Latest / The Birth Lounge Podcast / Ep. 460: Your Legal Rights & Informed Consent in Childbirth: Insights from Advocate & Lawyer Hermine Hayes-Klein [Re-air Ep. 283]

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Ep. 460: Your Legal Rights & Informed Consent in Childbirth: Insights from Advocate & Lawyer Hermine Hayes-Klein [Re-air Ep. 283] · The Birth Lounge Podcast

Let me ask you something.
Have you ever had anxiety about the conversations that are coming up with your provider in your prenatals? Or do you ever leave your appointments and think about all the things that you wish you had said while you're driving home, like, kind of after the fact? Maybe you know what you want in labor, but you don't really know how to actually say it to your provider to communicate your goals or your wishes, or maybe you keep running into the situation where people are saying, "Well, it's hospital policy," and you don't know how to kind of get out of that situation, but you know you don't have to follow that.
There are no have tos in birth, right? You are free to do whatever you want.
I want to make sure that you not only have the data and the science to back up the choices that you're making so that you are making decisions that feel aligned with you, but I also want you to have the words to communicate that with your provider.
And so I've put together a PDF guide that has a ton of birth scripts in there, and I'm going to take you through different conversations so that you can see how you can navigate these with your provider, depending on your goals and your preferences during your labor.
So you can download that at thebirthlounge.com/scripts-for-advocacy.
You're going to find the most common conversations that people bring to me to get information and data on, and phrases to help them stay in control of that conversation.
So things like big baby, being induced, birthing positions, Pitocin use, prenatal decisions, and so many other conversations that you need to know when you are going into your prenatal appointments with your provider so that you can continue to have this collaborative decision-making conversation throughout your pregnancy so that when you're in labor, everybody's already on the same page.
People know what to expect.
We have a plan, and this is what we're going to do.
So download that at thebirthlounge.com/scripts-for-advocacy,
with hyphens in between, scripts for advocacy, and I'll see you in the episode.
Bye.
Hello, and welcome back to another episode of The Birth Lounge Podcast.
All right, you guys.
What is informed consent? Are there laws around it? Is informed consent the law? Is it not the law, but there are laws insinuating that it should be gotten? If informed consent isn't gotten, is that illegal or just, like, frowned upon? What if you sign the permission slips, the consent forms, the paperwork given to you during that pre-registration period, or upon admission into L&D? You sign them.
You say yes.
You know there is a consent form included in that stack of paperwork, but You get into labor and you change your mind.
Are you allowed to do that? Are you allowed to say no once you've said yes? Does simply walking into the hospital, onto an L&D unit, give your permission to your healthcare providers to treat you? Are you able to rescind that? Are you able to change your mind in labor and say, "You know, I, I was okay with this, but now I don't want that," or, "I know that we talked about this prenatally, but in this moment, it no longer feels aligned to me, and I, I don't want it"? What if you say yes to a procedure and then during your procedure or while they're prepping you pr- for your procedure, you change your mind and you, you decide, "You know what? I change my mind.
I just don't want it."
Well, these are the questions that I answer every single day as a doula with our one-to-one clients, with our members of The Birth Lounge membership and our childbirth education course, online for followers, for you guys listening to the podcast.
The number of you that are engaged in this community and either have a relationship with me on Instagram or email me after episodes light me up.
I freaking love it so much because when I first started this podcast, it really felt like I was talking into the abyss.
But now, when I record, I can picture your sweet faces.
I can picture the people that are out in the audience listening, that are consuming this information, that are digesting this information, and then taking it back to your doctors and really taking control of your birth.
And I get these questions all the time.
I'm telling you, every single day, I'm answering questions about, "Was this consent?" "My doctor said that.
Is that informed consent?" "I'm worried that this was done to me without my consent.
Can you help me understand how informed consent, you know, happens, plays a role in these situations?" And so, you know, I am a great person to go to, but there is someone better out there, and her name is Hermine Hayes-Klein, and she has been someone that I have looked up to for many, many years.
She is someone who is very influential in the birth space, and pretty much all birth workers know her name.
And so when I reached out to her to be on the podcast to talk about informed consent, I have to be honest, I was full well expecting a kind but an answer of no.
I was really expecting her to say, "Oh, HeHe, you're so sweet.
Thank you so much.
I just don't have time to do this."
Much to my surprise, she eagerly said yes.
Not only was she happy to be on the podcast, but she was eager and excited to be here.
So as you can tell, I am super stoked for this opportunity, and I'm very honored that Hermine was able to make this work.
So thank you so much.
A little bit about Hermine.
She is an attorney specializing in human rights and in pregnancy and childbirth.
Her law practice focuses on defending midwives and advocating for access to midwifery care and holding obstetric providers responsible for the violation of informed consent.
Through the Birthright Law Project, she offers document packages for doulas and for out-of-hospital midwives, as well as assistance with birth plans and getting them respected.
Hermine is not only a wealth of knowledge for birth workers but for people who are having babies.
She can help you understand if the care that you're receiving from your provider is consensual.
Are your rights being honored, or are they being violated? Are the things that you're asking for reasonable, or are they gonna be something that ultimately the hospital just can't deliver on? I'll give you a little hint.
Most things that people ask for from the hospital system are more than reasonable, and they absolutely are within your rights as a consumer of medicine.
You guys know that I believe that informed consent rises above everything.
Patient autonomy rises above everything, and there's very little that the hospital has that is going to override either your consent or your autonomy.
Boy, I'm so excited for this conversation.
So without further ado, Hermine, welcome to the show.
thank you, HeHe.
I'm so happy to be here with you.
I'm so excited to have you on with Share before we hopped on that.
This has been a long time coming.
You've been on my long list of people I wanted to have on.
And I think that this is obviously a topic that's on the top of everyone's mind who is going in to have a baby in the U.S.
But actually, probably it sounds like from our conversations before we got started recording you were sharing that it's More of a global problem that informed consent is being violated and women's rights are being kind of trampled in the hospital system and when it comes to having our babies and so today I'm really, really excited to talk through the options that people have people should understand their rights and should know what discussions to have with their provider to Properly set themselves up for what to expect in the hospital system and to really understand what they're going to be facing in birth So before we get started, I think too far into actually informed consent Can you share with our audience how you got started in this work? Yes, absolutely.
And again, I'm honored to be joining you on the show and thank you so much for including me.
So I'm a lawyer and I got into this work maybe, 12 to 15 years ago when I was living in the Netherlands and I had my babies there in the Dutch birth system.
And that's just a very different maternal health system than ours.
It is a lot more woman centered or patient centered.
They never move normal healthy birth into the hospital as a culture.
Their assumption has, was throughout the whole 20th century that healthy women give birth at home with a midwife and you would only go to the hospital if you had a medical problem and that pregnancy and childbirth are not medical problems.
And and every woman who has a baby there gets at least eight days full time postpartum care in her home up to two weeks if you had a C section or any complication and That's like full time.
They not only do all your nursing care and baby's nursing care, teach you about how to care for a newborn, cook, clean, do your laundry, do your dishes, go grocery shopping, take your older children to the playground so that mom and baby can really rest in the postpartum period and.
All of that really made me think, wow, this makes so much sense.
And what's happening for all my friends giving birth back in the States.
And why do we do it the way that we do? And then as I started researching it more, and I was also teaching law in the Hague during that period.
So I had the chance both to research it academically and start reading studies just about the history of obstetrics, how it developed the way that it did in the US.
And that taught me that the way that we do childbirth really had never had anything to do with the needs of women and babies for childbirth or the physiological needs for how to birth a baby.
And that it had basically all of the practices and protocols that I had grown up seeing in movies and stuff as normal childbirth worked against physiology.
The whole image of the baby.
Being held up and slapped on the butt that I came to understand that was because a whole generation delivered under general anesthesia.
And that's where that came from because the babies that normally babies breathe, they don't need to get slapped and that they were slapping these babies.
Cause they weren't breathing because of the anesthesia that had been given to their knocked out mothers.
And then the whole classic American image of the babies in the nursery and the boxes, that was because of that too, because their mothers were knocked out.
And then it's like reflecting on the fact that with any mammal If you separate the newborn from the mother and then give it back to her later, she'll either kill it or she'll mother it with less confidence.
And so it's like, why would we do that to ourselves? And understanding the reason we did each and everything that we did in obstetrics here was really for the convenience of the provider.
