Law endorses the “right of every individual to the possession and control of his own person”1 including a “liberty interest [under the Due Process Clause] in refusing unwanted medical treatment.”2 However, in childbirth, the state controls the bodily choices of pregnant and birthing people through a patchwork of tort law standards and the regulation of healthcare providers, systematically enforcing compliance with particular, value-driven norms.3 While courts have found abortion to be a fundamental right, they have declined to recognize a right to give birth free from government intrusion.4 Regulation of abortion faces scrutiny under the “undue burden” standard,5 but there is no legal limit on government intrusion on privacy through the regulation of childbirth.6
This Chapter examines the legal infrastructure around childbirth, honing in on the provision of healthcare as a mechanism for controlling reproduction.7 Section A offers an introduction to the values and outcomes at stake in decisionmaking during birth. Section B discusses the role of law in childbirth in two areas: tort law and the regulation of midwives. Together, these legal structures result in limits on access to care that deny pregnant persons the ability to make basic reproductive choices. Examination of the effects of tort doctrine alongside the regulation of midwives reveals the value-based posture of the law toward birth, discussed in section C. The two systems function quite differently: a runaway tort system encourages physicians to prioritize the fetus at all costs, giving them wide latitude to impose a distorted standard of care on pregnant people, while, in contrast, restrictive midwifery regulation denies various reproductive options to pregnant people — mimicking the hyper-regulatory oversight of abortion. In both arenas, the law departs from standard legal principles, displaying pregnancy exceptionalism. Both systems also exhibit fetal primacy, enforcing fetal interests over those of the pregnant person in material and symbolic ways.
A. Birth Entails Values-Based Reproductive Decisionmaking
Decisions about where, how, and with whom to give birth are meaningful reproductive health decisions. For many, they involve intimate considerations about the experience of bringing life into the world and meeting one’s baby, connection with one’s partner, self-empowerment, and connection with the divine.8 Such choices implicate the kinds of deeply held values that constitutional law has protected in decisions about reproduction, procreation, and parenting.9 Importantly, childbirth decisions often involve significant medical uncertainty: they cannot be easily resolved by reference to infant or maternal outcomes. Thus, when a pregnant person, a provider, or the state makes a decision about birth, they must fall back on their beliefs about the appropriate balance between competing values rather than scientific consensus.
For example, birthing people make choices between physician-attended hospital births and midwife-attended births, approaches which embody fundamentally different understandings of birth.10 On the one hand, the medical model approaches birth as a pathological medical condition, requiring hospitalization and medical supervision, as well as frequent intervention.11 Technology is dominant and perceived risk is central.12 The process is doctor centered, with physicians directing the process and making the decisions.13 Safety is narrowly defined around fetal wellbeing, which is prioritized over other core values.14
The midwifery model of care, on the other hand, understands birth to be a normal physiologic process.15 Care supports “the physical, psychosocial and spiritual health, well-being and safety” of the birthing dyad.16 The fetus and pregnant person are an “interdependent whole.”17 Midwifery emphasizes individualized care, built on an “egalitarian relationship”18 of “trust, honesty, and respect” between midwife and client.19 The pregnant person is “autonomous and competent to make decisions regarding all aspects of her life.”20 Finally, midwifery care seeks to “minimiz[e] technological interventions.”21
Aside from decisions about provider and place of birth, decisions about particular interventions — for example, whether to induce labor or use medication to speed it up, pain management options, and whether or not to have a cesarean — are rarely straightforward medical decisions.22 All involve considerable scientific uncertainty and necessitate value-based tradeoffs.23 In addition to competing risks, birthing people may weigh economic factors, obligations to other family, personal preferences, spiritual beliefs, mental health, long-term health consequences, and immediate postpartum implications in making these choices.24
While a highly medicalized approach to birth is dominant in the United States, its prevalence is not explained by superior outcomes.25 In hospital births, between 27% and 41% of labors are induced, many without medical indication.26 Another 40–50% involve the use of synthetic oxytocin, or Pitocin, to speed up the labor process.27 About three quarters involve epidural pain medication, which numbs and immobilizes the birthing person from the waist down.28 Since 1965, cesarean rates have climbed from 4.5% to 31.9%.29 The rise in cesarean deliveries has not improved infant mortality,30 which remains higher in the United States than in any other comparably wealthy nation.31 Maternal mortality ranks fifty-fifth in the world, after Russia, and is climbing.32 Infant and maternal death rates for Black and Indigenous people are two to five times those for white people.33
