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
ACLU, South Carolina
P.O. Box 20998
Charleston, SC 29413-0998
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!
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 is 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??
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:
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.
Lynn M. Paltrow
National Advocates for Pregnant Women
15 West 36th Street, Suite 901
New York, New York 10018
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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!
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As an internationally recognized consumer advocate and Founder of VBAC Facts®, Jen helps perinatal professionals, and cesarean parents, achieve clarity on vaginal birth after cesarean (VBAC) through her educational courses for parents, online membership for professionals, continuing education trainings, and consulting services. She speaks at conferences across the US, presents Grand Rounds at hospitals, advises on midwifery laws and rules that limit VBAC access, educates legislators and policy makers, and serves as an expert witness and consultant in legal proceedings. She envisions a time when every pregnant person seeking VBAC has access to unbiased information, respectful providers, and community support, so they can plan the birth of their choosing in the setting they desire.