Know Your Rights: FAQs About Giving Birth During COVID-19
Georgia is one of the most dangerous places in the world to give birth. Research overwhelmingly shows that maternal deaths due in large part to medical and institutional factors like racism, unnecessary medical interventions, delayed care, and inadequate care. As the COVID-19 pandemic hits hospitals across the state, many are changing labor and delivery policies. These changes are ostensibly designed to protect public health. In most cases, they do little more than traumatize and endanger babies and their parents. Here’s what you need to know about your rights giving birth in Georgia during COVID-19.
Can hospitals limit visitors during or after birth?
In Georgia, the answer is a disappointing yes. The hospital can limit visitors for virtually any reason, or for no reason at all. In New York, an executive order now bans hospitals from this practice, but Georgia has extended no such protections to its families.
That doesn’t mean that it’s right or ethical to force people to give birth alone. There’s plenty families can do to fight back against these policies, including choosing to take their business to another care provider.
Northside Hospital recently announced that it will not allow parents to visit their babies in the NICU. This is an agonizing scenario for parents to face, but it is also legal. What’s not legal is for the hospital to administer treatment without a parent’s permission, or against a parent’s explicit request (unless there is an emergency and the baby needs life-saving treatment). Parents can and should demand to know the treatment plan for their babies, and request regular updates and the chance to give input.
Can the hospital separate me from my baby?
Some hospitals now recommend separating new mothers from their babies if the mother tests positive for COVID-19. There is no evidence that this will slow the spread of the disease, since the baby would be housed in a nursery with exposure to many more people, some of whom are medical professionals with a high rate of exposure to the disease. The World Health Organization emphasizes that mothers should still be able to breastfeed, and that the risks of separation outweigh any purported benefits.
Parents who think their babies are safer away from them are welcome to send their babies to the nursery. But what if a parent doesn’t want this, and the hospital attempts to compel it? Is that legal?
The answer, says Atlanta civil rights attorney Jeffrey Filipovits, is no. “Imagine taking your child to the doctor’s office, and the doctor taking your child into a different room and not allowing
you inside. That would properly be called kidnapping. If there is a medical emergency and the parents do not consent to treatment, there are situations where the parents’ choice can be overridden by the doctor with a court order. In absence of an emergency or court order, a doctor has no authority to remove a child from a parent’s custody,” he explained.
In the midst of a pandemic, the Division of Family and Children’s Services (DFCS, Georgia’s version of CPS) is unlikely to care about a parent refusing to allow a healthy baby to stay in the nursery. Parents should be able to assert their desire to keep their child with them without fear of reprisal. However, if the baby is very sick, declining a NICU stay or other potentially life-saving care may trigger DFCS involvement. Parents should talk with their providers ahead of time about their wishes to minimize the risk of conflict at the birth.
Can I be forced into medical procedures?
Families across the globe have reacted with outrage to news that a hospital would force all birthing people to accept epidurals. Many providers are using the pandemic as an excuse to push c-sections, urge induction, or demand continuous fetal monitoring. In many cases, these procedures actually elevate the risk of contracting COVID-19 or clogging hospital resources. For example, a c-section requires a longer hospital stay, which means greater exposure to the virus. It also wastes an operating room, exhausting an already taxed medical system. There’s good medical reason to decline unnecessary interventions. The faster a person can get out of the hospital and the fewer care providers she sees, the better.
So what can a family do when a provider attempts to force a medical intervention, or when a hospital asserts that a specific procedure is hospital policy? A pandemic does not undermine the fundamental right to informed consent. “A hospital can only seek to compel [medical interventions] if there is evidence of medical neglect that endangers the life of the fetus,” said Filipovits. “Violating hospital policy alone is not enough for a court order.”
You can decline unnecessary medical procedures, and can even decline procedures that might save your life. The right to informed consent only gets murky when the baby’s life is in danger. A 1981 Georgia case outlined the criteria for forced interventions. In that case, a hospital was able to seek a court order when a woman with placenta previa declined a c-section. This means that the right to informed consent in Georgia is not absolute, and is not as strong as it is in other states. Even so, a hospital must get a court to order a c-section or other intervention. It can’t just strap a woman down and force her into surgery.
You can learn more about the specific scenarios in which a doctor can seek a court order for medical care in our post, Can A Doctor Force Me to Have a Section?
Can my doctor abandon me if I skip appointments or choose a homebirth?
