Birth by Litigation

by Bruce Schimmel

More women are choosing to deliver their babies at home by themselves, and lawyers may be helping them make that choice.

It's not a large trend at this point, but according to a recent New York Times story, more women are delivering their own babies unassisted -- some say unhindered -- by medical professionals. These are educated women, with brains and means, who are choosing do-it-yourself delivery.

It's an extreme fashion that might also get a boost by litigation. According to a recent Reuters story, obstetricians say they are being forced out of the practice of childbirth by mounting insurance premium costs, driven by what some say is spurious litigation.

It's a coincidence that could make a tipping point: Expectant mothers are leaving the world of medically assisted birth, just as doctors are being forced to quit the field.

It's getting too costly to deliver babies, doctors say. Some major insurance companies now refuse coverage at any price, so annual premiums for obstetricians in some states shot past $200,000 this year.

The American College of Obstetricians and Gynecologists cited New Jersey and Pennsylvania among the top nine states nationally as hotbeds of troubling lawsuits. A judgment in Philadelphia involving a neurologically impaired infant recently reached the $100 million mark.

Women are staying out of hospitals because many yearn for more naturalness, to feel more an emotional part of giving birth. At home, some enlist the help of a midwife; but others go it alone, without help even from a partner. They deliver their babies in a squat, letting gravity and nature be their sole assistants.

Hospitals are responding to some women's dissatisfaction by making birthing suites homier and by keeping what some perceive as medical interference to a minimum.

But with the growth of aggressive litigation, hospitals are also being pushed in the other direction, to practice medicine defensively, intervening faster and more intensively.

Hospitals are caught between the emotional needs of some women to give birth naturally, and the financial incentives of a woman's lawyer if nature's way should turn out badly.

It is hard to disagree with these women's intent, for there is no more fundamental human right than that of personal autonomy.

So it will be interesting to watch what happens after an unassisted homebirth goes horribly wrong, as one inevitably will.

I wonder if Attorney General Ashcroft will be there to serve papers? Or if the father of the child gets himself a lawyer?

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July 15, 2004
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