Starting with the woman on her back, which is not a position that's conducive to childbirth.
And then I also started listening to my girlfriend's birth stories because I was interested and curious.
And I discovered that women kind of have two ways that they might tell their birth story.
The most common one is, something bad happened.
There was a quote unquote medical emergency, but, and it was scary, but my baby's healthy, and that's really all that matters.
And I think women tell that story because that's our cultural story about childbirth that the ends justify the means and that All that matters is, a live outcome.
And that if you, if we have a live outcome, we'll call that a healthy outcome.
And and that the mother implicit in that is the mother doesn't matter.
And but then I realized that if you could, if you really hold space for a woman to tell that first story, and you ask her to tell you in detail what happened and then what happened, and then what happened, I just noticed how often they would break down crying while they were telling the story, which I now have come to see as being because the memory.
And so when they tell the story, it comes out of their bodies and tears are a way that comes out.
And so often when they were crying, I would be thinking, they don't get to do that to you.
There's a law about that.
It's called the law of informed consent.
You get to ask questions without being bullied when you do.
You, you get to, nobody gets to say, it's Friday.
Why are you making us all stay? Stay late for your vaginal birth, like none of this is legal.
And and yet I'm hearing that it's common.
And as I started reading studies from around the world on disrespect and abuse in maternal health care.
And this was also at a time when Latin American women's groups were inventing the concept of obstetric violence to describe what was happening in all of these nations with.
80 to 100 percent c section rates where the women were just assembly lined and cut open and kicked out the door.
And so they started to invent this concept, it was like the providers themselves talking about the women down there would use phrases like disrespect and abuse or even mistreatment, the policymakers, the researchers, the women called it obstetric violence.
And basically, through my studies of it, I came to realize, wow, this is happening, basically, all over the world.
We have a sort of confusion within the culture of obstetrics about women's autonomy, agency, about who's serving who in the relationship between the birthing patient and their doctor.
And And that there was basically a gap.
The law is clear.
The law of informed consent is clear everywhere on how this is supposed to work.
And the fact that the patient is supposed to be accurately informed regarding their medical options and the risks of those options.
They're supposed to be supported in asking questions and they're supposed to be supported in making their own decision, including the decision to go against their doctor's recommendation or their midwife's recommendation, but that's not what's happening in practice and that women are giving birth in environments in which every single doctor or nurse around them honestly believes That they get to do whatever they want to that patient that maybe they'll think about listening to them a little bit.
This is, we see this conversation on the birth plan, which we can talk about, we'll respect your birth plan unless we decide that there's an emergency and actually childbirth is an emergency from our perspective.
At which point they believe that they get to take back the decisions from the patient and that's not legal.
So eventually what I came to realize in studying this.
Over the course of the several years that I was teaching law and having my babies is these violations are widespread.
And one of the reasons they're widespread is because there's no accountability for the violation of these rights.
Lawyers are not doing anything about it.
And that people need lawyers to advocate for their rights.
That's how we get civil rights made into a reality.
We have people ready to stand up for their rights, and lawyers willing to help them stand up for their rights.
And that even though there are a lot of lawyers who focus on, the abortion and contraception aspect of reproductive rights, which matters very much, there was basically nobody looking at, what about the patient's rights if they decide to take that pregnancy to term and go through maternal health care? And I stepped into that space.
I organized a conference at my university in The Hague on human rights and childbirth before moving back to the States.
When I came back to the States in 2012, I then organized several more, a few with midwifery today and otherwise other partners internationally in which I got to bring together these stakeholders in different countries to talk about what are women actually experiencing in childbirth on the ground in this country? What are the actual rights at stake and really just Explore and hear, what's happening and make strategies for addressing it.
I learned a lot.
And then my, I focused my legal practice.
So when I came back to the States, I stopped teaching law.
I had practice in the States before moving to Holland.
And I did when I came back.
Now I live in Oregon.
And so then I basically started focusing on cases pertinent to clarifying the rights of women and birthing people to make the decisions about their bodies and their babies.
And so my law practice is now basically half.
Defending midwives and access to midwifery, giving birth in Holland made clear for me how important that is and that every woman should have this choice and that midwives should be secure in serving patients women, people, and But they're not.
And so they need advocates, especially in the United States.
And and then the other half of my practice is bringing lawsuits for informed consent violations that result in physical injuries and emotional injuries to try to get that accountability and close that gap between what the law says is supposed to happen and what's actually happening in labor and delivery.
Oh my gosh.
You just spoke so many like pieces and nuggets of wisdom and so much truth.
I just ate up all of that.
So now that you've identified this kind of gap in care and you have started to hold people accountable, what kind of cases are you seeing most common kind of come across your desk that people are experiencing? I would say if there's a theme that is most common to the trauma that women experience out of childbirth, it is being rendered helpless and voiceless, so if you're asking like, what are the kinds of cases, I would say the fundamental theme that connects a wide variety of fact patterns is there are ways in which this care ignored their voice.
When they tried to use it, they found that even if in normal life, before they walked into this room, they had a voice, they didn't in this room, or they found that in normal life, they don't have a voice because they're subjected to racism and other kinds of discrimination, but they hoped that at least when they were having a baby, they would get more respect and they didn't.
It was even worse.
All of that can lead to trauma being rendered voiceless when at a time when their voice really needs to be heard.
And then helpless, that's an aspect of it.
Things are being done to them.
They're trying to find out why they're asking questions.
They're doing what they can to understand.
And the reasons are being withheld from them.
Like, why are you doing this to me? Why are you doing this to the baby? That sort of feeling of helplessness can absolutely Leave women traumatized.
I can tell you about the facts of the cases that I've taken and filed here in the state of Oregon.
So the first lawsuit I filed here, which is now resolved, we settled it.
It was my only case where it, the only injury was emotional.
My other three cases all have physical and emotional injuries, but this one was a teen mom.
She gave birth at 18.
And There was a mean nurse, teen moms are thematically subjected to abuse around the world.
It's they're definitely a group that is very vulnerable when they're giving birth because people disrespect them when they walk in And the less respect you're given when you walk into L&D The higher your risk of mistreatment.
I just i'm just going to say something about discrimination since we're on this right team group that can be discriminated against when they're giving birth.
And we also know that discrimination plays out against people of color in the United States.
It results in mortality disparities for Black women and the descendants of historically enslaved Americans of three to 4 percent nationally, 12 times that increased mortality rate in New York for Black women, Native American women.
There was even a study after September 11th about increased negative outcomes for childbirth for women with Arab names for some period of time after September 11th, which was a really interesting demonstration of discrimination.
But basically, it's like these studies are all over the world on discrimination and outcomes and what they show is that.
Basically for every layer of otherness that your providers project onto your body, you're more likely to die.
You're more likely to see your baby die and you're more likely to come out traumatized, which points to the importance of culturally safe and culturally competent care that you're the people who are caring for you are of you.
You know what I mean or that for whatever, or have some ability to not other you and the bet the most secure way to do that is for them to not be part of a group that considers itself on some level to be superior to whatever group you're being categorized as belonging to so this mom was teen mom.
The nurse didn't like teen moms.
She was mean to her the whole labor.
There was lots and lots of verbal abuse throughout the labor and physical abuse and it culminated in the nurse forcibly gassing her with nitrous oxide to try to get her to be quiet.
And be a more compliant patient.
And I don't know if you know about nitrous and labor, but like a foundational rule is only the patient holds the mask.
That's like rule number one.
It's written on the medication order form.
This person was like, when she brought it in, my client was like, is that nitrous? I already said, I would never want that.
I would never want a mask over my face.
She had been, she'd experienced childhood abuse.
She's I would never want anybody covering my mouth.
And.
And yet, and she's the nurse was like, just in case you change your mind at a contraction where she couldn't speak the nurse clamped it over her mouth and held it till she stopped struggling and she came out traumatized.
She was a changed person after that.
And and we sued and and eventually they settled.
I think it was, Two, three, four years later, lawsuits take a long time and and so that's in a way of my case is the most dramatic and obvious example of what we would recognize as violence and obstetric violence.
I have a question about that one before we move on.
Was there any punitive action against that nurse? Did she lose her job? Did she have to take anything remedial? Was she put on any sort of leave? There was no repercussions at all.
Other than the fact that she was sued and her hospital ultimately had to settle that lawsuit, I don't know of any negative repercussion for that nurse.
The nursing board, we filed a complaint with them.
