Author: Hermine Hayes-Klein. Hermine is the founder and program director of Human Rights in Childbirth.
Earlier this year, US consumer activists ImprovingBirth.org connected us with Kelly*, a 27 year old woman who experienced a non-consented episiotomy during the birth of her first child. Kelly had posted a home video of the birth scene on YouTube, and was also trying to investigate her options for accountability and redress. She wrote a letter to the hospital describing her experience, but her letter was ignored. She has contacted numerous attorneys in her state, but hasn’t yet found anybody to take her case. HRiC has heard from many women with similar stories. Even though most of her friends and family have urged her to “get over” her experience and move on, she is not over it. She wants her story shared far and wide, and she repeats what we have heard many women say: “I need to do whatever I can to make sure this doesn’t happen to anybody else.”
Kelly’s video is here. For those who may be triggered by watching it, a description of the scene is written below. We honor her strength in sharing her story, in her pursuit of justice, in her determination to take this experience and use it to stand up for every woman’s human right to respectful, non-violent maternity care.
*Name has been changed to protect privacy.
The scene opens with a woman on her back in a hospital room. Her feet and legs are up above her in gynecological stirrups. You can’t see her face; camera is angled from below, so you see her exposed haunches, her vagina and anus. The camera is held by the woman’s mother, let’s call her Grandmother. You don’t see Grandmother’s face during the video either; you only hear her voice from behind the camera.
The birthing woman, Kelly, has a tube running to her pubis, a urethral catheter that was part of the epidural process. She received the epidural after telling the nurses, as she told her prenatal providers, that she had been raped and sodomized twice in her life, that she was feeling scared, that she needed them to be gentle and to ask her, step by step, every detail of what was going to be done. The hospital staff gave her a drug “to calm her,” and an epidural. Kelly is a healthy young woman having her first baby. Her pregnancy and labor have been normal. She has a partner holding her left hand, and the nurse on her right. The nurse says, “Cinco de Mayo baby. It’s going to come out with a sombrero. Just kidding.” The nurse watches the monitor until she sees a contraction coming on. Then she loudly directs Kelly to push push push, talking nonstop for the length of the contraction. Kelly pushes hard; you can hear her exertion, working against gravity because this position makes her have to push her baby up into the air. Slowly the baby starts to crown. The baby’s head is just opening the labia; not yet out far enough to stretch the perineum.
A man in a white coat has been sitting on a stool between Kelly’s legs. During her contraction, while she’s pushing, he stands and holds up a long, sharp pair of scissors. He mumbles toward the nurse, “I’m going to do the episiotomy now.” Kelly cranes her head up and says, “What’s up, doctor?” He says, “I said I’m going to do the episiotomy now.” Kelly objects: “What? Why? We haven’t even tried.” The doctor explains: “Listen, dear. You are pushing, baby’s head comes down and doesn’t come out because there is no space here to come out.” He stands now between her legs, gesturing with his hands, one of which holds the scissors. “OK? Baby’s head about that big and your vagina is only that much. Ok?” Kelly says, “But why can’t we just try?” The doctor says, “Try? You’re trying all the time and it doesn’t come out. And if it comes out its going to rip the butt hole down clean.” He makes a slashing motion with the scissors toward her anus as he says this. The nurse reassures Kelly: “We’re not going to feel it, remember? And you have the epidural.”
Another contraction comes. The nurse directs Kelly to pushpushpush gogogo. In the foreground, the doctor bustles with scissors and a medical cloth. He throws the cloth over Kelly’s lower belly, exposing her perineum below it, and approaches with the scissors. Panting with the contraction, Kelly calls out desperately, “No, don’t cut me!”
From behind the camera, Kelly’s mother chastises her in Spanish, telling her not to argue with the doctor, to let the doctor do his job. The doctor says, “Yes, tell her!” Kelly begs, “No! Why? Why can’t we try?” The doctor’s voice is authoritative now, even angry, as he responds:
“What do you mean, ‘Why?’ That’s my reason. Listen: I am the expert here.” Kelly pleads, “But why can’t I try?” The doctor answers, “ ‘Why can’t I try?’ You can go home and do it. You go to Kentucky.”
