Viable Fetus: The United States and United Kingdom No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from restraint or interference of others, unless by clear and unquestionable authority of law See also JOHN SEYMOUR, CHILDBIRTH AND THE LAW 1237 (D.C. 1990) ("In virtually all cases the question of what is to be done is to be decided by the patient-the pregnant woman-on behalf of herself and the fetus Labor Pains in Feminist Jurisprudence: An Examination of Birthing Rights, 8 AVE MARIA L. REV See also Wendy Chavkin & Farah Diaz-Tello, When Courts Fail: Physicians' Legal and Ethical Duty to Uphold Informed Consent, 1 COL Distorted and Diminished Tort Claims for Women Obstetric Violence Through a Fiduciary Lens Obstetric Violence, supra note 25 The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135 Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 VA