#242 | The Legal Rights and Roles of Doulas with Attorney Hermine Hayes-Klein

December 6, 2023

Doulas are an increasingly important, if not essential, member of a birth support team.  However, along with their increased importance, doulas are exposed to an ever-increasing level of risk and liability.  

In this episode, we welcome back to the show maternal healthcare and human rights attorney Hermine Hayes-Klein, to discuss the legal rights and roles of doulas. She asks the question, what does support really look like, and can the doula actually assert the mother's right to informed consent or refusal? The answer is complex, in part because doulas don't answer to a Board and therefore enjoy a flexible job description, which is exclusively between her and her client. Hayes-Klein dispels myths surrounding doula advocacy, clarifying that doulas cannot make decisions for their clients, but can speak for the client with the mother's consent and understanding of all parties in the birth space. 

Hayes-Klein discusses her latest project, The Birth Rights Law Project, focusing on legal security for out-of-hospital midwives and doulas. The Project provides assistance in creating and understanding documentation, offering a potential lifeline for doulas facing or seeking to avoid legal liability.

If you are a doula or a pregnant mother considering doula support, this episode will shed light on how to best establish the client-doula relationship and help doulas to best understand how not only to protect themselves legally but also to define their personal job description between you and her in your birth space.

#178| How Out-of-Hospital Birth Prejudice and Provider Bias Harms Mothers and Babies with Attorney Hermine Heyes-Klein 

#153 | Legal Case Study #2 with Attorney Hermine Hayes-Klein: Injured by Obstetrics with Nowhere Else To Turn

#138 | Legal Case Study #1 with Attorney Hermine Hayes-Klein: Traumatized at a Major Teaching Hospital While Interns Watched and Learned

Down to Birth is sponsored by:
Needed -- Optimal nutritional products for before, during and after pregnancy
Modern Nursery--Your one-stop shop for eco-friendly, stylish baby gear
DrinkLMNT -- Purchase LMNT today and receive a free sample kit.
Love Majka Products -- Support your milk supply.
Silverette Nursing Cups -- Soothe and heal sore nipples with 925 silver nursing cups.
Postpartum Soothe -- Herbs and padsicles to heal and comfort.

Connect with us on Patreon for our exclusive content.
Email Contact@DownToBirthShow.com
Instagram @downtobirthshow
Call us at 802-GET-DOWN

Work with Cynthia:

Work with Trisha:

Please remember we don’t provide medical advice. Speak to your licensed medical provider for all your healthcare matters.

View Episode Transcript

I'm Cynthia Overgard, owner of HypnoBirthing of Connecticut, childbirth advocate and postpartum support specialist. And I'm Trisha Ludwig, certified nurse midwife and international board certified lactation consultant. And this is the Down To Birth Podcast. Childbirth is something we're made to do. But how do we have our safest and most satisfying experience in today's medical culture? Let's dispel the myths and get down to birth.

Hermine Hayes-Klein
Doulas don't have a scope of practice. doulas have a job description, they've got a role. And that role is something that the doula actually has a lot of flexibility to define. And one of the things that should be on that, that every doula should think about for whether she wants to include it or not in her job description is whether her role includes protecting the clients right of informed consent refusal, you can decide whether you're willing to do that. When doulas bear witness to the abuse of their clients, they can come out traumatized, secondarily traumatized by the abuses that they witness, the only reason anybody would get interested in seeing what a doula can or can't do is to protect doctors, never to protect women.

Hermine Hayes-Klein
Well, good morning. And thank you for welcoming me to join your podcast again. It's so wonderful always to be able to sit here and talk with both of you. So I'm thrilled to be back. I'm her mean Hayes Klein, and to just reintroduce myself to your listeners. I'm an attorney. I'm based out of Portland, Oregon. And for over a decade, my work has focused on advocacy related to patient rights in pregnancy, childbirth and postpartum. And so that work includes advocacy for midwives and access to midwives and all settings, advocacy for doulas and access to doulas and legal security for midwives and doulas, as well as bringing actions on behalf of birthing women, and people who have experienced abuse or uninformed consent violations during childbirth that have left them with trauma and or physical injuries.

Cynthia Overgard
All right, well, we're so excited to have you back. For me, it's always an interesting conversation, we always learn a lot. And for anyone who decides to look back at your previous episodes, you came to us with two very interesting and a little difficult to listen to emotionally. Episodes number 138 and 153. About cases you've been working on, and Episode 178, where we talked about more about the systemic care, particularly around homebirth midwives. But right now you have a new project going on. And yeah, it has something to do with doulas. Indeed.

