Refusing a c-section = abuse and neglect?

A woman had her parental rights terminated after refusing to deliver by cesarean -- but that's not the whole story


Kate Harding
July 23, 2009 5:45PM (UTC)

In 2006, a woman known only as V.M. in court documents gave birth to a baby girl, J.M.G., at a New Jersey hospital. During labor, V.M. "behaved erratically" and at some point refused to consent to a cesarean section, despite her doctor's concerns about fetal distress. The obstetrician ordered an emergency psychiatric evaluation, which found that "V.M. was not psychotic and had the capacity for informed consent with regard to the c-section." The staff then asked for a second opinion, but before the next psychiatrist could complete his evaluation, the baby was born vaginally. And healthy. Oops. 

Nevertheless, a social worker at the hospital contacted the Department of Youth and Family Services, and J.M.G. was removed from her parents. Eventually, a judge agreed with DYFS that V.M. and B.G.'s parental rights should be terminated. Documents recently released by the apellate court say flat out that at that point: "the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth. V.M.'s refusal to consent to a c-section factored heavily into this decision." And still, V.M. lost the appeal.

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Unbelievably outrageous, right? Louise Marie Roth at the Huffington Post lays out the case for exactly why terminating a woman's parental rights for refusing a c-section is a heinous assault on her civil rights. Unfortunately, that's not why the appellate court agreed that V.M. was guilty of abuse and neglect, no matter how large a role it played in the first trial. The new documents go on to say, "irrespective of whether or not V.M. consented to the c-section, there was sufficient credible evidence to support a finding of abuse and neglect as to V.M. The majority therefore eschews any discussion of the issue of c-section."

It still sounds (and might actually be) pretty damned outrageous. What credible evidence could prove that a mother who wasn't allowed to take her baby home from the hospital is guilty of abuse and neglect? Well, apparently, neither parent showed up to the first court hearing, days after J.M.G. was born, and when a caseworker called to ask where they were, B.G. answered, claimed he was not B.G., and claimed not to know who the caseworker was or anything about a hearing. Thus J.M.G. was placed in foster care. After the next hearing, where V.M.'s history of psychiatric illness and refusal to take prescribed medication came up, two psychologists who attempted to evaluate V.M. and B.G. ended up getting restraining orders against them; the second "was assaulted in the parents' home." Additionally, "The group contracted to provide parenting classes stated that it could not provide V.M. with services absent a psychological evaluation due to her disruptive and uncontrollable behavior." Oh, and somewhere in there, V.M. claimed she had consented to a c-section, despite all evidence to the contrary.

In the pro column, the baby's foster mother later testified that, based on her visits with V.M. and B.G., she thought they would make wonderful parents. But back in the con column, another psychiatrist who eventually did evaluate the couple diagnosed V.M. as a paranoid schizophrenic and B.G. as suffering from "'folie á deux,' a rare condition in which one person subscribes to the psychoses and paranoid delusions of another," and "stated that it would be dangerous and reckless to return the child to them, because "[t]hese are parents who live in a world that has nothing to do with the world that we live in. And anything could happen there at any time and there's no way to predict it." A defense psychiatrist then countered that yes, they would make good parents, actually -- and the flummoxed judge ordered a third opinion, after which he entered an order that said "adoption was an appropriate plan because of V.M.'s psychiatric condition and non-compliance with treatment and B.G.'s lack of acceptance."

You get the picture. I won't offer a guess as to whether this couple is as dangerously mentally ill as some of the psychiatrists claimed, or if they were the victims of a witch hunt, or somewhere in between. But it seems plenty clear that V.M.'s refusal to have a c-section was not the main issue in the appellate court's decision, or even necessarily the first court's.

The document does refer to several other legal decisions that weighed a fetus's rights against the mother's right to refuse a c-section, not all of which favored the mother. It's well worth reading through those, for all the reasons Roth lays out. And she has a strong point when she says that "While the court opinion also focuses on the parents' psychiatric diagnoses (which are fallible medical judgments) and their history of care in determining their fitness as parents and abrogating their parental rights, their psychiatric state would never have been questioned if the mother had not refused invasive abdominal surgery -- which was entirely within her rights." Probably true. The obstetrician is quoted as saying, "in the end with the mother's life and baby's life in balance, I think it was negligent . . . not to accede to what the doctors requested," which is the kind of statement that makes me want to go give birth in the woods by myself if I ever do; refusal of an invasive and, as it turned out, unnecessary medical procedure should not call your skills as a mother into question before you even are one. But in the case we're discussing, the appeals court actually agreed with that premise. To wit:

I would adopt the reasoning in L.V. as applied to the facts here. The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.

That's exactly the kind of language women should want to see in legal rulings. And yet, Roth and other bloggers are holding this up as an example of, as far as I can tell, the exact opposite of what the latest judges actually said.

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There's no doubt that the doctors and staff at St. Barnabas were both paternalistic and ridiculously egotistical in their assessment that refusing a c-section equals neglect. There's no doubt that the original trial judge should never have factored that into his decision -- just as the appellate court unequivocally said. But given that that is what the appellate court unequivocally said, why are we now talking about this in terms of a legal system gone mad? That decision is actually evidence that the system worked, albeit far too slowly, to defend V.M.'s right to make medical decisions about her own body. It just didn't defend her right to be a mother, based on the preponderance of the incredibly complex, conflicting evidence against her.

It's possible that V.M. got completely screwed here; I'm glad it's not my job to interpret the evidence. And it is terrifying that in too many cases, the state has successfully argued that a fetus's rights outweigh its mother's. But making V.M. out to be a poster girl for reproductive rights, based on a document that takes great pains to explain why she was declared an unfit mother regardless of her decision to deliver vaginally, seems like an awful stretch.

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Kate Harding

Kate Harding is the author of Asking For It: The Alarming Rise of Rape Culture--and What We Can Do About It, available from Da Capo Press in August 2015. Previously, she collaborated with Anna Holmes, Amanda Hess, and a cast of thousands on The Book of Jezebel, and with Marianne Kirby on Lessons from the Fat-o-Sphere. You might also remember her as the founding editor of Shapely Prose (2007-2010). Kate's essays have appeared in the anthologies Madonna & Me, Yes Means Yes, Feed Me, and Airmail: Women of Letters. She holds an M.F.A. in fiction from Vermont College of Fine Arts and a B.A. in English from University of Toronto, and is currently at work on a Ph.D. in creative writing from Bath Spa University

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