Midwifery care results in different outcomes than the medical model.34 Home births and birth center births have cesarean rates of 5–6%.35 The rates of postpartum hemorrhage or severe tearing are lower than in hospitals.36 Neonatal intensive care unit admission is exceptionally low.37 Less than 5% require oxytocin augmentation or epidural anesthesia.38 Breastfeeding rates at six weeks are greater than 97%.39 While studies are inconsistent, the best available data indicate that neo-natal mortality at home or in a birth center is similar to that in hospitals.40 Maternal mortality is roughly the same.41 Midwife-led care in hospitals shows similarly strong outcomes.42 Satisfaction with the birthing experience is higher under midwifery care,43 which may improve mental health outcomes.44 In 2017, 62,228, or 1.61%, of births took place out-of-hospital, an 85% increase from 2004.45
Decisions in childbirth thus involve contestable choices about values made in the face of uncertainty. With this in mind, it becomes possible to see the restrictions on reproductive choice enforced by the legal infrastructure of childbirth not as a neutral codification of universal best practices but as a system based on a particular set of value judgments that cabins pregnant people’s choices much more narrowly than medical evidence, standing alone, could support. Constitutional and common law commitments to bodily autonomy and personal choice in matters of health, reproduction, and parenting support control over such judgments by birthing people themselves.
B. The Legal Infrastructure of Birth Restricts Access and Choice
Health law shapes childbirth through tort law and provider licensure. Tort law crystallizes and enforces a narrow standard of care, limiting birth options providers will offer and incentivizing them to compel patient compliance for fear of liability. Meanwhile, restrictive midwifery regulation directly forecloses alternate care avenues, denying access to safe care and forcing people into unwanted procedures.
1. Tort Law.
Viewed as a whole, tort law functions to create a coercive birthing environment and to limit the range of birthing options available to birthing parents. It does so through two main moves: First, tort law offers huge damages awards for harm to the fetus during the birthing process, and little to no damages for harms to the pregnant person. The knowledge that fetal harm carries outsized liability “incentivizes doctors to distort fetal harms in ways that in turn distort the standard of care.”46 Second, tort law fails to uphold informed consent, making it risky for providers to deviate from this distorted standard. Because of the legal incentives of tort law, providers work to persuade, manipulate, or coerce patients into conforming to the (distorted) standard of care. Taken together, tort law limits birthing people’s ability to make healthcare choices in ways typical in other health fields.
(a) Tort Law Distorts Standards of Care in Birth. — In medical malpractice and negligence cases, departing from the “standard of care” constitutes a breach.47 Ideally, the standard of care compels providers to adhere to evidence-based medicine. But the standard of care is not explicitly tied to science; rather, it is determined according to “the customary practice” of providers.48
Professor Jamie Abrams has identified and chronicled the distortion of standards of care in childbirth.49 With the advent of highly medicalized childbirth, “the fetus has become the dominant putative plaintiff” in modern tort law,50 with eight-figure awards for fetal harm.51 By contrast, tort claims based on harm to the birthing person are rare, and their “ultimate dollar value . . . is relatively small.”52 Indeed, some courts seem to treat injuries to the pregnant person as “acceptable harms, regardless of the standard of care, [as long as] they result in healthy babies.”53 Though tort law standards normally focus on minimizing unreasonable risk, the high cost of fetal harm promotes a fetal “primacy” that directs treatment toward eliminating all fetal risk.54
The court-enforced disparity between the value of maternal harm and fetal harm “invite[s] distortions in medical care and advice.”55 Providers are incentivized to recommend care that minimizes fetal risk at all costs. The threat of liability for fetal harm may cause providers to exaggerate or misrepresent fetal risk levels to patients. Indeed, fear of litigation has been shown to be a leading factor in physicians’ decisions to perform cesarean sections.56
Critically, because the tort standard of care simply amalgamates common practice, the fetal primacy encouraged by tort law crystallizes into a legally enforceable standard of care. This standard of care, and the ensuing care options available to pregnant people, encompass a blend of the values of courts and the interests of medical providers.
