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A Woman’s Right to Refuse Cesarean

When I teach my classes I always tell my students that they have the right to refuse any medical intervention, even if doing so endangers them or their baby.  I often point out that there is no situation where one person is required to have surgery to protect the health of another, which is essentially what many cesareans boil down to–a woman having a surgery that she likely does not need, but her baby might need.

Don’t get me wrong.  I’m very much pro-life.  I wouldn’t encourage any woman in labor to endanger her baby–and I truly believe that most women would not endanger their baby.  But so often, cesareans and other interventions are pushed on women when they aren’t needed…and by telling women that they can refuse interventions, what I’m doing is encouraging them to ask questions and determine if the interventions being pressed on them are really necessary, or are for conveniance.

But it seems that in New Jersey, a woman who gave birth in 2006–vaginally–lost custody of her baby because she aggressively refused her obstetrician’s advice (more likely demands) that she have a cesarean.  Louise Marie Roth at The Huffington Post has “broken” this story as far as I can see (I have discovered that it Jill at Unnecesarean actually blogged first).  Roth makes the argument that “the New Jersey appellate court found that V.M. [mother] and B.G. [father] had abused and neglected their child, based on the fact that the mother, V.M., refused to consent to a cesarean section and behaved erratically while in labor.”  This was at a hospital that has a cesarean rate near 50%.

I first learned about this story when I saw a Facebook friend had posted a link to the Huffington Post, along with her expression of outrage.  I promptly read the Huffington piece, and jumped on the bandwagon, posting a link to my profile and Knitted in the Womb page.

I was outraged!  This mother lost her baby because she was “combative,” “uncooperative,” “erratic,” “noncompliant,” “irrational” and “inappropriate.”  Well yeah, I’m sure I would be described as “combative” if a Dr. was trying to force me to have a surgery I didn’t want–or pretty much any of those other words, except perhaps “erratic.”  But I explained away “erratic” by reasoning that medical staff could have applied that term if she was saying “I just want what is best for my baby” but then still refusing the cesarean.

And I was outraged because of the precedent…its a dangerous one to be sure, telling women that if they aren’t “good, compliant patients” they may loose their baby to foster care.

But then I succumbed to this annoying habit of mine.  I fact checked.  I did the quick Google search using the name of the court case, and came up with a link to the appellate court ruling.

When I first started reading the court documents, I only got more outraged.  I could only imagine how cornered this poor woman felt as she tried to labor, all the while being bullied about the cesarean.  The thing that really angered me was when one psychologist evaluated her for an hour, she was calm–which spoke volumes to me about how she must have been being treated by the other medical staff.  This psychologist determined that she was competent to make her own decisions (The Huffington Post incorrectly refers to this doctor as an obstetrician).  And then here comes the part that had me really angry…

They called in another psychologist.

Yep.  First one didn’t give the answer they wanted, so hey, let’s call in another one.  THIS IS WRONG.  The Dr’s responsible for this should be sanctioned harshly.  But no, that is never mentioned, in fact, in writing his decision, the judge seems to give more weight to the evaluation conducted by this second psychologist than the evaluation done by the first psychologist.

While this psychologist was evaluating her, apparently she progressed to second stage, and ended up vaginally birthing her baby.  I can only imagine how difficult it was for this woman to labor through transition while under going a psychological evaluation.

This Dr. determined though, that she had psychological issues that might make her an unfit parent.  so the hospital social workers contacted the Division of Youth and Family Services (DYFS) to have a formal investigation conducted and that social worker informed the parents that they would not be able to take the baby home with them, and would need to attend a hearing 2 days later to determine custody.

Now I’ve got to tell you, DYFS (or whatever they are called in your state) workers live in a “damned if you do, damned if you don’t” world.  If they take a child from a home who isn’t being abused (or isn’t being abused “too badly”) they get charged with being over zealous.  If they do not remove a child from a home who is being abused, they get charged with being negligent.  They typically have far too many cases for them to appropriately investigate and monitor.  They also have a limited number of foster placements available to them, which tends to make them hesitate to remove children unless abuse is extremely blatant and severe.  Do they make mistakes sometimes?  Of course.  And those should be righted.  Do they sometimes act maliciously toward innoncent parents?  Again, of course.  But was this case an example of either type of error?