They said within standard of care.
Oh my goodness.
I know.
No, no nursing board repercussion for the nurse.
No, I don't know of any disciplinary.
I don't think she had any discipline at the hospital.
And that actually reminds me of Caroline Malatesta's case.
That's something in Alabama.
Google.
And in that case, I remember that even though Caroline got a 14 million verdict from the jury, the hospital made a point of promoting the nurse.
She got the Daisy award or something.
Exactly.
She got an award.
And so in a way that tells you about the resistance of the culture to being called out for what they consider to be routine care at the end of the day.
Yeah.
But my client got some redress and accountability and that was important for her healing process.
Yeah.
And and so then my other three lawsuits, two of them are about like every like non consented inductions of the kind that I think one of them was a doctor says you've had two mildly elevated blood pressures.
There's a major overuse of induction for mild gestational hypertension.
Those two elevated blood pressures have become an excuse that are used by OBs across the country to induce, even though and what they'll say to the woman is.
She'll say, what does this mean? I'll say it's almost preeclampsia.
And then she'll go in, she'll Google preeclampsia, and that looks like death, but this isn't preeclampsia.
She doesn't have preeclampsia.
What she has is two mildly elevated blood pressures.
And What the alternative to induction is expected management.
You can wait and see.
You can do increased BPPs.
You know what I mean? There's all kinds of, you can do increased monitoring to see whether it's actually becoming preeclampsia and then you could induce for preeclampsia.
But instead women are told, as my client was, we're scheduling your induction for Tuesday.
And she said what are my, are there any risks to that? She's 37 weeks.
And they said, babies just do better out than in.
And she said, do I have any alternatives? I said, it's just our very strong recommendation.
without discussing the alternatives.
And and then she had nobody discussed her bishop scorbs like zero or one.
She had a miserable two and a half day induction.
There were no, there was midwives on staff and she'd been led to believe she was going to get midwifery care.
She actually sobs when she talks about turning to one of those CNMs before the decision to induce when she said the OB says that I should do this.
Can you tell me more about my options? She said, Oh, It's just a very strong recommendation, said the midwife.
And she says are there any risks? Midwife said, babies just do better out than in.
It was like a script.
And and so she basically had no midwifery care.
Nobody, the midwives would just stop in and to tell the nurse to turn up the pit kind of thing.
Nobody's, Doing anything to help her have a vaginal birth.
She stalled at six centimeters.
I now understand that when a woman stalls at six centimeters on Pitocin and Epidural one reason for that can be because her baby has become Occiput Posterior because When you're on a pitocin and epidural, the pitocin is making the uterus contract more strongly, but the epidural means you can't move to help the baby spiral down, from the force of those contractions.
So the baby's being pushed down, but it's not spiraling.
And so it gets stuck without rotating.
And that could be determined if they would rule out OP, Occiput posterior when she stalls at six to seven, but instead And even though that they should do that, and that's the appropriate thing to do, what happened in this case, and I think it happens a lot, is they'll just say, oops, cervical dilation is stalled.
How long do we have to wait with stalled cervical dilation before we can section her? Four hours.
And so then at four hours, they'll come in and say, oh, it's been four hours since you've had cervical change.
I know we did nothing for you during that time, but turn up the pit or whatever.
Just keep the pit going or nothing period.
And now it's time for your C section.
And as you probably know he, a lot of times women are told that their C section when the baby comes out, OP, Oh, your baby was OP.
It never would have come out.
I would have never fit.
They would have never fit that way.
Very good example of fraud.
Like as a lawyer, a lot of what I see in childbirth care is fraud.
Women are straight up lied to.
And women.
It is that they rely on those lies to accept a treatment and the treatment that they're accepting profits the provider.
That's what makes it fraud, because they're like they're telling women stuff that they know is false or that they should know is false.
And the women are relying on those lies.
In this case they came in four hours later.
She had a miserable dehumanized caesarean section and and in this particular case, we filed that lawsuit and then while it was pending, she was now pregnant again and she had miscarried twice between the first, that pregnancy and the next one.
And as miscarriage is a risk created by caesarean section.
So you're at increased risk of pregnancy loss from caesarean section.
She did lose, she'd never had a pregnancy loss before.
Lost two.
Now she was pregnant again.
She got to 30 weeks and she felt decreased fetal movement.
She felt that her baby was not moving in the right or normal way.
She calls the nurse hotline.
They said Oh, you're probably just running out of room.
She's like at 30 weeks, I doubt it.
Can I come in and be seen? The nurse actually wrote patient insists on coming in for a NST.
She came in.
She, a nurse did the NST said, Oh, heart rate looks fine.
I'm going to give your baby eight out of an eight on the BPP.
Go home.
You're fine.
And she's really? And she's those mothers that are like, I don't want to be that woman.
I don't want to be, it doesn't feel fine to me, but I'm going to trust y'all.
I don't want to be that type a, pushy person.
She goes home at the end of that several days later, she goes to visit her sister in Wyoming.
She is lying in bed at her sister's something's just not right.
It's the exact same symptoms as it was when she went to the hospital, just like there's some movement, but it's way weaker.
And then she goes to the ER.
An OB does an ultrasound over her belly and is like your baby's very sick.
We need to lifelight you to Billings, Montana.
And she says, great, let's go.
And while they're waiting for the helicopter, the baby's heart stopped.
The OB said, oh, no, the only thing we can do now is an emergency C section, but we don't have an anesthesiologist in the building.
Oh, no, do it.
And the, and she had a C section with no anesthesia and her baby did not survive.
I know.
Oh my gosh.
And one of the things I'll tell you about this, HeHe, and so we amended our lawsuit and now it's for both.
And it's like, what's the relationship between these two incidents? The theme is not listening.
In both cases her voice was ignored and in both cases she and her family paid the price for ignoring her voice.
Oh, no.
Wow.
That's horrible.
And I know that some people out there are listening, thinking that's a, that's a one off story or that doesn't happen that often.
And you and I both know those things happen all the time.
The time things like that.
Yeah, we don't talk about it.
I also think that women don't realize can you share a little bit about the sneaky ways that obstetrical violence and abuse sneak into our birth stories and in ways that we You know, you mentioned it the people pleasers the people who we don't want to be the difficult patient We don't want to be annoying and we don't want you to think that you're not helpful or you're not smart as our nurse or doctor you know, we want you to like us.
How can these things sneak into our birth without us realizing that maybe this is not right, the correct kind of treatment? So a way that they sneak in is because the patients aren't super, super clear on what's supposed to be happening here.
You know what I mean? And what's supposed to be happening here is before each and anything that is done to you or your baby, someone's supposed to look you in your eyes, tell you what they want to do and why tell you what the risks of the thing that they're proposing are honestly.
Tell you what your other alternatives are honestly.
Tell you the risks and alternatives of those things without their own bias and what they think they should do.
Then they can make their recommendation.
They're supposed to answer all your questions in your language.
It's not supposed to be happening in some medical language you don't understand.
And if English is not your first language, it's on them to get a translator in there.
And and then for you to decide, and that includes to be supported with respect.
If you decline their recommendation rather than bullied or coerced or sneered at, or any of the million things that, happens when women try to make a decision other than what's being recommended, even when what's being recommended has no basis in evidence.
And so understanding their rights is a big one.
And then understanding that It's totally natural like they're in a woman giving birth is both at her most vulnerable and most powerful as I bet I'm sure you know as a doula, and one way I think about it is like the way she's treated when she's giving birth is going to amplify one of those conditions, and come out feeling more empowered than ever, or more powerless than ever.
And it's perfectly normal when you're vulnerable to be in a state of fawn, from fight, flight, freezer, fawn, like you, you're vulnerable.
I've experienced it myself, even as a lawyer who does this work, when I've had to go to the hospital and I'm lying there in the hospital bed in a gown, not for birth, but for something else.
And it was like, Oh, yeah, All you want to do is make them like you because you're totally vulnerable and you're totally dependent on them.
So as much as we might already as women want people to like us, it's going to be totally heightened in the birth room because of our vulnerability and it can make it hard.
It's hard in the best of circumstances for empowered lawyers to push back, ask questions, and so that's where the doula comes in, so I think one of the ways that this can happen in the birth room is that it's all on the birthing patient and their partner to try to be their own advocate when they're not, don't have a lot of experience in this arena, don't have a lot of experience with the clinical issues that are being discussed.
aren't even sure what questions to ask and are being treated like they have no rights.
