Maternity care is a distinctive medical setting in which there is a startling lack of informed-consent-based medical procedures. Women’s reports of their care indicate that interventions are routinely performed without meaningful consent, violating their autonomy in medical decision-making. These interventions may include medical inductions, medications, mobility-limiting fetal monitoring methods, episiotomies, and cesarean-section surgeries. Using coercive tactics to induce compliance with providers’ medical recommendations is one category within a broader range of mistreatment in pregnancy and childbirth termed “obstetric violence.” These incidents of mistreatment and consent violations occur in the context of the complex power relationship between providers and patients during pregnancy and childbirth. The current debate around fetal personhood has serious implications for medical coercion in pregnancy and childbirth.
II. Medical Coercion
A. Informal Coercion
Informal coercion, a violation of proper informed consent, is the most commonly used method of medical coercion during pregnancy and birth, which involves persuasion, pressure, and threats. This may include providing inaccurate or incomplete information to obtain consent or using emotional scare tactics. Doctors believe patients should trust the physician’s expertise when it comes to potential risks to the baby. Most patients do acquiesce when faced with the emotional pressure to either follow the doctor’s recommendation or jeopardize the baby’s safety. Pregnancy provides a unique context where doctors commonly assert the right to compel their patients to comply with their medical advice. Doctors’ responses to their pregnant patients emerge as a startling exception to the nearly universal consensus that patients, not doctors, should determine whether and when to undergo medical treatment.
The rationalization for coerced medical procedures usually invokes a perceived risk to the fetus; however, many compelled medical treatments in pregnancy lack scientific basis. Many obstetric recommendations are based on limited, inconsistent evidence and recommendations and standard practices vary widely among providers. The recommendations a pregnant person receives can be vastly different, depending on where the person seeks care and the provider they see. This makes a case for autonomous decision-making in childbirth even more compelling.
B. Threats of Child Protective Services
Threats of involving Child Protective Services are sometimes invoked as a coercive measure when a patient declines to follow medical advice. These threats can be a powerful method of coercion to secure compliance with the medical recommendation of a care provider. In 2010, Michelle Mitchell’s (Mitchell) doctors recommended that she plan an induction or cesarean based on the belief that she was carrying a large baby. At the hospital, Mitchell signed a form acknowledging her intention to decline the surgery and waive liability. The on-call physician became angry and threatened to seek a court order to compel a cesarean and call the child welfare authorities to remove her baby after the birth. In response to these threats, Mitchell rescinded her informed refusal and agreed to the surgery. Despite Mitchell’s eventual acquiescence, the hospital reported Mitchell to the child welfare agency and refused to release the baby into her care. After three months of interviews and home visits, the child welfare agency dismissed the investigation as baseless. For Mitchell, and many others, the threat of Child Protective Services involvement is enough to compel compliance, whether or not the agency actually gets involved. This threat is particularly powerful for poor women, women of color, and young women, who are more likely to have experienced state involvement and scrutiny of their reproductive decision-making.
C. Medical Procedures and Forced Surgeries Without Consent
Coercive medical interventions can also include formal coercion by overriding a pregnant person’s autonomic choices in a forceful, violent manner. In the case of Laura Pemberton, who had chosen to give birth at home with a midwife, a court ordered that she instead undergo a cesarean section, citing a substantial risk of uterine rupture due to her previous cesarean birth, which could potentially could result in the death of the fetus. A sheriff went to her home and forced her to be taken to the hospital by ambulance against her will, where the court-ordered cesarean section was performed.
Not all forced surgeries or procedures involve court orders. In the midst of a labor that was progressing normally, Laura Turbin’s doctor informed her that he was going to cut an episiotomy, an incision in the perineum, to prevent tearing during birth. She said no and repeatedly protested while the doctor proceeded to cut her perineum twelve times, an incident that Turbin’s mother captured on video.
