Michigan Journal of Gender & Law Online
“Pieces of a Woman,” COVID-19, and the Elusiveness of a Good Birth in the United States
By Claire Taigman
This blog post contains mild spoilers for the film “Pieces of a Woman.”
In the Netflix original film “Pieces of a Woman,” the protagonist, Martha copes with the aftermath of a disastrous home birth. While the movie is striking in its acting and its dramatization of a real-life experience of loss by the writer and director,[i] it neglects to provide a thoughtful analysis of the legal and political landscape for Martha and the midwife that attended her labor. Regardless, the use of a home birth as the device driving the film’s plot is salient at a time with alarming and overlapping birth crises: the plummeting health outcomes of birth in the U.S., the challenges in deliberating and securing non-hospital births, and the exacerbation of these problems by the COVID-19 pandemic.
1. Childbirth in the U.S.: A Bleak Picture
Just over a century ago, almost all births in the U.S. took place at home.[ii] Today, around 99% of children are born in hospitals.[iii] Starting in the late 19th century, male doctors worked to displace female midwives, promoting birth in healthcare settings as the safest option.[iv] This transition to more medicalized births led to a drastic drop in infant mortality, from 100 babies dying for every 1,000 born to today’s rate of 5.9 per 1,000 born.[v]
The medicalization of birth in the U.S. has also meant the rise in a variety of painful, coercive, and sometimes dangerous interventions. Studies have shown that between 20-30% of hospital deliveries are done by cesarean section (c-section) in the U.S., much higher than the World Health Organization’s (WHO’s) recommended rate of 10-15%.[vi] C-sections can raise the risk of maternal mortality by at least 60%.[vii] Further, while episiotomy[viii] rates have dropped since the 1970s—particularly given that the American College of Obstetricians and Gynecologists (ACOG) and other medical fora have denounced the procedure—rates remain high in many hospitals.[ix]
Courts have played a cruel role in these increased interventions, decentralizing women’s[x] autonomy in manners unparalleled in other legal settings. When laboring parents refuse to consent to procedures such as emergency c-sections, hospitals may call emergency hearings to compel intervention.[xi] In these cases, there has been an unfortunate trend of applying Roe v. Wade and its progeny, which, in the abortion context, allow states to weigh their interest in protecting fetal life with pregnant women’s liberty interests.[xii] Accordingly, courts tend to over-rely on evidence presented by medical providers and use a rather flexible interpretation of this law. They force women who are in labor, and, accordingly, are often unrepresented, into medical procedures that hospitals are able to frame as protecting state interests in the baby’s life in a context far outside of abortion.[xiii]
The mistreatment of women during childbirth has come to be defined as “obstetric violence,” originally coined by Latin American doctors and activists.[xiv] Legal scholar Elizabeth Kukura categorizes obstetric violence into three categories of doctor and nurse behavior toward laboring parents:[xv]
· Forced surgeries
· Sexual violations
· Physical restraint
· Denial of pain relief
· Verbal attacks
· Actively seeking or threatening judicial intervention
· Threatening involvement of child welfare authorities
· Applying emotional pressure
· Calling patients selfish, weak, or bad parents
There is a shocking lack of research in the area of obstetric violence, but the limited information available paints a stark picture: Studies show that up to 9% of new mothers satisfy the clinical criteria of post-traumatic stress disorder, 59% of women who had episiotomies in 2013 did not consent to the procedure, and 20% of women who were induced and 38% of women who had c-sections in 2013 reported that their provider made the final decision regarding the course of treatment.[xvi]
Why is this happening? Commentators have suggested that economic pressures on hospitals and physicians are a main cause.[xvii] Public and private insurance programs reimburse doctors more for performing c-sections and other procedures than they do for performing an uncomplicated vaginal birth, while a vaginal birth may take more hospital and physician time.[xviii] Another cause is the fear of legal liability, as “Pieces of a Woman” demonstrated all too well—the film concludes with the criminal trial of Martha’s midwife. Obstetricians are sued more often and face higher malpractice insurance premiums than other kinds of doctors, resulting in a disposition to intervene and overly-monitor childbirth.[xix] Finally, gender, race, and class bias all exist in the healthcare system, marginalizing some women in an experience where their needs and desires should be centered.[xx]
Overall, it is undeniable that American women are being harmed by what was once considered one of life’s most natural processes. In 2010, the U.S. had a higher maternal mortality ratio than 49 other countries, including most of Europe, Canada, and some countries in Asia and the Middle East.[xxi] The U.S. also has some of the worst racial disparities in these birth outcomes. For example, black women in New York City are up to 12 times more likely to die during childbirth than white women.[xxii] It is no wonder that some parents-to-be seek alternatives to this dominant model of birth.
