Amber Marlowe anticipated an easy delivery when she went into labor. But after a routine ultrasound, doctors at Wilkes-Barre General Hospital, in Pennsylvania, decided that the baby—at what looked like 13 pounds—was too big to deliver vaginally and told her that she needed to have a cesarean. The mom-to-be, however, wasn't convinced: After all, she'd given birth to her six previous kids the natural way, including other large babies. And monitoring showed that the fetus was in no apparent distress.
After she said no to surgery, doctors spent hours trying to change her mind. When that didn't work, the hospital went to court, seeking an order to become her unborn baby's legal guardian. A judge ruled that the doctors could perform a "medically necessary" c-section against the mom's will, if she returned to that hospital. Meanwhile, she and her husband checked out against the doctors' advice and went to another hospital, where she later gave birth vaginally to a healthy 11-pound girl.
"When I found out about the court order, I couldn't believe the hospital would do something like that. It was scary and very shocking," says Marlowe. "All this just because I didn't want a C-section."
She and her husband, John, turned to the National Advocates for Pregnant Women (NAPW), in New York City, for help in contesting the judge's ruling—the first of its kind in Pennsylvania. The couple is also considering legal action against the hospital.
"It's not about us," says John Marlowe. "What's going to happen to the next lady who goes there? We want everyone to know what's going on. What they did was wrong, and our goal is to put a stop to it so that other women don't end up with C-sections they don't need."
Increasingly in the United States, pregnant women are encountering legal or more subtle pressures to have C-sections. Currently, more than a million expectant women have the operation annually, as America's rate of surgical deliveries has hit an all-time high. In 2003, cesareans accounted for nearly 28 percent of births in this country, compared with just 5 percent in 1970. Many factors contributed to this rise, increasing numbers of repeat C-sections, doctors' fears of malpractice lawsuits, and women waiting longer to have kids (which is related to higher rates of complications), to name a few. But while the procedure is usually quite safe and can be potentially lifesaving for mother and baby, it also poses a number of potential risks, including severe bleeding, infection, injury to the fetus, blood clots, and even the mother's death in extremely rare cases.
Yet hospitals in at least a dozen states have obtained court orders to compel unwilling women to undergo this major abdominal surgery. And while Marlowe was able to escape the scalpel, other patients were operated on, despite their verbal or even physical resistance. In a tragic 1984 case, staff at a Chicago hospital forcibly tied a pregnant Nigerian woman who had declined a c-section to her hospital bed with leather wrist and ankle restraints. The woman objected to the surgery because she planned to return to Nigeria where the operation wasn't readily available, and she rightfully worried about health risks, including a ruptured uterus, if she became pregnant again and had another child vaginally back home. As she screamed for help and frantically tried to free herself, doctors, with a judge's permission, wheeled her off to the O.R. to perform the procedure.
Defying doctors' advice can even lead to criminal prosecution, as Melissa Rowland discovered last year. While pregnant with twins, the 28-year-old Utah mom initially declined a recommended c-section, even though doctors warned that without it her babies might die due to low levels of amniotic fluid and other problems. Several days later, on January 13, 2004, she changed her mind and had the operation. Her daughter, Hannah, survived after treatment with oxygen and antibiotics, but a twin boy was stillborn. Contending that the initial refusal caused his death, prosecutors charged Rowland with first-degree murder. After spending three months in jail, she accepted a deal in which the murder charge was dismissed in return for her guilty plea to two counts of child endangerment (unrelated to her c-section refusal). She's now free, and serving 18 months of probation.
"This case is a tragedy compounded by a shocking abuse of legal authority," contends Lynn Paltrow, executive director of NAPW and a lawyer specializing in reproductive issues. "It shouldn't be a crime for pregnant women to disagree with doctors and make their own medical decisions. Nor should they be punished for a bad outcome when there's always some risk to giving birth, regardless of whether it's vaginal or by C-section."
And you can't be legally compelled to undergo any other medical procedure for the benefit of another person. "You don't have to donate your kidney, your bone marrow, or your blood, even if someone else might die without it," explains Howard Minkoff, M.D., chair of obstetrics and gynecology at Maimonides Medical Center, in Brooklyn, New York, and coauthor (with Paltrow) on an analysis of the Rowland case published in the December 2004 issue of Obstetrics and Gynecology. You also can't be prosecuted for murder if you refuse. "So why should c-sections be any different?" the doctor adds. "That's saying pregnant women have fewer rights than anyone else, including a fetus."
A subtle pressure
Of course, only a minute fraction of the c-sections performed in this country are court ordered. Far more women undergo the procedure at the recommendation of their doctor. The most common reason a woman is encouraged to have a c-section is if she previously delivered a child this way. These "repeat c-sections" have become so common that they now account for nearly 410,000 births annually in the United States, about 10 percent of births each year.
