State Cesareans: Treating Natural Birth as Neglect in New Jersey Division of Youth & Family Services v. V.M. & B.G.
An estimated 1.5 million cesarean sections are performed in this country each year, making it the most common inpatient surgical procedure.[1] However, the procedure is not without controversy as the United States’ cesarean rate has consistently increased for the last eleven years to a present record-high of 31.8 percent[2] of births, more than double what the WHO recommends.[3] While many medical professionals have agreed the rate is too high, citing diminishing health gains and an increase in maternal and fetal health risks, the heated debate over strategies and policies to reduce the rate between OB/GYNS, midwives, childbirth educators and public health specialists continues.
A recent appellate case in New Jersey involving a woman who refused to undergo a cesarean section and the subsequent removal of her healthy child inflamed a new wave of discussion surrounding cesareans and their prevalence as part of the current medical and legal structure of American maternity care.[4] In New Jersey Division of Youth & Family Services v. V.M., the Superior Court of New Jersey affirmed the termination of parental rights and deferred to the lower court’s finding of abuse and neglect as to V.M, the mother of the child.[5] The majority abstained from ruling on the cesarean and tersely affirmed the decision while it was Judge Carchman’s lone concurrence that considered it inappropriate to consider the refusal to undergo the procedure, though he did not go far enough and reverse the trial court.[6] Thus, while the court officially did not comment on the cesarean, their improper consideration of an invasive medical procedure was a factual and legal error that will achieve the same purpose in altering birth and the culture of choice in the child welfare regime.
While legal consequences from the refusal to undergo a cesarean are not new, this case appears to be the first time a state government terminated parental rights and removed a healthy child, even partly because of the mother’s labor choice. The reasoning that allows a third-party legal body to interfere with the informed choice doctrine between a mother and her caregiver at the time of birth caves away at parental rights and bodily autonomy and has stunned the natural childbirth community along with women’s rights advocates. The New Jersey Superior Court erred by not standing with the concurrence and ruling on the inappropriateness of an abuse and neglect proceeding on behalf of an unborn child[7] based on a refusal by an actively laboring mother to undergo a cesarean. While this New Jersey neglect case might appear to be singular and isolated, many states have ordered forced cesareans and are currently considering fetal personhood laws that may affect autonomy in labor and the rights of unborn children. The legal and medical ethics at play in the court’s decision have consequences for women in New Jersey and throughout the county who ever have or ever will give birth. This Note will analyze this controversial decision in light of modern maternity realities to show the inappropriateness of a child welfare ruling on a mother’s decision to undergo an invasive surgical procedure that increases maternal and fetal risk. Part II will describe the facts of the case and Part III will summarize the appellate court’s reasoning. Part IV will analyze the decision and relate it to parallel decisions in other jurisdictions, showing the majority should have addressed the trial court’s consideration of the cesarean and ruled that it was improper because (1) the unborn child was beyond the scope of the state’s statutory language; (2) the mother had the constitutional right to refuse medical treatment; (3) foregoing a cesarean is not evidence of negligent medical care and (4) the procedure’s consideration cuts against the fundamental public policies of child welfare law. Part V will conclude the discussion.
II. Facts
On April 16, 2006, V.M. and B.G, a couple who had been married since 1995, went to St. Barnabas Hospital after V.M. started experiencing contractions with her first child. The mother, V.M., was a forty-two-year old college-educated woman and thirty-five weeks pregnant with her first child. After being checked in, she consented to an IV (intravenous fluids), antibiotics, oxygen, fetal heart rate monitoring, episiotomy, and an epidural anesthetic, all procedures which are fairly routine in hospital-based births. However, she chose not to sign the consent form[8] for a cesarean section and fetal scalp stimulation, a stress assessment where the physician puts pressure or pinches the unborn child’s scalp to test for a fetal heart rate reaction. After hospital staff explained the potential consequences of not performing a cesarean in the hypothetical event of fetal distress, V.M. did not change her mind and would not sign the form, a decision the Division of Youth and Family Services (DYFS) described as “non-compliant.”[9] At some point, an examination revealed “non-reassuring fetal status” and the hospital personnel explained the potential “dire” consequences of not choosing an immediate cesarean.[10] V.M. remained adamant. Hospital records describe her during her labor as “combative,” “uncooperative,” “erratic,” “noncompliant,” “irrational,” and “inappropriate.”[11] V.M. asked her attending obstetrician, Dr. Shetal Mansuria, to leave the room and said that if her physician was unwilling to respect her wishes she wanted her off her case. V.M. also expressed interest in contacting the authorities about her treatment and told a nurse that “no one is to touch my baby.” She refused to continuously wear the oxygen mask that covered her face and chose to move around in a way that interfered with continuous electronic fetal monitoring, or EFM, and the administration of an epidural. [12]The father, B.G., was present while these events occurred and was told the risks of continuing with a vaginal delivery (described as brain damage, mental retardation and fetal death by the doctor); he stated he understood the risks but that he deferred to his wife and V.M. did not consent to the surgery.
The hospital responded to V.M.’s “extreme behavior” and the signs of potential fetal distress by requesting an emergency psychiatric consultation to determine her competency; Dr. Kurani acknowledged V.M. was anxious but concluded she was not psychotic and had the capacity for informed consent with regard to the cesarean.[13] At no time did any of the medical staff seek judicial intervention or the appointment of a special guardian. After the evaluator left, the staff requested a second psychiatric consultation from Dr. Jacob Jacoby. V.M. successfully birthed her child vaginally, J.M.G., without further incident before Dr. Jacoby could finish his evaluation; he also concluded she was cognitively intact.
During this time the hospital staff learned she had been under the care of a psychiatrist for more than decade and had taken medication for her illnesses.[14] Later that delivery day, Dr. Jacoby added an addendum report recounting information learned from Dr. Ronnie Lee Seltzer, previously V.M.’s psychiatrist, indicating that she had been initially treated for post-traumatic stress disorder and describing Seltzer’s opinion that she may suffer from a schizoaffective or bipolar disorder; Dr. Seltzer also questioned the reliability of B.G., the father, and was concerned about V.M.’s “ability to care for her child in a responsible manner.”[15] After the conversation, Dr. Jacoby concluded that V.M. and B.G.’s ability to parent the child “needs to be more fully evaluated by state social services.”[16] The actual report to the agency, however, came from a hospital social worker who expressed concerned about releasing the infant to her parents’ care at the time of discharge and decided to alert the Division of Youth and Family Services (DYFS) on April 18, two days after the successful delivery.[17] Baby J.M.G was in good medical condition upon delivery, although her slight prematurity relegated her a short stay in the neonatal intensive care unit, where she received antibiotics and was observed for signs of jaundice. No drugs or alcohol were detected in the baby’s blood or urine as part of the septic tests the hospital decided to perform on the infant.