So if you have a doula with you who understands what your rights are and is willing to play the role, with your support, which they're going to need in order to play that role of standing up for your simple right of informed consent, which is written on the hospital wall on your patient rights form, that is probably the most important intervention that can happen to prevent trauma.
Which, there's a lot to say about that and I'm not trying to say it's all responsibility to the doulas to prevent obstetric violence, but it's something that a patient can do to try to increase their likelihood of that not happening.
Yeah.
Does that answer your question? Yeah, absolutely.
And we will circle back to doulas because I do have a lot of questions about doulas specifically.
But I'd love to hear a couple of long term impacts that you see from the cases that you serve.
What are Like I say, some things that come from birth trauma and obstetrical violence that we may not necessarily always track back to appropriately.
Oh it's like we talked about how women have the two layers of the birth story, right? And it's like, when there's no space held to acknowledge what happened to them, and that it wasn't okay, that stuff gets stuffed down, and it can come out, it can simmer, they can feel when there's no space held to acknowledge that what happened isn't wasn't okay, they can feel guilty about even feeling bad about it, and It often makes their baby's birthday a really complicated day for them.
Cause it's both the day that their precious angel came into life.
That is the best day of their life.
And it's also the worst day of their life because of the way they were treated that day.
And that can really tear women in two, not just on the birthday.
And It's everything.
Women are broken, girl.
I hear from women all the time I think of a voicemail I got last week from a woman saying, just describing again, everyday violations where her voice wasn't heard, and she ended up pushed into his, the kind of thing where the providers probably walked out like that was a normal birth.
And she's please help me, I'm broken.
I felt like I was something they were sacrificing.
That's horrendous.
That is absolutely heartbreaking.
I know women who've told their counselor that they were suicidal even though they love their partner and then their counselor has them involuntarily committed to the same hospital that did it to them.
Oh no.
That happens.
I know there's women who don't who die.
There's women who commit suicide.
Yeah.
I've heard those stories too.
I know those daddies that are left with the baby.
Yeah.
So this stuff is extremely real, but thank God we're in a culture that's more and more recognizing trauma as a injury.
And that it's also recognizing postpartum mental health as being a health measure that matters.
Yeah, we have a long way to go in both of those, but at least the ball is rolling and we have started that conversation and at least some Low level awareness is getting out there and spreading.
Yeah.
Okay.
I have some questions that I think were Submitted by our audience and then some that also came up from everything that you said But what is your nurse's role in informed consent because we've talked a lot about providers and patients But your nurse is a nurse advocate So what should they be doing and what kind of things can patients ask of their nurse? Great question.
When it comes to informed consent, the person that is supposed to be having that conversation about risks, benefits and alternatives is the provider.
So that should be the doctor or the midwife.
They're the ones with the legal and ethical obligation to make sure that conversation happens and that no intervention occurs without that having happened and the client being able to make an informed decision to accept the treatment it's not the nurse's job, even though it, that is sometimes delegated to the nurses, before they do this or that they're the ones giving the information, but more than anything, their job, their actual legal job is to ensure consent.
So the nurse has a legal obligation to make sure that before they're being rolled down the hall to surgery or before the pits being put in the IV or whatever the thing is before, the water is broken.
That there was an informed decision.
And if the nurse sees any evidence that consent didn't happen, the nurse is supposed to speak up and advocate.
Now, again, like what we're talking about here is the gap between what's supposed to happen, which is what the law says.
And that's based on human rights and constitutional rights.
So this is not just weak law, this is strong law.
And what actually happens in practice.
And so what happens in practice with nurses is that they're deeply between a rock and a hard place.
In terms of the expectation by their employer is obedience to the doctor and obedience to the requirements or the policies or the preferences of the institution and when there's a tension between What the doctor is doing or the policy of the institution? And the rights of the patient They can lose their job.
So or if they stand up for the patient, so I do know some nurses that have done that one case That I've been working with here in Oregon is one where a nurse who was an expert in obstetric violence and was hired by this hospital.
She was fully transparent in her interview that informed consent mattered very much to her, that she would be advocating for her clients.
And they were like, that's fabulous.
We love informed consent around here.
Like we love birth plans around here.
And she noticed several violations by nurses over her first few months, which she reported.
And those were accepted.
People were like, okay, maybe you can help us develop a training.
But then she noticed a male OB fingering a patient's anus throughout second stage.
When there was no medical reason for it.
And she spoke up about that.
And there was no Ritkin's maneuver.
There was no stuck baby.
It was happening in early second stage.
And she was like, the patient didn't know what was happening.
And was like, why does my butt hurt? And the nurse like, was like, Let me put a compress there to block his hand and then he like snaps off his glove leaves around like he's irritated Comes back in later when baby's going to get born because we can't birth a baby without a doctor, right? And so he comes back in and does it again the whole time and she reported him and she went from Like perfect reviews totally loved to fired within a week and they fired her and their excuse was even though She's great with patients and a wonderful advocate.
She's not You demonstrating our corporate value of kindness toward providers.
She lost her job.
And so again, we look at her losing her job and that what that does is helps us understand why all those other nurses are not doing theirs.
So that's what's happening with nursing and obstetric violence.
But there's some, there's at least one article about that obstetric violence and nursing.
That's worth a read where some nurses talk about that tension and have some ideas for navigating it.
Yeah we can link that in the show notes for everybody.
Wow, that is absolutely incredible.
I have a lot of good close friends that are labor and delivery nurses, and this is something that I have learned very well and deeply that nurses want things to be different.
They see the problems, they want to be the catalyst of change, and a lot of them will speak up, but there's only so far that they can go before the system or an individual provider shuts them down, and that's They really will.
They could, a lot of nurses are the breadwinner in their home.
And can't lose their job.
They have to stop when things go so far.
So that's, that is awful.
Wow.
That's terrible.
Okay.
That he is like some want to be the catalyst for change and others are absolutely agent of destruction.
L and D nurses can be some of the most abusive people in the room.
Often they're like, really, they're the.
They're the main person who's with you when you're giving birth in a hospital.
You're only going to see that doctor a few times.
And they're often doing a lot of the violations.
And I once had an opportunity to survey all the birth providers in New England OBs perinatologists, CNMs, CPMs, and LND nurses.
And to ask them a bunch of survey questions about their understanding of informed consent.
And everybody was doing a bad job.
I would say of all those providers, the CNMs seem to know what they're doing.
Better than the CPMs and better than the doctors at least in theory, how it's supposed to work.
The nurses were the worst.
The nurses truly believed they can do whatever they want.
24 nurses, from the total survey numbers believes that the patient's no can be overwritten by the preference of the provider.
Oh my goodness.
Now there's a major lack of training on informed consent everywhere within obstetrics.
But then when you do training about it, they're very resistant to it.
They don't want to change.
They really don't want to implement these things.
I can't tell you how many times I've brought a very gentle and kind, respectful conversation, casual.
I'm just casually trying to share there's, maybe a little bit less aggressive way or a better way or a kinder way, or this is the way I do it.
So many conversations.
A lot of providers are like, I've, I do it this way and I have no interest in changing and it's unbelievable to me.
Boom.
And the culture allows that.
So what that makes me think about is that there's a study by that lady.
I think her name is like Katie Kozhimannil.
She has a complicated last name, but she's been doing a lot of research in the U S on C section rates.
And one of the studies that she has.
shows that the C section rate across U.S.
Hospitals varies from 7 to 70 percent, and she studied whether that was because different kinds of women at these different hospitals with different clinical issues, and she found, nope, it's got nothing to do with the patients presenting.
That range from 7 to 70 percent is a product of quote unquote provider preference.
So that's how we do it around here thing.
And again, it's like if you're a birthing patient confronted with that level of variability, it would be okay if your right of informed consent Was protected because you can face the 70 percent or the 7 percent.
And as long as they have to accurately inform you of the information, the reasons for their recommendation, you'll still be able to make the decision.
That's right for you.
But if you don't have a secure right of informed consent, and you're in a system with that variability, you're screwed because the expectation of that system is that you will submit to the preference of whoever is standing in front of you.
Wow, okay, what about people who feel like they can't say no, so they're having this conversation with their provider and they're getting this feeling like, Alright, I, they really, I just don't feel comfortable saying no, either I don't feel safe or I definitely think they're going to treat me badly.
What do we do in those situations as the patient? I guess it depends on whether you're already in labor.