2. The Landscape for Alternatives to Hospital Births
Facing the potential of unwanted medical intervention, infection, and abuse, a small but growing number of pregnant people are exploring out-of-hospital birth options. In “Pieces of a Woman,” Martha simply seemed to hate hospitals, and wished to give birth in the comfort of her home and in the presence of just her midwife and her partner.
The two primary options for out-of-hospital births in the U.S. and abroad are birth centers and home births. Birth centers, which can either be free-standing practices or units within hospitals, allow women to give birth in homelike environments attended by midwives, with basic equipment on-site and mechanisms for hospital transfer if medical interventions are necessary.[xxiii] Home births are also attended by midwives.
There are also two types of midwives in the U.S.: nurse-midwives, who are registered nurses that generally only assist with hospital deliveries per state law, and direct-entry midwives, who may be certified by an organization such as the North American Registry of Midwives and are most often found attending home births. The midwifery model of care conceptualizes birth as a normal physiological process, focused on health, wellness, and prevention, in comparison to the medical model of care, which conceptualizes the birth process as a series of problems and complications to be managed.[xxiv]
The legal landscape for midwives in the U.S. is both challenging and constantly evolving, particularly given that the regulation of midwifery started as a way to destroy the discipline.[xxv] The American Medical Association (A.M.A.) aims to restrict the practice of midwifery and eliminate planned home births.[xxvi] This position stands in stark contrast to the rest of the world: much of Europe promotes home birth under the supervision of a qualified midwife, rather than in a hospital under an obstetrician, as the safest practice for low-risk pregnancies, while the W.H.O. has reported that hospital births have never been proven to be the safest practices for women and babies.[xxvii] Unfortunately, the A.M.A. position tends to be more broadly reflected in U.S. law. Only around half of states allow direct-entry midwives to practice legally, while ten states and D.C. outlaw the practice entirely.[xxviii] Accordingly, in most of the country, women who desire home births must rely on underground networks to get in touch with midwives willing to assist them.[xxix]
In terms of birth centers, while most states license birth centers as health care facilities, some have stricter requirements than others, and nine states do not regulate birth centers at all.[xxx] Many states also have certificate of need laws, which require major capital expenditures for certain health care facilities to be approved by state health planning agencies.[xxxi] While these laws were originally fashioned to prevent harmful competition between healthcare providers, they are weaponized today by powerful hospitals and medical associations against birth centers.[xxxii]
This varying and conflict-ridden legal landscape has also meant that both public and private insurance funding is often unavailable for out-of-hospital births. Currently, only 14 states allow Medicaid to cover licensed midwife care, while only 33 states require private insurance reimbursement for midwives, and this is often only for nurse midwives working out of hospitals.[xxxiii] The vast majority of women who choose home births pay completely out of pocket.[xxxiv]
Studies in the U.S. do demonstrate that infant mortality is higher for home births than hospital births. According to ACOG, babies die during home births at around twice the rate as they do during hospital births.[xxxv] However, these statistics must be analyzed in a global context, just like the maternal health outcomes discussed above. Recent studies in Canada and the Netherlands found better birth outcomes among their planned home birth samples than their planned hospital birth samples.[xxxvi] This may be because in countries that have midwifery systems that are integrated into their health care systems, doctors can ensure that only low-risk births take place at home.[xxxvii] In the U.S., many women who elect home births have risk factors such as older age, prior c-section delivery, or obesity that would disqualify them for home births in other countries.[xxxviii]
Finally, in stark contrast to broader trends in the U.S., maternal health outcomes and intervention rates in the U.S. and other wealthy nations are far better for women who decide to give birth at home. A meta-analysis of studies of home birth outcomes in the U.S. and other countries, collecting data from approximately 500,000 home births, found that there were no reported maternal deaths.[xxxix] Various studies demonstrate far fewer interventions, such as c-sections and episiotomies, and that women who give birth at home are less likely to experience lacerations, hemorrhage, and infections.[xl] Taken together, this research all suggests that home births and birth center births provide better outcomes for women’s health and autonomy, but remain riskier for newborns in the U.S., which may be related more to problems in the healthcare system as a whole than the inherent risks of out-of-hospital births.
