In recent years, and certainly since Dobbs v. Jackson Women’s Health, grave concerns about reproductive rights have proliferated. While most of the discussion has been focused on attacks on the right to end a pregnancy and the child welfare system, other issues that fall within the umbrella of the reproductive justice movement also deserve serious attention. One of those aspects is “birth justice.”
In their canonical book Reproductive Justice: An Introduction, Lorretta Ross and Ricky Solinger acknowledge that “all people giving birth are entitled to safe, dignified, and compassionate health care” (p. 85). They view birth justice, defined as “the right to give birth with whom, where, when, and how a person chooses,” as a subset of reproductive justice (p. 96). Birth justice is an issue of equality specifically considering that maternal mortality rates of Black women are 2.6 times than those of white women. Yet, the role that the law plays in ensuring birth justice remains underexplored in the legal literature on reproductive justice. Elizabeth Kukura’s exciting work works to fill this gap in the literature while at the same time situating birth justice within the health law literature.
One reason why less attention has been paid to ensuring birth justice may be lack of information as to what is actually going on in delivery rooms, where the very private act of giving birth often takes place. Another barrier for challenging practices that result in denying birth justice is the fact that the practice of giving birth has been monopolized by the health care system. The mechanisms of providing health care have traditionally been hierarchical in nature and not prone to change. Protecting physicians’ authority and control from interventions of other actors has been a goal of both professional boards as well as of hospitals. In her illuminating article Birthing Alone, Kukura demonstrates how complex power dynamics among health care professionals end up hurting patients, specifically ones in an extremely vulnerable state: those who are about to give birth.
Kukura traces the history of birth doulas, women who are providing birthing support. Such support could be physical, emotional, and administrative in navigating the health care system. Birth doulas have been found to play an important role in promoting good perinatal care. While having a birth doula assist a person giving birth may seem like a luxury attainable only by those who can afford it, Kukura discusses the development of community-based doulas who provide services to underserved communities, specifically communities of color that, as mentioned, suffer from much higher rates of maternal mortality.
The relationship between hospitals and birth doulas has been contentious. As an example, at the height of the COVID-19 pandemic, hospitals banned all visitors from the premises, and birth doulas were also denied entry, showcasing how hospitals were not willing to acknowledge their status as professionals. While the story of hospitals and physicians trying to protect their turf has been told many times, the case of birth doulas as told by Kukura helps uncover new aspects of it. As part of the process of over-medicalizing childbirth through unnecessary surgical procedures, physicians seem to object and resent any other person in the delivery room intervening and advocating for the patient giving birth. This is specifically true in situations such as during the birthing process when informed consent to a procedure may not be as clearly given by the person giving birth who is extreme pain or under medication. This tension has a clear gendered undertone to it: the fact that most birth doulas are women surely contributes to doctors’ paternalism around birth.
For traditional legal scholars, such a situation is a call for regulatory intervention, one that would help elevate the status of birth doulas through official credentials. Hospitals may come to mind as the appropriate credentialing body that would oversee and regulate birth doulas. Such a formalizing process might boost the coverage of doula services under insurance through the creation of official billing codes that exist with regard to any other covered medical procedure done by a health care professional.
Yet after considering the pros and cons of formalizing the status of birth doulas, Kukura reaches the conclusion that regulating doulas through hospital credentials is not a good idea. First, it could lead to conflict of interests between doulas’ duties to the birthing person and the credentialing hospital staff, prompting doulas to be less proactive in their advocacy because of fear of repercussions. Second, credentialization will limit the pool of doulas when actually more of them are needed considering the United States is facing a maternal health crisis with more women dying from childbirth complications than in any other developed country.
Instead, Kukura proposes preserving the independence of birth doulas by following the example of states like Minnesota, Oregon, New York, Indiana and New York by including doula services in Medicaid Managed Care plans that often include “extra” services for enrollees negotiated by states with insurers. This type of investment is likely to elevate the status of doulas without creating unnecessary barriers of entry into the profession.
This proposal is reminiscent of states’ attempt to attend to the social determinants of health (the social, cultural, economic, and environmental factors affecting health) under Medicaid coverage by having insurers cover issues of physical accessibility, hygiene, and availability of nutritional foods to underserved communities. Such a move requires injecting some flexibility into a rigid health care system. However, unlike with services associated with the social determinants of health that conservative legislators would object to as they see it as an expansion of the welfare state, providing birth assistance through doulas, a goal more easily correlated with increasing childbirth rates, might be viewed more favorably across party lines.
Kukura’s is a promising and unique voice in legal scholarship. Her fascinating and well-researched work on birth justice and the legal aspects of childbirth illuminates important yet oft-ignored aspects in discussions of reproductive justice and health care access, providing a fuller picture of the many challenges and promises within those realms.
