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Submission to?United Nations Working Group on Discrimination Against Women and Girlsfor?Thematic ReportWomen and Girls’ Sexual and Reproductive Health Rights (SRHR)in situations of crisis??Human Rights & Gender Justice Clinic, CUNY School of LawIf/When/How: Lawyering for Reproductive JusticeAncient Song Doula ServicesBronx DefendersMovement for Family PowerNational Advocates for Pregnant WomenBIRTH JUSTICE & RIGHT TO PARENT IN SITUATIONS OF CRISIS IN THE UNITED STATESThe undersigned organizations are U.S. organizations dedicated to securing the rights and dignity of pregnant people and parents. Working from a reproductive justice and birth justice framework, we recognize that birth justice (ensuring rights, access, and equity throughout pregnancy, childbirth, and the post-partum period) is core component of sexual and reproductive health rights (SRHR). The three components of reproductive justice -- the right to have a child, the right to not have a child and the right to parent children in a safe and healthy environment -- cannot be viewed in isolation. This submission discusses the long-standing crisis created by the United States that impacts birthing and parenting Black people and people of color in the United States and the impact of the recent COVID-19 pandemic.Pregnant, birthing and postpartum Black people and people of color in the United States face discrimination, inadequate and neglectful care and violation of their rights to privacy and bodily autonomy in health care settings. Discrimination during childbirth continues after birth in the form of state sanctioned separation of families. Within the U.S., the child protective services have the ability to remove children from their homes based on allegations of abuse or neglect. Black children are removed from their family homes at a higher rate than other children, placed in foster care at a higher rate than other children, and caseworkers are likely to use a lower risk threshold to remove Black children than other children. Children are also frequently removed on the basis of their birthing parent having tested positive for drug use during pregnancy or at the time of delivery without evidence that the infant is in danger of abuse. As discussed below government policies and practices informed by the history of slavery and racism in the United States have imposed a long standing threat to the ability of Black people and people of color to parent their children and to experience safe, healthy and respectful births. COVID-19 has only exacerbated the harmful practices and disparities. This submission discusses broad trends in the United States with a focus on New York City.I. Background ConditionsPregnant, birthing and postpartum Black people and people of color in the United States face discrimination, inadequate and neglectful care and violation of their rights to privacy and bodily autonomy in health care settings. In 2018, the United States had the highest maternal mortality rate per capita compared to nations of similar wealth, with Black women three to four times more likely to die in childbirth than white women. U.N. human rights bodies have criticized and expressed concern about the high maternal mortality rate and its impact on African American communities. COVID-19 has only exacerbated the harmful practices and disparities. There are many barriers to reproductive justice, in the U.S. These factors include (1) structural racism in the healthcare and child welfare system; (2) the lack of widespread availability of midwifery care; (3) disparities in care depending on whether a person is uninsured/relies on public health insurance as opposed to private insurance; (4) the impact of state surveillance and policing on care; (4) mandatory reporter requirements; and (5) separation of families by child protective services. Further, mistreatment and rights violations are particularly acute for pregnant people incarcerated in jails and prisons.Structural Racism. Black parents and babies experience bias and racism within the systems and institutions that are supposed to be promoting their health. The racism and bias that occurs within health systems begins during the training process, and is reflected in medical school curriculums. For instance, a study published in the Proceedings of the National Academies of Science found that 40% of first and second year medical students falsely believed that “Black people’s skin is thicker than white people’s.” The myth that Black people can endure higher pain levels causes physicians to overlook their medical needs and dismiss their cries for help. There are countless stories of pregnant women raising their concerns with their OB/GYN and being dismissed or ignored, resulting in preventable deaths. As discussed below, racism within the healthcare system is exacerbated by state policing and surveillance in health care settings and mandatory reporter requirements.Immigration status can also impact the quality of care received, especially if English is not the pregnant person’s first language and there is no advocate to translate for them. Undocumented people are not eligible to receive government healthcare insurance through Medicaid. Although some states allow undocumented people to participate in a separate program providing prenatal coverage, this program ends fairly soon after birth; coverage ceases at the end of the month in which the 60-day postpartum period ends, after which point further postpartum issues may be neglected.Lack of Access to Midwifery Care. In the U.S. the vast majority of births occur in hospitals attended by doctors even though studies show that the midwifery model, which is the predominant model of care utilized in other countries, can be more effective, more satisfying, and safer for many birthing people. The current model of prenatal and delivery care that predominates in the United States reflect a number of campaigns in the