The DYFS caseworker immediately went to the hospital, interviewed staff and spoke to the parents. The parents allegedly denied ever receiving psychiatric treatment, ever refusing to a cesarean or being evaluated by the hospital psychiatrist.[18] The caseworker also spoke to Dr. Kurani, the first consulting psychiatrist, and he said he prescribed Zyprexia, an anti-psychotic that can past through breastmilk to a baby, that V.M. refused to take. The caseworker told the parents that “the baby would not be going home with them” upon medical discharge and that DYFS would be seeking custody, at which point V.M. became upset, started yelling, and called the police. The DYFS caseworker informed the parents of the court date and later that day performed a home assessment. On April 20, 2006, the parents did not appear and DYFS filed an order to show cause and verified complaint pursuant to New Jersey law requesting custody, care and supervision of the baby. They sought to “prove that the child was abused and neglected and the child was ‘in imminent danger of becoming impaired as a result of the failure of the parent of guardian as herein defined, exercising a minimum degree of care in supplying the child…with surgical care.’”[19] The baby was discharged from the hospital on April 24 and placed in immediate foster care. At a subsequent hearing on May 9, V.M. testified that she saw Dr. Seltzer from 1994 to 2005 as a result of workplace injury and that Seltzer diagnosed her as suffering from PTSD, depression and panic.[20] In 2005, however, a psychiatrist for Workers Compensation Board told her she was cured and no longer need treatment. The judge directed V.M. to release her psychiatric records to DYFS and said that if they confirmed what she said, the infant would be returned to her.[21]
The psychiatrist’s records were presented at the fact-finding hearing on May 24 and the notes summarizing visits from mid-1994 to January of 2006 matched the information in Dr. Jacoby’s addendum report and the information given by V.M. as to her official diagnoses. V.M. stopped receiving treatment by January 2006, against the recommendation of Seltzer but “within her right … since [patient] demonstrate[ed] neither suicidal nor homicidal ideation.”[22] At the hearing, V.M. offered information about her prenatal care and hospital visit that seemed to be in contradiction to what the medical staff had indicated in their records. V.M. said that she had accepted all of the procedures but it was the incompetence of the staff and their abusive treatment of her that precipitated the presence of the psychiatrist at her bequest. She alleged several more instances of poor treatment by the staff, including comments made by the OB/GYN and Dr. Jacoby about “B.G., the color of his skin, and the color of J.M.G.’s skin.”[23] She stated she was not aware of the St. Barnabas doctors’ psychiatric concerns until the caseworker arrived at her home and that she did not receive notice of the April 20 proceeding.[24]
The judge identified the issue before him as whether J.M.G was in imminent danger between April 16, 2006 the day she was born and April 18, 2006, the day the DYFS caseworker was contacted by the hospital. The judge found that J.M.G. was in imminent danger, although emphasizing that “he did not base his finding solely on V.M.’s reluctance to consent to a c-section.”[25] The judge observed that there were probably many instances where a mother’s refusal to undergo a cesarean surgery would not constitute abuse. After reviving the medical records of V.M.’s erratic behavior, he commented that “V.M. appeared to care about having a healthy baby.”[26] Nevertheless, the judge determined V.M. was “negligent…not to accede to what the doctors requested.”[27] The trial court noted that the case was “ not that strong” given mitigating factors but that “it is my decision by a preponderance of the evidence that she refused to cooperate with the medical professionals at St. Barnabas during childbirth,”[28] The court ultimately found that V.M. had committed abuse or neglect against J.M.G. [29]
The parents’ attorney moved to dismiss the case for failing to make out a prima facie case of abuse, but the court denied the motion, concluding that the parents failed to supply the child with adequate medical care and placed the child in imminent danger of becoming impaired.[30] The parents appealed the decision, along with the appoint law guardian who opposed the trial court’s ruling, arguing that “that there was no sufficient basis” for the findings of abuse and neglect, which wrongly deprived the child of her right to be in “care of her parent.”[31]
At the compliance review hearing of September 15, the plan suggested on May 24 had not been accomplished as attempts to obtain psychological/psychiatric evaluations of the parents had been unsuccessful[32], along with efforts to provide V.M. with parenting classes[33]. The judge expressed his frustration, observing that he “wanted desperately to reunify the family” but that the parents were “snatching defeat from the jaws of victory.” In response to concerns that no professional would evaluate the couple for fear of being sued, the judge appointed a psychiatrist who would have the same immunity as the court. At the March 19, 2007 permanency hearing, J.M.G.’s foster mother offered that the parents visited their child every two weeks and that they brought supplies for the baby and attentively listened to the foster mother and followed her suggestions; her opinion was “that they would be wonderful parents.”[34] The new psychiatrist performed the psychiatric evaluation, concluding that V.M. suffered from chronic paranoid schizophrenia and that her prognosis for improvement was poor without psychiatric treatment, labeling she and B.G. as unfit parents at the present time. V.M. and B.G. countered with their own psychiatric expert who stated that B.G. was anxious and distraught over the removal of his daughter but who had no mental disorder of any kind and would be a fit parent[35]. He also stated V.M. was a suitable and fit parent and that her bizarre behavior at the hospital could have been caused by oxygen deprivation. He also stated she expressed a willingness to obtain ongoing psychiatric care. He concluded it would be safe to return the baby to her parents’ immediately.[36]
The trial judge ruled he could not reunify J.M.G. with her parents because of the diametrically opposing testimonies and decided to maintain the status quo while obtaining a qualified, impartial expert to give a third opinion. His order that day reflected the findings that
(1) ‘it was not and will not be safe to return [J.M.G.] home in the foreseeable future because of [of] mother’s … psychiatric condition [and] father’s unwillingness to accept mother’s psych[iatric] condition’; (2) DYFS made reasonable efforts to reunify the family; and (3) adoption was an appropriate plan because of V.M.’s psychiatric condition and non-compliance with treatment and B.G.’s lack of acceptance. [37]
He ordered that J.M.G. remain in placement, DYFS find a pre-adoptive home, and for V.M. and B.G. to attend psychiatric treatment. The defendants appealed from both orders. They also appealed the termination of their parental rights from an April 26, 2007 DYFS complaint.[38]
On appeal to the Superior Court of New Jersey, the Appellate Division, Judges Carchman, Coleman and Sabatino reviewed the record to decide if the trial judge had erred in finding abuse and neglect that subsequently led to a termination of parental rights. The majority held per curiam that the judge’s findings as to V.M., the mother, were supported by evidence presented at the hearing. They also disagreed with the findings of abuse and neglect per B.G., the father, as conceded at oral argument by the State, and reversed the order for him. Lastly, they agree with the ultimate conclusion of the concurrence – the affirmation of V.M.’s judgment and the reversal of B.G.’s.[39] The majority only parted company as to the issue whether the refusal to consent to a cesarean section, as matter of law, can be considered an element of abuse and neglect. The majority eschewed any discussion, stating, “On the record before us, we do not agree that the issue need to be decided.”[40] The concurrence, written by Judge Carchman, the Administrative Director of the Courts, explains that even though DYFS made a “limited concession” as to the “narrow utility of V.M.’s refusal to have a c-section,” the issue remained extant and required judicial scrutiny to ultimately find it improper and beyond the legislative scope of the child-protective measures.[41]
III. Court’s Reasoning
In New Jersey Division of Youth & Family Services v. V.M. & B.G., the Superior Court of New Jersey affirmed the termination of parental rights and deferred to the lower court’s finding of abuse and neglect as to V.M, the mother of the child. The majority abstained from deciding on the cesarean and affirmed the decision of the lower court that V.M. was an unfit parent. Judge Carchman’s concurrence agreed with the findings of the trial court as to V.M. but only concurred with the majority because he considered it inappropriate for the court to review the refusal to undergo the cesarean under New Jersey law. The concurrence addressed two issues: (1) a mootness question regarding the timing of the judgment and the guardianship proceeding, which is not relevant in this discussion, and (2) whether the judge properly considered V.M.’s refusal to consent to a cesarean as a “factor in the finding of abuse and neglect.”[42] The burden of proof in the initial abuse and neglect hearing is preponderance of the evidence[43] and the appellate standard of review is abuse of discretion, where the reviewing court gives great deference to the factual findings of the trial court’s decision, as long as they are “supported by adequate, substantial and credible evidence.”[44]
Ultimately, Judge Carchman found that the decision to forego a cesarean was not appropriate in the abuse and neglect proceedings because the New Jersey legislature did not intend for a fetus to be included in the definition of a child under the welfare statute.[45] However, he did agree with the majority that there was sufficient additional evidence to support the judge’s finding that V.M. placed J.M.G in imminent danger from her birth, on April 16, 2006 to April 20, 2006. [46]
