Friday, July 17, 2009

Mother's Refusal of "Required" C-Section: Is it Child Abuse?

Volokh reports on New Jersey Division of Youth and Family Services v. V.M. and B.G., a fascinating decision by the Superior Court of the New Jersey Appellate Division, reversing a trial judge's ruling that a mother's refusal to consent to a Cesarean section that had been urged by attending physicians constituted child abuse or neglect, justifying intervention by State child welfare authorities.

The appeal court did, however, uphold the child's placement in foster care for other reasons, based on findings of post-birth, erratic parental behaviour.

From the appellate ruling:
Defendants V.M. and B.G. are the biological parents of J.M.G., born on April 16, 2006. During her hospitalization in anticipation of J.M.G.'s delivery, V.M. demonstrated combative and erratic behavior including a refusal to consent to a cesarean section (c-section)1. Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident.
After the birth of the child, plaintiff Division of Youth and Family Services (DYFS) investigated. It learned of V.M.'s refusal to consent to the c-section and discovered that V.M. had been under psychiatric care for twelve years prior to J.M.G.'s birth. Moreover, V.M. was not forthcoming about her treatment or diagnosis. B.G. also refused to cooperate with DYFS's efforts to obtain information. DYFS commenced a Title 9 proceeding pursuant to the Abandonment, Abuse, Cruelty and Neglect Act (the Act), N.J.S.A. 9:6-8.21 to -8.106, and placed J.M.G. in its custody.
... If V.M.'s fetus was not a child under this statute, then any decisions that she made with regard to prenatal treatment and surgery cannot form the basis of a finding of abuse and neglect. The judge did not base his finding solely on V.M.'s refusal to consent to a c-section, however, V.M.'s refusal to consent to invasive procedures clearly was a major consideration in his decision.
... The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.

As to the child's father (B.G.), the court added:

The judge's order indicates that a finding of abuse and neglect was made against B.G. Any such finding was clearly in error. As I have discussed, supra, a finding of abuse and neglect cannot be based on a mother's medical decisions during pregnancy. Moreover, even if V.M.'s other actions had endangered the child, B.G. could not have forced his wife to cooperate with the hospital staff. Any finding of abuse or neglect on B.G.'s part was clearly not supported by the record, and DYFS essentially concedes this point on appeal.

- Garry J. Wise, Toronto

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