Thursday, March 11, 2010

The NIH VBAC Conference: Could have used more Shrimp

(With a side of egg, as in: on my face.)*


It'll all make sense in a second.

As most of you reading this blog know, the NIH Conference on VBAC just wrapped. I tuned in to various bloggers' reports, got their updates and summaries on Facebook and Twitter, and was generally pleased, as were all the attendees I know of, with the overall optimistic and supportive tone of the conference. If hospitals and care providers actually put what's being said into action, a real turning of the tide is imminent.

However.

There was a moment at the end that is sticking in a lot of craws at the moment: a panel was pressed on the matter of informed refusal, and whether or not a pregnant woman has the same rights to informed refusal as any other citizen. The response was less than satisfactory, to say the least. Briefly, from The Unnecesarean's transcript:

SJ: [I]n spite of Dr Lyerly’s ethical presentation yesterday, the panel is unwilling to affirm the ethical necessity of recognizing that a woman has an absolute right to informed refusal of a surgical procedure that may cause harm to her?

Laurence B. McCullough: This is Larry McCullough, the ethicist on the panel.

SJ: Yes

LM: The claim that the right to refuse is absolute is a controversial claim, it’s not at all settled in the law or medical ethics.
Here's what I don't understand. I am not a lawyer or even a law student, but I do know of a precedent that seems, to my admittedly unprofessional eye, to establish this matter quite thoroughly. The case is McFall v. Shrimp, 1979 in Pennsylvania. McFall was suing one of his cousins, Shrimp, for a bone marrow donation that would have saved his life, as they were blood type matches. Shrimp refused. The court ruled in Shrimp's favor on the basis that society could not forcibly, against Shrimp's consent, invade his body even if it would save another person's life.

Again, total layperson. But it seems to me that the court has thus established bodily integrity as a key, undeniable factor of personhood, including situations where another person's life is affected.

This case has been invoked in abortion debates, and I don't mean for this post to start getting into "fetal rights". But the debate currently going in the comments on Unnecessarean, as well as other places on the internet, keeps bringing me back to this precedent. Some people do feel that a woman has a right to refuse surgery as long as it only affects her, but in cases where a cesarean would clearly save a baby's life, her right to refusal gets trumped. I personally think it's unlikely to incredibly rare that a mother would refuse a cesarean for a clear-cut contraindication to vaginal delivery (though I did read of one case of c-section refusal with a placenta previa; both did survive, though very much against the odds). And I always find it galling, on a personal level, that anyone ever presumes to think they care more about the safety of a baby than the baby's mother.

But these arguments seem beside the point to me, with a legal precedent like McFall v. Shrimp. If we do not grant full informed refusal to pregnant women, that means that we lose personhood, bodily integrity and the ability to consent as basic human rights once we become pregnant. If we decide that pregnancy takes away your personhood because another human life is involved, then it follows that we have to overturn decisions like McFall vs. Shrimp and people can start harvesting organs from each other, just for starters.

Legal-stuff-minded birth advocates, what are your thoughts? I say we start ordering the Shrimp.

*And with that, I am compelled to point out my mistake - which would normally be a run-of-the mill typo had I not gone overboard with the jokey title, final line, and pic for comic effect. As Courtroom Mama points out, the defendant's name is Shimp - NOT SHRIMP.

In my feeble defense, I swear on a stack of scripture that the message board post from which I originally learned of this case spelled it Shrimp, and I had copied and pasted a few key facts into a word document (the post was otherwise very well-written by a sharp, articulate member), including the names as written. I had even looked it up online and found it cited in quite a few places, also as Shrimp. I stand behind my overall point, of course, but I should have triple-checked, especially before getting cutesy. Blog and learn!

8 comments:

  1. Well, first of all, it's McFall v. Shimp ;)

    Second, this case was argued in a PA Court of Common Pleas and thus is of very limited precedential value (and this is a part of what Ms. Zimmet was saying on the state by state varying treatment of the ethical issues). It is most important in that it is emblematic, and the language eloquently expresses the moral dilemma that our legal system's valuing the individual creates: on the one hand, it may be morally repugnant NOT to give bone marrow to your cousin, on the other hand, it would (I'm paraphrasing, but close) raise the specter of the swastika and the inquisition to allow the state the power to drain the lifeblood from one person for the benefit of another. I swear I'm not exaggerating the language. So it's what we call "persuasive" authority, not "mandatory" authority.

    According to McCullough (who appears to be an outlier on this, given ACOG's clear recommendations), this case and others like it was written for NONpregnant people, and pregnant women require some different sort of legal calculus... apparently, one in which they may lose their rights as a result of becoming pregnant? You can see why folks would be alarmed that someone on the panel and not just pontificating in a law review article might suggest that the issue is unsettled.

    Hope that helps :)

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  2. AUUUUUUGH.

    I edited it to explain the sitch while leaving the record of my foolishness to stand for the amusement of posterity. Dang. But like I said in the edit, I SWEAR my original source wrote it as Shrimp, and others have made the mistake too (not that this is anything but the lamest of defenses).

    As to your points: I know that since it was a state and not a Supreme Court decision, its effect is limited - I bring it up because of just what you describe here: "It is most important in that it is emblematic, and the language eloquently expresses the moral dilemma that our legal system's valuing the individual creates."

    Of course I think that donating bone marrow is a very, very good thing to do. I would hope that I would do it, were I ever in that position. I do not know why Shimp refused it, but whatever his reasons are, I stand behind it being his choice.

    I am DEEPLY disturbed by the "legal calculus" by which pregnant women may be interpreted as losing their personhood. I know I didn't want to get into abortion debate here, but I can't help thinking of the recent press given to the concept of "criminal miscarriage" in Utah. Call me paranoid, I'll cop to it, but I still fear that the ramifications of pregnancy temporarily voiding personhood could be far-reaching in a number of very frightening ways.

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  3. "Call me paranoid, I'll cop to it, but I still fear that the ramifications of pregnancy temporarily voiding personhood could be far-reaching in a number of very frightening ways."

    You're not paranoid, you're right. Opposing abortion on the basis of the value of fetal life is one thing, giving fetuses the same legal rights as born people is another thing entirely. You don't have to be pro-choice to see that this is a bad thing. You may or may not have heard an OB at the NIH conference saying that home VBAC was a resounding "NO. Not on the table." If the state is going to determine what is in the best interest of the fetus, who do you think they'll listen to when they draw up the laws: the 1-2% of women who have out of hospital births, or the AMA and ACOG, who have already created draft model legislation saying that "the safest place for birth is in the hospital."

    (And really, if a mom is a murderer for having a stillbirth, is a midwife or doula an accessory to murder?) These things sound far-fetched, but so did the idea that any state might create legislation that would lock up women for 15+ years for a miscarriage.

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  4. Reading everyone's posts about the NIH conference, this is one of the big things that really stuck out to me. I think its outrageous that a pregnant woman doesn't have the same patient rights as any other patient. Great Post.

    And great quote, Courtroom Mama
    "Opposing abortion on the basis of the value of fetal life is one thing, giving fetuses the same legal rights as born people is another thing entirely."

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  5. I think I saw that ABC reported on this conference. I linked on my blog to a report they did about the correlation of c-sections to rises in maternal death rates. My writing is no where near as educated and through as yours, but you would probably enjoy the link.

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  6. Oh, you are way too kind. I'm checking it out now!

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  7. Awww geez, I thought it was spelled Shrimp too. Time to make some corrections. *facepalm*

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  8. Well, we do seem to be in good company, at least, genderbitch!

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