Hermine Hayes-Klein
So I recently launched a sort of a project that's tangential to my main law practice. Because I saw a need from my work in the last decade. And the this new project is called The Birth Rights Law Project, and it's at birth rights law.com. And so the first two services that I'm rolling out through this project are relating to legal security for out of hospital midwives who work in the home or the birth center setting. And for doulas, and because I've worked on so many legal cases and advocacy issues relating to both midwives and doulas. Over the years, I've been able to really sort of see the kinds of legal challenges or legal problems that both midwives and doulas can face, as well as the sort of wide variety of existing documents that midwives and doulas use to try to memorialize what they're doing with their clients for midwives. That's their client agreements. That's their transfer agreements. And that's all of their informed consents related to issues like testing during pregnancy, relating to planned breech or Twinsburg, planned vaginal birth after cesarean. That documentation is very important. If somebody comes along later and says to a midwife, you shouldn't have allowed her to make that choice or you should not have supported her in that choice. The documentation showing the client's choice and their understanding of their options and the risks of those options. Is everything for defending any kind of claim alleging that the midwife should not have supported a given decision. And for doulas, you know, there's just been this interesting evolution over the last decade from doula as being some you know, a concept that's really only known kind of within the birth world. A lot of folks in society generally don't haven't known what that is, but that's changing and people are becoming more and more familiar with doulas as a profession. Hospitals are now hiring doulas to work for them. There's more you know, even Medicaid coverage for doula services and in many states and and so doulas are being more recognized but and with that increased recognition with that in reached professionalism, even certification offered by some states comes increased legal risk for doulas so that doulas are now being included as defendants in lawsuits related to childbirth. And so again, their documentation is very important for their protection, as well as recognizing that the client agreement can be a powerful tool for doulas and their clients to sort of define that doulas job description and role and come together in their plan for what the doula is going to do in a given birth, so that they can be on the same page. And both the client and the doula can be as secure and safe as possible as they move forward together in partnership. So right now, that's what we're offering through birth Rights Law Project is support with documentation and processes related to that documentation, as well as the option to have lawyers on sort of general counsel available for general counsel, you can pay a monthly fee, and be able to turn to our team of lawyers. At any point, if something comes up, if you have a concern, if something happened at a birth, that is making you worried, or you're having a problem before birth around communication, either with the client or with the care team, you can have a lawyer on standby that you can call up at any time with assistance. So that's what we're doing with birthrights Law Project. And I'm thrilled to be able to come on here and talk with you guys about why it's needed and what we hope to achieve.

Trisha Ludwig
Can you explain a little bit about how, like why this benefits doulas and why they need this? And do they actually need like malpractice insurance? Or is this just a good resource for them to have some of the pieces in place so that they hopefully don't need that?

Hermine Hayes-Klein
Yes. Well, I mean, to get to your last question. First, I think that that decision about whether to invest in malpractice or liability insurance is one that every doula kind of has to make on her own. Of course, it wouldn't be malpractice insurance, because malpractice is a concept that applies to licensed health care professionals regarding their standards of care. And doulas are not licensed health professionals in that sense. So, I mean, I'm not I'm not a liability insurance expert. I don't know if any medical malpractice companies are making liability malpractice insurance available to doulas. Maybe they are and I'm just not aware of that yet. But I think there could be personal liability insurance could be something that a doula could access and to see whether that that could apply in the event that they're sued. But that that sort of risk benefit analysis of the cost of insurance and the potential benefits of it, you know, in light of the risk of being sued, is something that an individual can make. But what I'll do is circle back to your question of what, you know, what are the issues here? And what can a doula do to sort of minimize the likelihood that they would have to draw in malpractice insurance, for example, in advance? And, you know, I think that kind of gets to the question of like, what is a doula? And what is their role at birth? And that's something about which there's been some controversy in the doula community itself, regarding what it is appropriate or inappropriate for a doula to do it at birth. So pulling that bat lens back, I mean, in general, the role of the doula is to support the birthing mother and the birthing patient, and what does support look like? It can look like, you know, emotional and physical support during times of pain and stress like so for example, during labor, a doula can just be a presence. And you know, one of the interesting things that I like to remember about doulas is that studies have shown that just knitting in the corner, just a doula physical, you know, emotional support. And physical support can be as simple as presence, calm presence, such that we have these studies showing that knitting in the corner reduces the client's risk of severity and by half, that's pretty huge before you even get to a backrub or rebozo.

Cynthia Overgard
I want to say that there's been research on having animals. And they found that yes, we all know that people live longer when they have animals. I think we all know that. I think that's common knowledge. But they also found that people recover more quickly from illnesses. And the most interesting one of the study that I'm referencing is they did a study with college students, and they had them take tests alone. They had them take tests with a loved family member in the room. And they had them take tests with their pet in the room and there was no question they performed the best when their pet was in the room. And they didn't really know what to make of this study. And I appreciate that because I hate when we leave to conclusions on things this mysterious, but they basically said they believe it's just the unconditional love. Because you know, love is highly conditional. And it's supposed to be so we can be in safe, appropriate, healthy relationships in life. But it's kind of reminding me of that you have a loving presence in the room and that does work wonders for us that is greatly comforting. to us before there are hands on us or anything else.

