Category Archives: Legal Issues

Why I’m feeling conflicted about AB 1306: CNM Physician Supervision vs. Home VBAC Hurdle

Update September 2, 2016

This bill was not passed.

Update August 25, 2016 1:32pm

The Senate floor vote for this bill has been postponed until Monday.


Update August 25, 2016 9:57am

For those of you watching this issue closely, this bill will be up for a Senate floor vote today. You can watch the California Senate live here.


Update August 24, 2016 10:06pm

The Senate floor vote for AB 1306 is scheduled to happen tomorrow, August 25th. (Click here to see the current status of the bill.)

The California capital opens at 9am, so if you haven’t already called your state Senator to tell them how you feel about AB 1306, tomorrow is the time.

All you have to say is, “I’m calling to voice my support of [or opposition to] AB 1306.”

Click here to receive a reminder email tomorrow at 9am.

All my thoughts on AB 1306 can be found below.


Update August 24, 2016 11:06am 

I have thought about AB 1306 for so many hours since I initially opposed it last Friday and I’m feeling really conflicted about it.  Let me share with you why.

Removing physician supervision will improve the ability of CNMs to practice autonomously including offering VBAC in the hospital setting (where hospital policy permits) and in birth centers (provided the CNM opts to offer VBAC). This could be a good thing for VBAC families and a great thing for all the other people CNMs serve.

And so it’s really tough because it could negatively impact the small number of women who plan home VBACs by requiring them to have a VBAC consult with an OB.

So, what is the right decision?

Support this bill so CNMs can have a greater reach?

Or oppose this bill because of this requirement?

My mission is to increase access to VBAC in all birth settings. Is it enough that this may increase hospital VBAC access – where most women birth – as well as birth center VBAC while possibly making home VBAC harder to achieve?

Here is the specific language from AB 1306 (Sec 6, 2746.5(B)):

If a woman wants a home VBAC and she ‘still desires to be a client of the certified nurse-midwife, the certified nurse-midwife shall provide the woman with a referral for an examination by a physician and surgeon trained in obstetrics and gynecology. A certified nurse-midwife may assist the woman in pregnancy and childbirth only if an examination by a physician and surgeon trained in obstetrics and gynecology is obtained and, based upon review of the client’s medical file, the certified nurse-midwife determines that the risk factors presented by the woman’s condition do not increase the woman’s risk beyond that of a normal, low-risk pregnancy and birth. The certified nurse-midwife may continue care of the client during a reasonable interval between the referral and the initial appointment with the physician and surgeon.’

This is why I’m conflicted:

44% of CA hospitals outright ban it. They do not “allow” their physicians to attend VBAC. What happens if those hospitals decide, they will not “allow” their physicians to even consult with families seeking out-of-hospital (OOH) VBAC? Or physicians say that their malpractice insurance will not “allow” them to consult with OOH VBAC families? Where does that leave OOH VBAC families?

Right now, the VBAC rate in the state of California is only 9%. This bill could increase VBAC access in birth centers and hospitals assuming that hospital policy “allows” CNMs to attend VBAC.

As it stands, 91% of California families have repeat cesareans and the overwhelming majority of those are due to VBAC bans, misinformation and being unable to find a supportive provider.

But here’s the tough part: OBs who are staunch supporters of VBAC have told me that they would never have a consultation with a woman planning a home VBAC because they don’t, in any way, want to be connected with something that could be construed as validating, okaying, or approving home VBAC.

Even though the legislation isn’t asking OBs to approve of home VBAC, that is what OBs see. And the overwhelming majority of OBs – who support hospital VBAC and may even philosophically agree with OOH VBAC – would not participate in VBAC consults for women planning home VBACs.

This is mitigated a bit by the fact that women can have these consults via a chart review and Skype. So regardless of where they live in the state, they could reach the handful of OBs willing to participate in a VBAC consult.

But having the VBAC consult in the legislation means that as OB allies die, or as hospital policies tighten, or malpractice insurance fears increase, the legislation holds firm. That is not a good thing. It leaves women standing out in the cold on their own. And forces them to go back to the hospital system, where, as we see from the current California VBAC rates, they will likely acquiesce to a cesarean or be forced into a cesarean per hospital policy that is presented as equivalent to law unless CNMs are able to measurably increase VBAC access in the hospital setting.

CNMs can tell families that the prior cesarean is “unlikely to impact this pregnancy” and then talk about the unlikely though possibly dire consequences if a uterine rupture occurs out of the hospital. And talk about transfer protocols as you would with any other patient. Women don’t need to talk to an OB in order to get that information.

So while this bill does include home VBAC in the language, access to home VBAC is assuming that the pregnant person can find a OB who is willing to provide them with this consult. While the option is there, the ability to exercise that option is based on the kindness and ethics of a few OBs. And when they are gone, or the climate changes, women bare the brunt of their absence.

A VBAC consult does not make pregnancies safer. It will not improve outcomes. It only undermines the professional training of CNMs and the autonomy of patients.

And all the while, this bill also removes physician supervision from CNMs. And that is a very good thing.

So, do we say to home VBAC families, “Best of luck to you?” and, “Removing physician supervision for CNMs is worth this trade?” and then hope and pray that these women can find an OB willing to provide them with this consult?

I’m sharing with you the pros and cons as I see them so you can make your own decision.

It’s not too late to contact your state Senator and tell them, “I’m calling to voice my support of [or opposition to] AB 1306.”

Does your state require families planning home VBACs to have a consultation with an obstetrician? If yes, I’d like to ask you a few short questions.


Update Friday August 19, 2016 10:21pm

Thank you to those that contacted your Assembly Member today! The deadline to amend the bill to exclude the VBAC consult was Friday.

The next step is to oppose the Senate floor vote which is expected to happen next week (the week of Aug 22nd).

Please contact your state Senator on Monday, August 22nd, and tell them, “I’m calling to voice my opposition to AB 1306.” That’s it.

If you click the yellow button below, I’ll send you a reminder email Monday morning when the capital opens at 9am.

Be notified when legislation threatens VBAC access!


August 18, 2016 by Jen Kamel

Yesterday I was in Sacramento attending the Midwifery Advisory Council meeting at the California Medical Board.

At that meeting, I learned about a piece of legislation that will decrease VBAC access in California.

TODAY IS THE LAST DAY TO VOICE YOUR OPINION!

If access to midwifery care for women who have had a prior cesarean section is important to you, then please register your opposition to AB 1306 unless amended to exclude VBAC consult with your Assembly Member or with it’s author – Assembly Member Autumn Burke.

AB 1306 would remove physician supervision for Certified Nurse Midwives (CNMs).

This is a good thing.

But here’s the bad part: it puts into statute (law) a requirement that any woman seeking to deliver with a CNM outside a hospital AND who has had a prior cesarean delivery must first have a consultation with a physician (AB1306 Sec 6, 2746.5(B)).

Be notified when legislation threatens VBAC access!