You know what I mean? Before labor choice of provider is everything.
The number one thing that a pregnant patient can do to affect the quality of the birth is shop around.
And I completely understand that insurance and other issues limit our ability to do that.
You know what I mean? Again, it's one more, one of the ways I thought about this years ago is Informed consent should be your shield against that variability and consumer choice should be your sword.
You know what I mean? Like y'all suck.
I'm going over there.
So maybe you should think about how you're doing things, but in the U S women are disarmed.
They have neither their shield nor their sword because of our insurance thing.
So like that can, so if you're insured by Kaiser, for example, now you're locked into the Kaiser OB department, and their seat, their med wives.
And if you want to leave them, you're looking at paying out of pocket.
And ask yourself how much you paid for your wedding and how much this matters.
You know what I mean? Or whatever else you've paid for that you think matters.
Because there is at the end of the day, a valuation thing here and the price of trauma is priceless.
That choice of provider prenatally, going with that gut feeling, shopping around, and I think the birth plan can be a valuable tool for catalyzing that conversation.
The birth plan should fundamentally say this is my informed consent birth plan.
My plan is that I will make all the decisions about my care on the basis of information, advice, and support from you.
This is my little birth plan talk.
Below is what I anticipate might be my medical decisions in a variety of situations regarding induction, pain relief.
Of course, I might change my mind.
I'm just listing these things so that you have a sense of my values.
And I expect that if anything changes during the labor, like an emergency arises, you will inform me what's going on.
You will tell me what my options for treatment are and you will support me in making the decisions then.
And what do you think of that? You know what I mean? And that, the way the birth plan conversation usually happens is that women say, I have this birth plan and the providers say, Oh, we love birth plans around here.
And they look at it and say, we already do this stuff anyway.
Like you're stupid for even writing it down, even though that's a lie.
And then they say, but you should understand little lady.
Birth doesn't always go as planned.
Your little lady brain might have thought it did.
But, it doesn't go as planned.
And so if, we're fine with your birth plan unless and until things don't go as planned.
And then the implication is, and when they don't, we will make the decisions.
And so that's why you can head that all off with your informed consent birth plan.
And so then if they come back and are like we're not comfortable with that, then You have to ask yourself, are you comfortable giving birth with people who are not comfortable with you exercising your constitutional and human right to make the decisions about your body and on behalf of your baby and what are your other options? Can your doctor refused to give you care if you refuse to do what they say as their clinical recommendation? Legally, no.
But again, you're culturally fate, you're in, I think the word Kafkaesque applies to what women are dealing with in hospital situations.
If you're in the hospital and you've got nowhere to turn, but even if you're not, and you still want to run down that option, call the hospital ethicist.
Call the patient advocate.
And, I think it would be worth developing some questions that patients and doulas can ask these people.
What's really come down to is what is your commitment to informed consent in this institution? What is your understanding of informed consent in this institution? What is your protection for informed consent in this institution? And what are y'all going to do to tell this obstetrician what he has to do because lord knows there is no space like childbirth in which women rape women.
Yes.
Oh my gosh.
I was just thinking of all the horrible OBs that are women too.
It's like a special kind of evil.
It really is a different kind of evil that's layered on top of obstetrical violence.
If you're a woman doing it to other women, I just.
They would be shocked to hear us describe what they're doing as evil.
The cognitive dissonance that their training has led them to where they, again, like they've been trained to see other women when they're in the condition of birthing and pregnancy as objects that are acted upon.
That's so painful to hear.
It's, it just, solidifies that making sure you're with the right provider or the best one that's available to you is really crucial.
Okay, what about withdrawn consent? So a lot of times we'll hear in the birth room or I know you hear stories the same as I do about, I was told that I had, I'd already consented or that we couldn't stop.
We can't stop the Pitocin.
We can't turn off your epidural.
We can't turn down your epidural.
You've already agreed to it.
What do you say about that? And what do patients need to know in those situations? Where they say you already agreed and you can't change your mind? Yeah, like you can't withdraw consent is essentially what they're saying, which we know is not true.
That's like saying to the woman who started making out with the guy, now you have to have sex with me because you kissed me.
Ah.
That's BS.
We have the right to make decisions about our bodies at all times, period.
Yeah.
If they've started something and you don't like it, look, if they've started cutting you open for the surgery, it's not a great time to withdraw your consent.
It's before that moment, go for it.
And if it's in that moment, I guess it would be a thing.
Can they back out? But that never I've never heard that case.
where the person's actually in the surgery.
Often it's right up to the edge because the anesthesia isn't working.
That is shockingly common that women are being given anesthesia for cesarean that isn't distributing properly.
They speak up from the table to say, I still feel it.
I can still feel this.
And they're like, no, you couldn't.
Their voice is dismissed and they're given a C section without anesthesia.
Oh my gosh.
So what do you do if you're in that situation? How do you actually stop that from happening? In a way it's I guess often doulas aren't allowed into the surgery room.
It's hit or miss.
I guess that's the moment where the preparation of the partner could really make a difference and it's really if there's only one thing to prepare the partner and it's, she's talking, you must listen to her.
Stop and listen to my partner.
You know what I mean? That's what that, and at the end of the day, that's what the doula can do too.
Her, she's talking, or she's expressed her voice previously.
Why isn't her voice at the center of what's happening here? So the partner can be the person at that moment, but I'll tell you the last couple I consulted with, literally last week, he happened to be a nurse and the anesthesia failed and it was failing all day and nobody was given a damn.
And then they, the epidural kept failing, failing, failing.
And so now it's time for the C sections.
They're like, Oh, let's get in a spinal.
The spinal then rose went too high.
She started passing out right there on the table.
And her husband was a nurse.
He recognized, first of all, when she was like, I can't breathe, I can't feel it.
He saw that she tried to talk and nothing was coming out.
And then he realized, Oh my God.
And.
Nobody was doing anything, but he was a nurse and he knew to do something with her jaw that would oxygenate her and keep her from dying in that moment.
And he describes hearing his baby cry from the other side of the sheet and all he's focused on is keeping his wife alive.
Traumatic.
This is what happens, that's a an anesthesia failure where she happened to have a husband who knew what to do for her.
Oh my god.
That is really gut wrenching.
That's absolutely horrible.
Okay, what about consent forms? You're signing consent forms in late pregnancy, way before you're in birth, way before you actually need to make these decisions.
What do we need to know about consent forms, and can we edit them? Yes.
Anything you sign, you can edit.
If they say we don't accept, look, all contracts are like negotiated between the parties, right? So if they give you a first contract, an agreement for you to sign in a way, that's an offer.
And if I don't accept X, I'm going to cut that out and I'll sign it and give it back to you.
That's a counteroffer.
So now they get to decide, They could come back and say, that's not acceptable to us, but generally what women are, where it says, I agree to a C section, cross that crap out and say, I'll decide that at the time and read the things carefully.
You know what I mean? And if they're asking you to consent to things that aren't yet indicated medically say, I will review my decision to accept that intervention.
If and when it becomes appropriate.
Medically relevant.
I don't want to consent to it because it might become relevant later.
And then you decide if I need it.
That's not acceptable.
And they should agree to that, and if they don't, again, you're not giving birth in a safe environment, but The other piece that for your listeners to understand is that you can withdraw consent at any time.
That's back to, you can kiss the guy and then change your mind.
You can get naked with the guy and then change your mind.
You can change your mind at any time.
And so ditto with healthcare, you can sign the thing that says I agree to, but then you have to use your voice to say, I disagree.
I've changed my mind or I don't, I, and maybe part of what we need to highlight here is it's as important to say no, as it is to say, yes, you can't, It's if there was no form involved, it really is all on them to make sure that you've had the chance to make the decision, but if they made you sign something that kind of looks in theory like you agreed, then you have to explicitly say the no.
Yeah.
Even though that we know silence should be taken as a no, if you've already signed your consent forms, it could be twisted in a way that reflects that you had already agreed and that.
Why would they think your silence stood for a no, even though we all know that silence is not a yes.
Exactly.
The form can be taken as a presumptive yes, in which case it can flip it so that you now need to say no, which is a good reason not to say on the form.
Look, it's like at base what a hospital needs is a general consent to care.
You agree you're coming in here and you're consenting for us to treat you for the condition of pregnancy and childbirth.
That's legit.
Like that's the, that's just a general blanket come in but then all the details of what happens in the course of that labor and birth need to be individualized.
