Introduction
23rd of December, 2014 – Human Rights in Childbirth submitted an amicus curiae brief in 1Rinat Dray vs. Staten Island University Hospital et al case in New York concerning her forced cesarean section performed in 2011. The brief was submitted in cooperation with US Birth Rights Bar Association, Improving Birth, and International Cesarean Awareness Network (ICAN) as fellow amici, with intention to inform the court about importance of Rinat Drays experience in maternity care of the USA.
Experience of Rinat Drays
Rinat Dray swore to the following facts for her Affidavit for this lawsuit. Ms. Dray explained that her husband and she always wanted a big family, as many children as they will be given, this situation was usual in their community in Crown Heights, Brooklyn. Her first pregnancy didn’t develop any trouble and health problems, but ended with forced cesarean section for impossibility to perform natural birth. When she was on operating table, her doctor promised her that next time she came there, she would perform vaginal birth after cesarean (VBAC). Recovery course from this surgery appeared to be long and problematic. During her second pregnancy she did a wide and detailed research about VBAC and tried to find a doctor who would help her give birth to her child naturally instead of getting ready for another cesarean section. However, when birth was about to happen, she was forced to give her consent for another cesarean section. later she wrote that she came to the conclusion that cesarean section was foisted on her, as this was more convenient for the doctor, not because there were some legitimate medical reason. This conclusion was formed for various reasons and factors.
The third pregnancy that appeared in 2010, she again was looking for a doctor who would accept her attempt to give birth vaginally and support her, and asked a doula to assist her in labor. On July 26, 2011 the time for labor came and she went to the hospital. It turned out that the doctor who had to deliver her baby was not in the hospital at that moment. Instead, there appeared some doctor whom she never seen before, Dr. G. He told her to agree for another cesarean section, explaining this only by the fact that she had already had two, so why not have another one? After she said that she understood and accepted all the risks and still wanted a VBAC, the doctor began to bully and threaten her, giving her 2 choices – either agree to cesarean or leave the hospital and never return.
In spite of all the threatening while she was in labor, it progressed over 2 hours until her cervix was 5 – 6 cm dilated and her baby began to descend. When she showed her happiness about labor progressing, Dr. G. told her not be so excited, as labor wasn’t going to be natural, because he didn’t want to spend all day taking care of her.
Several hours later, Dr. G. came with his colleague – Dr. D., who as well tried to force Ms. Dray to agree for cesarean section. When she asked whether they could move her to another hospital in case they refused to help her with vaginal birth, Dr. D. said no and added that they would apply to court to force into surgery. Soon after that, Dr. G. came back, and told her that he would do vaginal exam, to see her dilation, only if Ms. Dray agreed to the surgery and signed a consent form. After she refused, he said, “I am not bargaining here.” He continued threatening her to get a court permission, and then added that the state would take her baby away, in case she refuses to submit.
The doctor never informed Ms. Dray of any specific signs or factors that put danger to her baby. Instead, he said that her uterus would probably rupture, a known VBAC risk that she understood, and that doctors consider this risk unacceptable. Nor did they ever get permission of the court to ignore her right to refuse from surgery. The doctors just asked hospital lawyer if they could perform a cesarean section. The lawyer told them to go ahead. Both doctors returned to Ms. Drays room after that with nurses, and said that they are taking her to the operating room. Dr. D said they received approval for such actions and ordered nurses to push her to the operating room. When she was lying on the operating table and begging doctors to stop, Dr. G told her, “Don’t speak.”
Ms. Dray claimed in her affidavit that Dr. G was rude during the surgery, it seemed like he wanted to punish her. As the result he severely damaged her bladder, having cut it from back and front. A healthy, non-distressed baby was delivered with of 9 and 9 in APGAR score. Ms. Dray, on the contrary, was hospitalized for almost a week after the surgery and still suffers from various urinary and other pelvic disorders. She desires to have even more children, but she is afraid to get pregnant again. Fourth pregnancy will also trigger significantly increased risks to her and her baby’s health, because of three surgeries she had before, which include potentially life-threatening placental abnormalities and increased risk of stillbirth.
In spite of physical and psychological damages that Ms. Dray suffered from this forced surgery, and that her competence and refusal were actually indicated in her medical chart, most lawyers refused to take her case, until she finally found Silverstein & Bast. They filed a lawsuit for her against doctors and the hospital that violated her right to refuse the surgery while she was in labor with her third baby. This suit applied to New York court to confirm that Ms. Drays doctors violated a fundamental duty of care when they ignored her competent decision to refuse surgery.
Rinat Dray Is Not Alone
Organizations that deal with disrespect and abuse in maternity care, like those that gathered for this brief, are addressed by many women whose fundamental right to informed consent and refusal was ignored and violated during childbirth. The topics are:
- Women’s choice is fundamental as vaginal birth prescribed by hospital policies, so they look for a doctor and hospital that promise to respect their choices and support them.
- The prenatal doctor that guaranteed support isn’t available at the moment of birth, and the doctor that is available has another agenda.