Grandmother and the nurse berate, chastise and urge Kelly to submit to the doctor. Grandmother says, “No, you can’t fight with the doctor. Just do it, doctor.” The nurse says, “If you rip, you’ll rip more than a cut and it’s a lot more pain too. He said it’s only an inch. An inch isn’t that bad. Do you want to see an inch again?” A contraction comes. Kelly is pushing and speechless. Grandmother says, “Just do it, doctor.” The doctor starts to snip Kelly with the scissors. You can hear the scissors cut her flesh 12 times. He reaches in and wrenches, twists, and pulls the baby out of her. Everybody around Kelly cheers throughout this delivery. Kelly is silent. The nurse lifts her beautiful baby up to meet her. Kelly tries to smile.
“I Am The Expert Here”
The doctor in this video had his reasons for wanting to cut Kelly’s perineum with scissors and deliver her baby this way. I don’t have to comment on the medical “necessity” of his actions because they are well discussed here by Cristen Pascucci at ImprovingBirth.org. The race, gender and family issues in this scene deserve their own attention. In this article, I’ll focus on the Kelly’s human right to refuse that episiotomy.
Kelly said no. She chose instead to “try” to birth her baby without being cut. When the doctor indicated his desire and intention to cut an episiotomy, she asked him to tell her why he considered this best and to provide her with more information. Despite his warning that she would tear down to the “butt hole,” she decided to continue to “try” and said “no” again. He never gave her more convincing reasons to consent to the episiotomy, and she never expressed consent.
When Kelly said “No,” when Kelly said “Why?”, she was exercising the right to informed consent. Even if her consent to that doctor’s treatment may have been implied or assumed before that moment, Kelly exercised her right to withdraw that consent when she said No. A doctor cannot cut a patient’s body without the patient’s consent. The patient’s right to informed consent creates a duty for the doctor to provide the patient with information—to tell her why—and to recognize her authority to make the decisions about her care, including the right to refuse medical treatment. Every patient has the right to say “no” to a doctor.
Informed consent means that a doctor doesn’t get to say, “I am the expert here.” Informed consent recognizes that a patient doesn’t need to go to medical school to make decisions about their healthcare.
Every patient has the right to say “no” to a doctor. Informed consent means that a doctor doesn’t get to say, “I am the expert here.” Informed consent recognizes that a patient doesn’t need to go to medical school to make decisions about their healthcare.
A doctor’s education and experience give him the ability to offer and explain treatment options, and to provide healthcare services within his skill set, if the patient consents. A medical degree doesn’t give a doctor the authority to decide what is best for a patient and do it to her.
A medical degree doesn’t give a doctor the authority to decide what is best for a patient and do it to her.
I believe that Kelly had a human right to say “no,” and that American women have a right to bodily integrity grounded in the due process clause of the federal Constitution. I am a lawyer, but I am not licensed in California, where this happened, and I’m not commenting on the right to informed consent in California. The right to informed consent is protected in most legal systems. Informed consent is generally both a right of every patient, and a legal duty owed by the healthcare provider toward the patient. A doctor has to provide patients with information relevant to their treatment, the risks and benefits of their healthcare alternatives, and to get the patient’s consent for any treatment or decisions about their care. Every patient has a legal right, grounded in their human and/or constitutional right to physical autonomy, to make the decisions about their healthcare, by granting or withholding their consent to any proposed intervention. People make decisions about their care based on many factors, including their personal life history and circumstances, which can be known only to themselves. For Kelly, one such factor was her past experience of sexual assault.