United States over the last 150 years that have stigmatized, and even criminalized, midwifery. These campaigns reframed birth as always requiring the care of a physician — rather than a normal biological process that in many instances requires little to no intervention — to scare people into hospital care. The shift made criminals of midwives, who were predominantly women of color and immigrants, cutting them off from the livelihood they earned serving women in their communities as well as white women. This was especially harmful for Black and Indigenous women, and immigrant women living in poverty, who were deprived of culturally acceptable care providers and lacked resources to access quality hospital-based care. Health Insurance Disparities. In the United States, more than 27 million people lack health insurance with coverage varying by state creating geographic inequities. Further a pregnant person's level of care is influenced by whether they rely on private or public insurance. People on public insurance disproportionately rely on public hospitals and even within hospitals care and services differ, such as the number of physicians and medical professionals on duty at the time of delivery, or a comforting space for delivery, including room size and hospital amenities. While insurance disparities contribute to reproductive health outcomes, it is important to note that because of structural racism and lack of appropriate care, Black women face higher maternal mortality rates regardless of their insurance coverage.Impact of State Policing and Surveillance on Care. Quality health care is also undermined by state surveillance that deters pregnant people from seeking care and undermines their trust and relationship with health care providers. Hospitals routinely drug test pregnant patients without their knowledge or consent, and alert child protective services of positive results so that they may launch investigations into those parents. These investigations often do not take into account whether a person’s use of a drug affects their ability to parent in any way, and may be intrusive and humiliating. Studies show that medical professionals have implicit biases linking race and class to abuse and that these biases influence the evaluation and reports of suspected abuse based on the behavior of pregnant people as well as reports based on injuries to children.. Additionally, undocumented pregnant people in the United States are hesitant to seek perinatal care for fear of interactions with law enforcement. Mandatory Reporting Requirements. In the U.S. certain professional are required by law to report suspected child abuse or neglect. For instance, New York’s law designates most health care providers, social workers, and even private citizens as mandatory reporters. In practice, these policies lead to over-reporting that expands state surveillance and control over families of color. The vast majority of families in the system are there on the basis of factors that are symptoms of poverty, such as insufficient housing, children being left unattended while a parent goes to work, or children not attending school, rather than allegations of violence or other abuse. Mandatory reporting requirements also make families mistrustful of the health care system and other systems that would otherwise be well-positioned to provide support they need. Finally, reports to child protective authorities are used vindictively (for example, by neighbors or abusive partners), or punitively to coerce parents into compliance, such as when a pregnant parent disagrees with their OB/GYN’s medical recommendations. When the person making an improper report is a mandatory reporter, they are shielded from any liability, even if the subsequent investigation has devastating effects for the family.Separation of Families by Child Protective Services. Within the U.S., the child protective services have the ability to remove children from their homes based on allegations of abuse or neglect. However, unwarranted and unnecessary removals of children, as well as lengthy delays in court proceedings to reunify families and inadequate visitation during state-imposed separations are a barrier to reproductive justice and raise human rights concerns. Black children are removed from their family homes at a higher rate than other children, placed in foster care at a higher rate than other children, and caseworkers are likely to use a lower risk threshold to remove Black children than other children. Children are also frequently removed on the basis of their birthing parent having tested positive for a criminalized drug during pregnancy or at the time of delivery. Even when prenatal screening for substance use is designed to be universal, Black parents are still significantly more likely to be reported to child protective services than white parents.Incarcerated Pregnant People. Incarcerated pregnant people also experience overt racism and mistreatment by law enforcement, and physicians. In 2016, an estimated 2,870 pregnant women were admitted to prisons and 55,000 were admitted to jails. Given the numbers of incarcerated people who are pregnant and give birth, some jails and prisons have prison nurseries. In such programs, pregnant people are able to stay with their babies after birth and breast feed them. However, it is often difficult to get into these programs. For instance, in order to take advantage of the nursery at Rikers Island jail in New York City, pregnant people cannot have any disciplinary infractions. Even with such programs, the needs of pregnant people are constantly overlooked and denied. Correctional facilities may fail to provide expecting mothers sufficient clean water and sometimes give them food that is unhealthy or insufficient, despite the fact that lack of nutritious foods can result in developmental issues for the baby and health issues for pregnant people. Once it is time to deliver the baby, pregnant people are isolated