Abuse, coercion and disrespect inflicted upon pregnant women by the health care professionals entrusted with providing maternity care comes into sharp focus in Professor Elizabeth Kukura’s recent scholarship.

The range of harms that women and babies is broad, the causes are many and options for seeking redress are scant, Kukura explains in “Obstetric Violence,” published in Georgetown Law Journal. 

Obstetric violence takes many forms: surgeries performed against a mother’s wishes, threatened referrals to child welfare authorities for those who decline a procedure and accusations of selfishness that greet those who seek a natural birthing experience.  The physical and emotional risks and consequences can be significant, Kukura writes.

The number of women who undergo cesarean sections and episiotomies against their will or through coercion has never been tallied, yet “sufficient evidence supports the conclusion that some childbearing women experience serious physical and emotional harms due to obstetric violence,” Kukura notes.

The phenomenon reflects pressures on health care providers to reduce malpractice liability, to meet changing regulatory requirements, to boost the volume of deliveries or recover higher reimbursement rates and to schedule procedures for the sake of convenience, Kukura writes. The result is care providers’ widespread preference for surgical procedures over prolonged labor. 

Gender bias that discourages health care professionals from accepting the views of expectant mothers also fuels the pattern, while the challenge of proving that harms resulted from forced surgeries undermines patients’ efforts to seek redress.

Those harmed have little legal recourse, Kukura writes, since tort claims often fail due to the challenge of establishing the severity of an injury, especially if the child does not suffer. Although the courts have recognized that fiduciary nature of the physician-patient relationship, she adds, in practice, physicians are only liable when breaches constitute medical malpractice. Constitutional law likewise has not provided a solution, since “when confronted with a conflict over forced medical treatment, courts often turn to the Supreme Court’s abortion rights doctrine” where the states assert an interest in protecting fetuses. 

“Advocacy is needed to make the tort system more responsive to women’s claims of mistreatment during childbirth,” she argues. “Courts must recognize and enforce informed treatment refusals as a necessary part of robust and meaningful informed consent…. The project of professional standard-setting creates openings for advocacy to shape and refine the guidelines that provide the standard of care in tort cases.”