Here is where those court documents come in.  Let’s start with the basis of Roth’s Huffington Post article:

the New Jersey appellate court found that V.M. [mother] and B.G. [father] had abused and neglected their child, based on the fact that the mother, V.M., refused to consent to a cesarean section and behaved erratically while in labor.

Well, no, according to the court documents, that is not true.  This, specifically, is what the court documents say about whether the parents had abused or neglected the child, and whether keeping the child away from the parents is about refusing the cesarean or the mother’s behavior while in labor (“VM” is the mother, “BG” is the father, and “JMG” is the baby):

I now address the significant issue raised by the unique facts of this case — whether V.M.’s refusal to consent to the csection may be considered in determining the issue of abuse and neglect. The positions of the parties are simply stated. V.M. asserts that she had a fundamental right to refuse medical treatment during pregnancy, even at the risk of death to herself or the fetus. The law guardian, on behalf of the child and relying on New Jersey Division of Youth and Family Services v. L.V., 382 N.J. Super. 582 (Ch. Div. 2005) [this case is later referred to as “L.V.”], contends that a finding of abuse and neglect can only be based on a child’s experiences after birth. He further contends that V.M. had a constitutional right to control her own body and to avoid unwanted medical procedures (page 21)

There is no allegation that J.M.G. was actually harmed by her parents. Rather, the [family court] judge’s finding was based solely on the imminent danger of harm presented by V.M.’s actions and mental condition. (page 25)

The unique problem here is that much of V.M.’s erratic behavior occurred before J.M.G.’s birth, while V.M. was still pregnant. N.J.S.A. 9:6-8.21(b) defines “child” simply as “any child alleged to have been abused or neglected.” Nothing in the statute or the attendant legislative history suggests that the Legislature intended that the provisions of the Act should apply to a fetus. (page 25-26)

[t]he Act . . . does not and cannot be construed to permit government interference with a woman’s protected right to control her body and her future during her pregnancy.” Ibid. He held that the decisions that a woman makes as to what medications she will take during pregnancy are left solely to her discretion. Id. at 591. “The right to make that decision is part of her constitutional right to privacy, which includes her right to control her own body and testing. Those rights include the ability to refuse medical treatment, even at the risk of her death or the termination of her pregnancy.” (Page 28)

“‘the circumstances in which each individual woman brings forth life are as varied as the circumstances of each woman’s life’ . . . there can be no consistent and objective legal standard by which to judge a woman’s actions during pregnancy.” Id. at 332 (quoting Stallman v. Youngquist, 531 N.E.2d 355, 360 (Ill. 1988)). (Page 35)

I would adopt the reasoning in L.V. as applied to the facts here. The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency’s statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.’s decision to forego a c-section had no place in these proceedings. (Page 39)

Any such finding [that the father was abusive due to the mother’s decisions in labor] was clearly in error. As I have discussed, supra, a finding of abuse and neglect cannot be based on a mother’s medical decisions during pregnancy. (Page 41-42)

I’ve just selected a few quotes here, but essentially what happened was that the family court *did* use the refusal of cesarean as partial justification for child abuse charges.  However, the judge writing the appellate court ruling spends over 15 pages citing case law in opposition to that notion, supporting a woman’s right to choose her medical care.  He further states that no actual abuse occurred, it was the *threat* of abuse that would be true grounds for removing the child. 

Sadly, this is being misreported in the Huffington Post article, which states that the appellate court upheld the lower court position on refusal of cesarean; as well as at least one other blog which is presented in such a way that readers (including Roth!) come away with a false impression of the appellate court ruling.

So if it wasn’t refusal of cesarean that caused the appellate court to uphold the ruling that VM and BG should not have custody of their daughter, then what?

