Update: In November 2020, amicus briefs were filed by VBAC Facts®, Evidence Based Birth®, the National Advocates for Pregnant Women, as well as several other organizations in an effort to educate the court on the evidence and ethics surrounding VBAC and bodily autonomy in the health care setting.

In 2011 a woman with two prior cesareans named Rinat Dray was forced to have a cesarean at Staten Island University Hospital in New York. She sued the hospital and two physicians for ‘improperly substituting their judgement for that of the mother’ and ‘pressuring and threatening her.’

During the course of her lawsuit, it was revealed that this hospital had a secret forced cesarean policy. When I learned about this policy, I was shocked.

Yes, forced cesareans happen. They are woven into the culture of some hospitals as are other forms of obstetric violence. But to have a formal, written policy saying that it was OK?

A policy that was developed by administration certainly under the guidance of their legal department… and throughout that whole process, there might have been people (with uteri?) who objected, but it was ultimately approved by the board of directors and implemented into practice?

I had so many questions:

• How is this even possible?
• Is this legal?
• How can people protect themselves?

So I tried to find out where this case stood and I found an article discussing an appellant ruling in favor of the hospital and physicians.

My questions grew:

• What does this mean for birthing people in New York?
• What can we do to fight against policies like these?

So I sat down with Farah Diaz-Tello as part of our VBAC Facts® Professional Membership Expert Interview Series. Farah is Senior Counsel for If/When/How: Lawyering for Reproductive Justice, where she helms their Birth Justice strategic initiative.

Her practice has focused on pregnancy and its full range of outcomes, and in particular the rights to medical decision-making and birthing with dignity through the human rights framework.

She has defended women threatened with patient abandonment and forced medical interventions. She has authored scholarly articles and commentary theorizing obstetric violence for the US context.

So when I asked Farah where this case stood, and if Rinat could still find justice, this is what she said….

​JK: Where does Rinat’s case stand and is it still possible for her to find justice?

FDT: Her case is sent back down to the trial court, and it’s still pending litigation. So as far as whether she can achieve justice, it still remains to be seen. And her attorney has argued, I think very persuasively, that illegal care can’t be within the standard of medical care. That necessarily, care that is refused and still performed is a form of malpractice.

Unfortunately, the New York courts are having sort of a hard time grasping that. So there are a lot of questions about, like “Is this case even being brought to this court in the proper way?”

That’s really what the appellate ruling was about. It wasn’t about the underlying “Is it legal for a hospital to do this? Is it even legal for them to have such a policy?” The court hasn’t really even gotten to a point where it would touch those issues. It’s all about the “Have you crossed your Ps and Qs correctly?”

This has been many years of crossing of Ps and Qs. And unfortunately, this is just another factor that makes courts inaccessible to people who’ve experienced acts of obstetric violence like this. You know, [they’ve experienced] blatantly unconsented care, and still is unable to access justice because of the sort of many layers that it takes to even bring a case to the court.

JK: Say, someone goes to a hospital, and they have a [secret forced cesarean] policy like this. What rights remain?

FDT: I mean, that feels almost a little bit of a trick question, right? Because this type of policy doesn’t have the authority to undermine a person’s rights.

And that feels like a funny thing to say because of the way that these things transpired, right? I think a lot of my work has been focused on court-ordered C-sections. And this was not even court ordered. This was just doctor-ordered. They didn’t even go through the pretense of trying to get legal authority to do this, which, to my mind, should make them fairly immediately liable.

But people still have all of the rights that they do. As people who are seeking healthcare in this country, they have the right to refuse unwanted care. A policy like this doesn’t supersede an individual’s rights. And so if those rights are violated, then they should also be able to seek recourse through court systems, through other means of accountability after the fact.

Now, the fact that people have these rights, these are rights that are protected by the constitution and by state law, is I think a great incentive for hospitals who have these policies to change them, to revisit them and make them more compliant with the law and with ethical best practices.

And as you pointed out before, ACOG has been very clear that there is virtually no circumstance under which a forced intervention on a pregnant person for the supposed benefit of the fetus is justifiable. The pregnant person is the one who gets to make decisions, just like anybody else who’s not pregnant.

I think that a lot of times hospitals are under the misbegotten impression that they can avoid malpractice liability by depriving people of their options and of their rights. I mean, that’s simply not the case. Whether or not the fear of malpractice liability is in proportion to the actual threat of liability, I think that’s one question. But the idea that you can insulate yourself from being sued for damages by forcing other people into unconsented surgery is like … Obviously, that’s not a reasonable response to that.

JK: What do you wish that every perinatal professional knew about forced cesareans and these types of policies?

FDT: A thing I wish that perinatal professionals knew was the degree of trauma that this can wreak on a person’s life.

To a provider, that one interaction may be one of dozens of births that they see in a month, hundreds, thousands that they see over the course of their career. And putting into place a policy like this or a procedure like this may be something that feels pro forma or feels administrative, right?

I mean, you can see from the notations in Rinat Dray’s medical records, this felt like a kind of everyday bread and butter, right? She’s refused. We have the hospital’s attorney sign off on it. And this is just sort of workday injustices that are a part of a system that is not designed to protect the human rights of individual patients.

But from the perspective of that patient, that is a life-altering occurrence that may color their perspectives on healthcare, on their own body, that may change their life for the worse. And so I would really want to urge people to have compassion.

But I think a lesson that I’ve learned from midwives is to treat individual patients the way that you would want your own daughter to be treated when giving birth. And certainly, nobody wants there to be a maloccurrence. Nobody wants to lose a baby, to lose a mom. I mean, that’s absolutely everybody’s horror. But recognizing the limits of what one can do and that imposing control on another person isn’t a way to solve that, to resolve that issue within ourselves. We have to find within ourselves peace with the fact that people may make decisions that we disagree with, and they may face consequences that we wish they didn’t have to. But depriving them of their human rights to stop them from doing so is not the answer.