Abstract

Excerpted From: Cecilia Landor, Right to Informed Consent, Right to a Doula: An Evidence-based Solution to the Black Maternal Mortality Crisis in the United States, 30 Michigan Journal of Gender & Law 61 (2023) (385 Footnotes) (Full Document)

The United States has an abysmal maternal mortality rate for such a highly developed nation. While maternal mortality globally is improving, the U.S. is actually going backwards--it is getting more dangerous to give birth in the United States, not less. Despite worsening maternal mortality, the United States spends more on hospital-based maternity care than any other developed country. This paradox begs the simple question: why? Maternal deaths during labor and childbirth are exceedingly preventable, making maternal mortality “an important indicator of the health of a nation.” Data has been difficult to gather about maternal mortality; until 2003, it was not tracked consistently across states. Data-gathering has improved in recent years, but the maternal mortality rate has not. The CDC reports that about 700 women die yearly from complications related to pregnancy or childbirth, and the COVID-19 pandemic only exacerbated this--there was a 41% increase in maternal deaths in 2020.

At the center of the maternal mortality crisis are women and birthing people of color. The increases in maternal deaths in the pandemic were most stark for Black and Hispanic women, reflecting an overall trend in maternal mortality in the United States. To that end, the dire state of maternal mortality in the United States can only be explained by considering the experiences of these populations. Examining the contours of issues unique to birthing people of color will give insight into how to build a system with foundations responsive to their needs.

Black women have the highest maternal mortality rates in the U.S. Staggering estimates showed that for every 100,000 live births in 2018, thirty-seven Black women--in comparison to fourteen white women--died of maternal causes. This is not a new phenomenon, but researchers still do not have a clear explanation for this disparity. They suspect that institutional racism is a factor, both inside the healthcare system and in society at large, as well as health conditions and resource issues that may be unique to Black women. And indeed, the data suggests this conclusion: women are dying during and after birth because they are Black. More specifically, Black women are dying from maternal causes because of the institutional and interpersonal racism they face in healthcare and society.

Without considering what brought the U.S. to the bottom of the list of countries in which women can safely birth, we will not be able to precisely identify the problematic foundations that need to be scrapped and rebuilt. Without acknowledging that the field of gynecology in the United States was built on the torture of nonconsenting enslaved women, we will not be able to separate the birth system of today from its roots. Ending the continued marginalization and dehumanization of Black women in the birth space requires disentangling historical threads in reproductive medicine to find which threads are based in evidence, and which are based in racism and misogyny.

While much has been written about the maternal mortality issues that women, particularly Black women, face in the United States, there is, unsurprisingly, no consensus on the best way to move forward. Tort recovery through the informed consent doctrine as it relates to labor and birth has been largely closed off to women for reasons that will be explored below. Outside of tort, law has had limited success as a tool to address the high maternal mortality rate.

This Note argues that doulas should be used to combat high maternal mortality rates in the U.S. While doulas are a small part of the current birth landscape, this Note argues that doulas are a key tool to improve birth. Part I of this Note describes the current landscape of birth and explores how the misogynistic marginalization of women-led birthing practices led to this state. Part II explains how the overmedicalization of modern birth is harmful and rooted in medical paternalism and racism. Finally, Part III suggests the use of doulas as a way to combat the obstetric violence women experience during labor and birth, and the high maternal mortality rates Black women and birthing people of color in this country face.

[. . .]

Childbirth moving from the home to the hospital was perhaps the “single most important transition in childbirth history.” The medicalization of birth and the male professionalization of medicine shifted the balance of power, pushing women out of their domestic support system and into the institutional setting of the hospital. Today, maternal mortality rates are increasing amongst Black, Hispanic, and Indigenous populations. The fundamental right to bodily autonomy in hospital maternity care is not being upheld, causing continuing harm to these communities.

To combat the maternal mortality crisis in this country, it is imperative that we commit to doula care as a frontline treatment for childbirth. Support for doulas is increasing across the country, but so far exists primarily for those who can pay for a private doula out-of-pocket, or for Medicaid recipients. This creates a vast coverage gap, and because maternal mortality does not discriminate by socioeconomic status, Medicaid reimbursement for doulas does not adequately address the maternal mortality crisis. To end the maternal mortality crisis in the United States, private insurers should be required to cover doulas under the “maternity and newborn care” essential health benefit, one of the ten essential health benefits all private insurers are required to cover under the Affordable Care Act.

J.D., University of Michigan Law School, 2023, Labor doula, Child and Postpartum Professional Association, 2018.