(b) Tort Law Fails to Require Informed Consent (or Any Consent at All) in Birth. — Tort law regulation of medical care begins from two basic premises: First, a physician must obtain consent before subjecting a patient to a medical procedure.57 Procedures cannot be forced, even to save the life of a third party.58 Second, consent must be informed. The provider must explain the material risks and benefits of a treatment and its alternatives.59 In childbirth, however, these principles are often warped or not applied at all. The existing legal posture makes it safer for physicians to act according to the standard of care — even against the consent of their patient — than to deviate from the standard of care to support the reproductive health choices of the pregnant person.
First, courts often uphold customary procedures when informed consent is not asked for or received.60 Informed consent doctrine often determines breach based on whether a “reasonable patient” would have consented to a given treatment under the same circumstances if they had full information.61 Under the “reasonable patient” standard, all birthing people are held to “determinations of reasonable behavior . . . entirely shaped by what ‘most women’ do.”62 Because physician-driven decisionmaking goes “largely uncontested by the four million women who give birth in this manner each year,” it becomes presumptively unreasonable for any birthing person to deviate from “complete acceptance of medical guidance.”63 The doctrine of informed consent in childbirth thus “perpetuates an illusion of autonomy that is problematic to the women who do not elect this framework.”64
Second, some courts avoid meaningfully applying the informed consent doctrine to childbirth at all by holding that specific procedures are covered by the pregnant person’s general consent to delivery care.65 In one such case, Sinclair v. Block,66 a court affirmed that the use of forceps in labor did not require “specific consent . . . because it would be covered by the patient’s general consent.”67 The court went on to hold that “the informed consent doctrine does not apply to the natural delivery process” because the birthing person cannot “elect to remain in her present condition” so “there is no choice to make.”68 Likewise, in Hall v. United States,69 a court found that a patient who was given anesthesia without informed consent had “impliedly consented” to the use of spinal anesthetic because she “entered the hospital for the express purpose of being delivered of her child” and anesthetic during labor was “standard procedure.”70 The implication of these cases is that once a laboring person agrees to be cared for by a certain provider they have no right to further information or control over the course of treatment.71
Third, some courts deviate even further from common law and constitutional principles, overriding patients’ explicit refusal and enforcing compliance with the standard of care via court orders.72 For example, in Pemberton v. Tallahassee Memorial Regional Medical Center, Inc.,73 a Florida woman decided to birth at home after physicians refused to respect her choice to have a vaginal birth.74 During labor, the hospital obtained a court order, sent law enforcement to her house, and brought her forcibly to the hospital, where a cesarean was performed against her will.75 The court found that “[w]hatever the scope of Ms. Pemberton’s personal constitutional rights . . . they clearly did not outweigh the interests of the State . . . in preserving the life of the unborn child.”76 In another case of forced cesarean, the court similarly concluded that it was “appropriate to infringe upon the wishes of the mother to the extent it is necessary to give the child an opportunity to live.”77 Other courts, however, have declined to order interventions in childbirth.78
The message to providers in these cases is clear: physicians are the final decisionmakers, not the pregnant person, and no liability will attach so long as the provider follows the standard of care. By failing to uphold informed consent, the law incentivizes providers to induce patient compliance with a narrowly defined standard of care during childbirth, so as to avoid liability.