It is this requirement for consultation that is at issue for the following reasons:

• All women are capable of determining for themselves and their families, together with their midwife or health care provider, what measure of risk is appropriate for them. Requiring a physician consultation before they are able to continue midwifery care undermines patient autonomy.

• Certified Nurse Midwives (CNMs) are highly trained health care professionals. They are quite able to determine, together with their client, when a particular woman would benefit from a consultation with a physician.

Requiring a physician consultation for every woman with a prior cesarean delivery does nothing to increase her safety in the current pregnancy. There is no way for a physician (or anyone else) to predict which pregnant woman is going to have difficulty with her current birth because she had a cesarean delivery in a prior pregnancy.

Requiring a physician consultation puts an increased burden on women. It may delay prenatal care, a known risk factor for prematurity, low birth weight and poor outcomes. It is costly and time consuming in the absence of evidence for benefit.

While collaboration between care providers is the ideal, in many areas of California midwife/physician collaboration is not possible because there are no physicians willing to form this relationship. This reduces access to midwifery care and in many instances it also reduces access to successful vaginal birth after a prior cesarean.

Putting precise wording, regarding any medical condition, into statute disallows health care providers the use of the most recent research when helping clients make decisions regarding their care. Putting into law, the requirement for a physician consultation when a woman has had a prior cesarean delivery, will not allow women and their midwives to take into account the growing body of evidence surrounding the practice of a trial of labor after a previous cesarean (TOLAC), prior to determining the need for a physician consultation.

I fully support CNMs and the important care that they provide to California families. But this bill is problematic because of how it will impact VBAC access for those who want an out-of-hospital VBAC with a CNM.

Once again, call your Assembly Member or AB 1306’s author – Assembly Member Autumn Burke – TODAY and say, “I’m calling to voice my opposition to AB 1306 unless amended to exclude VBAC consult.” That’s it.

If you want to say more, you can add, “…because it restricts a woman’s right to choose her care provider and mode of delivery.”

I already called my Assembly Member and it took me exactly 36 seconds.

I hope you do the same.

If you live outside of California, please leave a comment on the author’s Facebook page so others who are learning about the bill realize the implications it will have on VBAC access unless amended.

Be notified when legislation threatens VBAC access!

“No one can force you to have a cesarean” is false

Update: Since this article was originally published, it has been updated with several new resources (listed at the bottom) as well as a video.

 

hospital-bed

 

“No one can force you to have a cesarean.” I see this all the time in message boards.

Don’t worry about

… the VBAC ban

…your unsupportive provider

… your provider’s 40 week deadline

… [insert other VBAC barrier here]

no one can force you to have a cesarean.

That’s just not true.

Let’s start with what is ethical and legal: Yes, no one can legally force you to have a cesarean.

ACOG even says in their latest VBAC guidelines that “restrictive VBAC policies should not be used to force women to undergo a repeat cesarean delivery against their will.” So even if your facility has a VBAC ban, they still cannot force you to have surgery… legally or ethically.

But then you have reality: It happens all the time, but it may look different than you expect.

It’s often NOT a woman screaming “I do not consent” as she is wheeled into the OR, though that has happened.

It’s through lies. It’s through fear.

“The risk of uterine rupture is 25%.”

“Do you want a healthy baby or a birth experience?”

“Planning a VBAC is like running across a busy freeway.”

Hospital policy and provider preference are presented as superseding the woman’s right to decline surgery.

“No one attends VBAC here.”

“It’s against our policy.”

“We don’t allow VBACs.”

Or unreasonable timelines are assigned giving the woman the illusion of choice.

“You have to go into labor by 39 weeks.”

“Your labor can’t be longer than 12 hours.”

“You have to dilate at least 1 centimeter per hour.”

Or it can be a slow process where a seemingly once supportive provider quietly withdraws support exchanging words of encouragement with caution. Dr. Brad Bootstaylor, an Atlanta based OBGYN, describes how this can unfold at 4:00 in this video after a woman describes her experience:

Or, if the birthing parents don’t listen, it can escalate to calling social services, ordering a psychiatric evaluation, or even getting a court order for a forced cesarean.

It can be as simple as, “Your baby is distress.” How do you know if this is true or not? Are you willing to take that risk?

Some people suggest that parents should learn how to interpret fetal heart tones so they can evaluate their baby’s status. But I think this is a wholly unreasonable expectation for non-medical professionals, especially when one is in labor. It is as much an art as it is a science.

In short, coercion frequently isn’t by physical force. It’s through manipulation. This is why it’s worth your time and effort to search for a supportive provider who you trust to attend your birth.

Don’t just think, “Well, I can hire anyone and simply refuse.”

Sometimes it’s not that simple as Rinat Dray, was forced to have a cesarean, and Kimberly Turbin, who received a 12-cut episiotomy while yelling “Do not cut me,” know all too well.

And this is why understanding the complete picture is important. It’s not enough to ponder how things are “supposed to be” or how we want them to be, but how they actually are. The difference between perception and reality is huge. Learn more in my online workshop, “The Truth About VBAC.”

Have you seen a situation like described above play out? Share it in the comment section.

Continue the conversation & share on Facebook here:

There is a huge difference between what is legal, what is ethical, and what actually happens. #forcedcesareans #ethicalvsreality #vbacfacts

Posted by www.VBACFACTS.com on Wednesday, January 6, 2016

 

Learn more:

ACLU. (n.d.). Coercive and punitive governmental responses womens conduct during pregnancy. Retrieved from ACLU: https://www.aclu.org/coercive-and-punitive-governmental-responses-womens-conduct-during-pregnancy

Cantor, J. D. (2012, Jun 14). Court-Ordered Care — A Complication of Pregnancy to Avoid. New England Journal of Medicine, 366, 2237-2240. Retrieved from http://www.nejm.org/doi/full/10.1056/NEJMp1203742?

Hartocollis, A. (2014, May 16). Mother accuses doctors of forcing a c-section and files suit. Retrieved from The New York Times: http://nytimes.com/2014/05/17/nyregion/mother-accuses-doctors-of-forcing-a-c-section-and-files-suit.html?referrer=&_r=0

Human Rights in Childbirth. (2015, Jan 14). Rinat Dray is not alone, Part 1. Retrieved from Human Rights in Childbirth: http://www.humanrightsinchildbirth.org/amicusbriefpart1/

International Cesarean Awareness Network. (n.d.). Your right to refuse: What to do if your hospital has “banned” VBAC. Retrieved from Feminist Women’s Health Center: http://www.fwhc.org/health/pdf_about_vbac.pdf

Jacobson, J. (2014, Jul 25). Florida hospital demands woman undergo forced c-section. Retrieved from RH Reality Check: http://rhrealitycheck.org/article/2014/07/25/florida-hospital-demands-woman-undergo-forced-c-section/

Kamel, J. (2012, Mar 2). Options for a mom who will be ‘forced’ to have a cesarean. Retrieved from VBAC Facts: http://vbacfacts.com/2012/03/02/options-mom-forced-repeat-cs/