And it doesn't seem that this number will be getting any lower, as an increasing number of hospitals that formerly permitted women to try for vaginal birth after cesarean (VBAC) now prohibit the practice, making a return trip to the O.R. mandatory for moms-to-be with a previous surgical delivery. Because it's getting harder and harder to find medical centers that allow VBAC, the rate has plunged by nearly two-thirds, from 27.5 percent in 1995 to 10.6 percent in 2003.
Ask doctors what's behind the ban, and you'll hear the same answer: fear of lawsuits. Trying for a VBAC carries with it a 1 percent risk of uterine rupture. This dangerous complication is an emergency that requires surgical repair—or, in some cases, a hysterectomy—to stop potentially life-threatening blood loss.
"Medical liability is a huge problem for obstetricians, because people are losing their practices over malpractice claims," reports medical ethicist Anne Lyerly, M.D., assistant professor of obstetrics and gynecology at Duke University in Durham, North Carolina. "So it's understandable that a lot of us practice defensive medicine by avoiding risky deliveries that might have adverse outcomes."
A 2004 American College of Obstetricians and Gynecologists (ACOG) survey bears this out, since 15 percent of its members say they've stopped doing VBACs to protect themselves from malpractice claims, and another 14 percent no longer deliver babies at all for the same reason.
In 1999, ACOG responded to concerns about VBAC risks with new practice guidelines, saying that the delivery should only be provided at hospitals equipped to do an immediate C-section if anything went wrong, instead of within 30 minutes' notice, as was previously required.
That's fine for big medical centers that have anesthesiologists and surgeons on duty 24/7, like the one where Dr. Minkoff delivers babies, but not for smaller hospitals.
"Often, they can't afford to have doctors standing by in case a woman who arrives in early labor needs surgery later on, so in many parts of the country, especially rural areas, pregnant patients can't find anywhere to have a VBAC," he explains.
An ethical debate
How far should ob-gyns go to save an unborn baby they consider at risk? Some of the very doctors you'd most expect to advocate for pregnant women actually support forced C-sections, a 2003 University of Chicago study found. When the researchers surveyed directors of 42 maternal-fetal medicine programs around the country, 14 percent reported that their hospital had used court orders to compel unwilling women to have O.R. deliveries. What's more, 21 percent of these specialists in the care of pregnant patients consider coerced C-sections "ethically justified" to spare a fetus possible harm, even over the woman's physical resistance, as long as her struggles weren't strenuous enough to endanger her or the baby.
ACOG adamantly disagrees. In 2004, its ethics committee ruled that it's never right for health care providers to subject pregnant women to physical force, even with a court order authorizing a C-section or other procedure. The committee also said that seeking such orders against a patient's wishes is "rarely if ever acceptable." The American Medical Association, another prominent doctors' group, has a similar policy.
So what should happen if a doctor is convinced that a vaginal birth would be disastrous? "Personally, I'm willing to counsel women very strongly in that situation and bring in another physician to offer a second opinion about the risks of not having a C-section," says Dr. Lyerly. "I also tell patients that it's a very safe operation, and I should know, since I've had three C-sections myself."
However, doctors' opinions can also be tragically wrong. Years ago, a Washington, D.C., hospital got a court order to perform a c-section on Angela Carder, who was gravely ill with cancer. Since the mom was in such poor health, the hospital's doctors believed that delivering the 26-week fetus immediately would give it a better chance of survival than waiting for a natural delivery. The result? Carder and her baby both died soon after the operation. Later, in a landmark 1990 ruling, an appeals court overturned the order, finding that Carder had a right to make medical decisions for herself and her unborn child. Her family also received an undisclosed financial settlement from the hospital.
"I hope that doctors and judges are humbled by this terrible mistake that never should have happened," says Dr. Lyerly. "We can make dire predictions and think patients are too irrational to weigh the risks for themselves, but we're not infallible. And since doctors and moms can both be wrong, and if they can't agree on the best way to give birth, ultimately it has to be the woman's choice."
When surgery is being considered, experts say pregnant women need to feel confident that their wishes will prevail, whether they consent to an elective or emergency C-section or decline one they deem medically unnecessary, as Amber Marlowe did. In 25 years of delivering babies, Dr. Minkoff has learned to respect his patients' decisions about how they want to give birth, even if he doesn't always agree. "It's my duty to fully explain why I think a C-section should be seriously considered and the risks of not following my advice," he says. "But in the end, the strongest advocate for the safety and health of an unborn child is the baby's mother. And that's the way it should be, because she has the most at stake."