(c) Doctrinal Implications: Limited and Coercive Care in Birth. — In the aggregate, tort law functions like a regulatory regime that limits the reproductive options available to birthing people to a narrow set of fetal-centric birthing practices. The threat of suit makes it risky for providers to deviate from these practices, even where deviations are supported by the science. Because of tort law, obstetric providers are unwilling to attend a wide variety of births, not because they encompass an objectively unreasonable level of risk, but because they are not typically done — and therefore liability will attach if something goes wrong.
In addition, tort law drives coercion in childbirth. It tasks providers with convincing patients to comply with the standard of care, even when doing so is against the pregnant person’s best interest or express refusal. Indeed, manipulation and coercion of patient consent in childbirth, part of the wider phenomenon of “obstetric violence,” are widely reported.79 Roughly 28% of people birthing in the hospital experience mistreatment including violations of bodily autonomy; being shouted at, scolded, or threatened; and being ignored or refused requests for help.80 There is currently little legal redress for such mistreatment.81
The few cases that bubble up into legal proceedings or the media provide a window into the escalating progression of abuse pregnant people who decline medical recommendations can face.82 For example, in Dray v. Staten Island University Hospital,83 a New York woman decided to try for a vaginal birth after two prior cesarean births.84 Initially, her providers tried to manipulate her into compliance with dire warnings about the risks, despite the fact that she was a good candidate for vaginal birth after cesarean (VBAC).85 During her six hours at the hospital before her doctor “decided to override her refusal” and perform a cesarean against her will,86 the doctor became increasingly hostile. He threatened her with a court order and said “the state is going to take your baby away.”87 He told Dray, “My license is more important than you.”88 During the forced surgery, the doctor was “rough . . . almost as if to punish” Dray,89 and lacerated her bladder in the process.90
Similarly, Michelle Mitchell, who declined a cesarean for a “large baby,” faced a series of threats and abuse before her forced surgery.91 The doctor was belligerent, “shouting and swearing” at her, as well as threatening to have her baby removed and to obtain a court order.92 Under threat of legal action, she submitted to forced surgery. Afterward, the doctor reported Mitchell to child protective services anyway.93 As a result, the hospital would not release the baby to her, and she endured months of investigation before the complaint was dismissed.94
A key feature of provider coercion arises from the fact that, up to a point in pregnancy, providers can terminate care for patients that will not comply.95 Critically, rather than recognizing vaginal birth as an inevitable physiological process that will unfold with or without action by the provider, and in which providers can intervene with medical procedures to assist the process, courts have embraced the medical construct of a vaginal birth as a “procedure” performed by a doctor. In response to pregnant people seeking to avoid forced intervention, courts have argued that a pregnant person has no “right to compel a physician or medical facility to perform a medical procedure in the manner she wishes against their best medical judgment.”96 As a result, people seeking to choose a birthing method disfavored by the medico-legal system often struggle to find any provider to care for them.97
It is safe to assume that many pregnant people acquiesce in the face of manipulated risk presentations, the threat of termination of care,98 or eventually under threat of child protective services or court orders. As providers offer an increasingly narrow set of birthing options, it becomes more difficult for birthing people to find the exceptional provider who is willing to attend a particular category of birth that is disfavored, like VBAC. By incentivizing medical professionals to ensure compliance with the fetal primacy model, the state is rarely required to do so itself. In this way medical providers serve as effective de facto law enforcement.
2. Restricting Maternal Choice Through Midwifery Regulation.
The regulation of midwives stands in clear contrast to the legal infrastructure around physicians: Tort law grants the medical profession enormous leeway to set and maintain standards, and upholds the coercive power of physicians over patients, in a manner that indirectly limits options for care. Conversely, midwives are tightly regulated in ways that parallel abortion regulation and directly restrict the reproductive options available. Midwifery care offers the main alternative to the dominant medical model of childbirth; accordingly, restrictions on access to midwives are an effective means of curtailing reproductive choice.