Maryland Families for Safe Birth. (2015, Jan 28). The truth about VBAC: Maryland families need access. Retrieved from YouTube: https://youtu.be/C5nymk3IGqE

Paltrow, L. M., & Flavin, J. (2013, April). Arrests of and forced interventions on pregnant women in the United States, 1973-2005: Implications for women’s legal status and public health. Journal of Health Politics, Policy and Law, 38(2), 299-343. Retrieved from http://jhppl.dukejournals.org/content/early/2013/01/15/03616878-1966324.full.pdf+html

Pascucci, C. (2015, Jun 4). Press Release: Woman charges OB with assault & battery for forced episiotomy. Retrieved from Improving Birth: http://improvingbirth.org/2015/06/preview-woman-charges-ob-with-assault-battery-for-forced-episiotomy/

Thoughts on VBA3+C (VBAC after three or more prior cesareans)

Note regarding “TOLAC.”  When reading from medical texts, remember that you are no longer in the land of emotion and warm fuzzies.  Rather, envision that you have been transported to another world, a clinical world, where terms like TOLAC/TOLAMC, or trial of labor after (multiple) cesareans, are used.  I don’t think that most care providers understand the emotional sting that many women seeking VBAC associate with the term TOLAC.  It’s important for women to understand the language care providers use so that they can translate TOLAC into “planning a VBAC” and not feel slighted.  You might want to read this article which describes what the term TOLAC means, how it’s used in medical research, and why it’s not synonymous with VBAC.

________________________________

A mom recently asked, “Does anyone have some facts on VBA3C?”

I provided this collection of info…

Who makes a good VBAC/VBAMC candidate?

ACOG’s 2010 VBAC recommendations affirm that VBA2C (vaginal birth after two cesareans) is reasonable in “some” women.  But they remain silent on VBAMC (VBAC after multiple cesareans.)

Some have interpreted that silence to mean that ACOG does not recommend VBAMC, yet ACOG is clear that women shouldn’t be forced to have cesareans.

Between what they say about VBA2C and who is a good VBAC candidate, we might be able to discern who might be a good VBAMC candidate.

A couple things to keep in mind while reading…

Reason for prior cesarean/history of vaginal birth.  Research has shown that women who have had cesareans for malpresentation (breech, transverse lie, etc) and/or a history of a prior vaginal delivery would have the highest VBAMC success rates.

Scar type.  Low transverse incisions (also called bikini cuts) carry the lowest risk of rupture in comparison to classical, high vertical and T/J incisions.  With the likely increased risk of uterine rupture in a VBAMC, having low transverse scars is a way to minimize that risk as much as possible.

What does ACOG say about VBAC?

In ACOG’s 2010 VBAC guidelines, it describes the qualities of a good VBAC candidate:

The preponderance of evidence suggests that most women with one previous cesarean delivery with a low transverse incision are candidates for and should be counseled about VBAC and offered TOLAC.  Conversely, those at high risk for complications (eg, those with previous classical or T-incision, prior uterine rupture, or extensive transfundal uterine surgery) and those in whom vaginal delivery is otherwise contraindicated are not generally candidates for planned TOLAC.  Individual circumstances must be considered in all cases, and if, for example, a patient who may not otherwise be a candidate for TOLAC presents in advanced labor, the patient and her health care providers may judge it best to proceed with TOLAC.

What does ACOG say about VBA2C?

In those same guidelines, ACOG specifically addresses VBA2C:

Given the overall data, it is reasonable to consider women with two previous low transverse cesarean deliveries to be candidates for TOLAC, and to counsel them based on the combination of other factors that affect their probability of achieving a successful VBAC.  Data regarding the risk for women undergoing TOLAC with more than two previous cesarean deliveries are limited (69).

The power of context and training

How a provider approaches VBAMC depends a lot on their training as well as the support of their hospital administration. In the video below, Dr. Craig Klose discusses the merits of vaginal birth after cesarean and the various factors that may impede women obtaining VBAC.

One thing that stood out to me was Dr. Klose’s comments on VBAC after multiple prior low transverse cesareans (TLC). To sum, he says that he was taught that multiple LTCs were “no biggie” and he has attended up to VBA5C. This is the power of training and context!

ACOG guidelines, your legal rights, and “forced” cesareans

As attorney Lisa Pratt asserts, “ACOG guidelines are just that, guidelines, they are not law; while it is nice when they put out a guideline that supports your factual situation, falling outside of their recommendation does not mean you must consent to something you do not want.”  You can read in the article, “VBAC bans, exercising your rights, and when to contact an attorney.”

Further, ACOG’s 2010 VBAC guidelines also says that women cannot be forced to have cesareans even if there is a VBAC ban in place:

Respect for patient autonomy also argues that even if a center does not offer TOLAC, such a policy cannot be used to force women to have cesarean delivery or to deny care to women in labor who decline to have a repeat cesarean delivery.

You may also wish to review your options when encountering a VBAC ban and the story of a mom seeking VBA2C who was threatened with a “forced” cesarean when her OB group withdrew support at 38 weeks.

Making a plan and moving forward

Your best bet is to review your medical records with several VBAC supportive care providers and get their opinion.  Obtain a copy of your medical records and operative reports from each prior cesarean, get the names of VBAC supportive providers, and ask the right questions.

If you want to get up to speed quick on VBAC, repeat cesarean, hospital birth, home birth, and VBAC bans, the best way is via my online program, “The Truth About VBAC.”

VBAC bans, exercising your rights, and when to contact an attorney

legal-gavel-booksA mom recently left this comment and I thought many other women likely have the same question. Keep in mind that this article does discuss America law which may not be applicable to other countries.

________________________________________

Jen,

First thank you for your site!

I’m under the care of an OB who practices at a hospital that does not “allow VBACs” but has stated the only way to deliver at said hospital is to show up in labor & pushing.

Quoting from your site quoting the ACOG bulletin:

The College says that restrictive VBAC policies should not be used to force women to undergo a repeat cesarean delivery against their will if, for example, a woman in labor presents for care and declines a repeat cesarean delivery at a center that does not support TOLAC.

If a patient (Me 3 prior sections), presents one’s self in labor at said hospital and declines a section, the hospital then has to heed the wishes of the patient? Am I understanding this correctly? Does the hospital have the right to stop contractions and section the patient? This is what I’m hearing in my birthing community and I really cannot believe a hospital would/could do that.

_____________________________

Hi Thia!

Many women believe that all one must do to prevent an unwanted cesarean is declare, “I do not consent!” While technically true, you are entitled to control what happens to your body, the reality is, it often doesn’t play out that way. A hospital does not have a legal right to perform a cesarean on you without your consent. However, it still happens either by coercion or lies and even more rarely, by court order.

I think part of the problem is, many women are not familiar with ACOG’s guidelines. As a result, they don’t understand what ACOG recommends and discourages. (For example, many women believe that VBACs should never be induced. That is false.) Women frequently take their OB’s word as the truth. However, ACOG’s recommendations are often obscured by unsupportive care providers to mimic what the care provider wants the mom to think ACOG says. In other words, unsupportive care providers want moms to think that their options are limited per ACOG and that is just not the case.

The fact that you are doing your research gives you a massive advantage over women who just take their OB’s word for it. I highly recommend you review the article I wrote about a mom who was threatened with a forced cesarean after her OB withdrew support of her planned VBA2C at 37 weeks. It includes legal and media contacts. Through the help of the ACLU, ACLU Women’s Rights Project, National Birth Policy Coalition, and National Advocates for Pregnant Women, the mom was granted a trial of labor. I use the (demonized) term TOL because the mom ultimately did have a medically necessary cesarean during labor due to a placental abruption. However, the mom was still happy that she had the opportunity to labor.

That is as much as I can say as a non-attorney. I consulted with the brilliant Lisa Pratt who is an attorney specializing in the legal issues that uniquely affect women during pregnancy and childbirth. She said,

This answer is true for all women, not just this one. If she needs legal advice specific for her situation then she should consult an attorney. You have the right to refuse any treatment you do not want. I am sure that what she is hearing is the same horror stories that we hear of a mom being harassed by the doctor and staff to consent to a c/s or threatening to seek a court order or call CPS. I know this is a scary thought to have to deal with any of these scenarios, but fear of something happening should not keep you from exerting your legal rights, unless you really are okay with what you are consenting to. You cannot assume that the staff is not going to honor your refusal. They are people just like us, some are jerks and some are ethical and will follow your refusal, but you won’t know what you are dealing with until you are in the moment. ACOG guidelines are just that, guidelines, they are not law; while it is nice when they put out a guideline that supports your factual situation, falling outside of their recommendation does not mean you must consent to something you do not want.

You can learn more about Lisa, and schedule a phone consultation if you have further questions, via her website.

Lisa presented at the 2012 VBAC Summit in Miami. Her session, “A Legal Guide to VBAC,” is available for download.

Warmly,

Jen

Options when threatened with a “forced” cesarean

3/26/12- The ACLU has posted an article on their blog regarding this case where they released the letter they faxed to the OB group on behalf of the “forced CS” mom. This letter is an excellent resource for any person who works with pregnant women as it reviews the case law and illustrates that “a pregnant woman, like all other persons, has the right to refuse any and all medical interventions that she does not want, even if her doctor disagrees.  In a case called In Re A.C., brought by the ACLU 25 years ago on behalf of a woman forced by court order to undergo a life-threatening C-section, the judge explained: ‘[I]n virtually all cases the question of what is to be done is decided by the patient – the pregnant woman – on behalf of herself and her fetus.'”

A Little Background

On March 2, 2012, a doula contacted me because a GBS positive client was seeking a VBA2C. Her OB group was supportive until they withdrew support of her VBA2C plans at 37 weeks due to factors that had nothing to do with her. I suspect that the OB group – who was known to be VBAC & VBA2C supportive – had a lawsuit/ uterine rupture/ bad outcome that made them so abruptly change their VBAC policy. Nothing developed during the mom’s pregnancy that suddenly made her a poor candidate for VBA2C.

With the mom’s permission, her doula contacted me to help them determine their options. (Below you will find the initial email I received from the doula.) I’m not an attorney or a medical professional, so I could not advise them. I turned to Facebook to collect options and opinions. Through those posts, I was directed to people who could help them – OBs, midwives, reporters, legal organizations, and attorneys. Now it was up to the mom whether she wanted to contact those people/orgs to get their opinions and advice.

Her name and her doula’s name were not made public so that the mom could make this decision without the public eye directly on her and all that comes with that.

What follows below is a brief timeline of the events and then there are emails that follow sharing more detail.

The National Advocates for Pregnant Women becomes involved

Update 3/3/12 12:08 PST- I contacted the National Advocates for Pregnant Women last night and the Executive Director Lynn Paltrow replied early this morning with lawyer referrals and a review of the case law. I have included her email below with her permission. This is good information for anyone who works with pregnant women.

1:01 PST- Mie Lewis of the ACLU Women’s Rights Project recently expressed interest in taking on cases like these. Mie Lewis is in New York city and would be an excellent resource for any other women who experience similar situations.

For women in South Carolina, you can contact your state chapter of the ACLU:

Susan K. Dunn
Legal Director
ACLU, South Carolina
P.O. Box 20998
Charleston, SC 29413-0998
843-720-1425

Elizabeth Cohen, Senior Medical Correspondent for CNN and CNN’s Sabriya Rice are two reporters who have written about birth and might be worth contacting if you find yourself in a similar situation. Check out “Mom defies doctor, has baby her way” dated December 16, 2010 to get a feel for their writing.

3/5/12 6:40 PST – I learned last night that the mom was able to get her cesarean rescheduled two days later for March 7th.

ACLU, NAPW, & NBPC fax a letter to the OB group, mom has preoperative appointment

3/6/12 4:15 PST – The mom’s doula contacted me with an update. Today the mom and the doula attended the mom’s preoperative appointment for her scheduled cesarean on March 7, 2012. Early this morning, a letter composed by members of the ACLU, ACLU Women’s Rights Project, National Birth Policy Coalition, and National Advocates for Pregnant Women was faxed to the OB group. (You can read the letter here.) The mom and doula also brought a copy of the letter to the appointment. From the doula’s statement: “[The OB] said that this was clearly a misunderstanding and miscommunication and that it didn’t deserve legal attention. That right there tells me that the point and purpose of the letter had worked!!”

When the OB referenced ACOG’s VBAC recommendations and the fact that they do not support VBA2C, the mom asked for the date of the recommendations the OB was using. Turns out he was not aware, and was shocked to learn, that ACOG released a new VBAC Practice Bulletin in 2010 stating, VBAC is a “safe and appropriate choice for most women” with one prior cesarean and for “some women” with two prior cesareans.

This is why it is crucial for women to be informed and resourceful! What if this mom was like most moms who choose whatever mode of delivery their OB recommends without understanding the risk and benefits of their options? She would have had a cesarean at 40 weeks per an outdated ACOG VBAC Practice Bulletin.

Instead, the cesarean date has been moved back to 41 weeks (March 17th) and if mom doesn’t go into labor before that, she is OK with having a cesarean on that date. You can read the full letter from the doula detailing the pre-operative appointment below.

Mom goes into labor

3/7/12 – I’m informed that the mom’s water broke and am in communication with the doula throughout the day. Several hours after spontaneous rupture of membranes, contractions start and labor progressed, but then fizzled out. “Dr S. decided that because she had come this far only to hit a wall that wasn’t moving after trying all natural approaches, he would start a very, very, very low dose of Pitocin [starting at 2 milliunits/hour with a maximum of 4 milliunits/hour] through her IV.” Things start picking up again, but then some fetal distress was detected and Pit was backed off and finally turned off completely. Fetal heart tones stabilized but at a lower baseline than before.

