When Zeus sought divinity for his son Hercules, born of an adulterous affair with the mortal Alcmene, he sneaked the infant into the bedroom of his sleeping wife, Hera, and put him to her breast for a taste of infinity… Hercules suckled so hard that Hera awoke, and she shook him off in outrage, spurting milk across the skies- hence the Milky Way. Hercules already had swallowed enough, though, to join the ranks of the immortals.
It is customary practice for healthcare professionals to obtain consent for treatment from their patients. Of course, this assumes that the professionals deem their patient capable of consent. In the case of obstetricians, many consider the fetus to be their patient at least as equally as the mother. Some states grant rights and protections to the fetus that is denied to the mother in the face of a disagreement or refusal to consent to procedures the healthcare professional deems in the best interest of the fetus, even if there is a risk posed to the mother. Even if the mother does consent to a procedure that puts her at risk, such as a surgical birth called a cesarean or c-section, consent is not as simple to obtain as it may initially appear.
The mere fact that a person provides written consent for a medical procedure is not necessarily indicative of an autonomous decision, especially when she may be agreeing to submit to someone in a perceived position of authority such as her physician, or to circumstances beyond her control (Roberts, 1997). Especially in the case of a poor parent or a parent of color, there are certainly plenty of reasons to be wary of causing waves within the medical establishment. The evidence supports this, as discriminatory enforcement of child endangerment laws are well-documented especially among black parents at a rate ten times higher than white parents (Roberts, 1997).
In 2004, Melissa Rowland initially refused a cesarean birth for her twins at one hospital, choosing instead to have her cesarean at a different hospital a week and a half later. After one of her fetuses was born a daughter whose blood was positive for both cocaine and alcohol, and the other a stillborn son, the District Attorney’s office charged her under a state statute which established her deceased fetus “as a person for the purposes of criminal prosecution and a theory of conduct evincing a depraved indifference to the value of human life” (Wilde, 2004) and child endangerment. She later accepted a plea deal dropping the homicide charge and pleading guilty to two charges of child endangerment for her use of cocaine during her pregnancy, losing custody of her daughter in the process (Miller, 2005).
The refusal of unwanted medical care in pregnant people can not only cause conflicts between the family and their medical providers but can also result in problematic referrals to law enforcement. These referrals are the violation of the right to medical privacy and can be immensely traumatic for the families. The dignity of risk and the right to choose to accept or refuse medical treatments is often disregarded when those in power determine that there is a risk to the fetus carried within the person in question, as some states specifically place the rights of the fetus over the rights of the parents. The refusal of vaginal exams during labor or a surgical birth may be reason enough, even in the absence of legal evidence or precedence, may be enough to trigger a lengthy legal battle that many families simply cannot afford to fight even though there has never been a law passed in any state that makes parents liable for their own pregnancy losses (Paltrow & Flavin, 2013).
Perhaps the high-profile legal case brought in 1997 by a birthing parent against the hospital within which she was forced to undergo a surgical birth without her consent had something to do with it. The story of Laura Pemberton is but one case of the travesty of the medical system for women choosing to exercise their right to medical freedom of many. Unfortunately, there is not as much documentation of most of these births as there is with Ms. Pemberton’s. That she is a white Christian woman with apparent higher education is a plausible reason that cannot be proven for the increased interest and media coverage of her case. The absence of legal precedent may be a contributing factor to her losing her case against the Tallahassee Memorial Regional Medical Center for violating her constitutional rights and right to procedural due process as well as accusations of negligence and false imprisonment for a forced cesarean of her baby that she believed was not medically necessary.
In 2007, Ms. Pemberton spoke at the National Summit to Ensure the Health and Humanity of Pregnant and Birthing Women held in Atlanta, Georgia. She closed her talk with the following powerful words:
The judge said that my unborn baby was in control of the state and that it was the state’s responsibility to bring this unborn baby into the world safely... The judge already had his mind made up. The judge looked at me, pointed his finger at me, and said we are going to do this c-section and we are going to do it tonight. We had lost before we ever went into the room… I looked at the doctor… and I said to him, ‘You know that I’m fine, and you know that I can deliver this baby. I was prepped for surgery regardless. Again, they came and asked me to sign a consent form, which I refused. Just before the c-section was to begin, this doctor who had said that I could not do this naturally, he did one more exam while I was on the operating table. I was 9 centimeters dilated. My body was working, and yet they still had the right to remove my baby from my body against my will. Justice must and will be done. May God use me to see that no family ever has to endure the persecution that I have suffered. I have been raped by the system.
Ms. Pemberton’s obstetrician along with another obstetrician and the chairmen of the hospital’s obstetric staff “testified unequivocally that vaginal birth would pose a substantial risk of uterine rupture and resulting death of the baby" (Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., Inc. (1999).
As it turns out, a large systematic review and meta-analysis of the evidence regarding uterine rupture in vaginal births after “classical” cesareans where there is a vertical scar and “low transverse” cesareans (most commonly used today) where the incision is horizontal and low on the abdomen has been found to be less of a risk than Ms. Pemberton’s physicians purported. As of 2020, the evidence indicates that the classical vertical incision resulted in lower risk of organ injury than the transverse incisions in subsequent births, and that the incidence of uterine rupture in births following the vertical incisions was roughly 1% when there was not a trial of labor (TOL) (Moramarco, Korale Liyanage, Ninan, Mukerji & McDonald, 2020).
According to the CDC, 1996 was the year in which the total number of surgical births were at their lowest rates in quite some time (data provided was for the years 1989-2003), and VBAC, or vaginal birth after cesarean, was at the top of its bell curve with nearly 30 successes for every 100 VBAC attempts. After 1996, the rate of successful VBACs plummeted to just 10 out of every 100 attempts by 2003, while the number of cesarean births steadily rose annually (CDCa, N.D.). As of 2019, less than 14 of 100 VBAC attempts resulted in a vaginal delivery (CDCb, N.D.). If we are truly the wealthy and resourceful country we purport to be, why would rates of successful vaginal births after previous surgical births in recent years be roughly half of what they were 25 years ago?
The Organization of the American States defines obstetric violence as when healthcare personnel provide “dehumanizing treatment [and] abusive medicalization and pathologization of natural processes,” which involves “a woman’s loss of autonomy and of the capacity to freely make her own decisions about her body… which has negative consequences for a woman’s quality of life (OAS & MESECVI, 2012). Certainly, Ms. Pembroke was indeed “raped by the system,” as she suffered incredible obstetric violence at the hands of not just her medical care providers, but indeed the state of Florida itself. As Roberts (1997) purports, creating criminals out of these parents seems a far simpler solution than creating a system of healthcare that ensures healthy babies for all despite its lack of efficacy.
Lactation Policy and PracticeThe racialized criminalization of motherhood discussed in Roberts (1997) is not limited to pregnancy alone. Elizabeth Cook-Lynn (1996) detailed a 1989 case brought against a teenager who was indigenous, indigent, and an alcoholic. A member of the Sioux tribe of South Dakota, she was denied access to abortion services, and so gave birth to her third child. The tribal police were called to her home to discover a severely underweight infant and drunken mother. The tribunal court claimed that she had neglected her baby and “assaulted her with intent to commit serious bodily injury” by nursing her infant while drunk, and she was charged with a felony. The baby’s blood alcohol measured at 0.02%, a level not considered to be “medically consequential” in most circumstances. While she was court-ordered to attend alcohol counseling, within ten days of the order it was reversed. Her alcoholism was criminalized, parental shortcomings defined as crimes, and she lost custody of her other children. Marie spent nearly four years in a federal penitentiary without having argued her case in front of a jury. Not only was there no further fight from the second court-appointed attorney who argued her case, but the Indigenous community also refrained from standing up for Marie and her family. In fact, I could not find a single news article about this case online, and the only reference to it was the one outlined in Cook-Lynn’s book.
The criminalization of Marie Big Pipe’s substance abuse and subsequent long-term incarceration in combination with the permanent separation from her family and refusal to provide useful substance abuse care is a travesty of the American healthcare system. The fact that she could never get her children back even after her release from prison constitutes an incredibly permanent punishment that simply would not happen to an educated white woman of financial means. The implication is that indigenous alcoholics are solely responsible for the state of their individual lives, and not the colonialist influence that has weathered the social fabric of their culture, land, and families. They apparently have no right to restorative justice by way of high-quality and attainable substance abuse treatment. Just as Roberts clearly demonstrated that motherhood while Black puts one at a disproportionate risk for judicial involvement in parenthood, we can see how this struggle is not limited to African Americans, but all people of color within the systemic racism of the United States.