States vary widely on which types of midwives they license, the scope of practice they allow those midwives, and access to birthing-center or home birth.99 This section first discusses how restricting the practice of midwifery curtails reproductive decisionmaking. Second, it explores the use of targeted regulation of midwifery providers (TROMP laws) to further inhibit the practice of midwifery.
(a) Restricted Midwifery Practice. — When midwives are not permitted to practice, pregnant people lose access to a range of reproductive health options. Prohibiting midwives from attending various births effectively bans pregnant people from making those reproductive choices. In some cases such restrictions functionally mandate cesarean birth, denying certain people access to any care provider that would facilitate vaginal birth.100
The complexity and irregularity of midwifery regulation in the United States reflect the extensive efforts of medical associations to prohibit the practice of midwifery. Midwives attended the vast majority of births through the late nineteenth century, when a “physician-led campaign to prohibit midwives from practicing” began.101 These efforts were successful: in the first half of the twentieth century, midwifery was almost eradicated, and most birth moved into the hospital.102 Midwifery saw a resurgence in the seventies and has undergone waves of professionalization and fragmented state regulation since then.103 However, physicians have continued concerted campaigns to restrict the practice of midwifery, hampering efforts to improve access.104 The ongoing organized opposition by medical lobbying groups has fueled the uneven and restrictive regulatory framework present today.
Today, three types of credentialed midwives practice in the United States: Certified Professional Midwives (CPMs), Certified Midwives (CMs), and Certified Nurse Midwives (CNMs).105 All three train to serve as independent, primary care providers throughout the childbearing cycle, offering complete prenatal care, facilitating the birth, and giving care through the postpartum period.106 All three also monitor for complications and transfer patients to physicians as needed for additional care.107 Within this shared overall scope, their training and consequent scope of practice varies. The key relevant difference here is that CPMs train and practice almost exclusively at home or in birthing centers, while CNMs and CMs train and practice primarily in hospitals.108
(i) Prohibiting Practice. — Many states do not authorize legal practice by CPMs. CPMs can legally practice in thirty-four states and Washington, D.C.,109 CNMs in all fifty states, and CMs in only a handful.110 Because most CNMs and CMs practice in the hospital, birthing people in states that fail to license CPMs often have no legal care option to birth out of the hospital.111 Many people in these states will choose “community birth”112 regardless, creating strong demand for any underground midwife willing to serve them.113 Midwives in these states risk being criminally charged for assisting people with their births.114 Prosecution can arise seemingly out of the blue after many years without state enforcement, ensuring that midwives and the people they serve in unlicensed states live with the ongoing risk of prosecution and precipitous loss of access to care.115
The ongoing prosecution of Elizabeth Catlin, a New York CPM, is illustrative. New York allows for the licensure of CPMs, but the law has been implemented as to exclude them from licensure.116 Catlin openly attended Mennonite women in rural New York for twenty-five years, and was the only midwife in the region.117 In 2018, Catlin transferred a client into the hospital for additional care.118 The baby was born at the hospital and later died.119
In December 2018, Catlin was arrested and charged with ninety-five felony counts, carrying a maximum prison sentence of 473 years.120 At her hearing, Mennonite families, who describe Catlin’s care as “like a mother,”121 crowded the courthouse, singing “Amazing Grace.”122 With no midwives left, pregnant people in the community can either go to the hospital or birth at home alone, as several reportedly did after Catlin’s arrest.123
New York’s clampdown on midwives demonstrates the way in which prohibitions on midwifery care are analogous to bans on abortion. As with abortion care, lack of access to qualified midwives means that some pregnant people will birth without adequate care. Moreover, when hospital care is needed, unlicensed midwives may fear taking in a client due to the risk of prosecution. Prohibiting midwives from practicing thus simultaneously abridges the reproductive freedom for birthing people, while making the disfavored care option less safe for those who would choose it anyway.