3. COVID-19, Hospitals, and Home Births
The COVID-19 pandemic has torn open the American healthcare system’s failures, and this reality has been all the more prescient for pregnant people. In an attempt to control the spread of COVID-19 within hospitals, women giving birth in the early stages of the pandemic were separated from their partners, support people, and even their infants.[xli] Some women have even died postpartum due to doctor neglect in hospitals overwhelmed by COVID-19 patients.[xlii]
Unsurprisingly, as the pandemic has raged on, it has also increased attention to out-of-hospital births. While there has been very little research about the impact of the pandemic on pregnant people, one small study concluded that, of women surveyed, 5.4% preferred home births to hospital births, compared to the regular rate of 1.6%.[xliii]
While the pandemic has led to a shift in the desires of pregnant women, there have not been shifts in the legal and financial restrictions on out-of-hospital births. As long as the COVID-19 pandemic continues without these changes, planned out-of-hospital births will remain accessible only to those who can afford them, while the risks inherent in choosing these births in the U.S. may be even worse. For example, somewhere between 23-37% of home births for first-time moms transfer to hospitals for reasons ranging from severe complications to the labor proceeding too slowly.[xliv] Due to first responder resources being stretched thin by the pandemic, it may be more challenging for these births to proceed safely in the event of complications. Yet again, the fractured birth care system in the U.S. imposes a barrier to expectant parents receiving the safest and most desirable care.
“Pieces of a Woman” does not clarify what caused Martha’s daughter to die, whether her midwife could have done anything to prevent this from happening, or whether the outcome would have been different in the hospital. What remains elusive to her and millions of women in the U.S. is a good birth. Something has to give, and, so far, not even COVID-19 has led to legal and political developments in expanding access to birth setting choice.
If the U.S. ever wishes to replicate the success in home births of similarly wealthy countries and improve birth outcomes more generally, doctors and midwives must strive to work together, rather than acting as adversaries in the healthcare system. Professional organizations must impose far higher standards on the respect for parents’ autonomy during the childbirth process. Legal advocates and courts must broadly protect the right to informed consent treatment refusals during birth, such that the liability incentives for doctors shift from over-medicalization to an appropriate amount of medicalization. Finally, there is a telling lack of research on the prevalence of obstetric violence and the outcomes of both hospital and alternative births, and the few studies that do exist tend to come from organizations that may lack academic independence, such as those that represent obstetricians or midwives. Rigorous and frequent studies in these areas are necessary.
One of the tenets of reproductive justice is the right to a good birth, where not only the health of the baby, but also the health and wellbeing of the parent are prioritized. Even in a world where everyone is entitled to a good birth, there is no doubt that tragedies such as that which befell Martha in “Pieces of a Woman” will take place. The fear of that tragedy cannot be used as yet another tool to marginalize, injure, and kill women and childbearing people in the American healthcare system.
[i] Richard Brody, “Pieces of a Woman,” Reviewed: A Tale of Grief Gets Lost in the Details, The New Yorker (Jan. 12, 2021), https://www.newyorker.com/culture/the-front-row/pieces-of-a-woman-reviewed-a-tale-of-grief-gets-lost-in-the-details. [ii] Lesley McClurg, Home Birth Can Be Appealing, But How Safe Is It?, Nat’l Pub. Radio (Mar. 11, 2019), https://www.npr.org/sections/health-shots/2019/03/11/700829719/home-birth-can-be-appealing-but-how-safe-is-it. [iii] Id. [iv] Bridget Richardson, The Regulation of Midwifery, 8 Geo. J.L. & Pub. Pol’y 489, 492-93 (2010). [v] McClurg, supra note 2. [vi] Id.; Michaeleen Doucleff, Rate of C-Sections is Rising at An ‘Alarming’ Rate, Report Says, Nat’l Pub. Radio (Oct. 12, 2018), https://www.npr.org/sections/goatsandsoda/2018/10/12/656198429/rate-of-c-sections-is-rising-at-an-alarming-rate. [vii] See Doucleff, supra note 6. [viii] An episiotomy is an