Trisha Ludwig
That's a pretty dramatic, beautiful

Cynthia Overgard
it's very beautiful.

Hermine Hayes-Klein
Well, when you think back to the idea of the doula as the person who mothers, the mother, which is the most like sort of ancient Greek, whatever traditional concept of the doula that makes sense, right? Because what does the mother do? The mother provides unconditional love and support. And so just like you say, I mean, we know with childbirth, it's powered by oxytocin, which is the love hormone. So anything that can happen in that space, that increases the woman's sense of security and love is going to literally facilitate the hormones that make a labour happen, you know, that make labour birth the birth go as smoothly as possible. So there's the love element. And but so, so again, that that foundational role is presence, you know, unconditionally loving and supportive presence. But then if we break that out, and we think about the doulas role in the pregnancy, because in order to be effective at the time of the birth, ideally, you're going to have a relationship, right, and that if you want to be perceived as the pet, you know what I mean, or as as that warm presence, then there has to be connection. And this, you know, we I think we can table what this the implications of that are for hospital, doulas that are just sort of assigned like a labor and delivery and delivery nurse to a given birth. You know, how they can be effective in that role and what is needed to support them and being effective in that role. But most of the professional doulas that are not employed by hospitals, the way they work is that they establish relationship with the patient prenatally, they have meetings, and then they get together that can look, you know, like a few contact moments or it can look like a real solid relationship with lots of time on the phone and materials exchange. It can look different for different doulas and different clients. And then there's their role in the labor and delivery room. Let's let's assume for this conversation that we're talking about hospital births, although some of these principles can apply to out of hospital births as well. You could say that, prenatally, a lot of their role is educator. So like, you know, so what does the doula do? The I would say there are three primary roles are support, education, and advocacy. And so then the question is, Where did what does that look like? And what are the moments in the pregnancy and the birth where those become relevant? prenatally, the primary, that's where the educator is, you know, their primary, like, where their role as educators the most potent, because what they what they can be their core is a resource for the client, on on facts related to their medical condition, because one of the limitations of you know, medical care is that, for example, the prenatal appointments are so brief. The provider even if the provider has the best of intentions of wanting to ensure that pregnant patients have accurate information, they are just their hands are tied, and their ability to actually sit with that person and talk through the complexities that they might be dealing with around issues like blood pressure, and hypertension. What are the risk factors for preeclampsia? How can you minimize your risk of getting it? How do you know if you are getting it? What does it mean if my baby's breech at 35 weeks or 37? Weeks? What are the risks? And Bennett? What are my options? What are the risks and benefits of my options? doulas can provide that information, they can point them to resources like evidence based birth, they can have books and articles that they share with clients. And they can be even somebody with whom the client can just talk stuff through. So that's sort of the role as educator. And then. And then there's what's their role and labor and delivery. And of course, that's where their role is supporter is going to come into play. And then the question is, what is support mean? And what support can mean can look different for different clients based on what that client wants and needs from the doula. And one of the roles that support can play is that sub role of advocacy? So then the question is, what does it mean for a doula to be an advocate? And the issue there is, what can the doula do to ensure that the clients fundamentally what can the doula do to ensure that the client's rights of informed consent and refusal are upheld during labor and delivery? Because, you know, when we say advocate, one of the, the sort of the flipside of advocate is kind of protector. And that is, you know, what are you protecting this client from you're protecting them from the likelihood of coming out of this birth traumatized? So many clients hire a doula because they want not only to have the best outcome for themselves and their baby, physically, but because they want to have the best outcome for themselves and their baby emotionally and psychologically. And so, there is a phenomenon that has been called obstetric violence. And this is a concept that has been invented by women's groups in many countries around the world to describe their experiences of care in abusive obstetric systems. You know, these, the concept came out of South America and Central America, where women are subjected to so their inception assembly lines in Brazil, they say the only reason you wouldn't have this is Aryan is because your doctor is stuck in traffic. And what that can look like for clients that don't, don't mind necessary and if they need one, but don't want one, if they don't, is abuse, especially one and if they try to exercise their right of informed consent refusal. I mean, as as I've probably discussed in our past episodes, every patient, including pregnant patients has the right to make the decisions all of the decisions about their care about whether they're going to receive an intervention, and they and that's everything from what's going into your IV to whether somebody's cutting you, or whether some, you know, anything, you can't be told to do anything, you can be offered services, and then you have the right to be accurately and honestly informed regarding your options and the risks and benefits of each of those options. And you have the right to be supported and making the decision about your care. So you know, obstetric violence is this is the phenomenon of the abuse of burning patients. And what that really looks like primarily is the violation of the right of informed consent and refusal. obstetric violence lives in the gap between the law of informed consent, which is very clear in every state, that the doctors have an obligation to provide you with accurate information and to support you and your choices. And the culture of obstetrics which ignores the law of informed consent. culturally speaking, obstetrics ignores informed consent, even though the law says what they're supposed to do. And that's where obstetric violence happens. And people come out of that traumatized, they can come out of those violations traumatized, as well as of course, injured by the interventions that were imposed on them without without their consent. And doulas have an important role to play in preventing that violence.

