Court: Women giving birth at home have right not to summon medical help if something goes wrong

The Supreme Judicial Court today overturned the involuntary-manslaughter conviction of a Milford woman who didn't seek medical help when giving birth to a baby in the breech position at home.

The state's highest court ruled the state failed to prove the baby would have been born alive or could have been saved even if Alissa Pugh had sought help and that the judge also erred by "imposing a criminal law duty on a woman in childbirth to seek medical assistance." The court added:

Recognition of the broad and ill-defined duty to summon, and accept, medical assistance imposed by the judge in this case would amount to a significant incursion on a birthing woman's liberty interest in freedom from an unwarranted degree of government surveillance and coercion. The duty to summon medical assistance imposed in this case implicitly carries with it the duty for a woman to accept medical intervention, including potentially risky surgical procedures such as a cesarean section, if necessary to advance fetal survival. Such a duty would create an undesirable adversity of interests between the pregnant woman and the fetus in utero.

Pugh, who had told nobody she was pregnant, felt cramps one day. She went into her bathroom, felt her water break and realized she was giving birth right then. The judge at her trial ruled she had been "wanton and reckless" by reaching in and pulling the baby out when she realized he was in breech position - and by failing to summon medical help when she realized something was wrong. After realizing the baby was dead, she tossed his body in the trash, where it was found and led to a police investigation and charges.

But the SJC said the vagaries of childbirth mean the judge should have more carefully considered whether the woman was actually doing something that rose to the level of manslaughter:

What constitutes reasonable conduct during labor and childbirth defies ready articulation. Women give birth alone or with others in attendance, with or without complications, and they do so in myriad circumstances, each labor and childbirth posing its own challenges. There does not appear to be any "one size fits all" rule. The evidence does not suggest alternatives that a reasonable woman in the defendant's circumstances would have chosen that, in the judge's words, would have been substantially less likely to "inflict [ ] fatal injuries on a viable and near full term fetus during the birthing process." There was no evidence as to what physical alternatives might have been available to an unattended woman in labor following the realization that the baby she was then delivering was in a breech presentation. There was no evidence as to what could have been done in those circumstances that would have constituted a safer course of conduct. There was no suggestion that one alternative was to have done nothing--no pushing, no bearing down, no efforts to dislodge the baby. Failing proof of a more reasonable (i.e., less risky) course of conduct during childbirth, the defendant's conduct during this late stage of labor cannot be deemed wanton or reckless because she cannot be said to "have chosen to run the risk rather than alter [her] conduct so as to avoid the act or omission which caused the harm." Id. at 398. Insofar as her acts of allegedly reckless "commission" cannot readily be distinguished from those of giving birth itself, they cannot support a conviction under the objective prong of wanton or reckless conduct amounting to involuntary manslaughter.

To the extent that the conviction of involuntary manslaughter rests on the wanton or reckless acts of commission based on the defendant's own knowledge (i.e., the subjective measure), the test is whether grave danger to the fetus must have been apparent to the defendant and whether the defendant chose to run that risk rather than alter her conduct so as to avoid the act causing the harm. The evidence is insufficient as to both aspects of the test.

And while acknowledging parents have a duty to protect their children, the justices said the judge went too far in putting the baby's rights above the mother's and that absent any proof Pugh intended to harm or kill the baby, she had a right to refuse - or in this case not summon - medical help.



Free tagging: 


While they are right...

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...that you cannot force someone to accept medical care, only medical personnel can declare someone dead and dispose of the body. She still committed a crime, though a lesser one, as she did not call 911 to wrap things up.


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Yes, the decision is correct, because it wouldn't be constitutional to say that a woman in a planned homebirth situation should face criminal prosecution if the child doesn't survive and she didn't think she needed or wanted medical help. So even though it sounds like she ran into some personal issues and could have been more responsible, I don't think we need caselaw limiting people's choices in a homebirth situation.

In this situation though, yes, it's probably a crime to not properly report and have things wrapped up by medical personnel, but even that's unclear, because the child wasn't born alive thus there's no death report that needs to be filed.

I wouldn't suggest that someone needs criminal prosecution in this situation regardless. I think she needs empathy and I'm sure she's been through enough.

Yes and No

The most ardently pro life folks I know just received a copy of this ruling in their e-mail, as they are also very much against criminal process being used to coerce mothers giving birth at home.

Well, my point is - it sets

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Well, my point is - it sets the bar for "faking" a home-birth-gone-bad in order to abort your pregnancy. Granted, this is a pretty harrowing and dark way way to do it, but it seems to me like this ruling enshrines a loophole in the solid wall of "protect the unborn".

Considering the lengths that some of the most stalwart pro-life folks want the law to go to (no birth control, no masturbation, criminal investigations of miscarriages, keep terminal women on life support in order to bring a fetus to term, etc), this seems like a really weird place to say "Yeah, that's cool."


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Because we all know that women will go through an ENTIRE pregnancy JUST to abort at the last minute.

Um. Yeah. Statistics, please.

We can't trust women with their own bodies and decisions, after all. The stupid sluts MUST know the FEAR of CRIMINAL PROSECUTION!

Either you're trolling, or

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Either you're trolling, or you grossly mistake my intentions. I fully support women's rights, and my musing was not intended to advance any particular position.

Nobody would seriously advocate that a woman would go through an entire pregnancy for "funsies" just to abort at the end (though, being from Mississippi, it would not shock me). My point was that when the pro-life crowd strips them of every opportunity to terminate, it would seem that this is a new "out" for them, and I wonder if the pro-life crowd has considered that.

Playing the Devil's Devil Advocate

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At the risk of this turning into a pro-choice and pro-life debate unnecessarily, I draw from family experience which I now fully appreciate.

When I was quite young a relative of mine had a troubled pregnancy which often ended in either the child or mother dying. This was some 50 years back so medical science was not what it was today.

They were registered at a hospital tied to a religious belief. When her time came to give birth and they arrived at the ER to deliver they were told point blank to say their goodbyes because if the decision came to save one, they would only attempt to save the newborn as that was their policy as steeped in religion.

With a mother in nearly-full dilation my relative called a taxi and took her to another hospital, secular in nature, and asked them what they would do. Their response, save both.

She delivered there and the child and mother walked away without having to make any choices or goodbyes.

Life should be respected, but we cannot be in a position of deciding whose life we choose before fate takes a course of action that none of us can determine in advance.