Frommer’s [DYFS worker] observations in the hospital also gave rise to concern because B.G. denied that V.M. had ever received psychiatric care. Moreover, on the morning of the April 20 hearing, B.G. attempted to hide his identity and falsely said he did not know Frommer. His failure to attend the hearing left the judge little choice but to place the child in the custody of DYFS. (Page 42)

Some people have cast doubt on how well the parents were notified of this April 20 hearing.  After all, the birth was on April 16, they had a baby who was in the NICU, mom was discharged on April 18.  Perhaps there was some misunderstanding?  This is possible.  However, according to Frommer, she notified them *in* the hospital on April 18, then again when she arrived at their home on April 18 to do a home visit (the mother confirms that this visit occurred), and then when she made the phone call on April 20.  When she made the call on April 20 the male she spoke to denied being BG.  I believe it is possible that some other male in the home could have answered the phone, and Frommer may have been inflexible in accepting that…but then why didn’t anyone answer the phone when she attempted to call back again just a few moments later?

Even if the whole April 20 hearing was just a sad mistake, the problems did not end there: 

Finally, the judge did not flatly reject B.G.’s suggestion that he assume sole custody of J.M.G. Rather, the judge was quite sympathetic to B.G. and said he hoped to reunite him with his daughter as soon as possible. He set forth three conditions that needed to be met before reunification could be achieved and clearly explained each to B.G. He did not require that B.G. undergo a psychiatric evaluation, but only that B.G. receive a favorable report from a psychologist. The judge set a tight time frame for the evaluation and even set a tentative reunification date. The fact that B.G. did not comply with the judge’s directions supports the court’s subsequent decisions to continue DYFS custody. (page 42-43)

The story really goes much deeper.  The parents would not cooperate with attempts to get them into parenting classes.  I’ve got to tell you, if any of my children were taken from me, I would take any parenting class that was dished out if I was told it would help me to get my child back–even if I passionately disagreed with what was being taught in the class.  Psychological evaluations conducted after discharge continued to support issues with the mother being very severe.  The mother’s former psychologist’s notes indicate that she had paranoid schizophrenia that needed continued treatment–treatment that she had discontinued approximately 4 months prior to the birth.  When the family court judge ordered evaluations to determine if psychological issues were still present, two different psychologists ended up seeking protective orders against the couple, one of them after being assaulted in the couple’s home. (page 12 of appellate court brief)

It definitely is true that this situation started because of a woman’s refusal to sign a blanket cesarean consent form, and then refusal to submit to what an OB felt was an indicated cesarean in labor.  Had the woman consented to the cesarean, the charges of abuse *might* not have been filed.  That really is a big “might” though, as even her prenatal records have notations about problematic behavior. 

I believe that unless a series of 4 psychologists, 2 OB GYN’s, and a few social workers have conspired to all knit a huge lie about this couple–some compenents of the “lie” having been fabricated PRIOR to the birth,–that there probably is good cause for concern here.  I don’t know all the nitty-gritty details of the case of course to know if the child really would be in danger, but I do believe that it is about more than a bully of an OB.

That said…I’m very greatful to the organizations that supported this couple in fighting the family court ruling, because it just is NOT a good idea to allow a precendent to stand with a family court finding abuse for failure to comply with a cesarean.  I hope that future appeals will make more progress with this troubling part of the appellate court’s comments:

Both Dr. Jacoby, the hospital’s psychiatrist who evaluated V.M., and Dr. Seltzer, V.M.’s previous treating psychiatrist, expressed concern over V.M.’s “ability to care for her child in a responsible manner.” V.M.’s behavior during the delivery, her psychiatric records, and the opinions of Dr. Jacoby and Dr. Seltzer all support a finding that V.M. was not in a proper mental state to safely care for J.M.G. Therefore, the judge’s finding that V.M. placed J.M.G. in imminent danger should not be disturbed. (Page 39-40)

