Informed Consent In Childbirth: Making Rights Into Reality

Analyses of problems in U.S. maternity care often focus on medical factors and cost issues, important issues for healthcare policy. But a central factor at play in the use and misuse of medical resources is a foundational concept of healthcare law: the right to informed consent.

Systemic Dysfunction

Across the United States and around the world, people are waking up to the fact that obstetric care could do better for women and babies. The ever-increasing imposition of expensive technological, pharmaceutical and surgical interventions in pregnancy and childbirth does not result in better outcomes. Life-saving technologies are great when they save lives. However, their use in cases when they are unnecessary is not only inefficient, but risky. Few would deny that life-saving technologies are being used on many women who are not in an emergency and could have given birth without those technologies. As the cesarean rate reaches 70 percent in some American hospitals, women observe casually that most of their friends are giving birth with induction drugs that force uterine contractions, having their babies delivered through uterine surgery, or receiving both the induction drugs and the surgery.

The circumstances that give rise to these expensive, interventionist births are shaped by a tangle of factors that interfere with care providers’ ability to recommend treatment based solely on what they believe to be best for the individual. Doctors confess that their clinical practices, including their treatment recommendations to pregnant and birthing women, are influenced by many variables beyond immediate clinical need.

“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” —United States Supreme Court, Union Pacific Railway v. Botsford, 1891

Dysfunctions in modern maternity care are entrenched in complex and convoluted systems of hospital policies, insurance policies, culture and emotion. Both practitioners and consumers seem to be ensnared in a Gordian knot of “medico-legal factors” that don’t make sense in light of the real risks and benefits of a given intervention. (For example, why do “liability factors” require hospitals to insist that healthy women give birth strapped to a machine that does not increase their chances of going home with a live baby, but greatly increases their risk of cesarean section?)

What can be done to construct systems of care that use medical technology judiciously, to optimize outcomes and promote public health? The clarification of one basic legal principle could serve as a start, and in the meantime would protect women and their babies from the harmful effects of systemic dysfunction. That principle is: All citizens have the right to informed consent in healthcare, and that includes the right to refuse medical interventions.

One of the central dysfunctions of modern obstetric care is that its practices have not yet caught up with the fact that women have become fully participatory citizens in the last century. That disconnect plays out in the way that many women are treated in conversations about their care, and when they are giving birth. In many ways, women are treated as passive objects for care, rather than active decision-makers and participants. But, indeed, pregnant people are citizens, too.

Genuine informed consent recognizes the patient as an intelligent, autonomous human being capable of making decisions about her body. Unfortunately, the “informed consent” that many women experience during childbirth looks more like, “Here’s what we’re going to do to you; now sign this.” Sometimes—too often—women aren’t told what is going to be done to them at all.

The Legal Right to Informed Consent

Despite the empty, bureaucratic way it is typically applied, informed consent means something real. It is a legal right, and it means what it says: Inform + Consent. Most, if not all, constitutional democracies explicitly protect the right to make informed and autonomous healthcare decisions, and ground it in the dearest fundamental liberties that we require to be happy and whole human beings. The United States roots the legal right to informed consent, and the right to refuse medical intervention, in the Fourteenth Amendment promise that nobody will be deprived of “life, liberty or property without due process of law,” a clause of the Constitution that protects other important rights. In the U.S., the doctrine of informed consent has been developed as a part of medical malpractice law. It is interesting that, as soon as modern medicine came into being, people saw a need to address a patient’s rights by law.

We who hire doctors to advise and assist them with medical care have the right to receive full information from those doctors about our options, and the risks and benefits of those options; we have the right to make the decision about which options we want to pursue. A doctor cannot substitute her judgment for that of a patient by failing to disclose what she is going to do to the patient’s body. The patient’s decision to refuse a doctor’s offer of treatment doesn’t have to seem reasonable or prudent to the doctor, or to anybody else. The right to informed and autonomous decisions in healthcare is the right to weigh the full spectrum of risks and benefits according to the patient’s personal values and perspective.

A century after Justice Cardozo held in Schloendorff v. Society of New York Hospital (1914) that “a surgeon who performs an operation without his patient’s consent commits an assault,” informed consent is still good law, and should be practiced. The American College of Obstetrician-Gynecologists promotes it, and even advises members that “informed consent should be looked on as a process rather than a signature on a form.” The International Federation of Obstetrician-Gynecologists stands by a rights-based code of ethics that instructs doctors to “support a decisionmaking process, free from bias or coercion, which allows women to make informed choices regarding their sexual and reproductive health. This includes the need to act only on the basis of a fully informed consent or dissent, based on adequate provision of information and education to the patient regarding the nature, management implications, options and outcomes of choices. In this way, healthcare professionals provide women with the opportunity to consider and evaluate treatment options in the context of their own life circumstances and culture.”

These professional organizations for obstetric providers thus understand and promote informed consent. But what are women experiencing, in reality, when they give birth to their babies? The sidebar on the opposite page presents a number of these real-life birth experiences.

Too many women are reporting experiences like those related in the sidebar. There are, doubtless, myriad dynamics at play in individual patient-provider exchanges. Some of these encounters may reflect individual personalities and incidents, and others express systemic issues like hospital and insurance “policy.” But it isn’t necessary to understand all the reasons why these events are occurring to talk about the right of the patient to informed consent. The right of informed consent starts with the patient and works outward.

Individual providers, protocols and policies must come into alignment with the fundamental, constitutional right of the consumer of medical services to be recognized and supported as the informed decision-maker about his or her own care. Hospital policies do not trump constitutional rights.

A complication of informed consent in modern maternity care is the question of whether a woman can be said to have “consented” to a procedure when her doctor threatens to “fire her as a patient,” or refuse to care further for her, unless she accepts the intervention. This issue is urgent in the face of widespread “VBAC bans,” in which doctors or hospitals refuse to support women who choose to give birth vaginally, if they received a cesarean section in a previous birth. This “policy” keeps women from being supported in the decision to take on the very small risk that they might need an emergency cesarean section in a vaginal birth. Instead, every woman must “consent” to planned and scheduled cesarean sections at times manageable to the hospital staff.

In law, coercion generally nullifies consent. Across jurisdictions, it is usually agreed that a person cannot be said to have legally consented to something if that consent was given under threat. Coercion can include the threat of harming the person if they do not consent, or the threat of withholding something that the person would ordinarily expect to receive. The question facing thousands—soon to be millions—of American women is: Can we no longer expect to receive support for vaginal birth? With a current national cesarean rate of one in three births, hundreds of thousands of second-time mothers will grapple with these issues in the next few years.