(ii) Limiting Scope of Practice. — States also limit birthing people’s reproductive freedom by prohibiting midwives from attending particular births. Such prohibitions are almost always in the name of safety, but the evidence of underlying risk varies greatly, or is often unknown.124 Even where there is clear elevated risk, under normal circumstances, a care provider would discuss the risks and benefits of a given option, and the patient would decide how to proceed.125 The regulation of particular, discrete health decisions in pregnancy thus departs from typical standards of healthcare law.
Scope of practice is most tightly regulated for community midwives, usually CPMs. These restrictions vary widely between states and creep into territory where people may reasonably disagree about the level of risk present, whether that risk is appropriate to assume, and whether the risk is increased by being in the home setting versus the hospital.126 For example, despite a lack of evidence to support such measures, some states restrict access for people with a history of psychiatric illness,127 or who are under or over a certain age128 or body mass index.129 Also prominent are restrictions on vaginal birth after cesarean births, though the balance of risks may weigh in favor of home VBAC for some.130 While these conditions may lead birthing people to elect to plan a hospital birth or transfer to the hospital in some or even many cases, blanket restrictions that deny people the ability to weigh individual risks and make informed decisions apply a double standard to the birthing process that is rarely present in other healthcare settings.131
Moreover, when a person is denied midwifery care as an option, and the liability risk is too high for hospital providers to undertake a vaginal birth, the legal infrastructure effectively forces birth by cesarean. Pregnant people in these situations have been known to drive an hour or more to legal midwifery care or to hospitals that will respect their decisionmaking.132 Some choose to birth alone at home.133 But many, perhaps the vast majority, end up undergoing surgeries they were unable to refuse.
Prohibitions on community birth for pregnant people with a prior cesarean birth illustrate this phenomenon. Because roughly a third of births are by cesarean, these restrictions impact large numbers of people in subsequent pregnancies.134 The evidence shows that attempting a VBAC is a safe option that should be offered to most people, even though it carries a 0.7% risk of uterine rupture.135 People who achieve a vaginal birth experience significant health advantages over those who have a repeat cesarean section, including avoiding major abdominal surgery, lower rates of serious complications and death, as well as lower risk of complications in future pregnancies.136 When attempted after a cesarean, a vaginal birth is achieved 60–80% of the time.137 However, because so few people are permitted to try, only 13.3% of people with a prior cesarean section had a vaginal birth in 2018.138
Due to the risk of liability,139 people in large areas of the country cannot access a hospital that will permit them to attempt a VBAC.140 They face a choice between a forced medical procedure and a community birth.141 Outside the hospital, attempted VBAC results in a vaginal birth almost 90% of the time.142 VBAC at home likely carries a higher risk of fetal death than VBAC in the hospital, but the absolute rate remains low.143 For many people, the high chance of achieving the health benefits of a vaginal birth at home makes assuming some additional fetal risk acceptable, particularly when a previous hospital experience was negative.144 Thus, when states ban access to midwifery care for people with a prior cesarean, they are consigning many to compelled cesarean birth.
(b) Targeted Regulation of Midwifery Providers (TROMP Laws). — In addition to laws that restrict practice, a number of states single out midwives for regulations that appear to serve primarily to limit access to care.145 In the abortion literature, similar regulations have been deemed “targeted regulation of abortion providers,” or “TRAP laws.”146 Such regulations include requirements that abortion clinics meet ambulatory care center standards despite a lack of medical necessity, that abortion providers have hospital admitting privileges though hospital transfers are exceedingly rare, or that abortion providers perform medically unnecessary ultrasounds on patients.147 In practice, such laws make it challenging or impossible to offer abortion services, and they have been litigated under the “undue burden” standard as a result.148
Similarly, in childbirth, states have passed a number of superfluous regulations designed to inhibit midwifery practice, or TROMP laws (“targeted regulation of midwifery providers”).149 For example, roughly half of states require CNMs, though trained as independent providers,150 to enter into a written “collaborative” agreement with a physician in order to practice.151 Such requirements “do not improve patient safety, [but] do negatively impact cost, access, and quality” of care.152 Midwives struggle to find physicians willing to sign an agreement, and regularly pay thousands of dollars per year to maintain the agreement.153 In order to obtain an agreement, midwives may be forced to limit the care options they offer to those practices of which the physician approves, thereby denying people the much-needed access to alternative options. Collaborative agreements appear effective at stifling midwifery.154 By targeting midwives with this arbitrary requirement, states thus significantly limit people’s access to reproductive choice in birth.
