The Lisa Epsteen Story: Is Medical Inaction a Crime?

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Lisa Epsteen’s baby boy was born healthy via cesarean section days after her doctor threatened to drag her to the hospital in handcuffs and put her four other children in child protective custody.

Ms. Epsteen knew the risks of delaying her cesarean and she made a choice to have her cesarean on a different day than what her doctor wanted. She weighed her doctor’s advice and also her own opinion. But Dr. Jerry Yankowitz, didn’t like her decision and tried to convince her otherwise in an email with threats of police and taking away her children.

"I am deeply concerned that you are contributing to a very high probability that your fetus will die or your child will incur brain damage if born alive. At this time, you must come in for delivery," Yankowitz wrote. "I would hate to move to the most extreme option, which is having law enforcement pick you up at your home and bring you in, but you are leaving the providers of USF/TGH no choice," he continued.

The doctor apologized after Ms. Epsteen contacted a lawyer from the New York-based National Advocates for Pregnant Women who demanded that Dr. Yankowitz "stop immediately any further threats or actions against Ms. Epsteen."

"Pregnant women are no different than anybody else in terms of their constitutional and human rights," staff attorney Farah Diaz-Tello said. "The threat he was making was both legally and ethically unjustifiable."

C-Section
Credit: theadventuresofdan.

With cesarean rates in the United States soaring past what is recommend by the World Health Organization, how can mothers decipher what is truly emergent and what is coercion?

When, if ever, should inaction be criminalized? Are we as a society prepared to drag women into hospitals, strap them to operating tables and force them into surgery?

The autonomy that a woman expects when deciding about medical care that affects only her seems to blur when she is acting against medical advice and a child or dependent is involved. It is in these situations that opinions clash.

Lisa Epsteen was allowing the normal course of events to happen. In the end, she chose medical care. Let’s not forget that asking for medical care is a choice. If she had not chosen to have a cesarean at all, would that make her a criminal?

Just as some teens find themselves in a legal battle with their hospitals after refusing chemotherapy, pregnant women who don’t take their doctors’ advice find themselves on shaky ground. I wish the Lisa Epsteen story was a rare case but doctors pull the “your baby is in danger” card a lot. All they have to do is tell a mother that her baby is in danger and most of the time, she’ll do anything they say, even without informed consent.

In 2006, I gave birth via cesarean section to my first son. It was offered to me after three hours of pushing. My doctor didn’t even have to go as far as to tell me that my baby was in danger. She even told me that my baby was fine, that I was fine. I had a cesarean because “it was time; time to get this baby out.” When I asked at my post-natal appointment how I could have avoided my cesarean, my health care provider said that I could have pushed longer. My cesarean was not an emergency nor was it medically necessary. It was just time.

How can women trust their doctors and hospitals when more and more stories like Lisa Epsteen’s are making the news?

The American Congress of Obstetricians and Gynecologists (ACOG National) committee on ethics published an opinion paper in November of 2005 saying that:

"Recent legal actions and policies aimed at protecting the fetus as an entity separate from the woman have challenged the rights of pregnant women to make decisions about medical interventions…"

ACOG goes on to say that:

“Efforts to use the legal system to protect the fetus by constraining pregnant women's decision making or punishing them erode a woman's basic rights to privacy and bodily integrity and are not justified.”

If we can be put in jail for inaction, how can we find the confidence to seek medical advice if we fear punishment for disagreeing and doing something different? Death is scary, “frightening,” but jailing people or forcing them onto the operating table because they choose to allow nature to take its course is a slippery slope. Do we have the final say about our bodies or does the government? Is refusing medical intervention a crime?

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