ACOG and other organizations are encouraging doctors to offer telemedicine options as much as possible. Yet many Georgia families find that their doctors continue to require them to come in for non-urgent appointments, even if there are no labs or scans. Some doctors have threatened to stop seeing patients who ask for remote treatment. And many doctors refuse to see patients who plan homebirths. So is it legal?
This is a complicated question. No specific law requires a doctor to provide treatment to any specific patient. Doctors can choose whom to treat. However, a doctor cannot abandon an established patient without adequate notice. The Georgia Composite Medical Board requires doctors to give 30 days’ written notice in most cases. So if your doctor threatens to abandon you, you can file a medical board complaint. With adequate notice, however, your doctor does not have to treat you—unless you show up to the hospital in labor.
Rather than trying to get a doctor to obey the law, the safer strategy is to choose a provider who will honor your bodily integrity and listen to your feedback. Here are some questions to ask before choosing a childbirth provider.
Can a hospital refuse to treat me if I have a homebirth, or if I refuse to consent to certain procedures?
While a doctor might be able to refuse to treat you, a hospital usually can’t. The Emergency Medical Treatment and Labor Act requires hospitals to provide stabilizing treatment to people who show up in labor and those with other medical emergencies. The law applies to all hospitals that accept Medicare funds, which includes virtually all hospitals. It defines stabilizing treatment as the delivery of the baby, which means the hospital cannot turn you away because you cannot pay or because your doctor fired you as a patient.
Some examples of actions that may violate this law include:
Refusing to treat you unless you consent to certain medical procedures, such as having an epidural.
Refusing to treat you if you cannot pay.
Declining to provide care because your doctor “fired” you.
Declining to treat you because you are a homebirth transfer, or because you do not have an OB.
Is homebirth illegal?
Homebirth in Georgia is not illegal for families. However, Georgia does not license homebirth midwives, which means that midwives undertake great risk when they attend homebirths. This means they may refuse to treat certain types of patients, and it makes it virtually impossible for them to carry liability insurance. The refusal to license homebirth midwives poses a danger to both midwives and to patients, because it means providers are not regulated. Learn more about how licensure protects families here.
Despite this risk, it is not a crime to seek a homebirth. Filipovits, however, cautions that a homebirth presents some legal concerns if a person chooses a homebirth because they want to avoid medical care. For example, if a doctor says that it is not safe to deliver a baby with severe anomalies at home, the doctor may call DFCS.
Can a hospital call CPS or DFCS on me?
A hospital or provider can call child protective services for any reason at all, if they reasonably believe there is neglect or abuse. In fact, most health providers are mandatory reporters, which means they must call if they suspect a child is in danger.
DFCS is Georgia’s version of child protective services. It is a notoriously overtaxed agency, particularly now that there is a pandemic. This means that investigators do not have time to investigate all claims. It is very, very unlikely that DFCS would get involved solely because a parent declined medical care. If, however, there is bad outcome after a parent declines care or there is compelling evidence that a baby’s life is in imminent danger, DFCS may get involved.
Can I Leave the Hospital Early?
One of the best things you can do to minimize your exposure to COVID-19 is to leave the hospital as early as possible. You can check out against medical advice if you desire. You can even leave without discharge papers. You are not a prisoner at the hospital, and the hospital does not own you or your baby. However, if you check out against medical advice, you should be prepared for the hospital to threaten DFCS involvement. DFCS is unlikely to care if you leave a little early, but if the baby is in serious danger, they may investigate.
Some hospitals tell families that if they leave early, insurance will decline to cover care. This is a manipulative strategy. Leaving AMA will not affect insurance coverage.
Can I Limit People in the Delivery Room?
Yes and no.
You can decline any visitors you want, and you can ask non-medical personnel—such as intake coordinators or billing representatives—to leave the room during medical procedures. At most good hospitals, you can also request a new nurse or a different provider, or ask that medical students not be allowed in the room.
However, there is no legal right to limit the number of doctors in the room—even though doing so could protect your health during the pandemic. You can, however, decline specific medical procedures, or decline procedures administered by specific medical personnel.
If you’re pregnant, it’s important to know that what is legal is not always safe. Likewise, the fact that the law protects certain rights—such as a right to decline medical care in almost call cases—does not mean that exercising those rights will always be in you or your baby’s best interests. We don’t know a lot about how COVID-19 affects pregnancy, but for an overview of the very limited research, read our post, How Does Coronavirus Affect Pregnancy? For specific strategies on protecting yourself and your baby during the outbreak, check out 9 Strategies Pregnant People and New Parents Can Use to Reduce Their Risk of Getting Coronavirus.