Like abortion clinics, birth centers have been targeted with ambulatory care center laws and other restrictive facility requirements.155 Such restrictions, designed with surgery in mind, are inapplicable in the birthing context.156 Some states require hospital admitting privileges in order to operate a birth center.157 Due to the many hurdles to achieving such privileges, these rules serve as a significant barrier to practice.158
In the case of CPMs, a number of arbitrary TROMP laws inhibit practice.159 In Virginia, for example, CPMs are denied the ability to carry the lifesaving medications midwives use at births to stop hemorrhaging or provide supplemental oxygen, either in labor or to the newborn.160 In Arkansas, birthing people cannot elect CPM care without submitting to a pelvic exam with a hospital provider.161 In Arizona, regulations require midwives to perform repeated vaginal exams in labor — a rule that compromises both safety and autonomy.162 These types of arbitrary TROMP laws reveal a value-laden attempt by the state to inhibit people’s access and choice in birth to medicalized, fetal-centric practices, without a reasonable safety rationale.
The law uses the provision of healthcare as a mechanism to constrain reproductive decisionmaking in childbirth. This section describes several key insights drawn from viewing the legal infrastructure of childbirth as a whole: pregnancy exceptionalism, the law’s symbolic allegiance to fetal wellbeing over that of the pregnant person, and the role of medical providers as law enforcers.
1. Pregnancy Exceptionalism.
The law around childbirth breaks from standards and norms that control in healthcare regulation more broadly.163 These departures help reveal the normative and ideological state of the law around childbirth. Bringing healthcare regulation of pregnancy in line with existing legal standards would, in itself, go a long way toward remedying the law in this area.
Pregnancy is an exception to the principle that the state should not mandate specific health practices, which are best decided between individuals and their providers.164 Healthcare regulations typically defer heavily to health professions and patient choice to resolve tricky questions of medical uncertainty of risk.165 In pregnancy, however, through granting outsized tort damages for fetal harm that distort the standard of care and failure to enforce informed consent — alongside intensive regulation of midwives — the law inserts itself into discrete health decisionmaking in a manner that departs from regulatory norms.
Pregnancy is also an exception from established principles of informed consent.166 Normal principles of healthcare decisionmaking are cast aside, and the law permits a level of coercion by providers that would be unacceptable in any other healthcare setting.167 Through the use of court orders, it also actively imposes coercion in ways that mark a clear break from its widely implemented standards for medical decisionmaking.168
Much of the exceptionalism around childbirth and law is unwritten. There is no formal legal exception for birth to the laws of informed consent,169 nor does tort law doctrinally hold the fetal life to be more valuable than the pregnant person’s.170 The unwritten nature of these principles obscures the consistent policymaking at work in the law around childbirth. It may be that demanding a more formalistic approach by the law in this context could benefit birthing people.171 This debate demands more attention, but regardless, commentators bringing the unwritten legal exceptionalism in childbirth to light enable such a conversation.
2. Fetus over Pregnant Person.
The law around childbirth inscribes a system of values that elevates the purported interests of the fetus over those of the pregnant person. Examination of the legal infrastructure reveals that the state has a preferred set of treatment options in childbirth: it approves of and seeks to enforce care that will minimize any perceived risk to the fetus, regardless of the costs to the pregnant person,172 or to widely held values like autonomy, bodily integrity, parental rights, or religious liberty. Medical uncertainty regarding actual risk, which pervades the obstetric setting, allows for a persistent impression of potential fetal risk that must be avoided. The notion of “perceived risk” here is paramount: restrictions around reproductive choice in childbirth often rest on an impression of risk to the fetus rather than an actual, empirical risk to the fetus.173 Put differently, the symbolic value of elevating the worth of the fetus over the pregnant person may be just as (or more) important to the state as physically protecting the health of the fetus over that of the pregnant person.