in the delivery room without a partner, family member, or doula (an individual trained to provide emotional support and pain coping techniques) to support them; instead, they are accompanied by correctional officers. Doulas working in Rikers found that pregnant people are pressured into scheduled inductions or cesarean sections prior to the natural onset of labor for the convenience of the correctional facility or physicians, or are simply not given a choice. Induced labors and cesareans can lead to complications for pregnant persons that would not have occurred but for the medically unnecessary intervention. II. Impact of the COVID-19 PandemicStay at home orders and shifts to telemedicine heightened the barriers to care that expecting mothers of color and those living in poverty face. COVID-19 increased the level of disrespectful care and separation of COVID-19 positive mothers and newborns, a practice that is not supported by evidence to improve outcomes. This imposes trauma on mothers and their babies. Concerns about hospital care increased the demand for doula and midwifery services.COVID-19 Travel Restrictions. For some, telehealth has been very convenient and has significantly reduced the number of times they have to go out in public and potentially be exposed to the virus. However, for patients living in poverty or in rural areas or on reservations, the shutdown of maternal healthcare facilities and the switch to telehealth has severely hindered their access to care. Many lack adequate access to the internet or to devices that are compatible with telehealth services. Additionally, in places with more punitive stay-at-home orders, many pregnant people are concerned about leaving the house to seek care, particularly while in labor, because they fear the police response.Lack of Support and Disrespectful Hospital Care. COVID-19 has added uncertainty to a pregnant person’s birth plan, as many hospitals throughout the country limited how many people may be present in the delivery room. In some instances, pregnant people were not given the option to have a person in the room with them, forcing them to deliver without a partner or other person of their choosing for emotional support. In other instances, pregnant people were only allowed one person in the delivery room, forcing them to choose between a partner or family member and a doula. In New York, doulas have only recently been cleared as essential people that can accompany a patient in the delivery room. In the face of this crisis, people (including healthcare providers) are quicker to jump to their biases. As a result, there has been an overall increase in disrespect faced by pregnant people in hospitals during the birthing process. Name-calling, racism, and mistreatment have become even more overt and have led to even more failures of the system. Prior to COVID-19, Black mothers were already dealing with physicians and medical professionals undervaluing and underestimating their medical needs. During the pandemic, doula organizations in New York City reported that pregnant people received even less time and access to their physicians who focused and prioritized time with other patients. As a result, their limited access dwindled down to almost no access.Some pregnant people who were infected by COVID-19 were immediately separated from their baby for 14 days. Separation of the parent and infant interferes with skin-to-skin contact, which is vital for newborn development, and is associated with better parent-infant attachment, successful breastfeeding, higher blood-oxygen levels, and stronger immune systems. Skin-to-skin contact benefits mothers as well, as it lowers their risk of postpartum depression and improves their overall breastmilk production. The risk of a newborn getting COVID-19 from their mother is low, especially if appropriate precautions are taken such as wearing a mask and practicing hand hygiene.. Given the benefits of breast milk, the WHO continues to recommend breastfeeding in cases where mothers are suspected or confirmed to have COVID-19.Increased Demand for Doulas and Midwives. The pandemic has made people rethink their understanding of what a hospital is: whereas they might have ordinarily seen it as a safe place to give birth, it is now a building full of people with a deadly virus. Many doulas throughout the state have seen an influx of pregnant people opting for a home birth. One community-based doula program in New York City witnessed a 200% volume increase in people seeking planned home births since the beginning of COVID-19. The number of pregnant people interested in home births makes it difficult for the limited number of midwives and doulas to take every call they receive, and many doulas and midwives are at capacity as a result. Birthing centers, which provide midwifery care in a home-like setting, can provide an alternative to hospitals to limit exposure to COVID patients. However, these are typically unavailable for people living in poverty, as they may not be covered by private or public health insurance.Given uncertainty, the need for doulas to help pregnant people navigate the birth process has increased, but it has been more difficult to obtain doula service. The risks of infection have limited the amount of doulas that are willing to travel and assist with births. Further, in New York, where doulas have been recognized as essential, many hospitals have implemented policies that require doulas to hold certificates which leaves doulas in training out of the delivery room. This keeps low-income mothers from being able to afford a doula, since many times they opt to have a doula-in-training, which is more affordable and accessible. To help address these issues, doulas in New York worked to provide virtual services for mothers going into delivery and to provide scheduled pregnancy education classes.Delays in Reunifying Separated Families and Barriers to Visitation. With regards to system-involved