Our right to bodily autonomy is one of the most important rights that we have. Simply put, a woman (or a man) has a right to refuse medical or surgical treatment, regardless of whether or not the refusal might lead to death. In the case of a pregnant woman, that means that she has an absolute right to refuse a C-section regardless of whether the C-section is life saving for either her or her unborn baby.
If the facts of the case as outlined in The New York Times are correct, Rinat Dray has an excellent case against her doctors for performing a C-section without her consent.
After several hours of trying to deliver vaginally and arguing with the doctors, Mrs. Dray was wheeled to an operating room, where her baby was delivered surgically.
The hospital record leaves little question that the operation was conducted against her will: “I have decided to override her refusal to have a C-section,” a handwritten note signed by Dr. James J. Ducey, the director of maternal and fetal medicine, says, adding that her doctor [[Dr. Leonid Gorelik] and the hospital’s lawyer had agreed.
They should not have done that, and, given the facts that we know so far, it is difficult to imagine why the hospital’s lawyer gave them the go-ahead to do so.
Ms. Dray had had two previous C-sections:
… [T]he first doctor, at NewYork-Presbyterian/Weill Cornell hospital, began urging her to have a cesarean after her water had broken and she had labored for a few hours. Hoping for a different outcome for her second pregnancy, she went to Lenox Hill Hospital, with the same result.
Still hoping for a vaginal birth, she changed doctors again for the third pregnancy. She also hired a doula to help her with the childbirth.
In other words, Dr. Gorelik agreed to take her on as a candidate for a VBA2C. This was clearly a priority for her, and Gorelik knew it and assented to it. Presumably he had extensive discussions with her during the pregnancy about the risks and benefits of a VBAC attempt. Yet after, Ms. Dray labored for several hours, Dr. Gorelik changed his mind.
At first, she said, Dr. Gorelik appeared to relent, saying he would give her an epidural for the pain and then reconsider. “I was begging, give me another hour, give me another two hours,” Mrs. Dray said. Her mother, who was there, supported her, and the doctor said, “I’m not bargaining here,” Mrs. Dray said.
Mrs. Dray said she kept begging on the operating table. His answer, she recalled, was, “Don’t speak.”
Those exchanges, if true, are shameful. It appears that the doctor substituted his judgment for Ms. Dray’s and performed surgery against her will.
There are, of course, situations in which a doctor can perform surgery without explicit consent, but it doesn’t sound like this was one of those situations. In emergencies if a patient is incapable of giving consent for life saving treatment (e.g. if the patient is unconscious after being shot), consent for life saving treatment is assumed since the patient would consent if she or he were aware.
Yet, Ms. Dray’s situation does not sound like an emergency. No one was suggesting that her uterus had ruptured, for example, or that the baby was currently dying. Moreover, Ms. Dray hadn’t been unable to give consent; she deliberately withheld it.
An emergency C-section without explicit consent might be performed if the doctor feels that the patient is incapable of understand what is going on. There’s no evidence presented thus far that Ms. Dray did not understand exactly what was happening. Indeed, there is no evidence that any of the factors that might imply consent were occurring here. The doctor wanted to perform a C-section, the patient refused and the doctor did it anyway. That is inappropriate and inexcusable.
Dr. Howard Minkoff, chairman of obstetrics at Maimonides Medical Center in Brooklyn, whose articles on the subject of patient autonomy have been published in medical journals, said he believed that women had an absolute right to refuse treatment even if it meant the death of an unborn child. “In my worldview, the right to refuse is uncircumscribed,” Dr. Minkoff said, cautioning that he was not commenting on the particular facts of Mrs. Dray’s case. “I don’t have a right to put a knife in your belly ever.”
I heartily concur, and I suspect that the court will, too.
We are not talking about someone who is unknown to the doctor, who is in the midst of a dire emergency, who is incapable of understanding what is going on. We are talking about a competent woman who had had extensive counseling by her doctor, who strongly wished to proceed with labor, who strongly expressed that she did not give consent, and yet was operated on anyway.
Ms. Dray has the RIGHT to refuse consent for a C-section. She has the RIGHT to let her baby die if that’s what happens as a result of refusing a C-section. She has the RIGHT to sacrifice her own life, too, if she understands that she might die as a result of her refusal.
Ms. Dray’s doctors apparently trod on all those rights and substituted their judgement for hers. If that is truly the case, they can and SHOULD be held legally accountable.