Cynthia Overgard
I want to ask you some practical questions about doulas. There are there a couple on my mind, this is the first one. I have clients who sometimes say that they're hiring a doula to help them exercise their right to informed consent, but they sometimes goes so far as to assume the doula can say no to an episiotomy on behalf of the client. And I know that doula doesn't have her power of attorney there. There's only so much a doula can do under the law, like the doula really can't speak for that coherent, lucid,

Hermine Hayes-Klein
he or she can revise permission. Okay, so

Cynthia Overgard
can you Okay, well, with the clients out, tell me about that. Tell me how that becomes explicit permission under the law, because if it's not expressed, and it isn't explicit, the doctor can very clearly say I'm sure the doula wasn't my patient. Can you make sense of all of this because I think everyone needs to understand how this part works.

Trisha Ludwig
And the follow up to that would be then does doesn't start to put a lot of liability on doulas in making these decisions for women like --

Hermine Hayes-Klein
doulas don't make decisions for their clients. I think this is sort of a myth within it's like a almost an urban myth that, that if a doula speaks up to said, she said, No, a Peasy ostomy that she's making that decision for the client. So let's unpack this. So coming back to the advocacy role. So doulas have a potential role to play in advocating for their clients rights. Okay. And so you're right of informed consent. And refusal means you have the right to make the decisions about your care according to a process and that process is, it's it's laid out, it's laid out by in bioethics, and it's laid out in the law, it involves communication, you have a right to be provided with certain information, you have the right to ask all the questions, you have the right to have your voice heard and have the things you say respected. And you have the right to make the decisions about your care. And so the question is, what's the doulas role in this? So this is very important. And the issue that you're raising is is really at the heart of a lot of the struggle that doulas face when they try to figure out what can I or can't I do to protect my client in these situations? And the reason this is such an important question for doulas is not just because they want the best outcome for their client. But because when doulas feel when doulas bear witness to the abuse of their clients, they can come out traumatized, secondarily traumatized by the abuses that they witnessed. Yeah, especially when the abuses that they witnessed are happening to their client because their client is so vulnerable, that they're vulnerable already because they're pregnant and labor. And often, the abuses that are being imposed on birthing patients are imposed on them not only because they're female and pregnant, but they are exacerbated by issues like racism, ageism against, you know, teen moms, for example, or older moms, even anti migrant sentiments. We know from studies around the world, that the more otherness is projected onto the body of a birthing patient by their providers, the more likely that person is to die, the more likely they are to see their baby die, and the more likely they are to come out traumatized. So when doulas sit on their hands and do nothing, while a client is being traumatized, they can be traumatized not only by what they witnessed, and many doulas leave the profession for this reason, because they've seen too much abuse, but also they can be haunted by the feeling that they were part of the problem, because they sat there and they watched it and they did nothing. So this puts doulas in a very difficult situation when they believe, but I'm not allowed to do anything, which is a story being told within many doula communities. So that's what I'd love to address. In order to answer your questions. Shall I do that or do you have more resume? Yeah, okay. So, so, an I, a story that has been told by a number of doulas doula trainers, I believe that Dona has even spread this story is that speaking for the client is, quote, outside the scope of the doulas role. You might have heard that it's been said it's a thing that's passed around. And there's even these like, you know, stories that are posted on Facebook I saw years ago. It's been a while since I saw one of these. But where it's like a story is told of a doula who spoke up at some point during the labor or or here's another one client says the doula told that the doctor said induce and my doula said I didn't have to do so I didn't adduce and now my babies in the NICU, and it's all the doulas fault fault and everybody piles on the doula because the doula shouldn't have said anything. Okay. And and so, so let me actually unpack this a little bit. One is the prenatal moment where the doula say back to the educator, the client comes back to the doula and says, you know, the doctor says I should induce on Tuesday for my two elevated blood pressures. What do you think? So the doula can say whatever the doula wants to say in that moment, the best thing for the doula to do would be to provide information. So it's, you know, first of all, did you get it and ask some questions? Do you know what your diagnosis is? Did the doctor tell you exactly what your diagnosis is? Because too wonky blood pressures is not a diagnosis. Are they telling you you have gestational hypertension? If you don't know, go back and find out? You know what I mean, go back and sit with them and say, what exactly is my diagnosis? And what exactly are the medical facts that led you to that conclusion so that I can really understand it, because if they just say to wonky blood pressures, the client doesn't even know what their options are, if they say mild gestational hypertension, and they don't tell the client that you have an option other than induction, the client can Go Go's, do some research and find that out themselves. Needless to say, of course, the providers should be accurately informing the client of their options that they have the option for induction, or they have the option for increased monitoring, the fact that they don't, and that they'll say your, your option is, is induction. And if the client asks question, they sort of say some weird things about danger to the baby, but they reassure you that your baby's fine. Clients can come out traumatized from just that kind of a conversation, because it's crazy making, they're doing their best to try to get the information and find out what their options are, and keep their baby safe. And there's this feeling that the information is being held from them. That's the kind of ubiquitous informed consent violation that is happening in obstetric play spaces. And that causes the patient to turn back to the doula and say, Do you have any more information for me?