incision made at the vaginal opening during birth to speed along the birth process and prevent tearing. Episiotomies can increase pain and discomfort postpartum, and studies have found that incisions heal more slowly than natural tears. Jocelyn Wiener, Episiotomies Still Common During Childbirth Despite Advice to Do Fewer, Nat’l Pub. Radio (July 4, 2016), https://www.npr.org/sections/health-shots/2016/07/04/483945168/episiotomies-still-common-during-childbirth-despite-advice-to-do-fewer. [ix] Id. [x] I want to acknowledge that not all people who give birth are women. In all of the studies and court cases that I looked at for this article, the plaintiffs and subjects identified as women, and I use feminine pronouns and identifiers in this article at times as a reflection of this. Transgender and nonbinary people are further marginalized in these pregnancy and birth processes, and, at a minimum, deserve representation in these studies. [xi] See, e.g., Elizabeth Kukura, Obstetric Violence, 106 Geo. L.J. 721, 740-743 (2018) (discussing judge-ordered c-section cases). [xii] Id. at 792. [xiii] See id.; Rebecca A. Spence, Abandoning Women to Their Rights: What Happens When Feminist Jurisprudence Ignores Birthing Rights, 19 Cardozo J.L. & Gender 75, 89 (2012). [xiv] See Kukura, supra note 11, at 725. [xv] Kukura, supra note 11, at 730-753. These lists are non-exhaustive. [xvi] Id. at 756-59. [xvii]See, e.g., id. at 765-774. [xviii] Id. at 767. [xix] Id. at 771. [xx] Id. at 775. [xxi] Amnesty International, Deadly Delivery: The Maternal Health Care Crisis in the USA, One Year Update Spring 2011 3 (2011), available athttps://www.amnestyusa.org/reports/deadly-delivery-the-maternal-health-care-crisis-in-the-usa/. [xxii] Laura K. Hall, Opinion: Women Need Safer Options Than Giving Birth in Hospitals During Pandemic, Telegram & Gazette (Jan. 10, 2021), https://www.telegram.com/story/opinion/2021/01/10/why-giving-birth-pandemic-riskier-than-should-column/6619343002/?fbclid=IwAR2UHqXlrSsrM8sQcYhnaP-u03s3Ecp36DqF7CuJgPQ5br2PEVS5i-4JRqc. [xxiii] Alice Callahan, Should You Give Birth at a Birth Center?, N.Y. Times (Sept. 25, 2018), https://www.nytimes.com/2018/09/25/well/family/should-you-give-birth-at-a-birth-center.html. [xxiv] Richardson, supra note 4, at 493. [xxv] Spence, supra note 13, at 94. [xxvi] Richardson, supra note 4, at 497. [xxvii] Id. at 499. [xxviii] Id. at 494-95. [xxix] Spence, supra note 13, at 92. [xxx] Callahan, supra note 23. [xxxi]CON – Certificate of Need State Laws, Nat’l Conf. State Legislatures (Dec. 1, 2019), https://www.ncsl.org/research/health/con-certificate-of-need-state-laws.aspx. [xxxii] Hall, supra note 22. [xxxiii] North American Registry of Midwives, Direct Entry Midwifery State-by-State Legal Status (2019), available at http://narm.org/pdffiles/Statechart.pdf; Spence, supra note 13, at 92. [xxxiv] McClurg, supra note 2. [xxxv] Id. [xxxvi] Patricia A. Janssen, Lee Saxell, Lesley A. Page, Michael C. Klein, Robert M. Liston, & Shoo K. Lee, Outcomes of Planned Home Birth With Registered Midwife Versus Planned Hospital Birth with Midwife or Physician, 181 Canadian Med. Assoc. J. 377, 377 (2009); Jacoba van der Kooy, Erwin Birnie, Semiha Denktas, Eric A. P. Steegers, & Gouke J. Bonsel, Planned Home Compared with Planned Hospital Births: Mode of Delivery and Perinatal Mortality Rates, an Observational Study, BioMed Cent. Pregnancy and Childbirth, 2017, at 1, 1. [xxxvii] Tamara Mathias, Hospital Births Far Safer for U.S. Newborns than Home Births, Reuters (Feb. 29, 2020), https://www.reuters.com/article/us-health-homebirths-newborn-mortality/hospital-births-far-safer-for-u-s-newborns-than-home-births-idUSKBN20N0R0. [xxxviii] Id. [xxxix] Angela Reitsma, Julia Simioni, Ginny Brunton, Karyn Kaufman, & Eileen K. Hutton, Maternal Outcomes and Birth Interventions Among Women Who Begin Labour Intending to Give Birth at Home Compared to Women of Low Obstetrical Risk Who Intend to Give Birth in Hospital: A Systematic Review and Meta-Analyses, EClinicalMedicine, 2020, at 1, 1. [xl] See, e.g., Joseph R. Wax, F. Lee Lucas, Maryanne Lamong, Michael G. Pinette, Angelina Cartin, & Jacquelyn Blackstone, Maternal and Newborn Outcomes in Planned Hom Birth vs. Planned Hospital Births: A Metaanalysis, 203 Am. J. Obsetrics & Gynecology 243.E1, 243.E1 (2010). [xli] Hall, supra note 22. [xlii]Id. [xliii] Theresa E. Gildner & Zaneta M. Thayer, Birth Plan Alteration Among American Women in Response to COVID-19, 23 Health Expectations 969, 970. [xliv] McClurg, supra note 2.