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Obstetric Autonomy and Informed Consent

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Abstract

I argue that public officials and health workers ought to respect and protect women’s rights to make risky choices during childbirth. Women’s rights to make treatment decisions ought to be respected even if their decisions expose their unborn children to unnecessary risks, and even if it is wrong to put unborn children at risk. I first defend a presumption of medical autonomy in the context of childbirth. I then draw on women’s birth stories to show that women’s medical autonomy is often ignored during labor. Medical interventions are performed during childbirth without women’s consent. Childbirth is risky and some coercive medical interventions may be understood as attempts to protect children and to prevent mothers from acting impermissibly. However, even if it is wrong to make risky choices during childbirth, women have rights to do wrong in these cases. Therefore, coercive medical interventions are impermissible during childbirth and institutions should adopt specific protections for obstetric autonomy.

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Notes

  1. These states include Alabama, Georgia, Hawaii, Indiana, Iowa, Illinois, Kentucky, Maryland, North Carolina, South Dakota, Wyoming, and Washington D.C. Twenty seven states explicitly allow midwife-assisted home birthing. No states prosecute women for attempting an unassisted home delivery, but courts have ordered cesareans for women who attempted vaginal births at home. In one case this involved physically restraining and transporting a patient to the hospital where surgery was performed despite her explicit refusal (Paltrow and Flavin 2013).

  2. For example, a woman in Ireland was recently forced to undergo cesarean section surgery when she threatened a hunger strike to protest the state’s abortion policies (McDonald 2014). In Brazil, forced cesarean can also be ordered by courts (Filipovic 2014). Lawmakers have introduced proposals to potentially limit childbirth choices for the sake of unborn infants in Canada (Martin and Coleman 1994) and Australia (Anolak), but those legal efforts have so far been unsuccessful. Throughout, I will focus on the United States’ legal system since the US has a well established body of case law that sets clear guidelines for informed consent and medical autonomy, and since the country’s approach to medical autonomy has informed practices in other countries throughout the twentieth and twenty-first century. Nevertheless, the general philosophical argument in favor of legal protections for obstetric autonomy are not limited to the United States, and indeed my thesis justifies a significant departure from current practice in the United States in favor of laws like Venezuela’s recent prohibition of obstetric violence.

  3. In cases of contagious pandemics, compulsory vaccination policies or quarantines may be justified even though they limit medical autonomy. Nevertheless, the duty to respect a patient’s treatment decision can only be outweighed when refusing medical interventions violates the rights of many non-liable bystanders in significant ways. Even in these circumstances, officials must take care to ensure that compulsory treatment is necessary and proportionate to the potential harm, and that treatment is minimally burdensome to the patient. Elsewhere, I argue for compulsory vaccination in more detail (Flanigan 2014).

  4. This epistemic justification for informed consent is even more limited in the case of childbirth than it is in other treatment situations because even if pregnant women are experts about their overall well-being, they may not be experts about the overall well-being of their fetus. For this reason, unlike other patients, a woman in labor could be in a relatively worse position to assess the overall consequences of a treatment choice precisely because she is so closely aware of her own interests. Insofar as informed consent is justified on the grounds that medicine should promote good consequences on balance, the claim that patients are experts about their overall well-being will not be decisive in the childbirth case if we grant that a child’s well-being is morally significant as well.

  5. Similar claims are sometimes advanced regarding terminally ill patients who might choose to end their lives. Terminally ill patients, especially those who suffer from painful conditions, often suffer from severe depression. Physicians, bioethicists, and psychologists have therefore suggested that patients with these kinds of physical and mental health problems cannot consent to voluntary euthanasia, or at least that heightened psychological scrutiny is warranted for patients seeking deadly treatments (Ganzini et al. 2008).

  6. Advance directives can be resolved with mutual consent. For example, if a woman with an advance directive changes her mind during labor, her birth plan does not entitle physicians to act contrary to her present will because the birth plan is not a contract between the physician and the patient but rather a list of requests that the patient previously specified to inform medical personnel (Ladd 1989). Even if advance directives were understood as binding contracts on laboring women, if the physician agrees to dissolve the contract then the contract is void. Physicians who are bound by informed consent requirements ought to dissolve the contract by request because the purpose of an advance directive or contract is to facilitate the patient’s choice by constraining the actions of the physician, not to constrain the patient’s choices once in labor. For an analogous discussion of the permissibly of paternalistically maintaining advance directives and contracts see (Husak 2009).

  7. This standard is the legal norm in the US, where states are currently divided regarding the strength of disclosure standards. About half require physicians to disclose any information a reasonably prudent physician would give and half require physicians to disclose any information a reasonable patient would find relevant. Nevertheless in practice the ‘reasonable patient’ standard has defined the standards of care despite legal variation (King and Moulton 2006).

  8. Evidence suggests that the recent adoption of birth plans has led to more empowered and informed decision making by laboring mothers, though they do not necessarily improve the experience of childbirth overall (Moore and Hopper 1995; Lundgren et al. 2003).

  9. I am grateful for an anonymous reviewer for prompting me to consider this potential exception to the doctrine of informed consent.

