Pushing back: protecting maternal autonomy from the living room to the delivery room.

AuthorChojnacki, Benjamin Grant
  1. INTRODUCTION II. NEW BIRTH OPTIONS A. Midwifery & Home Births 1. Midwifery--An Overview 2. A More Appealing Approach? 3. Concerns Surrounding Home Births 4. Questionable Support B. Elective C-Sections C. Induced Labor III. LIMITING MATERNAL ANATOMY A. Legal Basis for Maternal Choice B. Other Legal Interests Affecting Maternal Choice C. Governmental Limitations 1. Generally 2. Birth Centers 3. Maternal Information Statutes 4. Protecting the Fetus i. Compelled Medical Treatment ii. Detention, Incarceration, and Child Abuse D. Limits During Labor 1. Pushed Births 2. Informed Consent E. Aggressive Advocates F. Insurers Limiting Choice IV. NEW OPTIONS PROVIDE A GREATER CHANCE FOR LIMITATION A. Home Births B. C-Sections and Induced Labor V. RESOLUTION A. Empowering the Mother as A Decision Maker 1. Increase the Information Available 2. Encouraging Disinterested Physician Involvement B. Incentivizing More Appealing Birth Conditions C. Rethinking Informed Consent VI. CONCLUSION I. INTRODUCTION

    On the surface, technological advancements giving mothers-to-be the choice to have a C-section or schedule an induction without a medical reason (2) and the continued legalization of Direct-Entry Midwifery appear to indicate that mothers are enjoying a greater amount of choice in selecting their method of childbirth. But a closer examination reveals that, despite "the social and cultural movement directed toward affording pregnant, laboring, and birthing women greater autonomy and control during this vital reproductive process," (3) limits on maternal autonomy still exist. (4) As more women deliver their children using Direct-Entry Midwives, through elective C-sections, or through scheduled induction, these limits have the potential to grow more intense.

    This perverse effect is the result of a flawed system, (5) and changes can be made to protect maternal autonomy from the consequences of these flaws. (6) Part II provides an overview of "new" delivery options available to pregnant women today. Part III examines how courts, legislators, health care providers, birth advocates, and insurers limit a mother's ability to choose what she believes to be the best delivery option. Part IV argues that as more women begin to have home births, (7) elective C-sections, and scheduled inductions, the limits on maternal choice will grow more intense. Part V suggests changes to combat these pressures and to protect a mother's independence during labor. This portion achieves its goal by offering a three-tiered approach to empower women to make well-informed delivery choices. This three-tiered approach includes: (1) empowering the mother as a decision maker by providing her with more information and creating a system of disinterested health care provider education; (2) offering economic incentives to freestanding alternative birth centers and physicians, to make alternative services more appealing; and (3) reforming informed consent to facilitate greater dialogue between physician and patient.


    In the past, legal restrictions, financial considerations, or circumstances surrounding maternal or fetal health have limited the delivery choices a mother could exercise. (8) In recent years, however, progressive legislative efforts and changing medical standards have given American mothers a growing number of options when deciding how they will give birth. While the number of women opting to exercise some of these options is small, (9) it is possible that these methods will grow more popular. (10) The following portion discusses several of these options.

    1. Midwifery & Home Births

      1. Midwifery--An Overview

        Midwifery is becoming an increasingly acceptable delivery option for American mothers. (11) Throughout much of the industrialized world, the practice is recognized as an essential part of effective maternity care. (12) In most industrialized nations, midwives attend low-risk births, while trained obstetricians only attend dangerous deliveries, where their advanced knowledge and skill can be put to use. (13) Such a system does not exist in America today. (14) The vast majority of deliveries in America today occur in hospitals under the supervision of trained obstetricians. (15)

        Midwives and physicians differ in their philosophical approach to pregnancy. (16) Unlike physicians, who typically have a "disease oriented approach" to treatment, midwives typically apply a "wellness approach." (17) The "disease-oriented approach" focuses on the diagnosis and treatment of pregnancy complications and the "management of diseases affecting pregnant women and the fetuses they carry." (18) When applied, this "no case is normal until it's over" philosophy may be contributing to the ever-increasing number of obstetrical interventions throughout pregnancy. (19) Midwives, on the other hand, apply the more holistic and hands-off "wellness approach," wherein a great deal of trust is placed into the body's ability to bring about a safe delivery and medical intervention is avoided until absolutely necessary. (20) Some have suggested that this approach is not financially attractive to hospitals because it results in longer deliveries that lessen the number of potential patients, and does not provide hospitals the opportunity to make a profit through administering billable procedures. (21)