Suddenly fetal heart tones drop and then disappear. A STAT cesarean is called, mom was put under general anesthesia, and within TEN MINUTES, the baby is born. Mom was fine as well.

A placental abruption was diagnosed during surgery. An abruption is when the placenta detaches from the uterine wall before the baby is born. This deprives the baby of oxygen and mom is at risk for hemorrhage. Full abruption is very dire for baby. While there is about a 6% chance of infant death or oxygen deprivation after an uterine rupture (Landon, 2004), there is a 12% risk of infant death after a placental abruption (Ananth, 1999). That is a grim statistic.

I am extremely thankful that this mom birthed where she felt safest which was in the hospital despite the many who suggested she plan a last minute home birth.  While I am supportive of home birth and I myself had a home birth, that doesn’t mean that I think all complications can be easily managed at home.  There are complications that are better served in the hospital environment.  Had she planned a home birth, she could have been totally fine, transferred in time, or she could have had a bad outcome.  The fact is, we don’t know.   I do think women who have placental abruptions have better odds in the hospital.

As the doula said of the mom,

She is very thankful she didn’t take the suggestions of some – to call in an underground midwife, to have a home birth, to go to another state and deliver, to labor at home until she was feeling pushy. Any of those suggestions could have had deadly consequences for Emily and her baby. She is thankful that she was given the opportunity to attempt a vaginal delivery, and she is thankful that her body tried to labor. Ultimately though, she is so very thankful that there was an amazing medical team who jumped right into action and essentially saved the lives of both her and her sweet baby girl. She let me know that if she could go back in time, there is nothing she would have changed.

In the mom’s own words:

I don’t think I would have done anything different. I might have said hey lets keep it [the pitocin] at two [milliunits] but hey it [the abruption] would have happened either way. It was God’s way of saying, hey this baby needs out and isn’t coming out the normal way. I let you try it now it is time for you to go ahead and meet her.

Mom is up and around the day after surgery and not needing pain medication! Hopefully this means she will have one of those easy cesarean recoveries of which I am forever jealous! Baby is breastfeeding well. I wish this mom and baby a quick recovery and a happy, happy babymoon!

You can read the doula’s full account of the birth here.

Follow Up

I’ve received a few comments questioning the use of Pitocin in a VBAC and even some comments suggesting that if the mom was at home, the abruption wouldn’t have happened because she wouldn’t have had the Pitocin.

In terms of Pitocin in VBAC moms: 99% of VBAC induced/augmented labors do NOT rupture (Landon, 2004). I haven’t seen rupture rates in VBA2C induced/augmented labors. With induction or augmentation, the increased risk of rupture comes from the drug and the dose. I do not know if the dose given to the mom is in the “danger zone.” I’d appreciate any studies that have measured Pitocin augmented uterine rupture rates and abruption rates by dose in VBAC labors.

But please know, that most ruptures occur in spontaneous labors. Zwart (2009) is a Netherlands based study that included 358,874 total deliveries, making it “the largest prospective report of uterine rupture in women without a previous cesarean in a Western country.” It also differentiated between uterine rupture and dehiscence. Zwart (2009) “found of the 208 scarred and unscarred uterine ruptures, 130 (62.5%) occurred during spontaneous labor reflecting 72% of scarred ruptures and 56% of unscarred ruptures. 28 (13.5%) ruptures occurred during cervical prostaglandin induction. 22 (10.6%) ruptures occurred during oxytocin (Pitocin) induction.” 40% of scarred ruptures occurred during prostaglandin induction. Read more here.

In terms of Pit causing the abruption, none of us know whether that is true to not.  Certainly most women who have Pitocin do not abrupt.  Further, people said that if she was at home, she wouldn’t have been augmented, and she wouldn’t have abrupted.  None of us know that.  Some people believe the myth that nothing can go wrong in a spontaneous “unmessed with” birth.  That is a dangerous and false belief.  All complications are not the result of “interventions gone wrong.”  Sometimes you can do everything “right” and still have a complication/ bad outcome.  Here is one mom’s story of her placental abruption at home (trigger warning).  She survived, her baby girl Aquila did not.  I share this story solely to illustrate the severity of placental abruption and how having a competent care provider and immediate access to operating rooms, surgeons, and blood products can literally make the difference between life and death.  Abruption can be a very serious complication.  Most women who have home births will not have a placental abruption or any other complication that requires immediate access to surgery, but those who do will greatly benefit from a qualified care provide who can facilitate immediate transfer to a hospital.

A quick google search found this study which found a slight increase of abruption risk per mode of delivery: 1.06% during the third cesarean vs 0.91% during the third vaginal delivery. I’d be interested in reading other studies people have handy. It did not control for induction or augmentation, so if you have a study that does control by drug and dose, please share.

The OB suggested the Pit and the mom consented.  I do think that is the point.  I do think women should be given the option of augmentation/induction rather than just “required” to have another cesarean as many OBs do. As Dr. Stuart Fischbein, a breech & VBAC supportive Southern California OB, recently shared on my Facebook page,

According to ACOG, prior low transverse c/section is not a contraindication to induction (other than the use of misoprostol [Cytotec]) so a foley balloon or pitocin may be used safely in these women. The problem arises when a practitioner does not believe in doing inductions on women with prior c/section. Despite the evidence and the ACOG clinical guideline the reality is that many doctors will just not want to deal with it.

I actually was impressed that the OB gave the mom the option of a gentle augmentation. It’s certainly better than just saying, “Your time in up.” I don’t know if I would have made a different choice being in this mom’s position: VBA2C, GBS+, contractions sputtering out… It’s really hard for me to say what I would have done. Yet it has seemed very easy for people  sitting at their computer the morning after to make judgements as they do not have to deal with the real risks or consequences. Sometimes you can do everything “right” and still have a bad outcome. Fortunately, the abruption was detected, surgery was performed, and everyone survived.

———————————

3/2/12 – [This is what I wrote upon receiving the doula’s initial email.] I just received this email tonight and need ideas quick. This term mom seeking VBA2C is in the the Columbia area of South Carolina. Her OB was supportive until 37 weeks. Her cesarean is scheduled for March 7, 2012. She was told that if she shows up in labor, she will be “forced” to have a cesarean. Does anyone know of a care provider in her area that would be willing to accept a new client this late in pregnancy? What other options does she have? Additionally, I’m looking for information on the legality of a hospital/OB “forcing” a c/s? What happens if she shows up at the current hospital and refuses to sign the c/s consent form? What exactly CAN they do??

Jen,

I need some quick help with a client of mine and was wondering if you’d lend an ear and offer up any words of wisdom as I know you are an amazing resource to VBAC.

I have a client who is due today. She had a primary c/s 4 years ago exactly on her EDD for a breech baby. She had a RCS 15 months ago because she was carrying twins.

She is seeing the same practice who did her first two c/s, so they are well versed in her medical history. She had double layer sutures both times, good space between deliveries, deliveries were due to breech & twins and not FTP, CPD, ect… She was deemed a good candidate for VBA2C and has been planning once since.

