Extreme times call for extreme measures. That’s true in any crisis, but especially right now, when hospitals and medical professionals are doing everything they can to keep up with the exponentially increasing cases of COVID-19 until we manage to flatten the curve. The struggle has meant new policies and measures to keep patients and medical personnel as safe as possible.
Of course, there are other medical needs right now besides treating COVID-19 patients. Just like before, a lot of people are giving birth to babies! On that front, the COVID-19 measures have been, for some, terrifying and traumatizing. A number of hospitals have taken to banning all nonmedical providers in the delivery room, aside from the person actually giving birth -– meaning that not even a spouse or partner is allowed in. (Stories like this one of a man hiding symptoms before entering the hospital to be with his delivering wife, and then likely infecting her, are not helping!) And when it’s a surrogacy birth, hospital policies may also prevent the intended or genetic parents — the people who will actually raise the child – from being there for the birth of their child, the summit of their fertility journey
This past week, New York took action in support of those giving birth, announcing an executive order that would require hospitals to allow one support person in labor and delivery settings, if the patient so desired. But what if you are expecting to deliver a baby, and in one of the other 49 states without an executive order addressing strict hospital policies?
Can Anything Be Done?
I spoke with attorney Indra Lusero, founder of the Birth Rights Bar Association, and long-time advocate in the birth realm. Despite many intended parents’ and birthing persons’ belief, or at least hope, that they have a right to be in, or have someone else in, the delivery room during the birth, Lusero explained that the law is on the hospital’s side. In the short-version of a complicated history of not-always-beloved hospital policies, the law has long favored the protection of hospitals and medical personnel over individual rights.
A Little History.
Historically, hospitals were charitable organizations, and protected by the Doctrine of Charitable Immunity, which meant that courts had to value the overall good that hospitals provided, and defer to their policies to protect the public. Luse ro explained that years ago it was not uncommon for a hospital to have a policy banning others –- even a spouse –from being in the delivery room. (For a great analysis of analogous legal issues related to hospital policies banning VBACs –- vaginal births after C-sections, check out this Law Review article by Lusero.)
In one of the few published decisions in this area, in 1975, the United States Court of Appeals for the Seventh Circuit heard a challenge to a policy restricting hospital guests in Fitzgerald v Porter Memorial Hospital. There, the hospital had a policy “prohibiting the presence of any person or persons in the Delivery Rooms located in the Obstetrics Ward other than members of the Medical Staff and Nursing Staff.”
In Fitzgerald, the plaintiffs were couples wishing for their spouse to attend the birth. They brought civil rights claims challenging the hospital’s policy under 42 U.S.C. 1983, the First, Fourth, Ninth, and Fourteenth amendments to the Constitution. The plaintiffs’ claims were grounded in the right to privacy and marital privilege. However, a majority of the Court held that the “so-called right of marital privacy does not include the right of either spouse to have the husband present in the delivery room of a public hospital which, for medical reasons has adopted a rule requiring his exclusion.” The Court further was unmoved by the assertions that the policy caused unconstitutional impairment to the doctors’ rights to practice medicine free of unreasonable governmental restraint.
Unconstitutionally Cruel?
For those currently expecting, either for their own family or through surrogacy, the dissent’s language may resonate. Judge Sprecher, a Nixon appointee who passed away in 1982, argued that the “moment of delivery is a crucial psychological milestone in the life of the mother. It is probably equally crucial to those fathers who are allowed to be present. In any event, to deny the right of her mate’s presence when she desires it at a critical time is unnecessarily, and I believe, unconstitutionally, cruel to the expectant mother.”
What Alternatives Are There?
Lusero explained that with little ability to challenge the crisis-driven hospital policies, some are turning to birth centers and home-birth options. Others are steeling themselves for an isolated and separated hospital birth. But Lusero also points out that it was public pressure and changing norms that led to fathers being commonly included in the delivery room, and public pressure led to New York’s executive order requiring hospitals to adjust their no-accompaniment policies. Advocates can continue to press for pandemic-appropriate accommodations for this “crucial psychological milestone.”
Another approach, recommended by Dr. Alison Wilson, a psychologist with a specialty in fertility issues, is that intended parents write a letter to their child. In a moving passage of an example letter, Wilson writes, “We could choose despair or we could celebrate your birth even from afar. Are we scared? Of course. Do we know what’s coming? Of course not. But we have to look back at the world and the first ‘test tube’ baby. The world held its breath to see if this miracle could actually happen. And it did. Here we go. Holding our collective breath to see what will happen.”
Surrogacy professionals like myself are holding our collective breaths with you — for the medical providers risking their lives every day, creating the policies to protect lives, with sometimes painful consequences. We hold our breaths for those expecting, and the new babies and families coming into being in difficult times. And now, more than ever, we hold our breaths that hospitals can find the right balance when creating and adjusting the policies integral to one of the most meaningful moments in human existence.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.