- Bullying and threats directed to women if they ask questions or want to use their right to make informed decisions about their care. The main threat is to take the woman’s baby away if she doesn’t obey.
- The doctors ignorance of risks of surgical intervention, risks that appear from physical injuries suffered by women long after the surgery.
- Lasting physical and emotional disorders, including PTSD, in women whose body integrity and autonomy was violated at the most vulnerable moment of their lives.
Many women claim that they want to have more children, but they are afraid to get pregnant again after the way they were treated the last time in the hospital.
The aim of this brief is to show to the court that Rinat Dray isn’t alone. Supporting Improving Birth #breakthesilence campaign, which via social media tried to overcome silence around obstetric violence, women were invited to share their experiences interventions in childbirth without their consent, to use this material in Women’s Voices brief about informed consent and refusal. There was written a brief that gathered their voices together to humanize and illustrate the arguments, and complete stories were attached to this brief as an appendix.
The stories included in this brief are not only about forced cesarean sections, but there is a wide range of interventions that occurred in different childbirth scenarios without mother’s consent. They are joined under one of Human Rights in Childbirth mottoes: How much would change if it were clear to everyone in the room, that birthing woman has the right to make all decisions about her treatment and that of her baby? Each of these stories show how much suffering could have been avoided if that right were clear. And this brief united the Amici to ask the New York court about the results of Rinat Dray lawsuit to enforce the right to informed consent and refusal in childbirth.
It was an honor and privilege to gather voices of brave women who shared their experiences in order to prevent abuse and maltreatment of other women and babies. As Hungarian mother and human rights advocate Anna Ternvoszky said in the documentary Freedom for Birth, “Now is the time to let our voices be heard.”
Amicus Curiae Brief (Part 1): Statement of Interest
Amici curiae (“Amici”) are four organizations – Human Rights in Childbirth, Birth Rights Bar Association, ImprovingBirth.org and The International Cesarean Awareness Network, Inc. – that stand up for maternity care that respects and doesn’t violate legal and human rights of women in labor. Amici got interested in this case because Appellant’s experience is not the only one, many other women who have applied to Amici about the fact that violations of fundamental rights to informed consent and bodily autonomy are systemic and very widespread in maternity care; that such violations lead to emotional and physical damage, as well as distrust to maternity care system; and that most women have no access to any meaningful system of accountability. This Courts decision will have influence on maternity care system and treatment of pregnant women in New York and, due to media distribution, the United States. Together, Amici offer the Court a substantive support of frequent lack of informed consent in maternity care, a details about why possible harms overcome damages, and opportunities for positive changes in medico-legal system of checks and balances that could be applied with the help of decision in the case in favor of the Appellant. Interests of individual amici are fully stated in Affirmation in Support of Amici’s Motion for Leave to File Brief as Amici Curiae, attached to this brief.
Summary of the Argument
Informed consent and its necessary result and the right to refuse treatment are included in basic rights to physical autonomy and bodily integrity in healthcare setting. All informed patients have the right to have their authority recognized and respected in decisions about their health care. Doctors and other medical personnel have corresponding legal and ethical duty to inform, advise and respect patients decisions about their care.
This right to informed consent and refusal is now considered to urgently need legal reinforcement in American maternity care. Pregnant and laboring women in the United States must be well informed about system with 32% Cesarean section rate, wide choice in medical practices and recommendations for surgery that sometimes are based not on clinical reasoning or evidence-based practices but on economic incentives and fear of litigation. These dysfunctions make the right to refuse surgery important and necessary to exercise.
Pregnant women, like most patients, usually concede to their doctors’ clinical advise; informed consent and refusal is exercised only in case they refuse to comply with those recommendations. Remarkable is the fact that most women are not informed about their right to refuse medical care during pregnancy and childbirth. Sometimes, when they try to use this right, those doctors that provide care to them acts like the right to informed consent is not valid during labor and birth. Women sign a “consent” form in such environment, but with absence of the right to refuse care, their ability to consent to care is pointless.
Consumer advocacy organizations, like Amici, have gathered in response to numerous reports of violation and abuse in maternity care, including informed consent. These organizations get complaints from women who claim that their right to consent was violated during childbirth. When they want legal declaration that their treatment during labor and birth was unacceptable, they often get a response that they “have no injuries” and that their babies are healthy. The result is a vicious cycle: because no one supposes that women’s rights can be legally enforced, they become in fact unenforceable. What is most remarkable about Rinat Dray case is not that she was bullied, threatened and forced into c-section against her will, but that she unlike many other women will be heard in court.
Importance of this case and its results for Ms. Dray are best highlighted by the larger context of current maternity care practices. Ms. Dray’s story is similar to many other cases of forced medical interventions and violated bodily integrity in childbirth. This brief includes 42 personal experiences of women who have given birth in the United States and whose consent was violated. These women, like many others whose stories are not mentioned here, apply to the Court to affirm women’s right to authority over their body during vulnerable process of childbirth. The Amici ask the Court to affirm that informed consent is not just a signature on a form or an ethical principle but an enforceable legal right.