Trisha Ludwig
We hear this all the time, this women are constantly in the place of feeling my baby could die and and at any moment, and at the same time, everything is fine. Like, what are you supposed to do with that?

Hermine Hayes-Klein
I see women sobbing over that, over those conversations years after they occur. So that's a prenatal moment with the education. And so then, like when I saw those posts on Facebook that says if you told her, you know, even if the doula were to say, I don't think you should induce the woman doesn't get to turn around later and say my doula led me down a golden path. And it's her fault. Because what you need to be reminding your client and this includes in your client agreement, is that they are the decision maker about their care, and that you are always going to inform them to be the decision maker about the care if I'm the pregnant patient, and my doctor says in Deus, and I asked the mailman, what do you think? And they say, Don't undos and I asked the doula, and she says, I can ask 25 different people, and I get to make the decision. And if I make a decision to go against my doctor's advice, I'm responsible. I don't get to say somebody else misled me. And when I do that, I'm just sort of feeding this cultural story that women don't make decisions, other people make decisions for women, and that we end so if we didn't do what the doctor said, the question is who led our little lady brain down the wrong path? That's not how it works. So but again, prenatally. The doula and the client want to have some clarity about what the doulas role is, and I'll get back to that in a second. So I want to talk about this idea of scope of practice in the birth setting, because I'd say, you know, a classic example of secondary trauma that I've heard expressed to me by doulas is the woman has been very clear that she doesn't want an episiotomy. She said this many times prenatally, she understands risks and benefits in a PC automate. She's told that those people if it looks like I'm gonna tear, I want a natural tear. I do not want you to Cut me. And then and they say, sure a little lady. And then when the baby's crowning, and now the woman's really in a moment where it's really hard to like your rational brain to like be protecting yourself. The doula sees the doctor doing because this is what the doctor always does. That's almost like for many doctors, it's like heads come and grab the scissors, cut, pull, because that's, that's what how they believe babies coming out of women is through their cutting. And so the doctor is reaching for the scissors. And then the doulas question is can I speak? What do I do in that situation? And if I do speak, how can I be safe when I do it? Because what happens and this has happened, where the doula says she said, No. And then the woman who's in you know, you've got fight flight freeze or fawn in a difficult situation. If you're a birthing patient, the place you're gonna go is fine. You cannot fight. You cannot flee. You can't really freeze there in fawn. Any of us if you guys have been in a hospital, you don't have to be burning. If you're in a hospital and you're in pain and you're in a hospital gown, and you're depending on these people, what you want to do is turned into a friend. It's like it's so deep. So in that moment, they'll say something to tendon befriend, that can sell out the doula. Oh, you know, Trisha, could you just be a little bit? Sorry, Dr. Trisha is viscous, a little excited. I mean, now Trisha is completely exposed. If she said anything to protect me from that cut that I previously said that I didn't want. Does

Trisha Ludwig
that happen? Yeah. Oh, yeah. Cynthia, we hear this all the time in our birth story processing sessions that we have with women we talked to, you know, women who are highly educated, very empowered, know exactly what they want. And then in the moment, they as you describe fawn, and they say I just in the moment, couldn't, couldn't fight it. Like I couldn't speak up.

Cynthia Overgard
Such a betrayal?

Hermine Hayes-Klein
Well, it's it's a betrayal that happened only because they didn't talk it through an event. So I'm gonna give you the solution to that problem. So in a way that that problem, and the attacks on doulas that have happened when doulas have advocated without clarity, have led many doulas to say you know what, it's outside our scope. It's not a role. They reframe the doula speaking in that moment as making the decision for the woman. And they say that's not allowed. You don't get to make the decision for her. And so then they say, speaking for the woman. That's what they call it as an outside our scope. So now I want to unpack that because it's not true. First of all, doulas don't have a scope. Scope of practice is a concept that applies to licensed professionals that describes the scope of what they are licensed to do under their license. It's what they are, you know, what you're when you're licensed as a midwife. You have a scope and that scope pertains to what you are allowed to do under your license in accordance with your training. Similarly, doctors have a scope because they're trained and they're licensed reflects what they are trained and authorized to do. doulas are not licensed professionals. There is no state body that has said this is what a doula is trained and licensed to do under her license and --