At her 37wk check-up, the OB told her that the staff had changed their minds and could no longer offer her a VBAC. She questioned the reasoning and he said it was just too risky. She was completely blindsided by this and broke down crying – the OB left the room.

Back to her 38wk appointment and she found out the OB had scheduled her RCS for 2 days after her EDD. She confronted the OB (this time a different one than she saw the week prior) and the OB said she didn’t see any reason why she couldn’t be offered a TOLAC. Relieved, my client went on about her business. Pregnancy has been great. Minimal weight gain, no GD, BP always great. She is GBS +. She received a phone call two days later and the OB said each OB on staff had met and it was decided that a VBA2C was too risky and she wouldn’t be allowed to have a TOLAC. My client was furious, and rightly so. She tried to get in touch with the OB but played phone tag back and forth.

Her 39wk appointment came – this time with a different OB yet again. He was a total jerk. Laughed when she told him she wanted a chance to labor. She showed him the current ACOG guidelines which support VBA2C with the right circumstances (which she has) and he disregarded it and showed her a paper on the risk of VBAC. She argued yet again and said she wouldn’t consent to a c/s unless she or the baby were in danger. He told her that if she showed up to L&D in labor they would “force” her to have a c/s. Yes, he actually told her they’d “force” her. She left a crying, hurt, furious mess.

The next day she called to request her records and the OB told her again – if she delivered with their practice, it would be VIA c/s – end of story. If she didn’t want to comply, they’d (legally) find another practice to take her (HIGHLY unlikely considering she’s due today)…

She hasn’t been back since but has a section scheduled for the 5th that she intends to cancel. I am virtually her only support. Her MIL has 2 c/s, her mother had 3 c/s and thinks she’ll die if she attempts a vaginal birth. Her husband says he has to know when the baby is coming so he can plan to get off of work – so he is fine with the section and not supportive or helpful much.

We have had massively long talks over the past few days and what it boils down to is that she has two choices essentially.

#1 – Show up in labor at her current hospital and have to fight like hell to be able to labor. Almost certainly have the OB on call make the process very difficult. She voiced a concern that the OB may be so pissed off that she’s refusing a c.s that they’ll find some reason to section – “fetal distress”, baby too big, baby not fitting, failure to progress, ect… She also worries exactly what they truly mean by they’ll “force” her to have a c/s. She worries they’ll do something extreme like call DSS/CPS. She’s heard a horror story of a court-ordered c/s. I told her that all that worry, stress, and anxiety during labor will do absolutely nothing good for her well being and progress.

#2. Show up at a different hospital and deliver with the hospital OB. Problem here is she has no record of prenatal care, no surgical records to show suture status, time between sections, ect… She requested her records from the current OBs office, but no one is getting back to her (and I doubt they will…). I know they’ll look down on that and potentially try to coerce into a section due to that. She feels she’d face the least opposition going this route, but has concerns.

I’m exhausted and so is this mama. She is still firm in her choice that a VBAC is the best and safest option for her and her child and I fully support that. I’m not even sure what the right option is at this point or where to turn or what to do. I’m trying to let the mama guide but she’s looking to me as if I can somehow make this entire situation go away… I wish I had the answers, but I don’t.

I was just wondering if you had any information on the legality of a hospital/OB “forcing” a c/s? What happens if she shows up at the current hospital and refuses to sign the c/s consent form? What exactly CAN they do?? Have you had any experience in with cases like this?? What option do you feel would be best (#1 or #2) and how should I direct the mama to handle the staff? What is my role here? I’m just at a loss and felt I needed to seek counsel…

Thank you for listening, I know it was so long..

3/3/12 – I receive an email from Lynn Paltrow, Executive Director for the National Advocates of Pregnant Women:

Dear Jen:

By this email,I am cc’ing two lawyers in South Carolina, Susan Dunn and C. Rauch “Rock” Wise, and SC activist Sally Hebert as well as other people out of state who may have useful suggestions, including Farah on our staff who is especially knowledgeable about cases involving threats of forced cesarean surgery. I know a great deal about the law in South Carolina but am not admitted to practice there, so any legal questions should be directed to lawyers admitted to the bar in South Carolina.

I can, however, share with you some general background. As a matter of constitutional law, medical ethics, and human rights, doctors may not force their patients — including pregnant ones — to undergo procedures they do not consent to.

As a policy matter, both the American Medical Association and the Ethics Committee of the American College of Obstetricians and Gynecologists have taken express positions opposing court ordered interventions against pregnant women and against effort by hospitals and doctors to seek such orders. The American College of Obstetricians and Gynecologists has issued a formal opinion stating that “actions of coercion to obtain consent or force a course of action limit maternal freedom of choice, threaten the doctor/patient relationships, and violate the principles underlying the informed consent process.” See American College of Obstetricians and Gynecologists Committee Opinion No. 55, Patient Choice: Ma­ternal-Fetal Conflict (1987) (And more recent opinions 2005); Report of American Medical Association Board of Trustees, Legal Interventions During Pregnancy, 264 JAMA 2663, 267 (1990) (“Judicial intervention is inappropriate when a woman has made an informed refusal of a medical treatment designed to benefit her fetus.”)

Appellate cases decided on full records and addressing the issue of court ordered interventions on pregnant women have held that the medical and constitutional principles of informed consent, bodily integrity, and patient privacy and autonomy require that pregnant women have the right under the common law and the constitution to accept or refuse medical treatment, like all other patients. See In re A.C., 573 A.2d 1235, 1253 (D.C. 1990) (en banc) (vacating a court-ordered cesarean section that was listed as a contributing factor to the mother’s death on her death certificate); In re Fetus Brown, 689 N.E.2d 397, 400 (Ill. App. Ct. 1997) (overturning a court-ordered blood transfusion of a pregnant woman); In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. Ct. 1994) (holding that courts may not balance whatever rights a fetus may have against the rights of a competent woman, whose choice to refuse medical treatment as invasive as a cesarean section must be honored even if the choice may be harmful to the fetus). Cf. Stallman v. Youngquist, 531 N.E.2d 355, 359-61 (Ill. 1988) (refusing to recognize the tort of maternal prenatal negligence, holding that granting fetuses legal rights in this manner “would involve an unprecedented intrusion into the privacy and autonomy of the [state’s female] citizens”).

Nevertheless, South Carolina stands out in the nation for having judicially created law that treats viable fetuses as if they are separate persons. As a result, certain women have been found guilty of child abuse for risking harm to their unborn children. None of these cases in South Carolina, so far, involve women who have refused cesarean surgery. These decisions, do apparently embolden doctors to believe they can impose their view of what is best on their patients.

Theoretically, it might be possible to go to court to get a Temporary Restraining Order –ordering the hospital not to do as they have threatened. If Susan or Rauch or another South Carolina attorney and the client wish to and are able to go this route, our office may have some draft/model papers that would help with such an effort and we would be happy to consult with/advise/share information with that lawyer.