However, I agree that there was sufficient additional evidence to support the judge’s finding that V.M. placed J.M.G. in imminent danger from April 16 to April 20, 2006. As the hospital records reflect, V.M. was “combative,” “uncooperative,” “erratic,” “noncompliant,” “irrational” and “inappropriate.” She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that “no one [was] going to touch [her] baby,” refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural. Incredibly, she also called the Livingston Police to report that she was being abused and denied treatment when it was her “erratic” and “combative” behavior that was preventing the hospital staff from providing treatment.  (Page 39)

Yes, I do find it troubling that despite a previous quote (page 35) that a woman’s behavior in labor should not be judged, the appellate court STILL went back to that behavior in condeming VM.  Further, I asked the “attending obstetrician” (a resident) to leave the room and not come back when I was in labor with my second child (though I think a tad bit more politely than VM may have?), I’ve refused ultrasound in my past 3 pregnancies.  I’ve had clients who found it extremely difficult to keep the oxygen mask on because it is uncomfortable in many ways.  A woman in very active labor (as VM appears to have been–there isn’t a good time line here, but it seems that her labor may have been fairly fast & furious) often finds it difficult to “stay still” for fetal monitoring or even placement of an epidural (and since when is placement of an epidural necessary for the baby’s well being?)–especially when they are feeling emotionally threatened by the medical staff.  And honestly, I wish more women would start calling the police from their labor rooms and reporting assaults (for example, perhaps THIS mother should have called…oh wait, she was a former police officer…).

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Posted in Birth in the news and Home 7 years, 11 months ago at 11:09 pm.

5 comments

5 Replies

  1. THank you for this. It’s been so hard getting so much conflicting information. I agree that this could set a dangerous precedent. Ultimately the one thing I still h ave trouble with is them deeming her psychotic IN LABOR, based on the things outlined at the end of this post. That bothers me deeply.

  2. “But then I succumbed to this annoying habit of mine. I fact checked. I did the quick Google search using the name of the court case, and came up with a link to the appellate court ruling.”

    Ummm?

    So you felt misled and are saying that neither Louise Roth nor I check our facts? Quite an accusation there.

    The ICAN of Somerset County, NJ blog broke the story. Both that post and the full text of the ruling are linked in the post on which you commented.

    In your comment on my blog, you said you thought I was confusing the ruling of the family court with that of the appellate court. I’m clear on the difference. I replied with these comments, which I’m not sure if you saw:

    Hi Jenn, the difference between the two rulings is pretty clear. VM never went home with her baby, though, which means what started the chain of events that led to her competence as a parent being questioned was refusing the cesarean and acting “uncooperative”, etc. in labor and at the hospital. Even though the appellate court found it unlawful to use the refusal of the cesarean as evidence of abuse and neglect, her mental health would have never been an issue had she not refused to sign the blanket cesarean consent form in the first place.

    The question left in my mind is how much of her paranoid diagnosis can be attributed to having her rights violated in the hospital, then have “the authorities” take her baby away, then having a decade worth of past psych records used to judge her even though a psychiatrist found her to be “cured” and no longer in need of treatment in 2005.

    Thanks for your comment. :)

    Reply #2 to your second comment:

    Jenn, unless I missed it, the diagnosis of paranoid schizophrenia came in 2007 from Dr. Shnaidman. Prior to birth, Dr. Seltzer noted tendencies:

    “As the years went by and V.M. made no progress in coping with the 1993 workplace incident, Seltzer’s notes increasingly discussed V.M.’s paranoia and psychotic ideations. ”

    And remember:

    “Seltzer diagnosed her as suffering from post-traumatic stress disorder, depression and panic; but in 2005, a psychiatrist working for the State of New York Worker’s Compensation Board told her that she was cured and no longer needed treatment.”

    So, let’s say (hypothetically) that prior to pregnancy, a woman is abused and struggles with mental health issues. She seeks psychiatric care. She exercises her own free will along the way regarding what medication she puts into her body and then, before pregnancy, gets an official diagnosis that she is cured.

    She acted in the best interest of her personal health, no? She was “cured”, no? Should anything prior to pregnancy have any bearing on the case?

    You wrote: “But I do question things that went on AFTER the birth…and whether they truly indicating that this just highlighted a case where the parents really weren’t fit?”