And so that too can just be part of the prenatal conversation is what are y'all going to ask me to sign and have your doctor tell you what their mouth, what is this for? What am I agreeing to with this thing? You're giving me here? What am I not? What are the decisions we're saving for labor? Okay.
Okay.
You said.
Earlier that it was an offering tell us a little bit about your philosophy about doctors are Offering you a service and you as the patient get to decide whether you either accept it or decline it Doctors are service providers hospitals are service providers.
The services that they're providing are health care services so when you hire them, you are hiring them and paying them and they are receiving compensation for your hiring them to provide you with services.
They work for you.
And there's conditions, ethical conditions that have been memorialized as legal conditions for how they give you those services that they must follow.
And again, part of why I do what I do is because I just noticed how backwards things are, when women are talking about, oh, they'll let me stay pregnant a few more days before induction, they'll let me labor a little longer, they'll allow you to do this or that there's all this magical language, legally inappropriate language that's used about who is allowing who to do what around here.
That's the, at the heart of everything I'm doing with my law practice is trying to clarify that.
No, if you're a pregnant patient in the care of a doctor, they don't get to allow you to do anything.
Nobody ever does, period.
You own this body.
But yet that's the language that's used and that's the way in which it, that's almost like grooming.
Oh my God, that just came to me for the first time.
That language grooms the pregnant patient for the rights violations that then go down on the L and D.
So you think it's intentional language that subconsciously guides us into a certain submissive state? I think that on the part of obstetric culture now, it's no longer conscious.
They truly, it just gets it's a belief system that they have not questioned regarding their authority over birthing women and they were not trained in the law.
If they had been properly trained in the law, that might've been corrected, but they were not trained.
And so I think it's unconscious on the part of the providers.
For the vast majority of the time, and it's unconsciously then adopted by the patient because everybody's confused regarding the law, but the doulas can help regain that clarity for the patients and the patients themselves just need to be clear.
They work for you, not the other way around.
Totally.
What about in the event of your provider suggesting a c section and you don't want it? I've heard you speak on refusing surgery being a constitutional right.
What do patients need to know about disagreeing with their provider about needing a c section? So there's disagreeing about needing one and then there's making decisions about getting one which are related, but not exactly the same thing.
Just to back up to the constitutional rights.
The law of informed consent is based on the constitutional right of ownership over your body.
The right to refuse surgery specifically within the law of informed consent has been repeatedly recognized as The most sacred of constitutional rights.
And why is it the most sacred of constitutional rights? Because we've got nothing.
If we don't own our body, you start with the body.
That's the first thing you have.
And if you don't have ownership over your body, you don't have anything.
And the law of informed consent was developed like in the 19th century as medicine became more and more powerful.
Once we got antibiotics and other kinds of technological breakthroughs that made it so that medicine could really make a difference in a lot of lives.
And it gained a lot of power.
It immediately became clear that we needed to have boundaries on that medical power That made clear for the doctors who's driving the bus when a patient comes to them for care.
And so all judges, when they write about the law of informed consent, make that clear that just because, again, you go to a doctor for services, that doesn't mean you hand over your ownership of your body and that they get to just decide whatever they're going to do.
So a classic example is, the doctor has to treat your right kidney for some problem, they go into your body while you're unconscious and they see that your left kidney has a problem and they think, I'll just go ahead and do something to the left kidney because I'm sure they'd want me to, you get conscious, you can sue that person for assault.
You know what I mean? A non consented medical touching is assault.
And again, why is this a constitutional right? Because you own your body and that's a constitutional right.
And one of the ways I think about this as a lawyer is that in tort law, we are responsible, tort, that's like the law of people suing each other.
People are responsible for the foreseeable consequences of their legal violations of their negligence.
And when we think about what's the foreseeable consequence of the violation of informed consent, it relates to why do we even have this law? What's it to protect? And it's to protect basically your emotional security over your ownership of your body.
When you think about it, right? It's what's the, why do we even have this? We have it because of our emotional distress.
If our ownership of our body isn't.
Protected.
So therefore, when the injury is trauma from that violation, we can see that as a foreseeable consequence of the violation of the law.
Wow.
Okay.
I think a lot of people probably feel forced into c sections and they didn't know that they could say no.
They didn't know how to say no.
They were made to feel as If they said no, they were negligent, they weren't a good parent, they didn't care or love their baby and those always break my heart, so it's really helpful to hear you, you clear that up.
Let's loop on that, because part of what you're getting to is that overlap between the rights violations and the fraud, right? Because it's like, why are you recommending the c section? Like these women are trying to, they want everybody, we can say everybody wants the same thing.
Everybody wants a healthy outcome, right? And so the women want it at least as much as the doctors do.
And they're trying to make a decision that this gets back to that helplessness feeling that can cause trauma where they're like, but why are you making the recommendation? Why are you doing this? And they're getting talked in circles and gas lit, and they're not getting clear answers.
You just need it.
It's just our very strong recommendation.
And that's a really hard situation to be in.
And, I'm sure you and I would agree if you're in labor, you're just navigating that as best you can in that situation.
And everybody should be easy on themself with however they navigated that at the time, given the information that was available to them.
But it's also, again, one more reason why Education is necessary in the prenatal to understand what are the kinds of reasons, but also a doula because a doula again has more experience and and can provide more education and information, especially if you have some time prenatally, but even to some extent in labor on, okay here's the recommendation and here's some evidence on that.
So for you to read and think about and ask your doctor about or your midwife.
Yeah.
Oh my goodness, so important.
Okay, another phenomenon that I had seen on your Instagram that I think you and I both believe similarly about is the phenomenon of unassisted birth being a direct result of the abuse that happens within hospital systems.
Talk to us about that and what you're seeing come across your desk in terms of unassisted birth phenomenon.
So unassisted birth is really interesting because it's I'd say it's a product both of the routine violation of patient's rights in hospital spaces and the marginalization of midwives and the lack of availability of midwives and the inability of midwives to actually practice midwifery with integrity in support of their patient's rights.
People are giving birth unassisted because.
They don't have both of those things.
You know what I mean? There's both this, like a lot of people have had traumatic previous births at the hospital or have heard other people's experiences of rights violations or I don't want to set myself up for that.
People know that they want an unmedicated physiological birth.
A lot of pregnant people don't mind intervention.
They just only want it if they need it.
Most women, their hope for childbirth is to have a normal physiological birth and to know that if something goes wrong or if a medical complication arises, they're going to have the medical support that they need.
And that's such a reasonable expectation.
But it's so hard to access that because that normal physiological birth.
The hospital systems are not set up to support it.
They're just not.
They'll promise it to you prenatally.
You will show up in labor and they'll be like, we just want to start your IV.
We just need you to lie down for the monitor.
We just need to do X, Y, Z.
It's out the window.
They were never ready to support you in a physiological birth.
So giving birth outside the hospital, if that actually matters to you, to give you and your baby all the benefit of the hormones.
And because there are positive benefits to unmedicated births that nobody talks about.
So if you are aware of those benefits and you want to access that.
You've got to start outside the hospital because otherwise it's an uphill battle.
And we know that from the difference between c section rates for home births and hospital births and and then there's trauma in the hospital, just abuse that people are trying they want to minimize their chance of experiencing that.
They've often had prenatal care with people who say stuff like, yeah, We'll make the decisions when we feel like it, like they're leaving the care for the reasons you and I just talked about in this show, but then they leave and it's like, where do I turn now? The United States midwives legality is a patchwork.
Only 35 states home birth midwives are even licensed and legal and allowed to practice.
And in other there, Illegal underground criminals.
And in the places where they're licensed, often the regulations tie their hands from supporting certain kinds of medical choices like vaginal birth after cesarean, which is often, it's a birth after a traumatic cesarean.
So she really needs that support, but then the midwife's not allowed to support her in that choice for reasons that are not based on evidence about the actual risks for that mother, her baby, and her future babies.
And And so then the women are, that they choose to give birth unassisted for whatever reason, they can't find the support they're looking for anywhere.
And I'm seeing things like, I'm on this Canadian listserv that has like a lot of birth professionals on it.
And they periodically have these group chats about why are all these crazy women giving birth unassisted? One time I spoke up to say, look in the mirror people, Don't start talking about these crazy women.
You don't get to blow them off anymore.
The reason women are giving birth unassisted is because they expect that their rights will be violated in hospital care or institutional care.
