On December 23, 2014, Human Rights in Childbirth submitted an amicus curiae brief in the New York case of Rinat Dray vs. Staten Island University Hospital et al for a forced cesarean section that she received in 2011. We submitted the brief together with the US Birth Rights Bar Association, Improving Birth, and the International Cesarean Awareness Network (ICAN) as fellow amici, with the purpose of informing the court about the context and significance of Rinat Dray’s experience in US maternity care.
Rinat Dray’s Experience
Rinat Dray swore to the following facts for her Affidavit for this lawsuit. Ms. Dray wrote that she and her husband had always intended to have a large family, “as many children as G-d would give us,” as was common in their community in Crown Heights, Brooklyn. Her first pregnancy was healthy, but resulted in a c-section for “failure to progress.” As she wept on the operating table, her doctor said, “Don’t worry, next time you come here, you will do a VBAC [vaginal birth after cesarean].” Her recovery from surgery was long and difficult. When she became pregnant a second time, she did extensive research about VBAC and sought a doctor who would support her in giving birth vaginally rather than plan a repeat cesarean section. However, when the time came for that birth, she was pressured into agreeing to another c-section, writing later, “I concluded, for a variety of reasons, that birth via c-section was foisted on me by the doctor for his own convenience rather than for any legitimate medical reason.”
When she became pregnant a third time in 2010, she sought out a doctor and hospital willing to support her in attempting a vaginal birth, and hired a doula to support her in labor. On July 26, 2011, she went to the hospital in labor. The doctor who had promised to support her wasn’t there. Instead, a doctor she had never met before, Dr. G., came in and told her to have another c-section, “saying only, ‘You had two before, why not have another one?'” When she explained that she understood the risks and was planning a VBAC, he started to bully and threaten her, telling her that she could either agree to cesarean now or go home and not come back to the hospital.
Despite the threatening environment in which she was laboring, Ms. Dray’s labor progressed over 2 hours until her cervix was dilated 5-6cm and her baby was starting to descend. When she expressed her joy that the labor was progressing, Dr. G. said, “I don’t have all day for you. Don’t be so excited, this isn’t going to be natural.”
A few hours later, Dr. G. returned with a colleague, Dr. D., who also tried to pressure Ms. Dray into a c-section. When she asked if they could transfer her to another hospital if they wouldn’t support her in a vaginal birth, Dr. D. refused, and said, “We are going to go to court to force you to have a c-section.” Shortly later, Dr. G. returned, and said that he would only perform a vaginal exam, to check her dilation, if Ms. Dray agreed to a cesarean and signed a consent form. When she refused, he said, “I am not bargaining here.” He repeated the threat to get a court-ordered cesarean, and then added that if she didn’t submit, “the state is going to take your baby away.”
Neither doctor ever advised Ms. Dray of any particular signs or symptoms of danger to her baby. Instead, she was told that her uterus could rupture, a known risk of VBAC that she understood, and informed that the doctors found that risk unacceptable. Nor did they get a court order to override her right to refuse surgery. Instead, the doctors called the hospital’s lawyer to ask if they could force her into a c-section. The hospital lawyer told them to go ahead. Both doctors then returned to Ms. Dray’s hospital room, with nurses, and informed her that she was being taken to the operating room. Dr. D said, “We got the approval to do it,” and ordered the nurses to push her to the operating room. As she wept on the operating table and begged the doctors not to do this, Dr. G told her, “Don’t speak.”
Ms. Dray wrote in her affidavit, “Dr. G was rough during the surgery, almost as if to punish me. He ended up severely injuring my bladder, cutting it from the back and front.” A healthy, non-distressed baby was delivered with APGARs of 9 and 9. Ms. Dray, on the other hand, was hospitalized for 6 days after the surgery and suffers a “variety of urinary and other pelvic symptoms” to this day. She wishes to have more children, but she fears getting pregnant again. A fourth pregnancy also carries significantly increased health risks to her and her baby, because of the prior three surgeries, including potentially life-threatening placental abnormalities and higher risk of stillbirth.
Despite the physical and psychological damages that Ms. Dray sustained from this forced surgery, and despite the fact that her competence and non-consent were actually written into her medical chart, numerous lawyers refused to bring her case, until she finally found the law firm of Silverstein & Bast. They filed a lawsuit for her, against the doctors and the hospital that violated her right to informed consent and refusal while she was in labor with her third baby. This suit asks a New York court to recognize that Ms. Dray’s providers violated a fundamental duty of care toward her when they overrode her competent decisions to refuse their offer of surgery.