    Of course, this is all just speculative since none of us were actually there, but what I’m understanding that you are saying is that how she acted in her two and half days at St. Barnabas might have just highlighted that they were already unfit parents to start with. Or by “after,” do you mean after she left the hospital?

    It sounds like you’ve made up your mind that I was trying to dupe readers into believing that the appellate court included the cesarean refusal in its ruling, but it’s pretty straightforward in the post you read, Jenn.

  3. Jill, I’m sure my comments sting. I actually wrote the post before even knowing that you had blogged about the topic–I went back & editted when I realized that Roth had learned of the situation from your blog.

    Let me make it very clear that I think we are both on the same side of this–the courts have been outrageous in their treatment of this case. I’m just afraid that some facts are getting muddled, and its going to make “our side” look uninformed and unreasonable.

    Here’s my basic problem. Roth flat out says that the appellate court ruled that refusing the cesarean was grounds for the abuse charge. She came away from your blog with that impression apparently–though carefully reading your blog does show that you differentiate which court said what.

    The reality is that the appellate court stated that there was no actual abuse, that the removal of the child was only justified as there was a strong *potential* for abuse. The appellate court further stated that a refusal of cesarean could not be used as an indicator of potential abuse (although then confusingly used refusal of less “life saving” intervention as justification for deciding that V.M. had *potential* to abuse her child).

    People are spreading around this notion about the appellate court rulling–I did it too, until I fact checked. Not saying that you and Roth didn’t fact check–you quote from the exact same document that I found, and you are right that your blog post does identify who said what when it comes to the court statements. But apparently your post is confusing, because Roth read it then made a post with the wrong primary thesis, and other people in the comments section of your blog do as well (Rashel, possibly Kayce). I think the confusion may come because you use “trial judge” to refer to the family court judge, and then “appellate court” to refer to the appellate court. I think some people think the “trial judge” is part of the “appellate court”–when I first quickly read your blog that is what I thought you were saying.

    While I am loath to pick apart a laboring woman’s behavior, I do find it odd that V.M. reported that *she* was actually the one who called Dr. Kurani, and that she did it to deal with the behavior of the nursing staff. She appeared not to know that Dr. Kurani and Dr. Jacoby were psychologists (page 10 & 11)–which I can COMPLETELY give a pass to since she was in hard labor and surely was not expecting to encounter a psychologist, let alone 2. But to think that she called Dr. Kurani? How did she come to that conclusion?

    You ask: The question left in my mind is how much of her paranoid diagnosis can be attributed to having her rights violated in the hospital, then have “the authorities” take her baby away, then having a decade worth of past psych records used to judge her even though a psychiatrist found her to be “cured” and no longer in need of treatment in 2005.

    I certainly think that the taking of her baby is a strong stressor that has made her condition worse…but here’s the thing…she will have strong stressors in life, and if the way she reacts is by doing things like physically assaulting the psychologist who is attempting to evaluate her…is she going to be a safe parent?

    I also have doubts about the supposed 2005 “cure date.” First, it was a worker’s comp psychologist that provided this diagnosis (according to V.M., there is no other corroboration provided), and having worked as a workers comp manager for two different companies, I can tell you that I have a LOT of doubts about the diagnoses these Dr’s sometimes hand down in order to retain business from an employer. At best I think that she may have been declared cured of the *workplace* psychiatric issues, but not given a complete clean bill of psychiatric health. Dr. Seltzer’s statements align with this kind of dual diaganosis, as she indicates that she did not consider V.M. to be cured:

    Dr. Seltzer, whom V.M. saw for many years prior to the birth, apparently told the hospital Dr. (Dr. Jacoby) on the day of the birth that “she initially treated V.M. for post-traumatic stress disorder but later began to appreciate that V.M. suffered from either a schizoaffective disorder or a bipolar disorder….and was concerned about V.M.’s ‘ability to care for her child in a responsible manner.’” (page 6-7)

    and

    Dr. Seltzer’s certified records were presented to the court at the fact-finding hearing on May 24, 2006. Her handwritten notes, which memorialized V.M.’s weekly treatment from June 20,
    1994, to January 4, 2006, supported the information presented in Dr. Jacoby’s addendum report. Initially, Seltzer diagnosed V.M. as suffering from post-traumatic stress, panic disorder and
    major depression. As the years went by and V.M. made no progress in coping with the 1993 workplace incident, Seltzer’s notes increasingly discussed V.M.’s paranoia and psychotic
    ideations. Seltzer’s notes from January 2006, reflected several telephone calls to V.M. to inquire about cancelled appointments. (page 9)

    January 2006 would have been early in V.M.’s pregnancy. Dr. Seltzer may or may not have known about the pregnancy at this point–that is not really made clear. Dr. Seltzer’s notes indicate that she thought V.M. quit coming because her Workers Comp litigation had concluded, and Dr. Seltzer indicates that she felt that V.M. still needed continued care.

    I think it is pretty clear that the psychological issues were apparent well before the birth became an issue–I don’t know the exact point where paranoid schizophrenia would be diagnosed over “paranoia and psychotic ideation,” but I think that descriptor is stronger than “tendencies.” Does V.M’s psychological condition merit taking the baby away? Well no, not if V.M. is receiving proper treatment and indeed is not going to pose a risk to her child. Yes, there is a psychologist who did post-partum evaluation who states that V.M. and B.G. would be fit parents…but if I’m counting correctly, there are at least 3 who had a different opinion. I count amongst the phsycologists who did not find V.M. and B.G. to be fit the two who had restraining orders placed against V.M. and B.G., and Dr. Shnaidman.

    When I referred to “things that happened after the birth” I was referring to the behavior that caused two psychologists to take out restraining orders–which included physically attacking one of them who was doing an evaluation; and not complying with taking parenting classes. I really can’t imagine a good explaination for these behaviors. My parents, who were very abusive, managed to put on nice shiny faces when being evaluated after child abuse reports were made–they even took parenting classes that did not a whit of good. That V.M. and B.G. could not do this worries me. There also is the issue that the family court judge had set out some criteria for B.G. to gain custody of the baby, and he did not attempt to do that. Now it may be that he felt over-whelmed by the requirement that he not reside with V.M. in order to have custody–perhaps they did not have family or friends that he or V.M. could temporarily reside with while the custody issues were worked out? I would think that if B.G. regained custody, it would go a long way toward helping V.M. with her psychiatric issues. I do wonder as well, has V.M. been obtaining psychiatric treatment since March 2007? The time-line of events seems to die off there.

    Right now I’m not willing to string the appellate court as far up a pole as many people are doing…but I’m also not willing to say that what I have seen proves that V.M. and B.G. would be fit parents, and are entirely victims of the system. I’m just troubled.

  4. You are citing from the concurring opinion (where a judge who agrees with the outcome but not the reasoning will write a separate opinion explaining why). The appellate court (the actual decision) found that the question of whether the c/s refusal could be used as evidence of abuse neglect did not need to be decided, because there was enough other evidence of risk of harm to the child.

  5. “I also have doubts about the supposed 2005 “cure date.”

    Lots of doubts and lots of differing expert opinions on the family’s mental health. Here’s how I summed it up yesterday morning: http://bit.ly/tyanI

    “but I’m also not willing to say that what I have seen proves that V.M. and B.G. would be fit parents, and are entirely victims of the system”

    Sure. There’s a lot we don’t know from just reading the documents. It’s mostly speculation. I don’t have a time machine but does anyone really believe that if V had just submitted to the unnecessary cesarean, O2 mask, and EFM that her mental health would have come into play twice during labor? It’s what started the whole process, regardless of the appellate court’s ruling, no?

    Also, another clarification for your fact checking… Dr. Roth had already written and submitted the Op-Ed piece to HuffPo when she commented.

    “I’m just afraid that some facts are getting muddled, and its going to make “our side” look uninformed and unreasonable.”

    Sides? Holy moly. Something like this is way too nuanced to be polemic, in my opinion.

    Peace.


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