families, COVID-19 has made existing problems with court delays and visitation worse, as well as making these issues more apparent to the public. With the onset of the pandemic, many jurisdictions imposed visitation “freezes,” meaning that system-involved parents were not permitted access to their children. New York City’s ACS did not impose such a freeze —on a policy level, this is better than other locations. Functionally, however, some visitations did not occur, while others occurred only over video chat and telephone. While children are being removed from their family homes at a normal or increased rate, the lack of court access has prevented parents from challenging these removals, with long waits to even schedule hearings. Hearings, which are taking place virtually, are backlogged, as only around three virtual “courtrooms” are available for each of the five boroughs of New York, and there is only one judge performing intakes for the entire city. While parents are still required to participate in services as a condition of eventual reunification, access to these services has been hindered, though virtual options are now available. Inability to Access Necessities. COVID-19 exacerbated the lack of social safety net for families. Many mothers and their partners have lost jobs making it difficult to afford basic items to care for their babies including diapers, baby food, breast pumps, formula and cribs. People without access to certain formal sources of material support, like informal workers without access to unemployment insurance or immigrants who fear applying for government assistance, were used to relying on their community and were unable to have people come into their homes. For example, due to NYC lacking any state-sponsored diaper banks, and due to the shut-down of diaper banks operated by non-profit organizations, families lacked access to this necessity—especially in the Bronx, which is located far from the closest diaper banks. Due to these logistics issues, and to individuals with resources hoarding supplies such as diapers and wipes at the outset of the pandemic, families were unable to find diapers in stores, or were forced to make multiple trips to grocery stores, increasing their potential exposure to COVID-19.Even prior to the onset of the pandemic, shelters for victims of domestic violence lacked resources. Once the pandemic began, individuals living in domestic violence shelters in Harlem were calling 311 (the government hotline for information and services) every day to complain about lack of wifi (which was critical for children’s distance education), lack of food, and a lack of other material resources, overloading the already-unreliable 311 services.While ACS claimed that preventative caseworkers were helping individuals with home visits and resources, community members dispute this. Further, families were concerned about disclosing their lack of electricity, wifi, or other resources to individuals with the power to remove their children, especially when they were aware that these individuals would not be offering material help.III. RELATIONSHIP TO LONG STANDING CRISESViolation of the health and dignity of Black women and babies and separation of families was a crisis prior to COVID-19 and will likely continue to affect these communities after it has been eradicated. Professor Dorothy Roberts and Deidre Cooper Owens have documented the connection between slavery and colonization and Black maternal health and the modern child protection system. Dr. Owens describes how 17th Century literature “depicted African women, in comparison with European women, as especially capable of both childbearing and field labor” and how white physicians often blamed enslaved mothers for infant deaths rather than the mothers’ hard labor conditions and poor nutrition. During slavery, leading gynecologists experimented on enslaved pregnant women to develop new surgical techniques. These attitudes and practices continue to shape the medical profession’s attitudes and treatment and care of pregnant Black people.According to Erin Miles Cloud, Co-Director of Movement for Family Power, since the beginning of slavery in the United States “there has been a persistent narrative about Black maternal unfitnesss, created by white colonizers and perpetuated by individuals and institutions, that dehumanizes our motherhood and simultaneously extracts our children and enormous profit from us.” This history of targeting Black women’s reproduction and families has “weave[d] itself seamlessly into our current child welfare system.” Scholars have also documented the development of the foster care system as a means to socialize and regulate Black, Native American and immigrant populations. This history has created a system that seeks to regulate, control and punish rather than support poor families and imposes a crisis on communities.The current longstanding crisis results from the policies and practices of healthcare providers and the state. Factors causing the crisis include: income inequality, systemic inequality, maternal healthcare deserts, and the surveillance of low-income and Black communities. The long standing crisis has arisen because the maternal healthcare infrastructure in the United States incorporates white supremacy in its regulation of the birthing process; policies have historically prioritized the needs of white families, leading to Black people being treated as though their lives are worth less than those of white people. In addition, racialized perceptions of what “legitimate” parenthood looks like, including narrow constructions of “healthy” and “optimal” parenting that exclude parents of color, has led to the violation of patient privacy and autonomy and inappropriate and disrespectful treatment.In developing the concept of long standing crisis, it is essential that the description be clear about who the actor is in the crisis: the government abandonment of Black and brown people is the