Tort law requires that pregnant people — and healthcare providers — display symbolic allegiance to a fetus-over-pregnant-person model, rather than conform to the best medical evidence. In some cases, it incentivizes care options that harm maternal outcomes and do not improve fetal outcomes, as in the case of continuous fetal monitoring.174 Through the regulation of midwives, the law inhibits a range of birth options that show good outcomes for fetuses with far lower rates of complications for pregnant people, like community birth and even hospital midwifery care. Meanwhile, court orders routinely uphold fetal interests over maternal interests, illustrating that maternal sacrifice to the fetus will be enforced by the state if not given voluntarily.175
Notably, by enforcing standards distorted by a fetal-centric lens, and failing to capture the interdependent nature of risk to pregnant people and fetuses, the regulation of childbirth fails to produce strong outcomes for the fetuses it elevates.176 This is because the fetal devotion present in law and medicine is more symbolic than empirical in nature. While the United States continues to restrict and limit pregnant people’s ability to access midwives, countries throughout the industrialized world rely on midwives to attend roughly two-thirds of births and achieve lower rates of neonatal mortality.177 Likewise, the distorted standards of care enforced through the United States’ highly litigious tort law system limit access to safe care options for fetuses and may contribute to the rise in maternal mortality unique to the United States. By dropping the insistence on performative allegiance to fetal wellbeing over maternal, the law could approach childbirth with a clearer head and work to enable safer outcomes for birthing people and their babies.
3. Medical Professionals as Law Enforcement.
The legal infrastructure of childbirth tasks providers with enforcing a fetus-over-pregnant-person model on pregnant people. Through tort law, providers are incentivized to deny care to people who will not abide by these norms, or to manipulate and coerce pregnant people into compliance in order to protect themselves from potential liability. Where refusal is still present, medical providers police pregnant people by seeking formal legal help from courts, or child protective services, to bring people into compliance with the unwritten law.
Professor Michele Goodwin has identified the ways in which medical providers serve as law enforcement during pregnancy and birth, tasked with protecting fetuses from their pregnant parents.178 She elucidates the way the dual roles required of medical professionals, that of a healthcare provider with a fiduciary duty to the patient and that of a state agent tasked with enforcing state interests, may conflict.179 In wearing “two hats,” medical providers may subordinate patient health and privacy interests to state interests, particularly when they fear sanction via liability or other mechanisms for failing to do so.180 In addition, medical providers’ professional and ethical duties may conflict with state interests.181
Professor Goodwin’s analysis emphasizes policing by medical professionals in relationship to court-ordered treatment, but the insight extends to tort law. By subjecting providers to liability when they stray from a commitment to enacting fetal primacy, and aligning provider interests with its own, the state enlists providers in the job of convincing patients to submit. Given the trust that patients invest in their healthcare providers, this mechanism works effectively to bring most birthing people along with a fetal primacy agenda. Medical providers have a slew of direct enforcement mechanisms available to them, from the ability to shape patient knowledge about risks and benefits, to the ability to perform procedures without patient consent with the backing of the law. Though different than reporting patients directly to state agencies or courts, the role of medical professionals as law enforcement driven by tort law is a key mechanism of legal control over pregnant people’s bodies and reproductive decisionmaking.
The legal infrastructure of birth, through tort law incentives and regulation of midwives, drives lack of access and choice in birth. By shaping the provision of healthcare, law encodes particular values in the birthing process, promoting a fetal-centric and physician-controlled approach. In seeking solutions, advocates should focus on bringing the regulation of childbirth into alignment with healthcare and constitutional law more broadly, and on reforming areas of the law that can improve access to a broader spectrum of care.