The of breastfeeding of infants has long been a subject of controversy. In the 17th and 18th centuries, the hiring of wet-nurses to feed one’s infants was common practice, but early feminist movements took hold to encourage women to nurse their own children, albeit with an overtly judgmental tone with a dramatized element of risk involved. In her book, A Serious PROPOSAL to the LADIES for the Advancement of their True and Greatest Interest, Mary Astell- a woman who never married and never had children- made the following as just one among several challenges to her child-bearing peers:
And if Mothers had a due regard to their Posterity, how Great soever they are, they would not think themselves too Good to perform what Nature requires, nor through ride and Delicacy remit the poor little one to the care of a Foster Parent. Or if necessity inforce them to depute another to perform their Duty, they wou’d be as choice at least, in the Manners and Inclinations, as they are in the complections of their Nurses, lest with their Milk they transfuse their Vices, and form in the Child such evil habits as will not easily be eradicated.
A hundred years later as wet-nursing continued to be a societal trend, a husband and wife duo published another scathing criticism of women who chose not to breastfeed their children:
Let not husbands be deceived: let them not expect attachment from wifes who, in neglecting to suckle their children, rend asunder the strongest ties in nature… [a woman who refused to] discharge the duties of a mother… has no right to become a wife. (Buchan & Buchan, 1811)
Apparently, a couple of hundred years of shaming and criticizing parents yielded some results that were to the benefit of humans among certain privileged societies although the ends may not sufficiently justify the means. Ironically, it seems like the peer pressure to breastfeed didn’t exactly pay off, as while our initial breastfeeding rates are reasonable, parents are still not nursing for anywhere near the recommendation. By 2017, the United States had roughly 80% of parents who had ever breastfed their children, though only 20% of those families managed to exclusively breastfeed their children through the recommended first 6 months of life (CDCc, N.D.).
As the International-Board Certified Lactation Consultant credential is just 36 years old (IBLCE, 2021), and lactation policy seeming to begin with the creation of the WIC program (The Special Supplemental Nutrition Program for Women, Infants, and Children) in the early 1970s, the history of lactation policy in the US is still in its infancy and is not developing all that quickly relative to other policy subject areas. In fact, the first several articles I found while looking up ethics in breastfeeding policy were focused on the ethics of pushing breastfeeding upon those who do not wish to breastfeed (this argument is best represented in Fahlquist & Roeser, 2011) despite the relative minority of parents who do not wish to breastfeed at all, with over 80% of US mothers having breastfed their children at some point as of 2017 (CDCc, N.D.). As it turns out, the UN has declared breastfeeding as a major human rights issue, with over 800,000 infants each year whose lives would be saved if parents followed WHO recommendations since babies have the right to the highest standard of health available to them (OHCHR, 2016).
In the U.S., WIC peer breastfeeding counselors are the most attainable support for impoverished breastfeeding parents. Sadly, the racial disparity in advice given is tangible, with counselors more frequently giving breastfeeding advice to white women and bottle feeding advice to black women (Beal, Kuhlthau & Perrin, 2003). It makes sense that the international board-certified lactation consultant would be a better support, but unfortunately with such a relatively new worldwide credential there are a plethora of barriers to obtaining specialized care. Geographic access and financial attainability are two of the biggest challenges for families, with families living within 15 miles of an IBCLC had higher rates of breastfeeding than those in more rural areas (Haase, Brennan & Wagner, 2019). With the widespread acceptance of telehealth, this barrier is likely diminishing. The financial constraints, however, continue. Across 15 states in the U.S., no autonomous billing exists unless the IBCLC bills under another credential such as a MD, CNM, RN, etc. Myriad professionals and professional organizations such as the Academy of Breastfeeding Medicine have unequivocally stated that insurance coverage for lactation services would improve breastfeeding care, however many still find themselves unable to afford this care. Further, with 87.1% of U.S.-based IBCLCs being non-Hispanic and white (Mojab, 2015), there is an inevitable disparity in care both sought and received due to the plethora of socio-racial issues that are omnipresent within the U.S.
Parents of Color are given formula and formula paraphernalia at higher rates by those charged with supporting optimal infant nutrition in birthing hospitals, given bottle feeding advice more frequently than white women, have more difficulty obtaining equitable lactation support, and are more likely to have legal involvement in their birthing and parenting practices than non-Hispanic white women. You have the right to breastfeed your baby, but apparently you do not have the right to obtain access to high-quality support in order to overcome breastfeeding challenges- even those created and exacerbated by healthcare professionals- in the U.S.