The concurrence began its analysis by reviewing important case law between the traditionally held parental rights to raise children and the interests of the state in interfering with that custodial relationship. He began with the appellants’ contention that V.M. had a fundament right to control her own body and to refuse medical treatment during pregnancy, even at the risk of seriously injury or death to herself or the fetus and that a finding of abuse and neglect can only be founded on a child’s post-natal experiences. Appellant’s position of autonomy in making decisions during birth was also supported by amici curiae from a wide range of experts in maternal and neonatal health, birth and child welfare.[47]
Judge Carchman began with the seminal case of Santosky v. Kramer, which established the fundamentally important and constitutionally protected liberty parents enjoy in raising their own children,[48] as well as the federal and state constitutional grants of inviolability of the family unit.[49] However, these rights are bounded by the government’s interest in dealing with children when “their physical or mental health is jeopardized.”[50] The State, acting as parens patriae may intervene to protect children from serious emotional or physical harm, even to the extent of partially or completing severing the parent-child relationship but must adhere to scrupulous procedural safeguards.[51] Safeguards include multiple hearings where factual findings must be based upon a heightened burden of proof, a preponderance of the evidence, and only “competent, material and relevant evidence may be admitted.”[52] A judge may find a child has been abused or neglected if DYFS has established, by a preponderance of the evidence that the
physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . ; or by any other acts of a similarly serious nature requiring the aid of the court. [53]
In the case at hand, the state never alleged J.M.G was actually harmed by her parents, instead it relied on threat of imminent danger of harm precipitated by V.M.’s action and mental condition over the four-day period in question. However, since most of V.M.’s allegedly erratic behavior occurred prior to J.M.G.’s birth, Judge Carchman found it difficult to apply the statute in its plain language to an unborn child. Instead, he relied on New Jersey Division of Youth & Family Services v. L.V., also cited by the Law Guardian, where the court addressed the applicability of the statute to an unborn child.[54]
In L.V., New Jersey initiated a similar abuse and neglect action against an HIV-positive mother who had refused to take anti-retrovirals during her pregnancy that would have reduced the risk of transmitting the disease to her baby. Even though the baby tested negative for HIV after birth, DYFS proceeded, although it could not present any evidence of physical harm in utero. The judge in that case narrowed the issue as to whether the mother’s failure to take the prescribed medication during pregnancy against medical advice constituted abuse or neglect. The court analogized the facts to a case where a pregnant mother’s use of illegal drugs during her pregnancy brought an abuse action. The court, however, decided that “the mother’s decision to use narcotics or alcohol during her pregnancy alone is an insufficient basis for a finding of abuse or neglect…even though…drug use during pregnancy poses serious risks to the unborn.”[55] The court in L.V. held similarly that any acts committed before a child’s birth were outside the scope of the Act, especially considering the functional mandates of removing a child, which clearly could not be achieved with a fetus. [56] Specifically, “[t]he Act…does not and cannot be construed to permit government interference with a woman’s protected right to control her body and her future during her pregnancy.”[57] The court also relied on a woman’s constitutional right to privacy, which includes the right to her own body and to testing and to refuse medical treatment, even at the risk of her death or termination of the pregnancy. The decision in L.V. realistically represents New Jersey cases dealing with a woman’s constitutional right to make decisions regarding medical and surgical care during pregnancy.[58] It also parallels those of other jurisdictions, although many are in the criminal context and the differentiating standards of leniency in statutory interpretation makes them informative rather than compelling.[59] The concurrence concluded that on this point, “V.M.’s fetus was not a child under this statute.”[60]
The concurrence also noted a number of courts who had specifically addressed the question of a forced cesarean. An Illinois court had held that a woman’s choice regarding treatment “as invasive as a cesarean section during pregnancy must be honored, even in circumstances where the choice may be harmful to her fetus … [observing] the circumstances in which each individual woman brings forth life are as varied as the circumstances of each woman’s life’” and thus ruling there could be no “consistent and legal standard by which to judge a woman’s actions during pregnancy.”[61] However, some states have taken the opposing view that a fetus can be a neglected child, especially in the context of maternal drug abuse.[62] The court cited a unique but significant appellate decision where the Supreme Court of Georgia ordered a cesarean and any necessary blood transfusion reasoning that the “child is a viable human being and entitled to … protection” and that the “child is without the proper parental care and subsistence necessary for his or her physical life and health.”[63] However, the concurrence made it clear that the child status or personhood laws are consistently treated by courts as questions of statutory interpretation and thus must be treated on a state-by-state basis.
Judge Carchman states that if the fetus was not a child, then any decisions in regards to prenatal treatment or surgery cannot form the basis of abuse/neglect finding. He also stresses that while the trial judge did not solely base his findings on V.M.’s refusal to undergo a cesarean, it “clearly was a major consideration in his decision.”[64] Specifically, he refers to the trial record where, in reference to the fetal scalp stimulation test, the judge admonished, “Think about that, not allowing me to evaluate the fetus. That strikes one as – as the very heart of neglect.”[65] The trial court concluded that “in the end with the mother’s life and the baby’s life in balance, I think it was negligent … not to accede to what the doctors requested.”[66] He addresses the error of the trial court by finding that the decision to undergo such an invasive procedure “belongs uniquely to the prospective mother after consultation with her physicians” and that subjugating her decision to a agency’s interpretation creating a scenario neither contemplated nor incorporated within the four corners of the relevant statutory language.”[67] However, the concurrence stops fatally short of reversing the decision and putting teeth on his disagreement with the lower court’s consideration of the medical procedure.
IV. Analysis
The New Jersey Superior Court erred by not standing with the concurrence and reversing, as a matter of law, the trial’s court findings of abuse and neglect of an unborn child because the consideration of a pregnant mother’s refusal to undergo a cesarean section was an abuse of discretion. The majority should have addressed the trial court’s consideration of the cesarean and ruled that it was improper because (1) the unborn child was beyond the scope of the state’s statutory language; (2) the mother had the constitutional right to refuse medical treatment; (3) foregoing a cesarean is not evidence of negligent medical care and (4) the procedure’s consideration cuts against the fundamental public policies of child welfare law. While some of these arguments were duly noted in Judge Carchman’s concurrence, his willingness to overlook the errors of the trial court in considering the cesarean affirms the state’s request of consideration of the cesarean, thereby establishing a dangerous precedent that could expand state intervention in the delivery room at the expense of maternal and fetal rights and health.[68]
- A. Beyond the Plain Language of “Child”
The trial court erred by expanding the plain language of the New Jersey child welfare statute to continue findings of abuse and neglect of a pregnant woman of her unborn child. As the concurrence duly noted, the New Jersey child welfare code, like many others, does not cover unborn children. The appellate court, thus, should have rejected the proceedings altogether, considering that there could not be a preponderance of the evidence of imminent danger where the only specific incidents cited within the four-day window, the refusal to consent to the cesarean, occurred prior to the birth of the child.[69] The court erred by applying the abuse/neglect statute to an unborn child by broadening its plain text.[70] The legislature further defines child abuse in the statute by categorizing the denial of necessities, including food, clothing, shelter, education, and medical care[71] – all resources which are necessary for a living child, instead of an expanded definition of an unborn child.[72]
The New Jersey Court erred by departing from well-settled state precedent regarding personhood in abuse and neglect proceedings without some explicit legislative directive.[73] The court should have followed the analysis of other New Jersey proceedings, including civil commitment[74], wrongful death actions[75], and other states’ child welfare proceedings[76] to reject altering the legal definition of a child from the bench. When the state legislature intends to address or alter “the status and interests of an unborn child” it makes it intent clear.[77] The concurrence itself stated that a review of the legislative history from the child welfare statute revealed “no instance when the … legislation should apply to an unborn fetus …. All references to ‘child’ or ‘children’ in these materials clearly contemplated children-in-being.”[78] The court should have deferred to the legislative branch by interpreting the statute in its plain language and reading a “child” instead of an unborn child and realizing that the legislature could have clearly expanded the definition of a child if it wished.[79] The concurrence’s citation of L.V., a New Jersey case where a pregnant mother was subject to abuse/neglect proceedings on behalf of her unborn child, reiterated that the child welfare act did not expressly include unborn children and only contemplated a child in DYFS custody — clearly not an unborn child.[80] While the concurrence correctly applied L.V. to the facts of this case, he failed to recognize that on statutory construction grounds alone, the court should have reversed the trial findings because they was no preponderance of the evidence of imminent harm against an unborn child, as there never could be under current New Jersey law.
B. The Role of Personhood Laws
Recognizing the undulating reproductive rights landscape, the New Jersey decision should be analyzed under an expanded definition of child evolving in other jurisdictions[81] so that the juxtaposition of fetal and maternal rights is relevant and timely to the discussion of forced cesareans outside the borders of New Jersey. In recent years, some states have attempted to use a ballot initiative process to amend their state constitutions to confer personhood or “legal” status on a fetus at the moment of conception.[82] Other states have affected fetal personhood with informed consent requirements based on a 2005 South Dakota law informing abortion patients that the procedure “will terminate the life of a whole, separate, unique, living human being.”[83] At the federal level, changes to the children’s health insurance program defined child from conception to the age of 19.[84] Yet, while these developments are interesting in the context of increased fetal viability and the changing healthcare landscape, an expanded definition of child should not have affected the appellant’s court reversal because of the threshold constitutional questions in considering medical refusals as evidence of neglect.
C. Violation of Constitutional Rights in Penalizing Birth Choices: A Threshold Question
A state cannot equate the decision to forgo a cesarean as evidence of child abuse because penalizing a pregnant woman’s birth choices through child welfare law violates her constitutional right to bodily integrity and the right of competent individuals to refuse medical treatment. Arguably, obstetrics and birth have always involved the rights of both mother and child and the challenging position doctors, and now apparently judges, hold in balancing the interests and rights of the dual parties. This section will briefly outline the major constitutional questions raised by forced cesareans in the context of other seminal cases and show the trial court abused its discretion in failing to acknowledge the threshold constitutional issues violated by considering and ultimately ruling a refusal to undergo a cesarean as neglect.
1. Reproductive rights and the right to refuse medical treatment
The specific issue of forced cesareans has been addressed by a number of courts, some of them even referenced by the concurrence,[85] although the context of a child welfare proceeding appears to be one of first impression.[86] The most frequently cited cases where a cesarean court order was reversed usually involve a discussion of rights in refusing medical treatment. In contrast, the opposing line of cases frame the issue of forced cesareans squarely within reproductive rights and usually include an ad-hoc balancing test balanced the rights of the mother and those of the state.[87]
For example, in In re A.C., the D.C. court held the trial court erred in weighing the rights of a terminally-ill mother against the interests of the state, and that “it would be an extraordinary case indeed in which a court might ever be justified in overriding the patient’s wishes and authorizing a major surgical procedure such as a cesarean section.”[88] The court further reasoned that a “fetus cannot have rights in this respect superior to those of a person who has already been born.”[89] Similarly in In re Baby Boy Doe, an Illinois Court of Appeal was asked to balance the rights of a competent woman to refuse a cesarean against those of her unborn child and refused to do so.[90] The court cited earlier state precedent, “that no such balancing should be employed and that a woman’s competent choice to refuse medical treatment as invasive as a cesarean section during pregnancy must be honored, even in circumstance where the choice may be harmful to her fetus.” [91]
In re Baby Boy Doe also noted the interest in refusing medical treatment, citing the Supreme Court’s decision in Cruzan v. Director, Missouri Department of Health that the due process clause of the 14th amendment “confers a significant liberty interest in avoiding unwanted medical procedures.”[92] The Illinois court also reiterated the words of Justice O’Connor’s concurrence in that the due process clause must protect, if anything, an individual’s “deeply personal” decision to reject medical treatment and that, “because our notions of liberty are inextricably entwined with our idea of physical freedom and self determination, the Court has often deemed state incursions into the body repugnant to the interest protected by the Due Process Clause.”[93]
Some holdings to the contrary however, have attempted to enshrine a reproductive balancing test using Roe v. Wade. In Pemberton v. Tallahassee Memorial Regional Medical Center, a woman sought a home vaginal delivery after a previous cesarean (HBAC) when her hospital intervened and was ultimately successful in compelling a cesarean.[94] While the woman asserted her right to bodily integrity, refuse unwanted medical treatment, make important personal and family decisions regarding the bearing of children without undue governmental influence – the court summarily dismissed her claim by asserting that whatever her rights, they “clearly” did not outweigh interests of Florida in preserving the life of a unborn child, based upon the court’s interpretation of Roe.[95] The court noted that in anything other than an “extraordinary and overwhelming case” the decision would come from the mother, not with the state, however it only squared this case into that extraordinary category by an estimated two to six percent range of risk.[96] While the court flippantly refers to airline safety and concludes no one would board a plan with that kind of safety record, the woman here was not engaging in air travel but was choosing the manner to deliver her child after being informed of the risks and should have been able to choose among them, just as any airline passenger or vehicle driver could do as well.[97] Like in New Jersey v. V.M., the court failed to analyze the panoply of constitutional rights involved as a threshold question.
In Jefferson as well, the court affirmed a forced cesarean for a mother with placenta previa, citing Roe as evidence of constitutional protection for viable unborn children.[98] The Georgia Supreme Court, like that in Pemberton, engaged in a balancing test of rights of the viable unborn child against the rights of the mother, determining a pregnant mother in the last weeks of the pregnancy lacks the right of others to refuse surgery if the “living unborn human being” would meet his or her death[99] without intervention.[100] The court also gave temporary custody of the child to the juvenile court and the department of family and children services, but it was limited to when the child had been successfully “brought from its mother’s body into the world”.[101] The court’s discretion relinquishing custody of the child after the medical procedure in question stands in marked contrast to the case at hand where child welfare officials and the court sought and achieved state custody directly from the NICU of the hospital.
The court in In re Baby Doe criticized the Jefferson court for not recognizing “the constitutional dimension of the woman’s right to refuse treatment, or the magnitude of that right.”[102] It also addressed the proper place of Roe in this context of balancing rights, holding “the fact that the state may prohibit post-viability pregnancy terminations does not translate into the proposition that the state may intrude upon the woman’s right to remain free from unwanted physical invasion of her person when she chooses to carry her pregnancy to term.”[103] Like the court in Jefferson, the New Jersey superior court failed to appreciate the magnitude of the right to refuse treatment, and that penalizing the exercise of that right undermines bodily integrity, even in the face of known risks, let alone those that are unknown. The court should have also recognized the healthy child’s constitutional right not be unnecessarily separated from the “love and comfort” of her natural parents,[104] especially considering the proceedings stemmed from the improper consideration of a refusal to undergo surgery.[105]
D. Natural Birth is Not Negligence
The trial court improperly concluded the mother was “negligent” in not “acceding to medical advice,” especially when considering the invasiveness of a cesarean and the heightened risks the procedure brings to both mother and child.[106] V.M.’s refusal to consent to a cesarean section upon “non-reassuring fetal status”[107] was not a failure to exercise a minimum degree of care[108] that would equate to placing the unborn child in imminent danger. Under New Jersey law, the trial court needed to prove beyond a preponderance of the evidence that V.M. failed to exercise a “minimum degree of care” in “supplying the child with adequate…medical or surgical care….” This kind of failure has been interpreted to mean “conduct that is grossly negligent because it is willful or wanton.”[109] Considering the risks[110] of a cesarean to both the mother and the unborn child,[111] a competent woman’s refusal of the procedure based upon speculative fetal distress is not “grossly negligent” or “wanton,” particularly where the mother was ultimately correct. New Jersey’s cesarean rates are among the highest in the United States, with St. Barnabas’ rates above both the state and national average, and more than double what the WHO recommends.[112] Additionally the hospital’s safety record indicates a statistically significant higher risk of obstetric trauma, even in vaginal deliveries.[113]
The trial court’s dismissal of her informed choice reveals a paternalistic bias[114] against pregnant women and their medical decisions, particularly when viewed against the court’s use of her hospital records[115]. As stated in the concurrence, the judge did consider it “neglect” to object to the fetal scalp stimulation, even though the procedure involved pressing fingers directly against an unborn child’s head to detect a reaction.[116] As one commentator noted, “The doctor may be the trained expert who knows best the science of medicine, but the patient knows best her history and experience. And if the doctor does not know that history, his expert opinion on the risks and benefits of recommended treatments simply should not be accorded the deference that appears to be the norm in nearly all cases.”[117] In fact, some have suggested courts are not institutionally competent to resolve conflicts around obstetrical interventions and “since judges are usually unaware of the increased risks posed by cesarean delivery to both mother and fetus, they almost always order whatever the doctors advise.” [118] Courts should eschew such intervention into the delivery room or home at all costs, recognizing that their limited knowledge regarding the nuances of labor and birth make them particularly susceptible to the will of doctors, hospitals and the larger realm of managed care where they usually give little to no consideration of patients’ desires to avoid the known risks of unnecessary intervention.[119] The majority should have censured the trial court for substantiating their findings of medical neglect based upon erroneous assumptions about the risks involved in choosing to undergo a cesarean or to defer to a natural vaginal delivery.