III. Fetal Personhood’s Impact on Medical Coercion
The fetal personhood debate has renewed vigor in the wake of the Supreme Court’s overturning of Roe v. Wade. In the context of obstetric care during pregnancy and childbirth, the concept of fetal personhood is ever-present. Outside of pregnancy and childbirth, physicians generally accept that patients hold the final decision-making power, aligning with medical principles of self-determination, autonomy, and bodily integrity. However, many obstetric providers see themselves as having a duty to the fetus during pregnancy and birth. Often, they perceive this duty as overriding their duty to their pregnant patient. Obstetricians often use a standard of care that prioritizes the fetus, attempting to minimize all fetal risks, at the expense of maternal medical risks. Laws that recognize fetal personhood will bolster the rationalization of coercion in pregnancy. As a result, unconsented and forced medical interventions during pregnancy are almost certain to increase. Fetal personhood ideas will lend support to the notion of a separate “fetal interest” as identified by the physician, who also determines how that interest relates to the plan of care. The physician, then, is in the position of dictating the care decisions if the pregnant woman’s own autonomous medical care decisions are in conflict with what the physician has decided are the best interests of the fetus.
Coercion in the obstetric relationship between provider and patient often occurs at moments of intense vulnerability for pregnant and birthing people, both physically and emotionally. This power dynamic, which portrays the mother as a threat to the fetus when not acting in complete compliance with a provider’s wishes, is part of an ongoing relationship of control that pervades the doctor-patient relationship. Laws recognizing fetal personhood may strengthen care providers’ perceptions regarding their duty to act in the best interest of the fetus and exacerbate issues of coercive control already prevalent in the obstetric care setting. As the debate over fetal personhood continues to make headlines, action is required to eliminate medical coercion and implement consent-based treatment as the standard of care in pregnancy and childbirth.
*Cherie Correlli is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, and Research Assistant for Professor Lande. She worked as a birth doula in the Baltimore area for over a decade before law school. Cherie hopes to use her experience in birth work and legal skills to work on reproductive justice issues in the future.
 Jamie R. Abrams, The Illusion of Autonomy in Women’s Medical Decision-Making, 42 Fla. State U. L. Rev. 17, 49 (2014).
 Saraswathi Vedam et al., The Mothers on Respect (MOR) Index: Measuring Quality, Safety, and Human Rights in Childbirth, 3 SSM Population Health, 201, 202 (2017).
 Elizabeth Kukura, Birth Conflicts: Leveraging State Power to Coerce Health Care Decision-Making, 47 U. Balt. L. Rev. 247, 249 (2018).
 Alexa Richardson, The Case for Affirmative Consent in Childbirth, 37 Berkeley J. Gender L. & Just. 1, 8 (2022).
 Debra DeBruin & Mary Faith Marshall, Coercive Interventions in Pregnancy: Law and Ethics, 23 J. Health Care L. & Pol’y 187, 197 (2021).
 Stephan Oelhafen et al., Informal Coercion During Childbirth: Risk Factors and Prevalence Estimates from a Nationwide Survey of Women in Switzerland, 21 BMC Pregnancy &Childbirth 369, 369 (2021).
 Vedam, supra note 2, at 202.
 Abrams, supra note 1, at 49.
 Richardson, supra note 4, at 39.
 Kukura, supra note 3, at 254.
 Id. at 258.
 Id. at 259.
 Id. at 261.
 Oelhafen, supra note 7, at 369.
 Id. at 189. Ms. Pemberton went on to deliver her subsequent pregnancies vaginally, raising serious questions about the risk assessment that led to the court order. Id.
 Richardson, supra note 4, at 13. The American College of Obstetricians and Gynecologists (ACOG) recommends against the use of routine episiotomies. Id. (citing Am. Coll. of Obstetricians & Gynecologists, Practice Bulletin No. 198: Prevention and Management of Obstetric Lacerations, 132 Obstetrics & Gynecology e87, e97 (Sept. 2018)).
 Kate Zernicke, Is a Fetus a Person? An Anti-Abortion Strategy Says Yes, N. Y. Times (Aug. 21, 2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html.
 See Debruin & Marshall, supra note 6, at 193.
 Richardson, supra note 4, at 44.
 Debruin & Marshall, supra note 6, at 193.
 Abrams, supra note 1, at 49.
 Debruin & Marshall, supra note 6, at 197.
 Rebecca Kluchin, If Courts Recognize Fetal Personhood, Women’s Rights are Curtailed, Wash. Post (May 12, 2022, 6:00 AM), https://www.washingtonpost.com/outlook/2022/05/12/if-courts-recognize-fetal-personhood-womens-rights-are-curtailed/.
 Abrams, supra note 1, at 43.
 Id. at 49.
 Richardson, supra note 4, at 9.
 Id. at 11.