Rinat Dray Is Not Alone
Organizations that address disrespect and abuse in maternity care, like the amici that joined for our brief, hear from many women whose fundamental right to informed consent and refusal was ignored and violated during childbirth. The themes are familiar– women’s options for choices as fundamental as vaginal birth prescribed by hospital policies, so they seek out a doctor and hospital that promise to support their choices. The prenatal doctor who promised supportive care isn’t on call at the birth, and the doctor on call has another agenda. The bullying, coercion, and threats faced by women as they attempt to ask questions or exercise their right to make the informed decisions about their care. The primal threat to take the woman’s baby away if she doesn’t obey. The providers’ dismissal of the risks of intervention, risks that are borne out in physical damage suffered by the women long after the provider has left the scene. The lasting physical and emotional damage, including PTSD, suffered by women whose physical integrity and autonomy was violated at one of the most vulnerable moments of their lives. We’ve heard other women say that they would love more children, but are afraid to get pregnant again after the way they were treated the last time they gave birth.
We wanted the court to understand that Rinat Dray isn’t alone. Following Improving Birth #breakthesilence campaign, which used social media to overcome taboos around obstetric violence, we invited women to share their stories of non-consented interventions in childbirth for use in a Women’s Voices brief on informed consent and refusal. We wrote a brief that wove their voices together to humanize and illustrate our arguments, and attached the full stories to the brief as an appendix.
The stories offered for this brief are not only forced c-sections, but a wide range of non-consented interventions that occurred in different childbirth scenarios. They are united under one of our mottos at Human Rights in Childbirth: “How much would change if it were clear, to everyone in the room, that the birthing woman has the right to make all the decisions about her treatment and that of her baby?” In each of these stories, much suffering could have been avoided if that right were clear. And so the amici have united in this brief to ask the New York court where Rinat Dray brought her lawsuit to enforce the right to informed consent and refusal in childbirth.
The full brief and appendix are available on our website, but we will also release each section of this brief as a blog post in the coming weeks. It was our honor and privilege to amplify the voices of the brave women who shared their stories in order to prevent the abuse 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 advocate for maternity care that respects birthing women’s legal and human rights. Amici are interested in this case because Appellant’s experience echoes the voices of many other women who have related to Amici that violations of the fundamental rights to informed consent and bodily autonomy are systemic and widespread in maternity care; that the violations lead to emotional and physical harms, as well as a loss of trust in the maternity care system; and that most women lack access to any meaningful system of accountability. This Court’s decision will impact maternity care and the treatment of birthing women in the state of New York and, due to media attention, the United States. Together, Amici offer the Court a substantive understanding of the frequent dearth of informed consent in maternity care, a detailed explanation of why the resulting harms justify damages, and the possibilities for positive systemic changes in the medico-legal system of checks and balances that could result from a decision in Appellant’s case. The interests of individual amici are fully set forth in the Affirmation in Support of the Amici’s Motion for Leave to File Brief as Amici Curiae, filed with this brief.
Summary of the Argument
Informed consent and its necessary corollary, the right to refuse treatment, are the basic human rights to physical autonomy and bodily integrity in the healthcare setting. All competent patients have the right to be recognized as the authority in decisions about their care. Healthcare providers have a corresponding legal and ethical duty to inform, advise, and respect patients in decisions about their care.
This right to informed consent and informed refusal is in urgent need of legal reinforcement in American maternity care. Women giving birth in the United States must navigate a system with a 32% Cesarean section rate, wide variability in provider practices, and recommendations for surgery that are not always based in clinical reasoning or evidence-based practices but, rather, are motivated by economic incentives and fear of litigation. In a climate with these dysfunctions, the right to refuse surgery is important.
Pregnant women, like most patients, typically acquiesce to their providers’ clinical recommendations; informed consent and refusal is tested only when patients disagree with those recommendations. Surprisingly, many women are unsure if they actually have the right to refuse care during pregnancy and childbirth. Sometimes, when they try to exercise this right, those they hired to provide care proceed as if the right to informed consent is suspended during labor and birth. Women may sign a “consent” form in such circumstances, but without the right to refuse care, their power to consent to care is meaningless.
Consumer advocacy organizations, like the Amici represented here, have emerged in response to widespread reports of disrespect and abuse in maternity care, including violations of informed consent. These organizations hear from women who report that their right to consent was infringed during childbirth. When they seek a legal declaration that their treatment was unacceptable, they are often told that they “have no damages” and reminded that their babies are healthy. A vicious cycle ensues: because no one expects women’s rights to be legally enforced, they become in fact unenforceable. What is most extraordinary about Rinat Dray is not that she was bullied, threatened, and operated on against her will, but that she – unlike so many other women – will have her day in court.
The significance of this case and its consequence for Ms. Dray are best elucidated by the case’s placement into the larger context of current maternity care practices. Ms. Dray’s story shares themes with many other accounts of forced medical interventions and violated bodily integrity in childbirth. In this brief, Amici include 42 personal narratives of women who have given birth in the United States and who have experienced violations of consent. These women, as well as many others whose stories are not told here, call on the Court to affirm women’s right to authority over their body during the vulnerable process of childbirth. The Amici call on the court to affirm that informed consent is not just a signature on a form or a lofty ethical principle — it is an enforceable legal right.