E. Penalizing Birth Choices Undermines Child Welfare Policy
The trial court’s failure to honor a pregnant woman’s right to refuse medical treatment is inconsistent with prevailing medical and bio-ethical standards and ultimately undermines maternal and fetal health and the aims of child welfare law. Even if the statutory language allowed unborn children to be represented in child welfare proceedings and the state asserted a compelling government interest in intervening, public policy would prohibit judicial consideration of a refusal to undergo a cesarean. Forced cesareans undermine the doctrines of informed consent and discourage women to seek out prenatal care or risk being subject to “punitive pregnancy laws” for engaging in risky behavior. Many states have shied away from punitive pregnancy laws because they create an incentive for women to avoid prenatal care and substance abuse counseling.[120] The New Jersey court should have recognized the danger of their precedent in using the child welfare regime to penalize a pregnant woman’s medical decisions, especially during labor.
The court’s decision destroys the doctrine of informed consent, a right firmly entrenched in the common law[121] that protects individuals from unwanted bodily incursions and ensures that patients have the relevant information to make informed decisions regarding their health. [122] Recognition of the patient’s right to give informed consent demonstrates society’s respect for a patient’s autonomy and bodily integrity and also relegates the physician’s role to that of an adviser while the patient ultimately decides her course of treatment. The doctrine of informed consent also allows individuals to refuse medical treatment[123], even to save another, where in the specific context of cesareans, the “courts do not compel one person to permit a significant intrusion upon his or her bodily integrity for the benefit of another person’s health.”[124] Instead, the court’s decision literally cut away at the modern bioethical standards of informed consent and bodily integrity in favor of Monday morning quarterbacking the decisions a woman made in active labor. As one commentator noted, the state, rather than being a “consistent bastion of support for the practice of patient autonomy in health care… has often shown itself to be its own advocate and in a very real sense, an adversary of patients who seek to assert their rational will….”[125]
State intervention into prenatal treatment creates an incentive for women to terminate their pregnancies or avoid prenatal care, undermines leading health and medical policies on intervention and alters the doctor-patient relationship. Some pregnant women may avoid prenatal care or abort their children altogether[126] to avoid criminal prosecution or any subsequent civil proceeding with regards to their unborn child. Penalizing women through child welfare proceedings because of their medical decisions creates an unhealthy doctor-patient relationship that could lead to coercion in making important medical decisions. Such a trend could discourage women from seeking care, or at the minimum, chill the privileged communication between women and their health care providers, at the expense of both maternal and fetal health. This intrusion would be most piercing to vulnerable pregnant women and could discourage them from receiving mental health treatment for fear that it could be used to justify court-ordered medical procedures against them in the course of their labor and delivery. Many commentators have renounced[127] such “punitive pregnancy laws” or laws designed to press criminal charges against pregnant women who engage in substance abuse or other dangerous behavior because of the slippery slope[128] of prescribing prenatal conduct.[129]
Additionally, leading medical experts have explicitly stated their ethical position in these types of controversies, citing that the “medical profession strongly supports upholding the pregnant woman’s autonomy in medical decision-making.”[130] The American Medical Association’s Board of Trustees cautions that the physician’s duty is to ensure that the mother is provided with the appropriate information to make an informed decision and that if she rejects a doctor’s recommendation, the appropriate response is not force but to urge her to seek consultation and counseling from other sources.[131] On those grounds, the court should have realized that the highest aims of the child welfare regime, to protect children, would be realized in giving mothers the autonomy they need to make fully-informed choices regarding their labors.[132]
V. Conclusion
The New Jersey Superior Court erred by not standing with the concurrence and reversing, as a matter of law, the trial’s court findings of abuse and neglect of an unborn child because the consideration of a pregnant mother’s refusal to undergo a cesarean section was an abuse of discretion. The majority should have addressed the trial court’s consideration of the cesarean and ruled that it was improper because (1) the unborn child was beyond the scope of the state’s statutory language; (2) the mother had the constitutional right to refuse medical treatment; (3) foregoing a cesarean is not evidence of negligent medical care and (4) the procedure’s consideration cuts against the fundamental public policies of child welfare law. New Jersey should rectify this wrong and rule the lower court’s improper consideration of an invasive medical procedure was an error that will harm birth outcomes for women and children and undermine the child welfare regime.
[1] CDC/NCHS, National Hospital Discharge Survey: 2005 Annual Summary With Detailed Diagnosis and Procedure, Series 13, No. 165, 37. Available at http://www.cdc.gov/nchs/data/series/sr_13/sr13_165.pdf#table27.
[2] CDC/NCHS. Births: Preliminary Data for 2007, 57 National Vital Statistics Reports 12, 1. Available at http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_12.pdf.
[3] In 1994, the World Health Organization recommended that a nation’s cesarean birth rate should be in the five to fifteen percent range.
[4] See Lisa Belkin, Refusing a C-Section, Losing Custody of a Baby, NY Times Parenting Blog, Jul. 23, 2009, http://parenting.blogs.nytimes.com/2009/07/28/refusing-a-c-section-losing-custody-of-a-baby; Louise Marie Roth, Is a Woman in Labor a “Person”? New Assaults on Pregnant Women’s Civil Rights in a NJ Case, Huffington Post, Jul. 21, 2009, http://www.huffingtonpost.com/louise-marie-roth/is-a-woman-in-labor-a-per_b_242307.html. Kate Harding, Refusing a C-Section = Abuse and Neglect?, Salon, Jul. 23, 2009, http://www.salon.com/mwt/broadsheet/feature /2009/07/23/c_section_neglect/index.html. Eugene Volokh, Refusal to Consent to Caesarean Section as Neglect of the Child?, Volokh Conspiracy, http://volokh.com/posts/chain_1247782973.shtml.
[5] 974 A.2d 448 (N.J. Super. Ct. App. Div. 2009).
[6] Id. at 449. (Carchman, P.J.A.D., concurring).
[7] Even the vocabulary surrounding whether an unborn child is a human being or not is complicated by labels which can betray personal sentiments about the issue and may even determine the status of the labeled objects. See, Kif Augustine-Adams, The Beginning of Wisdom is to Call Things by Their Right Names, 7 S. Cal. Rev. L & Women’s Stud. 1 (1997) (“names may be linguistic correlates of social structure”); Marguerite A. Driessen, Avoiding the Mellissa Rowland Dilemma: Why Disobeying a Doctor Should Not be a Crime, 10 Mich. St. U. J. Med. & L. 1, 8 n.17 (2006) ( noting “articles and cases in which the status of the unborn child is argued or ultimately determined either to not be alive, or if alive … something less than a living human being, the prenatal life-form generally is referred to as a ‘fetus,’ clearly denoting its less than human and dependant-upon-the-mother status … [where] the unborn child is argued or ultimately determined to be alive and to have sufficient human status to warrant the intervention at issue, the prenatal life-form generally is referred to as a “baby,” a “child,” or as a “unborn child,” a label denoting its individuality and personhood.”) For the purposes of this analysis, I have chose to use the label “unborn child,” partly from my personal sentiments and partly because of arguments made herein that make the consideration of a cesarean improper in a child welfare context irrespective of the personhood status of an unborn child.
[8] Brief of Amici Curiae Experts in Maternal and Neonatal Health, Birth and Child Welfare at 4, N.J. Div. of Youth and Family Servs. v. V.M. and B.G., In re. Guardianship of J.M.G., A Minor, 974 A.2d 448 (N.J. Super. Ct. App. Div. 2009) (No. A-4627-06T4). On October 10, 2008 the Superior Court granted amici’s motion to participate amicus but their denied motion to unseal the Family Part record, thus their brief relies on the transcript references cited by the parties not available to the public. (Id. at 10). Available at http://advocatesforpregnantwomen.org/VMAmicus_redacted_withcover.pdf.
[9] Id.
[10] Id.
[11] 974 A.2d at 450–01.
[12] Id.
[13] Id. at 451.
[14] Id.
[15] Id.
[16] Id. at 452.
[17] Id.
[18] Id.
[19] Brief of Amici Curiae Experts, supra note 8, at 7.
[20] 974 A.2d at 452.
[21] Id.
[22] Id. at 453.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Brief of Amici Curiae Experts, supra note 8, at 8.
[29] 974 A.2d at 453.
[30] Brief of Amici Curiae Experts, supra note 8, at 8.
[31] Id.
[32] The court had been required to issue several restraining orders to medical professionals who found it unsafe to visit V.M. and B.G. in their home. Also, one provider had refused to offer services without assurances he would not be sued. 974 A.2d at 454 n.5.
[33] The group contracted to provide parenting classes denied services unless a psychological evaluation was performed due to her “disruptive and uncontrollable behavior.” Id. at 454 n.6.
[34] Id. at 454.
[35] Id. at 454–55.
[36] Id. at 455.
[37] Id.
[38] Id.
[39] Id. at 449.
[40] Id.
[41] Id. at 450 (Carchman, J., concurring).
[42] Id. at 456.
[43] Id. at 455. (citing N.J. Div. of Youth & Family Servs. v. G.M. (In re K.M.), 968 A.2d 698 (N.J. App. Div. 2009); N.J. Div. of Youth & Family Servs. v. J.L., 948 A.2d 172 (N.J. App. Div. 2008).
[44] Id. See also Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence means ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
[45] Id. at 464. “[F]or the purposes of the decision here, the plain language of the Act, New Jersey case law and the reasoning set forth in decision from numerous other states supports a conclusion that the protection afforded by N.J.S.A. 9:6-8.21, does not extend to a fetus because it is not a ‘child’ as contemplated by this particular statute.”
[46] Id.
[47] Id. at 457–58. Amicus Curiae, Experts in Maternal and Neonatal Health, Birth, and Child Welfare, include Dr. 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., 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., Childbirth Connection, 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 Women’s Health Network (NWHN) and Statewide Parent Advocacy Network (SPAN).
[48] Id. at 458 (citing Santosky v. Kramer, 455 U.S. 745, 753–54 (1982)).
[49] Id. (citing Stanley v. Illinois, 405 U.S. 645, 652, (1972); N.J. Div. of Youth & Family Servs. v. A.W., 512 A.2d 438 (1986)).
[50] Id. (citing Parham v. J.R., 442 U.S. 584, 603 (1979)).
[51] Id. (citing Title 9, which “governs the adjudication of abuse and neglect cases, or Title 30, which sets forth the “procedures for the permanent removal of children from their parents.”).
[52] Id. (citing N.J. Stat. Ann. § 9:6–8.46(b) (2009).
[53] Id. 458–59. (citing N.J. Stat. Ann. § 9:6–8.21(c)(4) (2009) Neglect is frequently defined in terms of deprivation of adequate food, clothing, shelter, medical care, or supervision. Seven states further define medical neglect as failing to provide any special medical treatment or mental health care needed by the child. (Mississippi, North Dakota, Ohio, Oklahoma, Tennessee, Texas, and West Virginia.) In addition, four states define as medical neglect the withholding of medical treatment or nutrition from disabled infants with life-threatening conditions. (Indiana, Kansas, Minnesota, and Montana.)). Child Welfare Information Gateway. Available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/define.cfm.
[54] 889 A.2d 1153 (N.J. Super. Ct. Ch. Div. 2005).
[55] Id. at 459. (citing 889 A.2d at 1158).
[56] Id. at 460. (citing 889 A.2d at 1158).
[57] Id. at 460. (citing 889 A.2d at 1158).
[58] Id. at 460. (citing Sojourner A. v. N.J. Dep’t of Human Servs., 828 A.2d 306 (2003) (recognizing that “principle[s] of individual autonomy . . . lie[] at the heart of a woman’s right to make reproductive decisions”); Planned Parenthood of Cent. N.J. v. Farmer, 762 A.2d 620 (2000) (recognizing that a woman has a fundamental liberty interest in controlling her body and her future); and Matter of Conroy, 486 A.2d 1209 (holding that competent persons are generally permitted to refuse medical treatment because the right to self-determination outweighs any countervailing state interests)).
[59] Id. (citing Florida v. Gethers, 585 So.2d 1140, 1142 (Fla. Dist. Ct. App. 1991) (holding that a charge of aggravated child abuse cannot be based on the mother’s use of cocaine during pregnancy); Commonwealth v. Welch, 864 S.W.2d 280, 284–85 (Ky. 1993) (holding that a charge of criminal abuse cannot be based on the mother’s use of drugs and alcohol during pregnancy); People v. Morabito, 151 Misc. 2d 259, 580 N.Y.S.2d 843, 846–47 (N.Y. City Ct. 1992) (refusing to interpret a criminal statute as applying to a unborn child); Ohio v. Gray, 62 Ohio St. 3d 514, 584 N.E.2d 710, 713 (Ohio 1992) (holding that the mother cannot be prosecuted for child endangerment based on drug use during pregnancy); Wyoming v. Osmus, 73 Wyo. 183, 276 P.2d 469, 475 (Wyo. 1954) (holding that a mother could not be found guilty of murder for failing to obtain medical care during childbirth)).
[60] Id. at 464.
[61] Id. at 463-64 (quoting In re Baby Boy Doe, 632 N.E.2d 326, 326 (Ill. App. Ct. 1994).
[62] Id. at 463 (citing In re Unborn Child, 683 N.Y.S.2d 366, 367 (N.Y. Fam. Ct. 1998) (court found that a unborn child was neglected after her mother tested positive for crack cocaine, reasoning it would be incongruous for a child to endure an unsafe environment in the womb when it would be afforded protection against illegal drugs outside of it)).
[63] Id. at 465. (citing Jefferson v. Griffin Spalding County Hospital Auth., 274 S.E.2d 457, 459 (Ga. 1981)).
[64] Id. at 464.
[65] Id.
[66] Id.
[67] Id.
[68] Brief of Amici Curiae Experts, supra note 8, at 9–10. “DYFS maintains that V.M.’s lack of ‘mental stability,’ evidenced by her ‘highly disruptive behavior’ was the overarching concern in evaluating abuse and neglect. In describing that allegedly erratic behavior, DYFS noted that V.M. ‘refused to cooperate with staff (which included signing consents).’ [A]mici note the parties’ agreement that the trial court considered, to at least a certain extent, a pregnant woman’s ‘refusal to sign consents’ to cesarean surgery in finding abuse or neglect in this case.” (citations omitted).
[69] Id. at 8. The trial court held V.M. was “negligent…not to accede to what the doctors requested,” and that even though the case was “not that strong,” that it is “my decision by a preponderance of the evidence that she refused to cooperate with the medical professionals at St. Barnabas during childbirth.”
[70] N.J. Stat. Ann. § 9:6–8.21(c) (2009).
[71] As discussed infra in part D, choosing to forego a cesarean and seek delivery by natural vaginal birth is also not negligence under the statute.
[72] Id.
[73] Other jurisdictions have concluded the plain meaning of statues precludes applying legal status to unborn children without clear statutory text. See, e.g., Reinesto v. Superior Court, 894 P.2d 733 (Ariz. Ct. App. 1995) (holding that the ordinary meaning of “child” in child welfare law excluded unborn children and dismissing charges filed against woman for drug use during pregnancy); Kentucky v. Welch, 864 S.W.2d 280, 284 (Ky. 1993) (reviewing legislative history and concluding criminal child abuse statute did not apply to defendant’s use of controlled substance
during pregnancy and had the legislature intended to include the unborn within the statute, “it would have done so expressly”); Sheriff, Washoe County, Nev. v. Encoe, 885 P.2d 596 (Nev. 1994) (holding that application of
child endangerment statute to a pregnant woman who used illegal substances would violate plain meaning of statute, deprive woman of constitutionally mandated due process notice and render statute unconstitutionally vague);
People v. Morabito, 580 N.Y.S.2d 843, 846 (N.Y. City Ct. 1992) (holding mother could not be charged with endangering welfare of child based upon acts endangering unborn “when our Legislature enacts laws concerning unborn children, it says so explicitly”).
[74] Matter of D.K., 204 N.J. Super. 205, 212–14 (Ch. Div. 1985) court refused to interpret New Jersey’s civil commitment rules as authorizing the appointment of guardians to unborn children because plain language only allowed appointment for a person and “[a] fetus is not a person.” (citing Roe v. Wade, 410 U.S. 113, 158 (1973).
[75] Giardina v. Bennett, 111 N.J. 412, 428 (1988) court refused to extend wrongful death cause of action to couple whose child was stillborn.
[76] See, In re Valerie D., 613 A.2d 748, 756 (Conn. 1992) (court held state could not terminate parental rights based on prenatal conduct); Wisconsin ex rel. Angela M.W. V. Kruzicki, 561 N.W.2d 729 (Wis. 1991) (although status of a unborn child is one of “great social, medical, religious, and ethical significance” there is no record of an unborn child being included in child welfare code, and the court declines to fill this legislative void) Id. at 740.; Ark. Dep’t of Human Servs. v. Collier, 95 S.W.3d 772 (Ark. 2003) (upon reviewing statute, fetus “obviously” did not fall within the statutory definition of a “juvenile”) Id. at 778–79; In the Matter of J.B.C., 18 P.3d 342, 347–48 (Okla. 2001) (fetus is not a “child” for purposes of children’s code).
[77] Giardina v. Bennett, 111 N.J. 412, 421(1988) (discussing earlier enactment of workers compensation statues and how legislature referenced children and a “child in esse”).
[78] 974 A.2d 448, 459 n.9 ( 2009).
[79] See State v. Ikerd, 369 N.J. Super. 610, 623 (App. Div. 2004) (reversing a trial court decision sentencing a drug-addicted pregnant woman to prison to protect her unborn child because the sentence was “contrary to the statute” and “usurped the powers of the legislature.”)
[80] 974 A.2d at 460.
[81] None of these efforts have been successful, although similar bills were passed in both the Montana and North Dakota state legislatures. http://www.rhrealitycheck.org/blog/2009/07/30/state-trends%E2%80%94sex-ed-family-planning-and-fetal-personhood-dominate
[82] Id. Some pro-life groups have already announced plans for similar ballot initiatives in 2010 in Colorado, Montana, Mississippi, and Oregon
[83] Id. This type of legislation was introduced in Indiana, Kansas, Missouri and North Dakota, with North Dakota successfully signing the bill into law.
[84] 42 C.F.R. § 457.10 (2006).
[85] 974 A.2d at 464–65. The concurrence, however, only addressed the statutory question of whether a fetus was a child and ignored the larger constitutional issues.
[86] While there is no doubt a difference between a forced cesarean by civil order, criminal sanctions because of the refusal to undergo it, and the case at hand, the point that the state legally intervenes into the medical decision-making room process during childbirth should trigger the same constitutional analysis.
[87] Daniel R. Levy, The Maternal-Fetal Conflict: The Right of a Woman to Refuse a Cesarean Section Versus the State’s Interest in Saving the Life of the Fetus, 108 W. Va. L. Rev. 97, 120 (admonishing courts to distinguish the maternal-fetal relationship from other compulsory medical orders in cesarean cases).
[88] 573 A.2d 1235, 1252 (D.C. 1990) (en banc).
[89] Id. at 1243–44.
[90] 632 N.E.2d 326 (Ill. App. Ct. 1994).
[91] Id.
[92] Id. at 330. (citing 497 U.S. 261 (1990).
[93] Id. at 331. (citing 497 U.S. at 287) (O’Connor, J., concurring)).
[94] 66 F.Supp. 2d 1247 (N.D. Fla. 1999).
[95] Id. at 1251, 1254. The court rebuffs the appellant’s constitutional inquiries by concluding “because of the very substantial risk the course the [mother] was attempting to pursue would result in the death of her baby, requiring her to undergo a forced cesarean section did not violate her constitutional rights.”
[96] Importantly, the trial court erroneously summarized the medical testimony that the unborn child would have died if the cesarean was not performed, when the doctors apparently only testified to a substantial and unacceptable risk of death, although not certain. Id. at 1251 n.2.
[97] Id. at 1253. Considering the lifetime risk of an American dying in a airline crash is 1 in 20,000 while the risk of dying from a Cesarean delivery is about 7 per 20,000 it does not seem that illogical that a woman would much rather weigh the risks and board a plane than go under the knife. Robert Roy Britt, The Odds of Dying. January 6, 2005. Available at http://www.livescience.com/environment/050106_odds_of_dying.html.
[98] Jefferson v. Griffin Spalding County Hosp. Auth., 274 S.E.2d 457 (Ga. 1981) (per curiam).
[99] Medical testimony in the case concluded with a ninety-nine percent certainty that the child could not survive vaginal childbirth. Id. at 458. However, “To the surprise of doctors, the placenta previa condition slowly corrected itself before labor began, an event almost unheard of by her doctors. A baby girl was delivered in normal childbirth.” Note, Family Law—Court-Ordered Surgery for the Protection of a Viable Fetus, 5 Western N.E. L. Rev. 125, 138 n.89 (1982).
[100] 274 S.E.2d at 460.
[101] Id. at 459.
[102] 632 N.E.2d 326, 333 (Ill. App. Ct. 1994).
[103] Id. at 334. (citing Roe v. Wade, 410 U.S. 113 (1973)).
[104] N.J. Div. of Youth & Family Servs. v. G.M., 939 A.2d 239, 254 (N.J. Super. Ct. App. Div. 2008).
[105] N.J. Div. of Youth and Family Servs. v. A.R.G, 845 A.2d 106, 119 (2004) (noting that in light of “constitutional protections surrounding family rights . . . the court’s authority to remove children from the custody of their parents must be exercised with scrupulous adherence to procedural safeguards”).
[106] N.J. Div. of Youth & Family Servs. v. V.M. and B.G. (In the Matter of J.M.G.,), 974 A.2d 448 (N.J. Super. Ct. App. Div. 2009).
[107] Brief of Amici Curiae Experts, supra note 8, at 4.
[108] N.J. Stat. Ann. § 9:6-8.21(c)(4).
[109] G.S. v. Div. of Youth & Family Servs., 723 A.2d 612, 621 (1999) (noting that “the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others”).
[110] James R. Scott, Danforth’s Obstetrics & Gynecology 450 (9th ed. 2003). Cesareans can lead to a variety of postpartum complications, including wound infection, hemorrhage, severe complications from anesthesia, and even death. The pregnancy related mortality rate among women with Cesarean delivery with a live birth outcome is about 35.9 deaths per 100,000 while the mortality rate among women with vaginal delivery with a live birth outcome is about 9.2 per 100,000. See also, Carol Sakala & Maureen P. Corry, Evidence-Based Maternity Care: What It Is and What It Can Achieve 44 (2008) “Maternal death, emergency hysterectomy, blood clots and stroke. . . poor birth experience, less early contact with babies, intense and prolonged postpartum pain, poor overall mental health and self-esteem, poor overall functioning” are more likely to occur with cesarean surgeries than with a vaginal birth. The surgery also poses risks for a woman’s future reproductive life, increasing the risk of involuntary fertility and future deliveries marked by low birth weights, preterm births, and stillbirths. Id. at 46.
[111] Babies born after cesarean surgery are more likely than vaginally born babies to experience respiratory problems, surgical injuries, and problems with breastfeeding. Id. at 44.
[112] St. Barnabas had the second highest cesarean rate in New Jersey in 2008, with 49.3 of 5,808 births by cesarean , with 29.2% primary cesareans (women who have had repeat cesareans or VBACs are not included in primary cesarean rates). Cesarean Rates in NJ Hospitals 2008. Cesarean Awareness and VBAC Support in New Jersey. Available at http://www.icanofnj.com/hospitalcsectionrates.htm..
[113] New Jersey Department of Health and Senior Services. Summary of Hospital Quality Measures. Available at http://web.doh.state.nj.us/apps2/hpr/profile.aspx?num=10710. Obstetric trauma – vaginal delivery with instrument hospital rate at St. Barnabas (216.10 per 1,000 deliveries) (national average 186.20) . Obstetric trauma – vaginal delivery without instrument, hospital rate at St. Barnabas 60.19 per 1,000 deliveries, (national average rate 42.50).
[114] Driessen, supra note 7. Avoiding the Melissa Rowland Dilemma: Why Disobeying a Doctor Should Not Be a Crime, 10 Mich. St. U. J. Med. & L. 1(2006) “pregnant women…are not hailed as intelligent consumer of medical services. Instead they are soundly decided as irrational, ignoring known risks and deciding against surgery because of ignorance, unfounded fears (citing Deborah J. Kraus, Regulation Women’s Bodies: The Adverse Effects Theory on Childbirth Decisions and Women of Color, 26 Harv. C.R.-C.L. L. Rev. 523, 532(1991) or spurious religious tenets, (citing April L. Cherry, The Free Exercise Rights of Pregnant Women Who Refuse Medical Treatment, 69 Tenn. L. Rev.. 563, 566 (2002)) or they are seen as selfish, deciding against surgery because they have placed their own vain interests above the lives of their babies.
[115] See supra note 11. See also, Maya Manian, The Irrational Woman: Informed Consent and Abortion Decision-Making,16 Duke J. Gender L. & Pol’y 223 , 268 “cases that have denied pregnant women’s right to refuse treatment have tended to rely on gender-stereotyped claims that women are irrational decision-makers and should be self-sacrificing mothers.”
[116] 974 A.2d at 464.
[117] Driessen, supra note 7 at 35.
[118] Id. at 38 (citing Kraus at 538). See also Veronika E.B. Kolder, Janet Gallagher & Michael T. Parsons, Court-Ordered Obstetrical Interventions, 316 New Eng. J. Med. 1191, 1193 (1987). In a survey of obstetrical interventions, eighty-eight percent of the court orders for obstetrical interventions were obtained without six hours, nineteen percent were produced in one hour or less.
[119] See, e.g., In re Madyun Fetus, 114 Daily Wash. L. Rptr. 2233, 2239 (D.C. Super. Ct. July 26, 1986) court granted a forced cesarean because a labor had failed to progress satisfactorily, reasoning “[n]either parent is a trained physician.”The child was subsequently born in natural vaginal delivery without any signs of the feared infection cited in seeking judicial intervention.
[120] Id. at 39 citing In re Valerie D., 223 Conn. 492, 613 A.2d 748, 764 (Conn. 1992).
[121] See Crain v. Allison, 443 A.2d 558, 561–62 (D.C. 1982).
[122] Ben A. Rich, Medical Paternalism v. Respect for Patient Autonomy: The More Things Change the More They Remain the Same, 10 Mich. St. J. Med. & Law 87, 102. “Informed consent, fundamentally is decision-making based upon adequate disclosure by the health care profession as to the patient of the following: the nature of the patient’s illness…the nature of the procedure, including a candid assessment of the amount of pain or other discomfort the patient is likely to experience and what can be done to minimize it; the reasonably anticipated risks (i.e., potential harms arising out of) and benefits of the propose procedure or course of treatment; the alternatives and their anticipated risks and benefits. Always among the alternatives is doing nothing, or as it is sometimes characterized by conservative clinicians, ‘watchful waiting.’”(citations omitted).
[123] In re Conroy, 486 A.2d 1209, 1222 (1985). The right to consent “also encompasses a right to informed refusal.”
[124] In re A.C., 573 A.2d at 1243–44 (D.C. 1990) (citing Mcfall v. Shimp, 10 Pa. D. & C. 3d 90 (Allegeny County Ct. 1978). (a man could not be compelled to donate bone marrow to his cousin, even though he was the only compatible donor). Some commentators, however, have suggested McFall is an inappropriate analog to fetal cases because a pregnant woman has an enhanced duty to rescue or undergo invasive treatment. The court rejects this approach by concluding, “Surely, however, a fetus cannot have rights in this respect superior to those of a person who has already been born.” In re A.C. at 1244.
[125] Rick, see supra note 119 at 124.
[126] While some may argue a woman who is willing to abort her unborn child would not likely do so because of a fear of child welfare intervention, it may be a woman with other children may eschew such a risk of state intervention into her mental health or prenatal conduct by choosing to end her pregnancy.
[127] See, e.g. Lisa C. Ikemoto, The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of Law, 53 Ohio St. L. J. 1205.
[128] “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent …. The greatest dangers to liberty lurk in insidious encroachments by mean of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).
[129] Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988) court refused to recognize tort action against mother for unintentional inflict of prenatal injuries because it would subject mother’s every act while pregnant to state scrutiny, thereby intruding upon her rights to privacy, bodily integrity and to control her own life. “The circumstances in which each individual woman brings forth life are as varied as the circumstances of each woman’s life” – so the court rejected any one consistent and objective legal standard by which to judge a woman’s actions during pregnancy.
[130] Id. at 334, citing Legal Interventions During Pregnancy: Court Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 J.A.M.A 2663, 2670 (1990).
[131] Id. at 335.
[132] “The best protection for a fetus lies in the protection of the rights of the individual best positioned and most highly motivated to defend its interests: an informed and empowered mother.” Howard Minkoff & Lynn Paltrow, Melissa Rowland and the Rights of Pregnant Women, 104 Obstetrics and Gynecology, 1220–21, 1234–36 (2004).