Regardless, however, of what rights this woman has on paper, she has to deal with the stress of this situation and ensuring that she has access to the health care she does need and want. I cannot advise on what medical course she should take.

I can say though that, however she proceeds NAPW would be very interested in also exploring how we could help if she wishes to challenge these actions after the birth or bring them to public attention. Similarly, if child welfare is called,(something else that would not be supported by constitutional law etc– but is a scary, if remote, possibility) NAPW would be interested in helping her local counsel.

I will be on a plane this morning, but my cell phone is below in the signature block. When it gets a bit later, I will try and reach some of the South Carolina folks by phone to give them the heads up about your email.

Please, in any event, let us know what happens. We will be worrying about this Mom.

Sincerely,

Lynn M. Paltrow
Executive Director
National Advocates for Pregnant Women
15 West 36th Street, Suite 901
New York, New York 10018
212-255-9252
212-255-9253 (fax)
917-921-7421 (cell)
lmp@advocatesforpregnantwomen.org
www.advocatesforpregnantwomen.org
Be a “Fan” of NAPW on Facebook
Follow me on Twitter.Mel

3/6/12 4:15 PST – Update from mom’s doula:

Thank you everyone – especially Jen – for uplifting this mother in your thoughts and prayers and helping us join together as a community to help this wonderful mother out!

Last night, four wonderful women got together and composed a letter to the mama’s OB/GYN practice. These women were members of ACLU, ACLU Women’s Rights Project, National Birth Policy Coalition, and National Advocates for Pregnant women. Thank you so much Jen for contacting these women on the behalf of my client and myself. The letter was absolutely wonderful and explained in detail the things the practice were doing were wrong among many other things – it was very detailed!!! The letter was faxed to the practice first things this morning and a copy was sent to myself and my client.

When we arrived at the consultation, the practice had already received and read the letter and it was in my client’s chart. We were ushered directly to the OB’s office instead of an exam room. We sat down and began to discuss the issues at hand. I was providing moral support while my client took the lead. The OB explained that he believed this was all simply miscommunication. He said that while they have very strong feelings on things such as this, they could not and would not force her to do anything and that no one would come and drag her out of bed tomorrow for her scheduled cesarean. He said that this was clearly a misunderstanding and miscommunication and that it didn’t deserve legal attention. That right there tells me that the point and purpose of the letter had worked!! I knew when I read the letter that it was either going to upset the practice tremendously and they would seek a court order for a cesarean, call DSS/CPS for her endangering her child’s life since SC is a personhood state, or something similar. Alternatively, the letter may shake them into reality and make them realize they are dealing with a mother who is fully informed of her rights and ready to take action and they would back down. Thankfully, the second option ended up happening!! You could tell it was obvious he was shocked that someone went to such lengths to get their attention and fight for what they wanted.

He had the ACOG guidelines book on his desk bookmarked to the VBAC policy and showed us that VBAC after two or more cesareans is contraindicated and the ACOG doesn’t support it. He explained the risk of rupture was 1-2.6% after 2 cesarean section. He explained the risk and that if my client were his wife, he would advise she have a RCS. He was very calm and we remained very calm as well. He said that now the ball was in her court. When he was done explaining his position, my client began to explain hers. Her first question was the publication date for the VBAC ACOG guidelines he had looked up because she believed they were out of date. He looked surprised to be challenged and we took out my binder that had the most recent, revamped ACOG recommendation that is to allow a TOLAC in mothers with two prior low transverse uterine incisions. He was shocked and had no idea that the guidelines had changed…. No wonder our system is so in need of VBAC support – the doctors don’t even know their own governing body’s recommendation!! She explained that she understood the risk involved, but she also understood the risk of a 3rd cesarean section and all she wanted was their blessing to have a trial of labor. She explained that she wouldn’t hesitate to agree to a cesarean section should there arise a true need. They talked further and agreed that she would be allowed to be left alone until 41 weeks – March 17th (they have her EDD as March 11th) to go into labor and be allowed a TOLAC. No induction methods would be used. If no labor and no changing cervix by March 17th, a cesarean will be scheduled and the mom is ok with this.

Everything looks great at her appointment – she’s had no cervical change and the baby is very high still – baby is floating according to the doctor. She’s going to work to bring her baby down and prepare her body for labor. She feels as if a weight has been lifted from her shoulders and she can finally relax. We both agree that being stress-free will do a world of good and we pray she goes into labor on her own before the 17th. Send her good thoughts and prayers that her body kicks into gear and decides it is time to have a baby!!

I am elated that this took such a wonderful turn!! It was such a dark time for quite awhile! Thank you everyone for the continued support and I will keep everyone updated with the mother’s permission!! Hopefully she has a wonderful story to tell very soon!

Interview with Dr. Fischbein: An Inside Look at Hospitals and VBAC Bans

Stand and Deliver recently conducted an excellent interview with Dr. Stuart Fischbein, a Southern California VBAC and breech supportive OB.  It’s an excellent read and I’m including my favorite parts below.  You can read the entire article here: Stand and Deliver: Interview with Dr. Stuart J. Fischbein.

First, let’s do  quick review of ACOG’s Practice Bulletin #54, published in July 2004 and the reason why some American hospitals have banned VBAC, recommends, “a physician [be] immediately available throughout active [VBAC] labor who is capable of monitoring labor and performing an emergency cesarean delivery.”

Now that we are all on the same page, here are excerpts from Dr. Fischebin’s interview:

Don’t hospitals ban VBAC because it is dangerous?

They ban VBACs under the guise of patient safety. But patient safety is a euphemism for “we don’t have a good evidence-based reason to do it, other than we don’t want to get sued, it’s more expedient, and we make more money from c-sections—the hospital does, not necessarily the physician, but the hospital does—so we’re going to ban it because it’s easier for us, and we’re going to say it’s for patient safety because of the risk of rupturing the uterus.” But you know what? That risk should be something that the patient decides. Patients have a right to be given informed consent, free from misinformation or coercion, free from skewing information that benefits the practitioner or the hospital. And they have the right to consent or refuse to accept the treatment that’s offered. That right is frequently being denied.

What role does malpractice insurance play in VBAC availability?

The reason that a lot of hospitals ban VBACs anyway [despite meeting ACOG’s “immediately available” recommendation] —and this isn’t very well known to most people—is because their insurance carrier will tell them that if they allow VBACs, their premium will be much higher. Rather than pay higher premiums, they just ban VBACs and do so under the guise of patient safety. The hospital lawyers, the insurance company lawyers, the insurance company executives, and the hospital administrators are making decisions for patients and then lying about why they’re doing it.

Aren’t uterine ruptures the primary reason for repeat cesareans in women with a prior cesarean?

Most emergency c-sections, the ones that occur suddenly, have nothing to do with a uterine rupture.  They are for placental abruption, prolapsed cord, or prolonged fetal heart rate decelerations.  Far more often, it’s something unrelated to the VBAC that causes an emergency.  And somehow the hospital can manage to take care of those situations. If hospitals can take care of those things, why can they not take care of VBACs?

