Last week, a firestorm erupted in the birth and reproductive justice advocacy world over a statement generated by the NIH Vaginal Birth After Cesarean (VBAC) Consensus Development panel implying that in some circumstances a pregnant woman cannot refuse cesarean surgery. (Audio files can be found here, videocast here and commentary here, here, and here). Panelist Laurence McCullough, the chair in Medical Ethics and Health Policy at Baylor University College of Medicine, spoke for the panel during the public comment session and in a press briefing, taking the position that a physician has an independent obligation to protect a fetus, which, it is claimed, is not dispensed by a laboring woman’s refusal to consent. The panelists’ comments indicated that a conclusion regarding the ethical question was beyond their scope, yet stated to the press and to the audience that the body of law and ethics that protects the right to refuse surgery was not written for, and may not include pregnant patients.

Are women who are pregnant simply a different form of person with a different set of rights?

The position taken by the consensus panel directly contradicts the thoughtful and comprehensive presentation given 24 hours earlier by Dr. Anne Lyerly of Duke University, the invited expert speaker on the ethics of vaginal birth after cesarean. Dr. Lyerly reminded the panel of “a lesson that we need to keep learning but should know by now.”

“In obstetrical decision making,” she said, “women retain their rights of bodily integrity, just as people do in all other situations. So when a woman declines a cesarean, even when it is absolutely indicated, she cannot be forced to undergo it, [n]or be punished for her decision not to. American jurisprudence supports that, as well as ACOG [the American Congress of Obstetricians and Gynecologists].”

Nevertheless, the panel’s written statement uses the language of honoring “patient preference” and “shared decision–making” between physician and patient, to the exclusion of respecting the woman’s right to bodily integrity.

The panel’s comments therefore represent one view — though it is certainly not the majority view —  in legal and ethical thought about how best to manage situations in which a woman’s decision is contrary to a doctor’s medical opinion. On other questions related to vaginal birth after cesarean, the consensus panel indicated when it found the data conflicting or incomplete. Why was it only in the matter of informed refusal, without which informed consent is meaningless, that the panel declined to either take a position reaffirming already-existing ethical standards, or highlight the alleged gap in evidence?

According to its website, the NIH Consensus Development Program provides “an unbiased, independent, evidence-based assessment of complex medical issues.” In keeping with this broader effort, the Eunice Kennedy Shriver National Institute of Child Health and Human Development and the NIH Office of Medical Applications of Research convened the Vaginal Birth After Cesarean: New Insights Consensus Development Conference. The purpose of the conference was to gather and review scientific evidence to advance understanding by the medical community and the public about the clinical risks and benefits of vaginal birth after cesarean, and how they interact with “legal, ethical, and economic forces” to shape provider and patient choices about whether to offer or choose VBAC instead of repeat cesarean. The three-day conference was free and open to the public, during which time the floor was opened for discussion, and comments were accepted online. Statements are independent reports of the panel and are not policy of NIH or the Federal Government, not intended as legal documents, practice guidelines, or as primary sources of technical data. Consensus statements therefore have no binding authority, but recommendations may impact professional organizations and may help to guide the direction of future NIH-funded research.

The draft statement and the attempts to clarify it fell prey to both of the challenges about which Dr. Lyerly warned in her discussion of ethics in decision-making about VBAC.  First, the consensus failed to note that aggregate preferences might not accurately reflect the preferences of the individual patients they are meant to represent. Individual preferences vary widely, and are both “morally and clinically relevant.” Second, the consensus did not meet the challenge to avoid “swamping,” whereby discrete outcomes, institutional goals, and provider views are permitted to become more important than patients’ goals and values.

Dr. Stuart Fischbein, an obstetrician from southern California embattled for his support of women seeking VBAC, posed “a question of ethics and math” to the panel during public comments at the beginning of the conference. He asked whether hospitals banning vaginal birth after cesarean, effectively forcing the 70 percent of women who will have a successful VBAC to the risks of repeated surgery, was “a violation of our oath… to first do no harm?” The conclusion that many women should be counseled to consider a trial of labor for subsequent deliveries, and that hospitals should endeavor to lift VBAC bans was a signal of agreement, a signal that the physician’s ethical duty to first do no harm means that physicians should work with patients to decide how to proceed based on the patient’s view of the risks and her own values.

One may hope and expect that the conference will result in many more women being offered the opportunity to give birth vaginally. A major barrier to VBAC access has been a requirement that surgical and anesthesia personnel be “immediately available” during a delivery where the woman has had a prior cesarean. The consensus statement recommends that the professional organizations of obstetricians and gynecologists as well as anesthesiologists reassess practice guidelines singling out vaginal birth after cesarean for the “immediately available” standard. The panel also recommended collaboration between practitioners, policymakers and advocates to develop strategies to mitigate medico-legal considerations that restrict access to care.

However, the consensus panel’s statement represents a dead end for women who are not considered “ideal candidates” or women who disagree with their physician’s assessment of which risks are actually “riskier” and to whom. Much ink has been spilled refuting the two-patient model of obstetric ethics, which conceptualizes the interaction between mother and fetus as a conflict capable of being decided by an outside arbiter (be it a judge, ethicist, or doctor), rather than a conflict between the mother and the doctor. The manner in which the panel has cast the problem of obstetric ethics as a maternal-fetal conflict, as opposed to a woman-doctor conflict could lead one to the conclusion that a physician’s ethical obligation to “first do no harm” applies to fetuses, but not to women — an untenable position for a profession devoted to caring for women, and a dangerous position for public health. The panel’s failure to condemn practices such as court-ordered
cesareans and child protective services intervention to coerce women’s
compliance with doctor’s orders poses major questions about whether
and how personal convictions may have been at play in this discussion.

Reproductive justice advocates and attorneys are reviewing the strength of the legal precedent protecting pregnant women. Meanwhile, childbirth educators are showing the webcast of Dr. McCullough’s comments about informed refusal to their classes. Women who have had a cesarean and are planning future pregnancies are tuning in. What is a woman desiring a vaginal birth after a cesarean left to think? Likely, that the safest place for her to exercise her autonomy in birth is at home. Not only does the panel’s position miss an opportunity to protect a woman’s human right to informed refusal, it actively pushes women away from providers and out of hospitals, an ethical failure for all concerned.

Feminist theologian Mary Daly said that tokenism dulls the revolutionary impulse. In that sense, perhaps it is useful that the panel did not include even a token nod to a woman’s right to informed refusal of medical treatment if she happens to be pregnant. Indeed it offered nothing but a silencing of women pleading not to be put under the knife against their will, as a matter of civil and human rights, as well as a plea to the relationship of trust that ought to exist between provider and patient. And now, given this position, the impulse has been sharpened, and the revolution has been fueled.