At the Altar of the Golden Fetus: Challenges to Securing Legal Remedies for Birth Injustice

• In Event: 30858 - States, Laws, and Clinicians: Toward Reproductive Justice

Abstract

Human rights include a special subset of rights that apply to pregnancy and childbirth: the right to treatment with respect and dignity during pregnancy and birth, the right to autonomy and self-determination, the right to informed consent, freedom from discrimination, the right to choose one’s birth setting, the right to support during labor and birth, and the right to the highest possible standard of health care (White Ribbon Alliance 2011). Violations of these rights are common, even in developed countries, but it is difficult to obtain legal remedies for violations of birth-related human rights (Morris and Robinson 2017). Laws often fail to protect these rights and, even when they do, there are systemic obstacles to legal remedies for disrespectful or abusive treatment during pregnancy and birth. Barriers to justice include widespread cultural beliefs that the medical model of childbirth is always safe and is the best way to ensure healthy outcomes, a cultural emphasis on the value of fetuses and self-sacrificing mothers, the lack of laws that directly address disrespectful care, and challenges finding legal representation.
In this paper, we examine the challenges to obtaining justice in the American legal system for violations of legal rights during pregnancy and birth. We use data from 55 in-depth interviews with birth justice attorneys and legal advocates to illustrate barriers to legal remedies in birth justice cases. Birth Justice (BJ) is “the right to give birth with whom, where, when, and how a person chooses” (Ross and Solinger 2017:96) and it represents a subset of Reproductive Justice (RJ). BJ attorneys and legal advocates focus on legal issues around pregnancy and childbirth, including the right to informed consent and bodily integrity, freedom from prosecution for pregnancy outcomes, and the ability to choose one’s health care provider for pregnancy, birth, and well care.

Authors

• Louise Marie Roth, University of Arizona

• Theresa Morris, Texas A&M University-College Station

• Madison Adams, Texas A&M University-College Station

• Jennifer Hyunkyung Lee, University of Arizona