Incarcerated childbirth and broader "birth control": autonomy, regulation, and the state.

AuthorAhrens, Deborah
PositionI. Incarcerated Pregnancy and Imprisoned Childbirth B. Prison-Based Pregnancy and Birthing Issues 4. Autonomy and Safety During Labor through Conclusion, with footnotes, p. 25-51
  1. Autonomy and Safety During Labor

    For women outside the correctional context, preparing to deliver a child is an exercise in planning, requiring the expectant mother to make dozens of decisions large and small. While these choices are, as discussed below, (109) often constrained or coerced and are always contingent upon the progress of the pregnancy, they are central to the birthing experience and essential for the maintenance of autonomy and control. (110) As a general matter, pregnant inmates enjoy comparatively less control over their birthing experience. For most inmates, questions of how and when they give birth are dictated by correctional policies and/or the decisions of individual correctional and medical officials. (111) This subsection catalogs a number of the crucial birthing decisions that are routinely stripped from pregnant women. Some of the loss of autonomy reflected in the items below is unsurprising given the nature of incarceration and the logistical constraints faced by the state. Other items are more surprising in their lack of necessity, their pettiness, and/or their cruelty. (112)

    1. The Timing and Method of Delivery

      Women who have given birth while incarcerated persistently complain that correctional administrators and health care providers made decisions for them about when and by what method they would give birth. (113) Evidence suggests that correctional facilities routinely schedule inductions and Cesarean sections ("C-sections") (114) for prisoners that have neither been requested nor deemed medically necessary. (115) To some extent, these decisions are motivated by altruistic or, at least, understandable goals. For example, as discussed above, (116) women who go into labor unexpectedly in their jail cells sometimes face logistical difficulties that may delay transport and threaten maternal and fetal health; (117) scheduled deliveries reduce the likelihood of such a dangerous episode. Similarly, planned deliveries ensure the availability of necessary security, transportation, and medical personnel and resources, protecting health and limiting costs. Despite those considerations, inmates consistently report that officials make these decisions haphazardly and imperiously, without sufficient warning or consultation and with disdain for their health and psychological concerns. (118)

      Prison officials and medical personnel also routinely schedule C-sections for pregnant women who might be able to labor and deliver vaginally. (119) In particular, prison officials and engaged medical personnel are likely to schedule such procedures for women who have previously delivered a child via C-section. (120) While medical resistance to vaginal births after C-sections ("VBACs") is common with regards to all women, (121) the dynamics of decision making in the prison context bring added pressures to bear on the expectant mother. While prisons probably lack the authority to order a woman to undergo a medically unnecessary C-section if she refuses, (122) pregnant inmates are unable to shop around for sympathetic facilities and providers, often lack the information necessary to make an informed choice, and face potential disciplinary consequences for challenging authority in ways that might be deemed confrontational. (123) This Article discusses the pressure towards C-sections for non-incarcerated women in Part II, demonstrating that while incarcerated women may face some bureaucratic obstacles that non-incarcerated women do not, C-sections are an issue for women generally, not incarcerated women specifically.

    2. Pain Relief

      Correctional personnel and affiliated medical staff often make decisions for prisoners about their ability to access pain relief during labor. A variety of pain relief options are available to laboring women, ranging from natural childbirth pain relief methods; to narcotic pain-relief medications, such as Stadol; to epidural anesthesia. (124) Medical staff and/or corrections officials may determine for a woman whether or not she will be permitted to access various forms of pain relief despite the patient's contrary wishes. (125) Decisions are primarily made in the direction of denying access to pain medication for women who have documented histories of substance abuse, on the theory that it is inappropriate to expose a woman with a substance abuse history to pain-relief methods that include narcotic drugs. (126) As a significant percentage of female prisoners have a history of substance abuse and/or are incarcerated for drug offenses, (127) many prisoners face constraints on their ability to determine whether they will access pain relief and what forms they will access. These constraints not only limit the autonomy of pregnant prisoners but also force them to endure intense, preventable pain.

