Legislating Delivery, Kansas Style

Just as we were decompressing from our last, shall we say, spirited post about politicians and reproductive health, a reader points us to a bill pending in the Kansas legislature, House Bill 2088 (.pdf)--AN ACT concerning crimes and punishment; relating to giving birth without medical assistance.

Before we go on, I can't help but notice that between legislating pregnancy, giving birth (HB 2088), miscarriages, abortions, and birth control, pretty much the full spectrum of a woman's reproductive life has been, or is in the process of being, regulated by strangers. I'm considering coining a new term for this, "cervical gazing", and strongly urging politicians to refrain from engaging in it. If the urge to reprolegislate strikes, female politicians can gaze at their own cervix, and male politicians can gaze at a plastic model. But I digress.

Back to HB 2088. I'm a bit pressed for time, but I will try to hit the main points.

The bill could be summed up as: an old theme (see Virginia's HB 1677) with a couple of twists.

The old: unattended births, including stillbirths [24 weeks and up], are to be considered a criminal act; duty to call and report births to law enforcement; violation is a felony.

The twists: 1) HB 2088 only covers hospital births [I don't think this was the legislators' intent, but that's what the text says.]; and 2) the bill makes anybody who has mere knowledge of an unattended birth, and who fails to call law enforcement or EMS, a criminal.

HB 2088 defines giving birth without medical assistance as (emphasis mine):

Unlawfully giving birth without medical assistance is giving birth to a fetus and intentionally refusing medical assistance or refusing to seek medical assistance from a health care provider immediately after such birth if the fetus does not survive for 12 hours.

Right off the bat, there's a big problem with this definition [other than criminalizing unattended births]. As defined, the only deliveries that would be criminalized are those occurring in hospitals.

Under HB 2088 an unattended delivery is giving birth to a fetus and intentionally refusing medical assistance. However, as a rule, a home birth (and by that I mean a birth anywhere outside a health care facility) excludes offers of medical assistance. Either there's nobody around, or there isn't anybody qualified to offer a medical assist. No offers of medical assistance, no intentionally refusing it, no coverage by HB 2088 of home deliveries.

In contrast, if you give birth in a hospital (and by that I mean any place equipped to deal with medical situations) you're guaranteed an offer of medical assistance. This satisfies the bill's main requirement for a designation of unassisted delivery--an offer of assistance has to be made. If you intentionally [as opposed to what, inadvertently? Oops, I hadn't realized I was in an ambulance; I thought I was on the crosstown bus with a frisky bus driver.] refuse the assistance, you've just become a felon, according to HB 2088.

But what about the second part of the definition, the or refusing to seek medical assistance from a health care provider immediately after such birth ...? Doesn't this somehow cover home births? No, it doesn't because of the use of "such birth".

"Such birth", as defined in the first part of the paragraph, is giving birth to a fetus and intentionally refusing medical assistance. Without an offer of assistance and, thus, an opportunity to refuse [home births] a birth doesn't fall under the "such birth" definition. As such, there's no obligation to seek medical assistance immediately after giving birth. Once more, home births are not covered by HB 2088.

The other twist introduced by HB 2088, and one of the bill's main problems, is the criminalization of strangers (and by strangers I mean anybody other than the woman giving birth) who might know about the delivery, but fail to report it to the authorities:

Knowing that a person has given birth to a fetus and intentionally refused medical assistance or refused to seek medical assistance from a health care provider immediately after such birth if the fetus does not survive for 12 hours; and

(2) failing to immediately contact a law enforcement agency or emergency medical services.
(c) It shall not be a defense to charges arising under this section that the defendant believed that the fetus was dead at birth or died before the defendant sought medical assistance.

This is as misguided as criminalizing women for the mere act of giving birth.

Without spending too much time on this section, consider just one issue: How intrusive are these people--relatives, friends, neighbors, taxi drivers--permitted to be to make sure they comply with HB 2088? In order to determine the EGA (estimated gestational age), are strangers allowed to demand access to the woman's confidential medical records, or can they just go ahead and do a bimanual pelvic exam on her?

The main problem with HB 2088 is:

Criminalizing unattended deliveries.

Why is it unlawful to give birth (livebirth or stillbirth) without medical assistance?

Why is a woman having an unattended delivery presumed guilty and incompetent? HB 2088 mandates you report the woman to law enforcement, so the delivery must be a crime. Moreover, the woman (or those around her) *has* to secure the supervision and testimony of medical or law enforcement personnel. Just her account of events isn't acceptable.