Trisha Ludwig
- Do they have a scope within their organization that credential credentials them or certifies them. It's not credentialing for its sort of certifying, credentialing

Hermine Hayes-Klein
or certify organizations are only credentialing or certifying you to say this is what we taught you. They don't create your scope. They're a licensing body. So if I'm certifying you, as you know, Shafia Monroe consulting doula training, my certification is going to say you learned ABCDEFG with me, and that's and you are now so you can show everybody you know how to do say they teach rebozo you know how to do rebozo that's got nothing to do with scope. Scope is about what you're allowed to do as a midwife comes up to C section but it does not include surgery. Doulas do not have licensing bodies, and they should be very wary in their effort of pursuing professionalism of getting licensed. Even certification is problematic once you have any authority other than you and the client, defining what you're allowed to do be concerned. Because if we know that if a doula just knitting in the corner, is going to reduce her risk of section by 50%. Who gets to come in and say that she's allowed to knit in the corner or not? Why would we have a government body talking about the only reason anybody would get interested in saying what a doula can or can't do is to protect doctors, never to protect women, it's going to protect the protected the comfort or discomfort of the medical professionals by saying she's not allowed. She's not allowed to do this or that. And the only person who should be saying what you're allowed to do or not do, of course, this overarching law, of course, everybody had their certain rules that apply to everybody in a hospital room, right? You can't get violent for example, and then your agreement with your client. So what I realized Just a couple years ago was that what was happening here around this issue with scope of practice and all this rhetoric around it, is that these doulas and doula organizations are using that whole conversation as a cover for what's really going on, which is that they're uncomfortable with conflict, a woman who doesn't have good boundaries, she will tell you why she's mad, you'll feel that she's mad, you'll feel something's wrong. And you might even ask, are you mad at me? And she'll say, No, I'm, I'm fine. But you'll feel something's wrong. And she'll show you things are wrong in nonverbal ways that lead to a loss of trust within the relationship. And I was like, wow, because we've all experienced that, if you've been in relationship with a female with a lot of females, you've experienced that. And, and for me, it was profound, a profound shift in my understanding of boundaries. Because before that, I thought boundaries was saying no, and pushing people away. And she was framing boundaries, as not pushing people away, but calling them in boundaries as loving yourself and the other person enough to say, to tell the truth, and say, My dear, this is what's not working for me and this dynamic right now. And I, I respect both of us enough to be honest with you about that, and to create an opportunity for us to recalibrate that and see if we can make this work better. And so when you think about what thinking about that, and then applying it to the doula situation, you know, why do women have poor boundaries in the, in the way that I just described poor boundaries, because of their discomfort with confrontation, we know women who can't even have a confrontation with their best girlfriends or people that are close to them without feeling like they're going to have a crisis, the idea of a confrontation or a conflict makes them feel like emotionally overwhelmed. And they'll do anything to avoid it kind of thing. Because of this deep, unconscious beliefs that have come from the way they've been socialized to be pleasing and to protect relationships and to avoid any kind of relationship rupture. And so what's valuable with this new concept of boundaries is that it shows that it reminds doulas, you're not being rude. And women, you're not being rude when you say no, and use in what you protect yourself. You're being respectful, actually, by telling the truth, you're respecting yourself, and you are respecting them. And so understanding that what it sort of led me to is to make a new set of recommendations for doulas. And now I'm finally gonna get to the heart of your question, how can we make this work? Or what could it look like for advocacy to happen? And what's the role of the client agreement? And so like, this relates to what I'm trying to do with the birth Rights Law Project. I think that the client agreement, the quote, okay, so here's, here's what doulas need to think about. If they're thinking about, can I speak at in the birth room to protect my client? And if so, how do I speak so I'm not making decisions for her, but I'm protecting her rights to make those decisions. And I think what that looks like is this. First of all, you as a doula get to think about whether you don't have a scope. What you have is a job description. So to back up a little bit, doulas don't have a scope of practice. doulas have a job description, they've got a role. And that role is something that the doula actually has a lot of flexibility to define. Like, as a midwife, what you do as a midwife is kind of already set by the profession of midwifery. You know what I mean? And so it's like, these are the things that a midwife should know how to do, that we're all trained to know how to do. And then what's outside your scope is often set by the regulations of your state. And so that can differ to some extent, state by state. And then there's community standards that also regulate scope and especially in places where there are not regulations. But with doulas, like what a doula does can actually be highly variable, right? Because there is it's not a medical profession where all doulas are trained to do X, some doulas can do rebozo for example, to help support you help during your baby. Some doulas didn't do that training and don't offer that some doulas might offer massage. Some doulas might not some doulas might offer you know culturally competent care for specific communities because they're of that community. Other doulas might not, you know, and so there's like, just so many different techniques, cultural values, and on and on and on that doulas can bring that make them unique and special as a doula like what is it that you as a doula makes you different from other doulas that's about you, your job description, your focus your values, your training. And that can include and you get to decide what's on there. You don't I mean, you can make a list and this is part of what I do with my doulas when I set them up with their legal documents. It's really like, like, here's a menu of all the things a doula could do, which are the ones you want to do. And are there things that aren't on the list that you want to add? And that is your job description. And one of the things that should be on that that every jeweler should think about for whether she wants to include it or not in her job description is whether her role includes protecting the clients, right of informed consent refusal, you can decide whether you're willing to do that. And so you at the doula, rather than this nonsense concept of it's Oh, it's outside my scope to speak for you. Just be really honest with yourself. Are you even theoretically willing to be somebody who protects the client's right to have their voice heard at all times? And have their have that process happen? Or is it who you are as an individual that is so uncomfortable that no way I don't want to do that. So decide? And if it is something you're willing to do, then that then the next step is to have a conversation with your client prenatally.