Pregnant women giving birth at the hospital are people too, and are entitled to the same fundamental healthcare rights as anyone else. In fact, no patient has a greater need for a secure right to informed consent than today’s maternity care consumer. When obstetric medicine is known to have variable standards of care without a solid evidence basis, and doctors confess that the skyrocketing cesarean section rate is largely driven by profit, convenience, and perverse liability incentives, every birthing woman needs to be able to say “no.”
In the video we see Kelly bullied and cajoled into letting the doctor cut her. Grandmother scolds her from behind the camera, telling her to let the doctor do his job. When Kelly can’t speak during a contraction, Grandmother says, “Just do it, doctor,” the doctor starts cutting Kelly, and the “delivery” begins. But Grandmother didn’t have the legal authority to authorize that episiotomy. The doctor probably would have cut Kelly anyway, because as he indicated, he believed that he, not Kelly, held the authority to make the final decision about whether she would be cut. He was wrong. Kelly had the right to say no, and her doctor violated that right when he cut her over her express non-consent.
“You Can Go Home And Do It”
This scene is remarkable, not because the violations that occur are unusual, but because it is such a representative microcosm of dysfunctions in modern maternity care. The doctor has decided that he is going to deliver Kelly’s baby a certain way, and believes that he has the power to make that decision. He may condescend to explain his reasons to her in simple terms, but ultimately he believes “that’s my reason,” and he will decide what he does to her.
The video even makes reference to home birth. Kelly begs, “Why can’t I try?” The doctor replies, “You can go home and do it. You go to Kentucky.” This birth didn’t happen in Kentucky, and Kelly isn’t from there. Kentucky is stereotyped as backwards and ignorant, like home birth. Presumably, the treatment that he is giving Kelly in this video is modern and advanced. If Kelly wants to “try” to push her baby out without being cut, she should give birth at home.
This exchange reflects the reality that many women face in maternity care today, that their only option for supported physiological birth, or even birth without cutting, is home birth. For this reason alone, all women should be invested in ensuring that home birth is a safe and legal healthcare choice, instead of an illegitimate and underground last-ditch option. A woman and her doctor have one kind of conversation if the doctor knows that she can walk out at any time and choose a different provider. They have a different kind of conversation if the doctor knows that she has nowhere else to turn.
Forced Episiotomy as Sexual Assault
In her letter to the hospital after the birth, Kelly wrote: “So then after he yelled at me he cut my Vagina twelve times. So before the episiotomy the nurse said it’s only going to be a little cut. a little cut turned into Dr. A’s horrific rage against me as a human being and against my will to begin with. I wanted to cry so badly and I was so horrified while he was cutting me. I could not believe after explaining I was raped twice that I was going to experience Birth Rape under your care.”
The internet abounds with the stories of women who have described their treatment during childbirth as a “rape,” enough that the phenomenon has a name, “birth rape.” People debate whether mistreatment by medical providers can or should be compared to “real” rape. Kelly has experienced both. She found her past experience of sexual assault relevant enough to childbirth that she shared this experience with the strangers providing her care, telling them clearly that she needed them to respect her right to control over her body and “to be gentle with her.”
Why might Kelly have experienced her non-consented episiotomy as a sexual assault? In most places with a right to informed consent, a doctor who performs a surgery or medical intervention over a patient’s explicit non-consent has committed a legal assault, or a battery. This helps us see how Kelly, as a patient, experienced this non-consented cutting as an assault. But sexual? What did he cut? He cut her birth canal, or as she called it in her letter, her “Vagina.” A center for most women’s sexual life, the place that is indeed violated in many sexual assaults. Kelly said, “No, don’t cut me.” He came at her vagina with scissors anyway, and wrenched her baby out of it. Is it hard to understand how she experienced that as a sexual assault?
When Kelly posted this video on YouTube, a long line of commentators urged her to bring legal charges for her forced episiotomy. Kelly wants to take action and demand accountability for what was done to her during childbirth. She says that she needs to do whatever she can to ensure that this isn’t done to any other women. But she hasn’t been able to find a lawyer licensed in California who will take her case. She has been told, “The problem is, you don’t have any damages. Your baby is fine and you are alive.”
She has been told, “The problem is, you don’t have any damages. Your baby is fine and you are alive.”
Many women who experience violent assault in childbirth, like forced cesarean sections, try to find lawyers to bring suit and are told that they have no damages. Their incisions are healing. Their babies are alive. Why are they still talking about it?
They are talking about it because they have suffered a profound violation. They can’t stop thinking about it; it has colored their entire life as a mother of the baby born of this experience. They are traumatized. Will the law recognize their damage? Some jurisdictions are developing legal recognition of Post-Traumatic Stress Disorder as a compensable damage; some require there to also be a showing of physical damage in order to recognize psychological trauma. Do women need new laws recognizing obstetric violence as a legal wrong that causes harm, as in Venezuela?
Lawyers bringing suit for non-consented interventions in maternity care are testing new ground. Are birthing women people too, and entitled to the human right to say “no” to medical treatment? Will their legal system protect that right by recognizing the damage imposed by forced medical interventions? HRiC knows lawyers in numerous states and countries who are bringing cases for non-consented childbirth interventions, but not yet in California.
More lawyers are needed to help women like Kelly stand up for their human rights in childbirth. If it has become unclear whether birthing women have the right to say no to medical intervention, it is time to make that clear. When people are violating your rights, you need the Law to protect those rights and tell oppressors to back down. In maternity care systems where “liability” speaks loudest, providers must be found liable for the use of force on birthing women. Without it, people say, “Well, the doctor had to cut her, because he might be found liable if something goes wrong.”
In maternity care systems where “liability” speaks loudest, providers must be found liable for the use of force on birthing women. Without it, people say, “Well, the doctor had to cut her, because he might be found liable if something goes wrong.” Women need recognition that when informed consent is violated, something is going wrong.
Women need recognition that when informed consent is violated, something is going wrong. In order for women’s basic rights to bodily integrity to be meaningful, doctors must be held liable for violation of informed consent. Only then will they weigh it into their “liability” analysis, at that moment when the scissors are in their hand.
Break the Silence
What’s unique about this video is not that this happened—that a doctor cut a woman after she begged him not to, at one of the most vulnerable moments of her life. What’s unusual is that this scene was filmed, and that the woman has the courage to share the film and stand up about what happened to her. Although she is pursuing legal recourse for her personal case, Kelly’s goal for sharing her experience with the public is “awareness” and a hope that, through sharing it, she will prevent this from happening to other women.
What’s unusual is that this scene was filmed, and that the woman has the courage to share the film and stand up about what happened to her. Although she is pursuing legal recourse for her personal case, Kelly’s goal for sharing her experience with the public is “awareness” and a hope that, through sharing it, she will prevent this from happening to other women.
Her personal experience is political, because dynamics like this are playing out in labor and delivery rooms around the world. At the base of forced or coerced interventions in childbirth is a fundamental misconception of the humanity and rights of birthing women. A birthing woman is not a paper towel tube from which an insentient object is being extracted. Even when a woman is on her back, even when she can’t move her legs because of an epidural, even when she can’t speak because of a contraction—she is a human being, and she owns her body. How much would change in the hospital room, if everybody recognized this basic fact?
Our rights will only be recognized if we demand their recognition. Women have to stand up for their rights in maternity care, as they have in other areas of their lives. But the brave women, like Kelly, who do wish to stand up for their rights need support. If they want to bring legal action, or need defense against CPS for making birth choices their doctors don’t like, they need lawyers who understand maternity care. They need postpartum trauma therapists who can help them process a healthcare experience that felt like a sexual assault. They need advocates who will help them pursue accountability and justice, at the same time that they heal from the way they were treated while they were giving birth to their baby.
Are you a lawyer interested in cases like Kelly’s? Please contact us.
Did you experience non-consented intervention while you were giving birth to your child? Please share your story with us here: http://www.humanrightsinchildbirth.org/share-rights-violation-story/
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