In Whose Best Interest? New Jersey Division of Youth and Family Services v. V.M. and B.G. and the Next Wave of Court-Controlled Pregnancies

On April 16, 2006, V.M., a forty-two-year-old married woman in her thirty-fifth week of pregnancy, voluntarily checked into St. Barnabas Hospital in Livingston, New Jersey. During active labor, V.M. consented to multiple medical interventions, but refused to sign a form consenting to a c-section. V.M. ultimately did not have a c-section, and V.M.’s child, J.M.G., was safely born through a vaginal birth. However, during a subsequent child welfare determination, V.M.’s “failure to cooperate with medical personnel” during labor and delivery, and specifically her refusal to consent to a c-section, factored into the trial judge’s decision that J.M.G. was an abused and neglected child under a New Jersey child welfare statute. As a result of this finding, the state removed J.M.G. from her parents’ custody and placed her in the custody of the New Jersey Division of Youth and Family Services. After an appellate court upheld the trial court’s abuse and neglect finding, but did not explicitly address the lower court’s reliance on the refusal to consent to a c-section, the New Jersey Supreme Court and the United States Supreme Court respectively denied certification and certiorari. Accordingly, the New Jersey trial court’s explicit reliance on a woman’s refusal to consent to a c-section as a basis for a child neglect finding was never directly addressed by a higher court, leaving other trial courts in a position to make the same finding in the future.This Article will examine New Jersey Division of Youth and Family Services v. V.M. and B.G. (“New Jersey v. V.M.”) to explore the continued regulation and control of women’s reproductive decisions and the startling new reality that women’s practice of protected legal activities during pregnancy may play a role in the loss of child custody. Part I of this Article will detail New Jersey v. V.M.’s factual and procedural history, focusing in particular on the legal ramifications of V.M.’s refusal to consent to a c-section. Part II will briefly summarize the recent history of state regulation of fertility, pregnancy, and childbirth. The section will explore the progression from eugenics-based court-ordered sterilizations in the early part of the twentieth century to the more recent criminal and civil sanctioning of pregnant women for their actions (or failures to act) while pregnant. Finally, Part III will place New Jersey v. V.M. in the context of this history of reproductive regulation and argue that a pregnant woman’s refusal to consent to a c-section should not be a consideration in subsequent child welfare cases. Permitting such a consideration will have wide-ranging consequences for multiple areas of reproductive rights. First, allowing a c-section refusal to factor into child welfare proceedings opens the door to extensive regulation of women’s legal actions while pregnant. Second, the specter of child welfare proceedings looming over the delivery room may have incredibly coercive effects on women making labor and birth decisions, and it increases the already significant power that medical professionals have over women’s medical decision-making. Finally, I will argue that New Jersey v. V.M. extended the protections of the abuse and neglect statute to prenatal conduct without a statutory basis to do so, and, through this creation of fetal personhood, set a dangerous precedent for women’s reproductive autonomy.