So if you don't like it, take a hard look at whether you're respecting all of your patient's rights fully.
And that's how you can affect this area rather than try to marginalize or, uh, ostracize, demean, belittle, bully, all of it.
All of that.
Yeah, they're just treated so terribly, especially like home birth transfers when things go wrong.
So if you're in one of those states that it's technically illegal to home birth, can parents get in trouble for having their baby at home? And is there a place? In the U.S.
where it's actually illegal to birth your baby at home unassisted or even with a midwife.
It feels very weird to say, I'm making this choice for myself.
I own this home.
I can't birth my baby here.
There is no, there's no place that says you are not allowed to give birth at home.
And if you do, you will be punished.
Instead, if there's any avenue taken to try to punish anybody for a woman's choice to give birth at home, it's generally through some kind of frame of child neglect, right? If you are a good mother.
Or if you were, people were looking for the baby, you would have handed that baby and that fetus and the container for the fetus over to the person who's looking out for the fetus, who is the doctor.
And so that's an assumption, in terms of risks faced by birthing patients and whether they face legal consequences in states where midwives are illegal, in my observation and experience, If there is a midwife to blame, they'll blame the midwife.
If there is a doula to blame, they'll blame the doula.
It's really only when there's neither that the scrutiny falls on the patient.
If there's anyone else to blame, the basic idea about women and pregnant women in obstetric culture and those who support that perspective is that Women are confused little lady brains who don't make decisions for themselves.
Other people do.
And so if they didn't obey the doctor and show up, who misled that little lady? You know what I mean? There's always so if there's a midwife there or a doula in an unassisted birth, and this is very important to flag for doulas that are showing up for women and unassisted births, there will be the assertion that she misled like the pied piper tootled her little toot.
And then the woman followed her out of the hospital.
And.
If they can blame that person, they will.
There's a deep historical root to this that goes back to the witch hunts.
And but if there's no one else to blame, only then will they blame the woman.
And that has happened too.
And I've seen some unassisted birth cases where the woman was arrested after a stillbirth.
Oh my gosh.
Absolutely horrendous.
Absolutely.
A tragic story that our system and our nation made worse.
Compounded trauma on top of something that was already incredibly tragic and traumatizing.
And it's not just that it compounds the trauma, but that what it does is it refuses to solve the problem.
You know what I mean? So it's like, punishing home birth midwives for supporting home birth is like I said to you before the show began, it's like punishing the midwife for letting the cow out of the barn.
And you know what I mean? And when she has twins, that's a very expensive cow, for example.
And So therefore, the prosecution of people who or the prosecution of the woman herself is basically saying, rather than correcting the problem that drove her out of the hospital, right? So there's two ways to deal with the fact that abuse in the hospital makes women leave the hospital.
Either punish the woman or solve the abuse.
If you punish the woman, you don't have to solve the abuse.
You know what I mean? You can just punish or punish the midwife so she has no choice.
She has to show up and get what she's given.
And that's not an ethical or legitimate way to solve the problem.
The only legitimate way to address the problem of unassisted birth or women leaving the system is to solve the conditions that are causing these people to exercise their right to leave because they had no legal obligation to be there in the first place.
Oh my gosh, so powerful, but also so hard to do in action.
Just like really tough and difficult to do.
Okay, we have tiptoed around doulas.
You've mentioned birth plans as a really awesome way to help ensure that your informed consent is respected.
Let's talk about doulas.
How can doulas help close this care gap? I guess let's start there.
Doulas have a really important and unique role to play in childbirth because their whole focus is the woman or the birthing person.
And they're not responsible for anything clinically.
They're not responsible for assessing heart tones or blood pressures or anything.
Their whole role is basically looking out for the holistic wellness and really mental health, the emotional state of the birthing patient.
And in a way they're often therefore the only person who's really.
focused on that.
And they're a witness.
You know what I mean? Nobody else's pure role is to be witness.
Doula is, she's a witness.
And and they're often they bridge the spaces from out of hospital to in hospital.
You know what I mean? They're somebody that have a foot.
in all of these different relationships.
Nobody else has that foot.
The home birth midwife doesn't see the hospital space or vice versa.
The doula does.
And so the doula is in this really unique and special position and there's a lot of implications to that.
The one thing I'll just mention as an aside on witness is I believe that doulas, that individually you should track abusive providers just in your own notes aside from whatever you're doing with your patients.
Like track who are you dealing with, have a spreadsheet or something, put in the doctor's name and track do I see rights violations? Do I see awesome care? And it'll just up your game as your doula because you'll, and then if doulas put that information together collectively, within any given community, they could really be powerful collective advocates against patterns of abuse.
So there's that just what can you do as witness, but in terms of how can you protect your individual client as a doula, or how can you as a birthing patient utilize a doula to make sure that your rights are respected it, that's really about whether the doula is willing to play the role of protecting your right of informed consent and refusal.
And so in that sense, it's worth mentioning that a lot of doulas have said in the past.
This came out of DONA and some well meaning old fashioned doulas that said that it's outside doula scope to speak up for their clients.
That is not true.
That is a nonsense concept.
Because scope of practice is a concept that applies to licensed professionals and it pertains to the scope of what they are allowed to do under the license.
Doulas are not licensed professionals, they don't have a scope, they have a job description, and that's not subject to any kind of scope concept because it is straight up negotiated between them and their client as a matter of contract.
And so I believe that the reason that DONA and others started talking about scope and saying it's outside of our scope, don't you dare make her talk for herself, which every doula should know is a nonsense concept when they're about to cut an episiotomy that she didn't consent to and And also it's also nonsense to say that a doula is taking over for the woman's birth or outside of her role.
If she speaks up to say, are you hearing her voice? Did you hear what she said? That's not a doula taking over.
That's a doula amplifying the voice of her client, which is absolutely a way that she can serve that client.
So therefore, my advice for doulas is first of all, the doula gets to decide for herself whether she's willing to advocate for her client.
As advocacy is squarely within the role of a doula, along with education, along with support.
And, but a doula does have the right to decide for herself, whether this is on her menu of services with rebozo or whatever else.
And if it is, then I think that prenatally at that first appointment or early on, The doula and the patient should talk about whether the patient wants the doula part of the doula's role to be to protect the right of informed consent.
And so you as the birthing, as the woman can bring that to your doula and say, one of the reasons I'm hiring a doula is to avoid trauma is to try to make sure my rights are respected.
Are you willing to do that for me? If she says it's outside my scope, find another doula.
And and if either of them brings it to the other and they find that, that is what the patient wants and it is what the doula is willing to do, then the way to frame that is ensuring consent, what the nurse is supposed to do, right? So the doula can do that.
As the advocate role and so therefore I would also suggest prenatally the doula and the woman do some Really talking through the feelings that come up for them around confrontation in general you know because we've been socialized as females a lot of times to Avoid confrontation to hold the social fabric together You know what i'm saying? And so women often have a hard time being straight with their best friends Let alone, you know what? A doctor who thinks they're better than them and you know So explore some of those feelings that come up, maybe even do some role play around saying no, and the feelings that come up.
And then once they get clear that they're willing and able to go in and use their voices.
I, another thing I think that I try to share with doulas is a story of, I gave a talk at a Canadian conference For midwives in 2019 and we were talking about midwives advocating together and not stabbing each other in the back like they often do.
And this midwife, a young indigenous midwife raised her hand and she said, I find it hard to be in a relationship with women who can't hold good boundaries.
She said, a woman who holds good boundaries, if you do something that hurts her feelings or upsets her or makes her mad, she'll tell you and you can talk it out and you can work it through.
She said, a woman who doesn't have good boundaries.
you might feel something's wrong and even say is something wrong and she'll be like no it's fine and but you can feel something's wrong and she'll do these things to let you know trust is falling out of this relationship and then the relationship can fall apart and like when she said that i realized it was like a whole new thing on boundaries for me because i realized boundaries is not being rude or pushing people away it's actually loving and respecting them enough to say listen This I'm going to share with you what I'm experiencing here and what I need.
And I, I respect and love you enough to tell you that in the hopes that you'll meet me.
And that we can work this out together.
It's actually a loving and respectful thing to do to be honest about what you need and what you're feeling.
And so with that in mind, the doula and the woman can expect that they're going to go in there and use their voices and tell the truth about what their needs are and what her needs are.
And then I suggest that they plan that the woman will introduce the doula to the hospital team and anybody who comes in.