In effect what HB 2088 allows the state of Kansas to do is to: first, collect evidence from you, just because you happen to be a woman giving birth; then, ponder and decide if a crime has been committed; and, finally, accuse you of an actual crime.

Other problems with the bill:

Creating an obligation to seek medical assistance.

Why is a woman delivering obligated to get medical assistance? As a rule, it's never mandatory for a person, even a pregnant or diseased one, to seek medical help.

Infringement on patient (?personal) autonomy.

Why isn't a woman giving birth allowed to refuse medical assistance? Even in a hospital setting, a competent person is allowed to sign AMA and leave before any treatment is started [and even after that].

Requirement to predict the future, and act on that prediction.

... refusing to seek medical assistance from a health care provider immediately after such birth if the fetus does not survive for 12 hours.

How is a woman [how is anyone?] to determine how long the newborn will survive for, immediately after giving birth?

Confusing "delivered fetus" with "term fetus".

"Fetus" means a 24 week or more term fetus delivered and no longer in the womb.

Why is this key definition incorrect? A 24 week [to 36 weeks 6 days] fetus can not be "term". "Term" means: born anytime after 37 completed weeks of gestation, up until 42 completed weeks. In other words, the act of delivery doesn't make a fetus "term", the length of time spent in utero does.

Requirement to diagnose fetal age.

How is a woman [not to mention a stranger] expected to estimate fetal age? Oh the fun (irregular menstrual periods, small for gestational age fetus, etc.) we could all have if we lived in Kansas!

When it comes to strategies aimed at decreasing the number of discarded infants, according to the Department of Health and Human Services:

At present, public education about resources available to pregnant women and alternatives to discarding an infant remains the primary method for addressing this issue.

When it comes to HB 2088, there's no evidence that either its aim, or its impact is to reduce the number of discarded infants. So the question remains: What is the point of HB 2088?

If you'd like to contact the bill's sponsor:

Peggy Mast
Kansas House Republican
District 76
First Term: 1997
765 Road 110
Emporia, KS 66801
Phone: (620) 343-2465
Email: mast@house.state.ks.us

For more information on the topic of abandoned infants:

-- Fact sheet on Boarder Babies, Abandoned Infants, and Discarded Infants (from the National Abandoned Infants Assistance Resource Center)

Discarded infants are newborns who have been abandoned in public places, other than hospitals, without care or supervision.

-- Statistics (from the U.S. Dept. of Health and Human Services)

Nationwide, in 1998 there were 105 discarded infants.

-- Review of national "safe heaven" laws (from the National Conference of State Legislatures)

After 13 infants were abandoned in the Houston, Texas, area within a 10-month period in 1999, state lawmakers acted to encourage desperate parents to leave their children in a safe location rather than simply abandoning them. Since the Texas law was adopted, 34 more states have enacted so-called "safe haven" laws. All the statutes generally promise that women who relinquish unharmed infants in designated safe places will not be prosecuted or provide that abandonment in compliance with the law constitutes an affirmative defense to prosecution.

So far, the effects of the new laws appear to be limited. Although some newborns have been left at hospitals or police and fire stations, others continue to be found in unsafe places. Serious concerns remain regarding the general lack of research on abandoned babies and their mothers, the implications of these laws on states' adoption and child welfare practices, the rights of the infant's father and the relatively small number of infants involved. Some child welfare experts have expressed concern that the laws do not include an examination of existing statewide child abuse prevention strategies and services for women at risk.

This report examines what is known about infant abandonment, provides an overview of key aspects of the legislation, describes state experience with the new laws and discusses some policy implications for lawmakers.

-- Review article (from AGI)

Despite these various concerns, legislators and advocates representing a wide array of interests are publicly lining up in favor of infant abandonment laws. For many, it seems, a flawed approach is better than no approach, if the alternative is to appear "soft" on the issue.

Still, some within the advocacy world are struggling to define their position, and this may be particularly true within the reproductive rights community.

...

Indeed, a key point of agreement within the reproductive rights community is the need to focus society's attention on preventing such events from occurring in the first place. Katherine Kneer, chief executive officer of Planned Parenthood Affiliates of California, says this involves "investing in comprehensive sexuality education and family planning programs, as well as providing access to abortion services, so that sexually active teenagers-and all women-are better able to protect themselves against unintended pregnancy." Kneer says it also means working within communities to encourage parents to communicate with their children, so that pregnant teenagers do not feel so socially isolated that they hide their pregnancies from their families.

-- List of state "safe heaven" laws (private site)

-- Infant abandonment resources (private site)