Cynthia Overgard
Okay, but I want to ask this question. Let's say there's the client and the doula at the birth. And let's say the doula sees the doctor, reaching for the scissors. And the doula says, No Peasy Atomy. It's been my understanding that the doctor has the legal right to turn to the doula insight, you're not the client. And if the client says nothing, she's acquiescing. So let's get there. You can, okay.

Hermine Hayes-Klein
Yeah. Let me just walk you down the path of what the doula can do. If the doula is willing to protect that client from the Peasy automate, what can we do to prevent what you just described? Okay. So step one, decide for yourself, are you willing to step two, if you are, then the next key moment is when you're defining your role with your client. And that's either at your first or your second appointment. It's around the time that they're executing your agreement. And that can look like, here's the things I offer. Which of these things do you think you're going to want? And one of the things that I offer is protection for your right of informed consent refusal? Because you have the right to blah, blah, blah, all the things I've already described? And is that important to you? You know, because some clients, that's they're like, you know, what, I just want to go do what the doctor says, I want an epidural, and about a back rub. You know what I mean? And I want you to go get me a smoothie, and that's fine. They have every right to have that attitude about their care. And then then that's not this is going to be a non issue for the doula because the doulas only job is to get a smoothie and to help, you know, whatever, like facilitate the client doing what the doctor says, or the midwife says, and but if many clients are hiring a doula for, for exactly that reason, because their right of informed consent, and refusal is very important to them. They know it exists, maybe it was violated in a previous birth. And they want that doula in there, because they want to minimize the likelihood that their rights are going to be violated. And so if that's important to the client, then they can they can agree if the client says that's important to me. And the doula says, I'm willing to do that, then we proceed to Step three. So step three, is when the client and the doula sit together prenatally and talk about and actually do some work thinking and talking through what comes up for them? Or when they when they imagine themselves saying no, because that's the thing when we talk about like, women have a hard time literally saying loud and clear, no, without going to. But I love you. And I promise that I'm still connected with you, you know, and wanting to tend to the relationship at the very time, like just saying affirm clear, no, can feel excruciating. So prenatally is the time to look at and start working through even with roleplay. What comes up emotionally, and talking about the fact that when we're in labor, and when we're in that room, we might be surrounded by Now needless to say, of course, both of those people is wants to assume the best, of course, they want to assume it's going to be an amazing team, we're going to have a beautiful love in the room. And it's going to be like incredible for everybody in there, including all the doctors and nurses. But there's a risk that we might be dealing with a team that everybody assumes that they have the right to do whatever they want. And when we speak up, this is what happens everything patients they speak up to say ask questions or to express their opinion or their decision. Every like, why are they talking? You know what I mean? Like there's no expectation that the client is going to say anything, let alone that the client is going to have a say in what's going to happen. Because again, we're back to that gap between law and culture. You're in a cultural space, where everybody assumes that the birthing patient does not have much of a say in what's going on. And that delivery is something that happens to their body. So prenatally, the patient and the doula need to talk about what's what's going to come up when we're in the situation like what what can we imagine or feeling in a situation where everybody else is acting like they're the professionals and we're not. And our voices are given very little value? Are we able to stand together in the discomfort and know that if and the doula needs to be able to say so if I'm going to have your back? And what that's going to look like is protecting your decisions? Of course, it's not going to look like ever look like me making a decision for you. How would I even do that? But it is going to look like if you've been very clear about what you want. I am going to remind them of what you said. If the client and the patient I mean the client and the doula can acknowledge that uncomfortable feelings might come up. Then they can also acknowledge and prepare for the duel that can be really clear. I need to know that if I put my step into a vulnerable space myself by standing up for you that you're going to stand up back for me that we're going to be A team in the protection of your writing of informed consent refusal, then once you have that agreement, you proceed to Step four. Step four is labor and delivery. So this is how you're going to prevent the doctor from saying that's not, that's not your role. And that's that when they have an agreement, the client and the doula that they make this agreement for they get there. When they get there. The client is going to introduce the doula to everybody on the team by saying this is my doula Cynthia. This is my doula. Cynthia, one of Cynthia's roles for me, in this birth is going to be the lookout for my right of informed consent refusal, because it's very important to me. So I have asked Cynthia to make sure that before anybody does anything to me, they have taken the time to look me in my eyes, tell me what they want to do and why. Tell me what it involves? Tell me what the options are. Tell me what the risks involve, answer all my questions, and make sure that I have had the chance to freely choose what I want. And so then when the doula speaks up to say, oh, did that conversation happened before your I noticed you're putting something in the IV? But did you have a chance to discuss that yet? Now, the people in the room should not be like, Why is it talking, but instead, they know that she's fulfilling her role in a hospital space. It's like the military. They want to know what your role is. Everybody has a role. And so when your role is already defined as the protector of the right of informed consent and refusal, they should not be giving pushback on you when you speak up to protect protect her right of informed consent refusal.