This is my doula, HeHe.
Part of HeHe's role for me that I've asked her to do for me is to just make sure that my right of informed consent, that we have that conversation before any interventions.
I know y'all get so busy around here.
And so just in case, before anything goes in the IV, I've asked HeHe to just make sure that the Somebody's looked me in my eyes, talked about what they want to do and why talk about what the risks and alternatives are.
And just answered all my questions, because then when you speak up and you say, Oh, wait, did y'all have that conversation? Now it's going to be less out of left field.
It's going to be less like, why is it talking? You know what I mean? Now in hospitals, it's like the military, they want to know what your role is.
And so now your role on that team is established.
And so in that sense, The doula can make a powerful difference.
And at the end of the day, it's about centralizing the patient's voice is, which is where that should be the center of care and all the more important in situations of discrimination when we're dealing with teen moms, women of color, anybody who is at a higher risk of having their voice marginalized, it can be all the more powerful for the doula to play that role in helping make sure that this time this person's voice is gonna get heard.
Yeah.
Oh my gosh.
I love that so much.
You just confirmed like so much of what we do within Tranquility by HeHe and the Birth Lounge is like spot on and just teaching everybody exactly how do we navigate this hospital system because like you say, it's not designed necessarily for the births that people have in mind.
I also think it's really interesting for you to Say that doulas a A-they don't have a scope, which I did know.
And it's also interesting that a lot of doulas are like, that's out of my scope to actually speak up and to hear you say, find a different doula.
I agree with you that everybody's gotta figure out what they feel comfortable doing, but I just will never, ever be able to identify or understand doulas who don't think their job is to speak up directly to providers.
That is the literal role of our job, and it will never, ever.
Compute in my brain someone who says I'm your advocate.
I'm here to keep you safe.
I'm here to make sure things are consensual I'm here to make sure that your voice is elevated.
But when I see it directly being violated, I'm not willing to say hey pause One second.
Did we talk about this? Hermine, you look uncomfortable.
Would you like To take some time to think about this.
I know this is not what you had expected or what we had hoped for.
Do you have questions before we proceed? There's so many ways that you can do it respectfully and gently, but still stop the room and essentially stop trauma in its tracks.
100%.
And what actually occurred to me while you were saying that HeHe for the first time ever and thinking of all this stuff is like, who would say that it's outside of a doula scope to speak up? The docotrs, the nurse? Actually, the only people who could be the source of that belief would be the hospital professionals who are trying to marginalize and limit the doula's role in that room.
It doesn't come from doulas doesn't come from women.
So therefore the DONA or whoever picking it up could only have been picked up in an effort to please those medical authorities.
And at the end of the day, that's the decision the doula has to make.
And the woman has to make in hiring a doula is who is this person serving me or the professionals? Who are they looking out for my needs and interests or their ability to come back to this hospital? Wow.
Oh my God.
That's so powerful.
I always say when someone says, what if you, what if you hurt the doctor's feelings or what if I say that and the nurse gets offended, I always say, I'm not in the business of protecting feelings.
I'm in the business of protecting mothers.
That is what I do for a living feelings in that moment in no way compare to the risk to her.
If her voice is not heard in that moment, it doesn't even compare a tiny bit.
Yeah, it's not even about your feelings.
Your feelings shouldn't even be in this.
Your feelings aren't part of this decision.
It's not part of this experience.
Hers are, and that's why we're prioritizing them.
But even if we care about their feelings, even if you're like, you're that compassionate doula, you want the optimal outcome for everybody here.
Actually respecting the informed consent rights of the patients is the way to give the optimal outcome to the providers.
At the end, that's been proven with studies.
But also, again, even if we say their distress matters, her distress matters, even if we were to say they're all humans and it all matters, their distress on the scale, whatever distress they would feel if she speaks up or they can't do the intervention, or they feel that you're rude.
We're talking suicide on the other side of the scale.
Oh, gosh.
Big prices to pay.
Yeah.
Yeah.
Okay, my final question is a place where every single doula has found themselves.
And I know our team is not, immune to it.
I've never talked to a doula that hasn't had this experience.
experience, you have talked to your patient, your client, you know what they want, you get in a situation, it's about to be violated, they speak up, or you speak up as a doula, and you say, oh, Hermine, I know that previously you had said that you didn't want this, do you, have you changed your mind, do you still feel that way, is it okay with you if Dr.
Jones does XYZ, and the patient, what you call, stuck in fawn, from the fight or flight series, they fawn and they say, yeah, it's fine.
It's totally fine.
And then the doula feels like an asshole.
Yeah.
You feel, oh my God, why did I say something? I said something because I thought that's what you would want.
That's what we had talked about.
And now I just look terrible in front of the doc and maybe even the doctor or the nurses are pissed at you and they are upset that you said something and they are offended.
Talk us through that.
Yes.
So HeHe this is exactly why I recommended that prenatal work with the doula and the client working through their feelings around confrontation and the phenomenon of fawn, because I think what the doula does get to say just like the doula gets to decide if she even wants to offer advocacy.
If her client says yes, I want your advocacy, then the doula gets to say alright, I will have your back and I will need you to have my back.
Okay.
because you having my back is having your own back and you need to know that women in this situation very often feel vulnerable and that a place you can go from that vulnerability is oh doctor that was just HeHe i'm sorry i don't know why she said that and then you are totally vulnerable and exposed and so it's totally fair for the doula to say back to the patient I need to know that you're going to have my back if I speak up for you.
You need to know, I'm never trying to say what you should do in this birth.
I'm never, you said no episiotomy.
If you change your mind on that, I thousand percent support you.
But if my role is to make sure that he doesn't cut an episiotomy, if you've said no episiotomy previously, I'm going to do that.
And I'm going to need you to, you need to be mindful of the fact that in that moment, The feelings that might come up and so that's why that prenatal work I think is the best you can do and that explicit conversation with the doula and the patient about basically we're having each other's backs in this situation and as a doula, you can explain.
Look, dude, I'm not trying to make you afraid of our providers here.
Both of our intention is to go in there and love everybody.
We're praying that this is all gonna be love and if we have to protect your rights, we're also not being unloving.
If we say no means no, that's not unloving.
It's loving you enough to protect your right, to not be traumatized in this birth and your right to make those medical decisions.
So I think that prenatal role play and open discussion between the doula and the patient is the best that the doula can do to prevent that from happening.
Yeah, absolutely.
Oh, my gosh.
That is so powerful.
This has been amazing.
We have covered everything that our audience has asked.
I've asked you all the questions that I commonly hear.
I've asked about things that I commonly see and experience as a doula.
Thank you so much for sharing all your wisdom and your knowledge.
Truly, this has been this has been so mind blowing.
I feel like a different person walking away from this conversation so I really appreciate it.
If people wanted to get in touch with you or they have a story that they want you to hear and maybe they have some actions that they could take from what they experienced in their birth.
If they wanted to follow you on Instagram, how do they connect with you and find you? On Instagram, they can find me by my name, which is unusual.
So they're, they should be able to find me.
And I have a website for my law practice and people who are looking for legal consultations or support can contact me through that form.
I also have another.
business called Birth Rights Law Project that's really about for doulas and for midwives, like setting you up with your documentation, like that's protective of your ability to support your clients in that way that can be like variable forms that you can use with your clients to memorialize what you and they intend for each birth.
And, through birthright and also for midwives for all of midwives.
Home birth documents really home birth midwives, but also you can through birth rights law project to have a lawyer on retainer that, for five hours or 10 hours that you could call, whether you're a birthing pregnant or whether you're a doula, if it's helpful to have legal counsel that you could call.
I also work with a few other awesome lawyers around the states that are working in this area so that we can be available on call for situations to give some support.
That's amazing.
Hermine, seriously, thank you so so much for being here today.
I want you to come visit me in Oregon.
Yes, oh my gosh, that's a state I've never been to.
I definitely will come and see you on that side of the world.
So you guys, thanks for tuning in with us today.
Today, this has been such a great conversation.
I'll see you in the next episode.
Be sure to follow Hermine on social media and you can find me at tranquilitybyhehe and the.
birth.
lounge.
Until next time, head to your app store and download the Birth Lounge app for evidence based childbirth education and data driven postpartum support delivered straight to your phone.
Bye! Thank you so much for tuning in today.
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I'm HeHe, and this is the Birth Lounge Podcast.