Morgentaler and Women's Reproductive Rights

Yesterday, Dr. Morgentaler died at the age of 90. For those who are not Canadian - Dr. Morgentaler is the person who brought to the Supreme Court of Canada the case that struck down Canada's abortion law as being unconstitutional in 1988.

It was a landmark decision - one that made it clear that a woman alone has the right to autonomy over her own body and that the law as it was, was an infringement on a woman's constitutional rights. The law as it was before 1988 imposed considerable barriers to accessing abortion in Canada. An abortion had to be medically indicated and approved by a panel of physicians as being appropriate. A woman could not have an abortion "just because" she did not want to endure pregnancy and childbirth. As a result, illegal abortions and their consequences were far more common. It is also likely that more children were put up for adoption, more children may have been neglected or abused, more women were derailed from the pursuit of education or careers. To the degree that Dr. Morgentaler made certain that women could determine for themselves whether or not to take on the mantle of pregnancy and childbirth, and improved the lives of women and children - he is a man who is to be applauded.

Although abortion remains controversial in Canada - a woman's right to access one is clear and it is a decision that is hers alone. Her care provider is not obligated to perform an abortion, but is obligated to not interfere with her right to access one.

Shockingly, the situation surrounding patient choice cesarean in Canada is more akin to the situation facing women wanting to access abortion prior to 1988. Currently, access to patient choice cesarean is subject to the whims of care providers and facilities and it seems as though some doctors and hospitals interfere with a woman's right to choose cesarean with impunity. In any other context - such interference with a patient's autonomy would rightfully be met with outrage, but when it comes to patient choice cesarean it seems as though the interference is met by only judgement for the woman who wants a cesarean. It seems as though the idea that a woman has the right to decide what is done with her body is forgotten when the decision is about how her child is born, even though the consequences of that choice are borne by the woman and her child alone.

As a result, women are often denied informed consent and informed choice in childbirth. As a result, tokophobic women, unsure of their ability to access a patient choice cesarean, may choose to abort much wanted children. As a result, some women who are subjected needlessly to a delivery they did not choose may suffer from PTSD. As a result, some women might have difficulties bonding with their children. Some may choose to only have one child. As a result, full reproductive freedom in Canada remains elusive.

There's a lot that can be learned by Canada's approach to abortion and applied to the situation regarding patient choice cesareans in Canada. I hope that one day - a woman's right to choose a cesarean and to informed consent will be as respected and as tolerated as her right to choose an abortion.

Cojucaru v. British Columbia Women's Hospital and Health Centre - The SCC Decides

I have written previously about the case of Monica Cojucaru - a Romanian mother who endured an attempted vaginal birth after cesarean (VBAC) that resulted in an emergent cesarean and permanent brain damage to her son, Eric. She sued, she won at trial (a $4 million dollar judgement) - and they appealed, in part because substantial portions of the judgement were taken from the plaintiff's submission. The appeal was allowed - and Cojucaru appealed to the Supreme Court of Canada. The case was heard in November, and today, the Supreme Court issued its decision.

To the relief of many lawyers and judges, the plagiarism was found to be acceptable.

To my relief - the court confirmed that Mrs. Cojucaru had the right to informed consent, and that Dr. Yue failed to acquire informed consent from Mrs. Cojucaru to undergo a VBAC and as a result Dr. Yue was found liable to Mrs. Cojucaru and her son for the damages that resulted from his delivery. Logically, this means that Mrs. Cojucaru had the right to choose a repeat cesarean for the delivery of her son as that was the alternative treatment that could have been undertaken.

So if a woman has a right to informed consent to undergo a VBAC (implying a right to choose a repeat cesarean), does she have the right to a primary elective cesarean and does the failure to obtain consent for a vaginal delivery result in a liability should a vaginal delivery be imposed upon her?

CDMR is a Women's Rights Issue

Maternal request cesarean is a women's rights issue - every bit as much as abortion or participation in the paid labour force, or the right to vote or own property. At its very core, it about a woman's right to self determination - her right to choose what to do with her own body, her right to decide which risks she is willing to accept and which risks she refuses. It is about a woman's right to be treated the same as any other patient - and not differently because she is a maternity patient. Both access to choice and recourse for unreasonable denial of choice is needed. I look forward to the day when I will know that a similar experience is extremely unlikely to happen to another woman - and while that day is closer now than it was three years ago, there is still a ways to go.

It is frustrating knowing that planning a homebirth in British Columbia, even a home birth after a previous cesarean is far easier than planning an elective cesarean. Finding a care provider who is willing to facilitate a maternal request cesarean is difficult as they do not generally advertise that they are willing to facilitate a woman's desire for one - and many family physicians, midwives and OBGYN's do not support maternal choice cesarean. This is despite rather clear evidence that a planned cesarean at 39 or greater weeks poses some health and safety advantages for the child and may be comparably safe for the mother as a planned vaginal delivery. Personally, I believe that planned maternal request cesarean at 39 weeks' is a far less risky proposition than planned home birth and a far, far less risky proposition than planned home birth after a previous cesarean.

If it is a matter of cost - I would think that there are some very strange economics at work. A single preventable brain injury or death would make the cost difference between planned home birth and planned cesarean disappear many times over. Even a preventable pelvic floor injury that results in some incontinence nearly obliterates the cost difference. Further - home birth does not eliminate the need for hospital resources to be available as many home births (upwards of 40 percent in first time mothers) result in a transfer to hospital. In deed, planned cesareans could be cost competitive with planned vaginal deliveries as the ability to plan resource availability is improved.

At the end of the day - I cannot see how one choice (planned home birth, and planned home birth after cesarean) is widely supported in British Columbia, and another choice - maternal request cesarean - generates a kind of loathing usually reserved for pregnant women who choose to light up publicly while swilling Manhattens and Martinis.