long-standing crisis, not some pathology inherent to the affected communities. To some, the term “crisis” might imply something that happens unexpectedly to a group, who are helpless or passive in the face of the crisis. The situation in the United States is not an unexpected crisis, but rather a natural extension of policy decisions the country has made throughout its history. Created within a colonialist and white supremacist structure that was in many places an apartheid state within the memory of living Americans, both states and the federal government have created laws, policies and systems which have caused lasting and ongoing harm to families and communities. Acknowledging the true nature of the “crisis” restores humanity and agency to the communities who have been affected, allowing a greater focus on their vision, resilience, and even joy. SOLUTIONSAdoption of a Reproductive Justice Framework. Development and implementation of sexual and reproductive health policy should be done through a reproductive justice framework. Reproductive justice recognizes that all people have the human right to have a child, to not have a child and to parent the children they have in a safe and healthy environment. It also recognizes that people’s ability to enjoy their rights is impacted by their intersectional identities and the communities to which they belong. It emphasizes the voices and leadership of communities impacted by reproductive oppression. States should consider the intersectional impacts of policies, and ensure that the needs of people experiencing multiple forms of marginalization are met and that policies that cause harm are eliminated.Anti-racism education. Antiracism training should be provided at all levels of schools and institutions. Racism must be removed from the medical school curriculum. Medical professionals must undergo antiracism training as a part of their degree programs. Commitment to Informed Consent. Informed consent should be recognized as a human right and should be required for all phases of perinatal care. In particular, pregnant people and their newborns should not be subject to medically unnecessary drug tests. Tests should only be administered after informed consent is obtained, and health care providers should not turn drug test results over to criminal or child protection authorities.Empowerment of patients. In order to empower patients, Know Your Rights trainings for pregnant people should be free and widely accessible, and patients should have access to someone who can advocate on their behalf during the labor and delivery process . Accountability for health care institutions and providers. States must be accountable, and hold healthcare workers and facilities accountable, to ensure dignity and respect for patients and to empower pregnant people to make their own, fully-informed decisions. Legal mechanisms should be put into place that prevent interference with patients’ autonomy and provide recourse for when their autonomy has been breached. Increased access to doulas and midwives. To ensure that pregnant people are getting high quality, acceptable care, states should prioritize increasing the midwifery workforce and funding community-based doula programs, particularly in maternal healthcare deserts. For many pregnant people, doulas fill the gap created by the lack of care and attention from their own physicians and serve as advocates to ensure that their medical needs are met. Divestment from programs that separate and surveil families and investment in communities. Government funding should not create an incentive to separate families. Funds should be moved away from the foster care system and organizations that police and surveil families like ACS in NYC and directed towards providing services and necessities to allow parents to care for children in their own homes. Government should provide grants to community organizations to provide material support to people through a transparent bidding process. Organizations with Black leadership should be prioritized, and investments should be for a longer period of time—3-5 years rather than 1 year. Provision of emergency funding directly to communities. In times of crisis, support to families should not be provided through organizations that surveil and police families like ACS in New York City. Government and philanthropies should instead provide support through organizations that build community power. Provision of basic necessities. Governments should ensure families have access to basic necessities for babies and children including subsidies for diapers. Other forms of direct support should be considered. For example, in San Francisco, a pilot program has launched to provide an “unconditional” cash income supplement of $1000 per month to low-income pregnant people who are Black or Pacific Islander. “Baby boxes,” infant basics provided to new parents at no cost in many countries worldwide, are another example.Support of Mutual Aid Practices. During COVID-19, some communities successfully expanded community mutual aid practices. For example, Bronx Rebirth raised funds enabling them to deliver packages of diapers, formula, and other infant necessities to approximately 500 families. Community aid should be readily available and resources should be made available without restrictions or punitive government requirements, especially in communities affected by intrusive investigations and child removals . Elimination of mandatory reporting requirements. Making health care professionals mandatory reporters undermines their ability to provide quality health care and violates patient confidentiality. In addition mandatory reporters often perform drug tests on newborns and birthing parents in a discriminatory manner and conflate a positive drug test with abuse or neglect. Governments should end mandatory reporting requirements for health care professionals. ................
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