The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices. (Ruth Bader Ginsberg as quoted in Waxman, 2018)
Angier, N. (1999). Woman: An Intimate Geography. ProQuest Ebook Central http://ebookcentral.proquest.com.proxy.myunion.edu
Astell, M. (1701). A Serious PROPOSAL to the LADIES for the Advancement of their True and Greatest Interest. Source Book Press. London. Retrieved from https://babel.hathitrust.org/cgi/pt?id=pst.000000323086&view=1up&seq=10&q1=think%20themselves%20too%20Good%20to%20perform
Beal, A. C., Kuhlthau, K., & Perrin, J. M. (2003). Breastfeeding advice given to African American and white women by physicians and WIC counselors. Public health reports. 118(4), 368–376. https://doi.org/10.1093/phr/118.4.368
Buchan, W., & Buchan, A. P. (1811). Advice to mothers on the subject of their own health : and on the means of promoting the health, strength, and beauty of their offspring. London : T. Cadell & W. Davies.
Centers for Disease Control (CDC)a. (N.D.). QuickStats: Total and Primary Cesarean Rate and Vaginal Birth After Previous Cesarean (VBAC) Rate --- United States, 1989-2003 Retrieved from https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5402a5.htm
Centers for Disease Control (CDC)b. (N.D.). Births: Final Data for 2019. Retrieved from https://www.cdc.gov/nchs/data/nvsr/nvsr70/nvsr70-02-508.pdf
Centers for Disease Control (CDC)c. (N.D.). Breastfeeding Among U.S. Children Born 2010-2017, CDC National Immunization Survey. Retrieved from https://www.cdc.gov/breastfeeding/data/nis_data/results.html
Cook-Lynn, E.. (1996). Why I Can’t Read Wallace Stegner and Other Essays : A Tribal Voice. University of Wisconsin Press.
Fahlquist, J.N. & Roeser, S. (2011). Ethical Problems with Information on Infant Feeding in Developed Countries. Public Health Ethics. 4(2). 192-202.
Haase, B., Brennan, E., Wagner, C.L. (2019). Effectiveness of the IBCLC: Have we Made an Impact on the Care of Breastfeeding Families Over the Past Decade? Journal of Human Lactation. 35(3). 441-452. Retrieved from https://journals-sagepub-com.proxy.myunion.edu/doi/pdf/10.1177/0890334419851805
International Board of Lactation Consultant Examiners (IBLCE). (2021). History. Retrieved from https://iblce.org/about-iblce/history/
Miller, M.K. (2005). Refusal to Undergo a Cesarean Section: A Woman’s Right or a Criminal Act? Health Matrix: The Journal of Law-Medicine. 15(2). Retrieved from https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1355&context=healthmatrix
Mojab, C.G. (2015). Pandora’s Box Is Already Open: Answering the Ongoing Call to Dismantle Institutional Oppression in the Field of Breastfeeding. Journal of Human Lactation. 31(1). 32-35
Moramarco, V., Korale Liyanage, S., Ninan, K., Mukerji, A., & McDonald, S. D. (2020). Classical Cesarean: What Are the Maternal and Infant Risks Compared With Low Transverse Cesarean in Preterm Birth, and Subsequent Uterine Rupture? A Systematic Review and Meta-analysis. Journal of Obstetrics and Gynaecology Canada, 42(2), 179–197. https://doi-org.proxy.myunion.edu/10.1016/j.jogc.2019.02.015
National Advocates for Pregnant Women (NAPW). (2009). Laura Pemberton [video]. Vimeo. https://vimeo.com/4895023
Paltrow, L. & Flavin, J. (2013). Arrests of and Forced Interventions of Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health. Journal of Health Politics, Policy, and Law, 38(2), 299-343.
Pemberton v. Tallahassee Memorial Regional Medical Center, Inc. (1999). 66 F. Supp. 2d 1247. Retrieved from https://scholar.google.com/scholar_case?case=1839086537289754862&hl=en&as_sdt=6,33
Roberts, D. (1997). Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon Books.
Waxman, O.B. (2018). Ruth Bader Ginsburg Wishes This Case Had Legalized Abortion instead of Roe v. Wade. Retrieved from https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/
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