Ep. 14 - The Problem with Implied Consent | Lawyer Hermine Hayes-Klein

In this episode of Birth Allowed Radio, we talk about what it means to say no to a procedure in the delivery room, when and if implied consent overrides refusal, and who is the boss of your body. Spoiler alert: it’s you.

This podcast is an extension of a recent article I wrote. You can check it out here. https://birthmonopoly.com/impliedconsent/

My special guest is lawyer and birth rights advocate Hermine Hayes-Klein. http://www.hayeskleinlaw.com/

Let’s talk about consent

Implied consent is a concept that has become skewed, in all aspects of life on the sexual spectrum, including birth. Whether we are talking about date rapists or hospital administrators, there is a lot of misinformation about what implied consent actually means.

We are talking about the right to consent to or refuse treatments in the context of labor and delivery, as well as the absence of direct consent. This includes such things as medications, cutting or episiotomies, induction, and all other interventions and treatments, all of which can save lives when appropriate. But we also know that those interventions are massively overused. For instance, the rate of c-sections has risen from 5% nationally in the 70s, to 33% nationally. This hasn’t brought about improvements in outcomes.

In the system in which U.S. women are giving birth, the reality is that there is an inclination by providers to use these interventions because of perceptions of things like liability risk and other incentives that impact recommendations. Rates of surgical birth range from 7% to 70% in hospitals across the United States, and studies show that is not because patient health profiles vary that drastically.

Your right of informed consent and refusal is a critical tool to navigate the dysfunctions that occur.

Providers often think women do not have the right to refuse, and the pushback against refusal can range from pressuring to violence. The fact is, even if the baby is going to die, the woman retains the legal right to make decisions. (Read more here about related ethics opinions from the American College of Obstetricians and Gynecologists.)

A great deal of the fear of the right of refusal is based on the idea that doctors can predict with accuracy the baby’s need for these interventions, yet those predictions often cannot be made with certainty. These interventions are also not always evidence based, and the motivation to use them is often otherwise incentivized.

A hospital admission alone does not imply consent for all interventions, and implied consent should never override explicit non-consent.

There are gendered assumptions about female passivity and their own bodies that underlie the assumptions about consent. There is a mistrust of women contributing to this debate.

Implied consent is also used to make it harder to litigate date rape and marital rape cases. Nonconsented birth interventions bear similarities to sexual assault, legally, and with the experience of the victim.

Finding an advocate willing to pursue the case can also be challenging.

So what needs to change?

Training and education in our facilities needs to happen to close the gap between the ethical and legal principle that women have the right to refuse medically recommended treatment and the realities that women are experiencing on the ground in maternity care.

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