        Regardless of their profit value, midwives have been providing birthing mothers with a valuable service for centuries. (22) Midwife advocates boast that the practice is the oldest form of maternity care. (23) But today's midwives are much different from their old-world predecessors. (24) Midwifery in America has evolved into a trade whose practitioners possess highly developed skills and training. (25) As the practice has evolved, different midwifery classifications have developed.

        The two primary midwife classifications are Certified Nurse Midwives and Direct-Entry Midwives. (26) Every American jurisdiction permits Certified Nurse Midwives to practice within its borders. (27) Certified Nurse Midwives are formally educated nurses who acquire a nursing degree and then complete further study in Obstetrics and Gynecology before passing a certification examination. (28) Typically, a Certified Nurse Midwife will practice in an institutional setting under a physician's direct control. (29)

        Unlike their formally trained counterparts, Direct-Entry Midwives often take less traditional routes to practice. Some Direct-Entry Midwives are educated through informal routes such as self-study or apprenticeship, rather than through a formal program. (30) While many Direct-Entry Midwives can become certified through either the North American Registry of Midwives (NARM) or the American College of Nurse-Midwives (ACNM), (31) "not all Direct-Entry Midwives are certified." (32) Some avoid certification because they view the training as harmful or irrelevant, while others practice illegally in states that do not permit them to attend births. Finally, others simply lack the education, skills, or training needed to gain certification. (33)

      2. A More Appealing Approach?

        Despite their lack of formal training, more women are utilizing Direct-Entry Midwives. (34) In applying the more holistic "wellness approach," Direct-Entry Midwives offer mothers in low-risk pregnancies a birthing option that removes the mother from the hospital and gives her a great deal of freedom during labor. (35) Unlike Certified Nurse Midwives, Direct-Entry Midwives typically attend home births. (36) In a home birth, a laboring woman will usually deliver from her own house and will remain with her baby after the delivery. (37) As Direct-Entry Midwifery becomes increasingly available, the number of women choosing home births appears to be increasing. (38)

        The freedom offered by home births lies in stark contrast to what may be experienced in a hospital setting. In the hospital, once labor begins, mothers are often physically restricted to their hospital bed so that the fetal heart rate may be tracked using Electronic Fetal Monitors (EFMs). (39) Despite little evidence supporting their efficacy, EFMs are the "presumptive standard of care" (40) in the hospital. (41) Two rationales support making EFMs the standard. First, EFMs are a more cost effective method for monitoring fetal heart rate, (42) and second, they provide concrete evidence should an accident Occur. (43) Home births are attractive, in part because they offer mothers the chance to deliver in the comfort of their own home, free from the restrictive EFMs, with little or no medication, and the freedom to move as they please. (44)

        Freedom is not the only reason that some opt to deliver via home births. (45) For many, choosing to deliver away from the hospital is a choice that reflects spiritual, religious, political, and feminist beliefs. (46) It is important to understand how firmly some mothers hold these beliefs. (47) Trivializing this important point creates misunderstandings between lawmakers, physicians, and patients. (48)

      3. Concerns Surrounding Home Births

        Despite the increased acceptance of home birth as a valid birth option, criticisms about its safety persist. (49) Because midwives are not infallible and serious complications can turn low-risk pregnancies into high-risk deliveries with no warning, (50) some suggest that the option needlessly risks the health and safety of both mother and child. (51) Fetal injuries may occur because home births create distance between mothers, skilled obstetricians, and valuable hospital equipment. (52) Others are concerned by Direct-Entry Midwives' lack of formal education. (53)

        Midwives often defend against health concerns by explaining that the option is only available to mothers in low-risk births. (54) Studies have also demonstrated that the use of midwives is "just as safe, if not safer than medical care in low risk childbirth." (55) But at least some empirical evidence suggests that despite only taking on...

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