  10. In this case the patient died during a forced cesarean surgery (Olson 2012). This account is taken from Kristin Olson’s detailed account of forced cesareans. The two cases most significant for her analysis are In re A.C., 533 A.2d 611 (D.C. App. 1987) and In re A.C., 573 A.2d 1235 (D.C. App. 1990) (en banc).

  11. Discussions about physician’s conscience may also provide an opportunity for patients to learn about alternatives. For example, if a physician is reluctant to perform a cesarean hysterectomy for a Jehovah’s Witness who objects to the use of blood products, the patient may decide to accept bloodless interventions or to appoint a family member to decide on her behalf rather than refusing a cesarean hysterectomy (Karkowsky 2013).

  12. Many of the reasons that justify medical and obstetric autonomy also are moral reasons in favor of supporting a patient’s choice by providing treatment, even though informed consent does not require that health workers provide treatments that violate their conscience. For example, insofar as a presumption of medical autonomy is justified on the grounds that patients have strong interests in making significant intimate decisions, there are moral reasons in favor of supporting patients’ treatment decisions even if health workers are not required to do so. Or, if informed consent is justified in part because respecting a patient’s choice will likely promote a patient’s overall well-being even if the choice is medically risky, then that justification for informed consent also is a moral reason in favor of providing patients with effective access to treatment.

  13. Judge Frank Q Nebeker in In re A.C., 533 A.2d 611 (D.C. App. 1987) as cited in (Cudd 1990).

  14. The assumption that a fetus has moral status is controversial, but more plausible in the circumstances of childbirth than abortion because it is far less controversial that infanticide is wrong than that abortion is wrong, and a viable late-term fetus is physically more similar to a newborn child than an early-term fetus.

  15. This analogy is sometimes offered by critics of abortion, though I am unsure of its origin.

  16. As Thomson argues, even if good Samaritanism or minimally decent Samaritanism were obligatory, assisting others should not be an enforceable obligation. Thomson writes, “Minimally Decent Samaritan laws would be one thing, Good Samaritan laws quite another, and in fact highly improper.” She then argues that laws that compel women to carry a fetus to term would be more like Very Good Samaritan laws that require people to provide assistance even when it is extremely costly (Thomson 1971). Similarly, laws or hospital policies that force women to undergo procedures without their consent for the sake of unborn infants are also akin to Very Good Samaritan policies.

  17. Even if Mark had invited Alice onto his property, forcibly taking his blood would be wrong. Legally, if a person is injured while on my property, that doesn’t entitle the victim or public officials to forcibly perform medical procedures on me, and it would be immoral for them to do so.

  18. I am grateful to an anonymous reviewer for raising this objection.

  19. In this way, my argument is not incompatible with a principle of parens patriae, which could require the state to take an interest in the health of infants. Parents with religious objections to medical treatment are not entitled to refuse treatment on behalf of their infant children. However, women with religious objections to medical treatment are entitled to refuse treatment during labor and delivery even if that refusal choice endangers their children, just as religious patients may refuse to provide their relatives with other lifesaving medical services, such as organ and tissue donation.

  20. A few ethicists disagree with this claim, most notably, Cecile Fabre (Fabre 2006).

  21. A similar issue was raised in a recent article about heroin users (Henden 2012). There the author argued that these systematic social vulnerabilities undermined the possibility of consent. In direct contrast to this thesis, I am suggesting that these vulnerabilities make the imperative to respect patients’ choices all the more urgent.

  22. For example, Article 2 of the German constitution states that every person has an inviolable right to life and physical integrity and Article 6 states that “every mother shall be entitled to the protection and care of the community.” Together, these provisions should be interpreted as legal protections for obstetric autonomy.

  23. The foregoing analysis does not establish any specific rights for providers. A presumption of medical autonomy does not prohibit policy makers from prohibiting midwives from facilitating morally and medically risky home deliveries. In principle, legislation that bans midwifery outside of hospitals is not impermissible from the standpoint of obstetric autonomy, though there may be other considerations in favor or against regulating obstetric professions that I have not considered.

  24. For example, Richard Epstein’s proposal for medical malpractice reform to a strict contract model, wherein patients can contractually waive their right to sue for damages in exchange for risky medical treatments (Epstein 2006).

  25. This is true in Germany, for example. The German constitution protects rights to personal integrity and development, so smoking bans must be justified for the sake of employees’ rights rather than for paternalistic reasons.

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Acknowledgments

I thank the anonymous referees of the journal, participants from the University of Hamburg 2012 “New Perspectives on Medical Paternalism,” workshop, and Javier Hidalgo for very valuable comments and discussion of earlier versions of this paper. I also thank Tammy Tripp for her editorial assistance.

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  1. University of Richmond, Richmond, VA, USA

    Jessica Flanigan

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  1. Jessica Flanigan
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Correspondence to Jessica Flanigan.

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Flanigan, J. Obstetric Autonomy and Informed Consent. Ethic Theory Moral Prac 19, 225–244 (2016). https://doi.org/10.1007/s10677-015-9610-8

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