106 Iowa L. Rev. Online 85 (2021)

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Abstract

In Medical Paternalism, Stillbirth, & Blindsided Mothers, Professor Jill Wieber Lens identifies an important void in pregnancy-related disclosures, which has rendered stillbirth risk largely invisible to pregnant patients. She then makes a compelling case that medical paternalism is animating this pattern of nondisclosure and that pregnant patients should have a right to evidence-based information about stillbirth risk and prevention. An important question remains, however, about whether Lens' proposed solution-a novel informed consent malpractice claim that would assign blame for the stillbirth through a tort liability regime-is likely to promote her goals of patient empowerment and better pregnancy care. 

This Response urges that any proposed reforms to pregnancy care be evaluated by how well they would serve those most vulnerable to both aspects of the problem Lens identifies—that is, those who are disproportionately likely to suffer a pregnancy loss, like stillbirth, and to experience information withholding and other autonomy-denying actions by health care providers. Racial and ethnic minorities, people struggling with poverty, and those with disabilities tend to fall into both categories; but to illustrate the need for this kind of centering in addressing pregnancy care reform, this Response focuses specifically on the experiences of Black women. Centering Black women's experiences of pregnancy-both within the health care relationship and as targets of reproductive regulation and control in society more broadly-reveals the dangers and limits of a tort liability approach that reinforces the association between pregnancy behavior and fetal harm for purposes of assigning legal blame. On a more hopeful note, however, this Response also shows that centering Black pregnancy is key to designing pregnancy care reform that is truly empowering for all patients, and thus more likely to improve health outcomes for pregnant patients and their children.