    3. Access to the Delivery Room

      Pregnant women often carefully limit access to the rooms in which they labor and deliver, inviting in supportive people who might enhance their experience and excluding those who might unsettle them or invade their privacy. While, outside of prison, women may not be able to include all wanted people; may face scheduling or policy constraints that limit access to supportive persons; and may not be able to exclude all unwanted visitors, incarcerated women are often entirely denied autonomy in these matters. Incarcerated women who give birth generally are not permitted to have supportive people of their choice present while they labor and deliver. (128) Those supportive people may include the biological father/partner/spouse of the laboring woman; other relatives and friends; doulas; (129) or a physician or midwife that the woman has herself selected. (130) She may also not be permitted to inform any of those persons that the birth is about to take place, or that it has just taken place. (131) Even when prison policy allows women to inform such people of a pending birth or even invite them into the delivery room, pregnant inmates are dependent on correctional officials or medical personnel to communicate their wishes, an obligation that is often ignored or mishandled.

      While a laboring woman who is incarcerated may not be able to have the persons present that she wishes to have present, she may be saddled with audience members whom she did not invite. Corrections officers, including opposite-sex corrections officers, often remain in the room during labor and delivery, at great cost to the woman's privacy and autonomy and with little if any marginal gain in security. (133) In some instances, such guards have engaged in loud, distracting, or uncivil behavior which the laboring prisoners have had little ability to control. (134) In one notable incident, a woman had a guard next to her bed during childbirth who was watching NBA basketball, cheering and yelling at the TV. (135) Despite repeated requests to leave or turn off the television, he refused to do so, remaining in the room until the baby was crowning. (136)

  2. The Experience After Birth

    Finally, women who give birth while incarcerated face a variety of problems in the aftermath of the birth. Those problems begin immediately, as some mothers are denied the ability to nurse the newborn, stay with the newborn for any length of time, or introduce the newborn to other family members. Once a baby is safely delivered, some prisons become less conscientious in meeting maternal health needs and deny access to breast pumps, postpartum counseling, and follow-up health care. (138)

    In the medium and long term, the problems persist. Outside of a small number of programs, incarcerated mothers are denied ongoing access to their infants. (139) Moreover, they are often denied postpartum placement counseling and are limited in their ability to make choices as to who might raise their children in their absence. (140) At some point, the problems of those who give birth behind bars then merge into the broad and overwhelming problems of incarcerated parents, including the difficulty of maintaining relations with their children, (141) the operation of laws and policies that push to strip parental rights, (142) and the lack of programs to facilitate post-release reunification of mothers with children through housing or other services. (143)

    1. The Medical and Legal Context

      These difficulties and constraints faced by those who are pregnant behind bars do not occur for lack of standards for obstetrical and gynecological care for prisoners. There are, in fact, specific professional guidelines for pregnancy-related health care in prison. The National Commission on Correctional Health Care, (144) the American Congress of Obstetricians and Gynecologists, (145) and the American Public Health Association (146) all publish specific standards for pregnancy-related health care in prison. These professional guidelines include standards requiring risk assessments, mental health screening, dietary supplements, special housing, "sensitive and dignified" exams, the training of health care staff in prisons in case of emergency, and ongoing access to newborns after delivery. (147) There is no requirement, however, that incarceration facilities comply with any of these standards, and, to the extent that information is available about prison pregnancy and birth at all, it appears that only a minority of jurisdictions even purport to follow professional guidelines for care. (148)

      Efforts to compel prison officials to follow readily available standards for inmate care often of necessity take the form of lawsuits. (149) After-the-fact suits, seeking compensation for the consequences of degrading and substandard obstetrical care have, on occasion, been successful, (150) but such lawsuits face substantial doctrinal obstacles including the doctrine of qualified immunity, (151) the requirement that there exist a policy or practice of constitutional violations before a municipality can be held liable, (152) and the underlying standard for liability for...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT