Friday, September 24, 2010

VBAC and the Law

Women who desire a Vaginal Birth After Cesarean (VBAC) run into a lot of opposition, and with the climbing cesarean rate in the U.S. (now at 32%), VBAC has become a very hot topic.

There is a great deal of controversy surrounding VBACs, and many hospitals do not give women who have had a previous c-section an option of a VBAC - they say its cesareans only, forever.  More than 9 out of 10 births following a C-section are now surgical deliveries.

There have been some recent developments on this topic, including ACOG issuing less restrictive VBAC Guidelines, and the creation of A Woman’s Guide to VBAC: Navigating the NIH Consensus Recommendations.

Many women worry that even though they want to try for a VBAC, they will be told that they legally have to have a repeat cesarean section. Just so everyone knows...


If your OB tells you there is, DUMP 'EM!

Here are the facts on VBAC and the Law:

Legal Rights and Protections for VBAC

By Rebecca Spence and Farah Diaz-Tello
This article is part of A Woman’s Guide to VBAC: Navigating the NIH Consensus Recommendations, a collection of resources that address the most common and pressing questions women may have about their birth choices.

What Is this Body of Ethics and Law, and What Does it Mean for a Woman Making Decisions About Birth after Cesarean?

The American Congress of Obstetricians and Gynecologists (ACOG) consistently confirms a pregnant patient’s right to refuse medical intervention as a part of her basic right to privacy and bodily integrity. ACOG’s Committee on Ethics’ Opinions respect the pregnant patient as the person in the best position to make decisions about herself and her baby.[3] The American Medical Association (AMA) also recognizes that performing medical procedures against the pregnant woman’s will violates her right to informed consent and her constitutional right to bodily integrity.[4] Yet, some providers may subscribe to the view, described by the NIH panelist, that separates a woman from the fetus she carries. This view may lead them to try to override the woman’s decision-making authority based on the idea that the doctor, rather than the woman, is best situated to make decisions for the separate “fetal patient” where there is any amount of perceived risk to the fetus. Nevertheless, this idea is not supported by ACOG or AMA guidelines.

There is no law anywhere against VBAC. While there is no guaranteed right to healthcare under U.S. law, federal law prohibits a hospital from refusing to accept a woman in active labor as a patient, and there is no law permitting facilities to deny treatment to women with uterine scars. Any person, pregnant or not, has the right to refuse medical treatment—even in an emergency. The Constitution and court decisions recognize a person’s right to informed consent and bodily integrity. Patients also have the right to change their minds about treatment and can revoke consent at any time. While the law does contemplate circumstances where these rights are not absolute, there is no legal basis for suggesting that women have fewer rights than other people upon becoming pregnant.

You may find these and other rights outlined in a “Patient’s Bill of Rights” or similar document from the hospital.  You may also write your wishes for a VBAC in a birth plan that you review with your provider. However, it is important to remember that birth plans and patient’s bills of rights are not legally binding documents, even if they are in your chart or your doctor signs them.

And let me just repeat this, so you can really have this idea put into your mind:

There is no legal basis for suggesting that women have fewer rights than other people upon becoming pregnant! 

Is this really a concern? Yes. Pregnant women are often treated like second-class citizens, and are court-ordered to comply with cesarean sections (among other things) against their will because they may be hurting the fetus. 
Do we really want to make a pregnant woman’s behavior and choices, any health condition she suffers, or even that she lacks health insurance, a crime because it could hurt the fetus? If we do, then virtually everything a pregnant woman does or does not do could land her in jail, because virtually everything a pregnant woman does or does not do — from what she eats, where she works, and what condition her health was in before she became pregnant — is going to have an affect on her fetus. Allowing the government to exercise such unlimited control over women's bodies, and every aspect of their lives, would essentially reduce pregnant women to second-class citizens, denying them the basic constitutional rights enjoyed by the rest of us.  (from Blog of Rights)

What About Cases of Court-ordered Medical Interventions?
There have been a few rare cases of court-ordered cesarean surgery reported. These cases are outliers and do not represent the law in the area. The only state appellate courts to have ruled on this issue on a non-emergency basis with all the evidence before them all conclude that pregnant women have the same right to informed refusal as any other adult. The few cases in which surgery was ordered were decided on an emergency basis, and the judge did not have the benefit of a full presentation of evidence or participation by experts that would have brought attention to the woman’s rights.  Often, the woman did not even have a lawyer, and was in labor during a quick “hearing” over the telephone. Most of these cases are not binding precedent, for various reasons. The only places where a court might be required to follow the rulings are in the jurisdictions where the cases were decided (a legal concept called “mandatory authority”). In other jurisdictions, they do not have to be followed, but they can be cited to try to persuade a court (“persuasive authority”). The fact that a few women were deprived of their rights is a terrible thing, but it does not mean that these cases are now the law.

1 comment:

  1. The availability of a VBAC is so important and so few women have that option. There are literally bans against VBACs in some Florida hospitals!
    Women watch tv shows and we hear the doctor say "there is a 1% chance that your uterus will rupture if you attempt a VBAC." What we don't hear is the doctor telling the woman that she is three times more likely to die from a repeat cesarean than from a vaginal delivery.
    Women and advocates need to push hard for VBACs and talk loud when their providers deny them their VBAC. Hopefully, maternity care will open its eyes to evidence based practice and see that VBACs are safe and a reasonable option for almost all women with previous surgical deliveries!
    Keep up the good work advocating for womens choices!


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