ACOG’s latest VBAC recommendation was based on consensus opinion, not scientific evidence.  Doesn’t that matter to hospitals when implementing VBAC bans?

Ultimately it won’t matter to the hospital. It’s not about evidence-based medicine. It’s very clear to me in discussing this with the committees that they don’t care. They’re being told by the risk managers, the lawyers, and the insurance companies that they cannot do VBACs. And that’s the final word. The anesthesia departments are also often behind VBAC bans. They talk about patient safety, but really it is that reimbursement is so bad and they don’t want to have to sit around in the hospital all day long and they are fearful of being sued.

Do hospital administrators impact how an OB counsels a woman on VBAC?

I’m supposed to tell patients that they have to go elsewhere if they want a VBAC, that they can’t stay in their own community, that they have to drive 50 miles. … I’m not supposed to tell them that they have the option of showing up in labor and refusing surgery. The hospital actually put in writing that I should avoid telling them that. They’re telling me to skew my counseling, and they have no shame in doing so.

How do OBs feel about working in hospitals with VBAC/breech bans?

For physicians who are not really committed to doing VBACs or breeches, it’s a lot easier to do a section. You get paid about the same. With a section, you can do the surgery at 7:30 am and you’re in the office by 9 am. If you have a breech or a VBAC, you have to cancel your day or spend the night at the hospital. It’s a lot more work, and you don’t get paid any more for it. So you really have to be either dedicated or crazy or somewhere in between. You have to keep your ethical feet well-grounded.

How do VBAC bans impact hospital revenues?

For hospitals, it’s easy. Does a hospital make more money off a practice that has a 5% c-section rate or a 25% c-section rate? That’s an easy question. Although they will never admit that; [the official reason for VBAC bans] will always be patient safety. Clearly, there’s no incentive for them to offer a VBAC to anybody.

How do VBAC bans impact women seeking VBAC?

A successful VBAC occurs about 73% of the time. If a hospital bans VBAC, they’re basically telling 73% of women that they have to undergo a surgical procedure that carries more morbidity than if they had a vaginal birth.

How could tort reform impact VBAC supportive OBs and birthing women?

[With] tort reform, you might be able to make changes by improving competition. If you get rid of some of the restrictions on businesses, you might see more competition start up. You might see more birth centers open, or birth centers that actually have operating rooms, little maternity hospitals. Just like we’ve seen specialty surgery centers open up recently. For years hospitals tried to squelch these things because they know they can’t compete with them. Some day, maybe the major hospital model will go out of business. And would that be so terrible? We have specialty hospitals that do heart surgeries, gastric bypass, or plastic surgery. Why not specialty hospitals that just do maternity? Run by doctors and midwives.

Is VBAC Illegal? Is homebirth illegal?

This post was originally published June 14, 2008.  It has since been updated to include more information on the technicalities of homebirth.

I have incredible software on this website called StatCounter and through that I’m able to see what search engine queries bring people to the site.

I’ve noticed more queries asking if VBAC is illegal.

VBAC is not illegal anywhere in the USA.

It is legal to have a hospital VBAC in all 50 states.

It is legal to have a out-of-hospital VBAC in all 50 states.

If someone has told you that VBAC is illegal, they are either misinformed or are outright lying to you.  Ask them to show you the law.  This is something you should be able to easily look up through a google search.  You won’t find it because it doesn’t exist.

Linda Bennett, a retired midwife, clarifies the issue:

I also think it is important for women to know that OOH (out-of-hospital) VBAC whether home or boat or rv in the parking lot of the hospital or motel or unlicensed birthing center is also legal everywhere.

What may not be “allowed” by state regulation or law varies from state to state but if restrictions are present, it is in the form of restrictions on the license or practice of the practitioner IF she is a midwife (MDs can do what they want, although their peers may give them other headaches for attending an OOH birth).

Birth Centers with a license from their state often have restrictions specified in the law or their regulations (force of law) which mean they could lose their license if…and then VBAC.. breech.. multiples.. may be specified along with other restrictive language decided by their state regulatory board.

And I know what I am speaking about, because the small group of midwives I originally worked with in Santa Cruz took our arrests to California’s State Supreme Court over the licensing issue!

So when you hear the term “it is illegal to VBAC,” it is referring to the fact that it is illegal for a non-doctor to attend homebirths.  The physical act of giving birth in your home is not illegal.  If you are planning a hospital birth, and you don’t make it it the hospital in time and end up giving birth in your bathtub, you did not do anything illegal.

Gretchen Humphries, Advocacy Director, ICAN, explains:

[If] there aren’t laws specifically naming midwives as illegal… it leaves the impression that they aren’t illegal — which isn’t true.  They are illegal because they are practicing Medicine without a license.  They aren’t illegal because they ARE midwives, they are illegal because they AREN’T doctors.  Unless there is legal language making them legal, they aren’t.  Now, fortunately, this is pretty irrelevant in most states, still…..

Some states, like New Jersey, permit midwives to attend homebirths, but not homebirth VBACs (HBACs).

In other states, like California, homebirth and HBAC are legal for midwives to attend though you technically need to use your right of informed refusal to have a HBAC. 

Some states have legislation prohibiting homebirths or birth center births with midwives, and in those states HBAC would also be considered illegal for them to attend. 

Then there are states that permit some midwives, but not others, to attend homebirth.  Iowa and North Carolina permit certified nurse midwives (CNMs) to attend homebirths, but not certified professional midwives (CPMs.)  There is currently a bill providing for licensure of CPMs in Iowa.  Learn more about House Study Bill 229 at Friends of Iowa Midwives.

So why would someone tell you that VBAC is illegal?  Three reasons.  First, it ends the conversation.  One might be apt to debate or look for another care provider if they are told “our hospital doesn’t permit them” or “this OB doesn’t attend them.”  But if you are told it’s illegal, well, most women would just resign themselves to a scheduled repeat cesarean since many women do not want a OOH VBAC.  Linda Bennett gives us the second reason, “It is often convenient ‘shorthand’ to speak of ‘illegal’ HBACs but I find this convenience to serve the purposes of the doctors who oppose any OOH births. The HBAC is not illegal.”  Third, to say something is illegal makes it sound really dangerous, risky, and against the common good.  So by continuing the myth that homebirth is illegal, it’s feeding into the “homebirth is for wackos” machine, when it reality, it is perfectly legal for your OB to deliver your baby at home.  What stops them is a mix malpractice insurance pressures, pressure from other doctors, and the real belief that many OB have that birth is a dangerous event.

So, what do you do if you live in an “illegal” state?  There is hope, as Gretchen explains:

In a state where there is no Midwifery Practice Act, you’ll need to depend on your midwives to know what the “climate” for them is like — mine practice openly, advertise widely, go with all their transports, etc. But they ain’t legal.

So, look around.   You may find that you have options you didn’t even know about.

Ready to plan your VBAC?  Start here: I’m pregnant and want a VBAC, what do I do?.