Cynthia Overgard
Understand this from a social perspective, that this is how it's optimal and this will function. But I want to know, is the doctor liable? Did the doctor break the law? When the doula said no to something and the client didn't? And the doctor proceeded anyway? Was the law broken? It

Hermine Hayes-Klein
depends on whether the woman had spoken previously. So if she had ever said previously, I don't want an episiotomy. And then the the doctor reach for the scissors and the and the doula said she said no episiotomy then then the dual the doula cannot be attacked.

Cynthia Overgard
Okay. If you never said it if she never expressly said it. And the doula says no Peasy on me and the doctor gives one anyway.

Hermine Hayes-Klein
The dog situation, the doula makes herself vulnerable. When the doula says if the if the client has never verbalized it, the doula should not be the first person to verbalize the decision because that looks like she's making the decision. So she doesn't

Cynthia Overgard
have power of attorney. She doesn't have it. Okay, no, I job, I understand half now,

Hermine Hayes-Klein
she shouldn't assume that she that the client doesn't want an episiotomy, she should know it. And and again, back to your prenatal education and preparation stuff, like if it has a client never heard of an episiotomy before? If so, why not? You know what I mean, if you if you know enough to hire a doula, then you should know enough to read a book, you know, and know, and so they should have that conversation. And so if the client knows she doesn't want an episiotomy, the client needs to communicate that to her providers prior to delivery. Now, that said, though, it's what if the doctor wants to do something that has not been discussed yet, the doctor still does have an obligation to ask the patient. So that's why in that situation, the doula should not be saying, No a Pz autonomy if it's never been discussed, the doula should be saying, doctor, remember, my role is to look out for her right of informed consent and refusal, I see reaching for the scissors. Tree Trisha, did, the doctor asked you if you want an episiotomy, and so now the doctor has to talk to the client, the real

Trisha Ludwig
role of the doula There is to be the trigger for the informed consent conversation to stop the action before because we know that these procedures are done all the time without proper informed consent. So the doulas role is to stop the action. So the informed consent can happen.

Hermine Hayes-Klein
The doulas role is to protect the process of informed consent, not to protect the outcome or the decision, you know what I mean, the decision gets to be made by the client. And if the process is followed, then the decision will be the client's decision. So that can be their role. Again, it's written on the hospital wall, the patient's rights, it's written in the law, so that nobody should have a problem with the doula protecting that process. And so that's their role, their role is to say, but if the client spoke, like another very important aspect of their role is to make sure the client's voice has been heard. What does racism look like? It looks like not listening. So if the if that woman is speaking and her voice is not being heard, then it's she's she I think she's spoken to this to you all, listen to her, you know. So there's there's roles that can be played to amplify the client's voice. But at the end of the day, that is the doulas role, legitimate role with regard to informed consent refusal, but only if her client agrees prenatally, she doesn't get to come in there and do that, unless she and the client have made that clear in advance. So I think the answer to your question is very issue raises critical because it gets back to that point about feminization. You know what I mean? Your clients want to sit there and be sweet and let the doula be the bad cop, because they're uncomfortable with the fact that they might need to assert their rights in that space. And if they're uncomfortable with the fact that They might need to assert their rights in that space. First of all, find a different space because you should be burning in a space where you can feel safe. And if there is no way to do that, then then your only shield against you know variability of C section rates, dysfunction and abuse is your right of informed consent and refusal, your right to be recognized as the captain of the ship and the doula can have a very important role to play for you in that but not by becoming the captain of the ship on your behalf.

Thank you for joining us at the Down To Birth Show. You can reach us @downtobirthshow on Instagram or email us at Contact@DownToBirthShow.com. All of Cynthia’s classes and Trisha’s breastfeeding services are offered live online, serving women and couples everywhere. Please remember this information is made available to you for educational and informational purposes only. It is in no way a substitute for medical advice. For our full disclaimer visit downtobirthshow.com/disclaimer. Thanks for tuning in, and as always, hear everyone and listen to yourself.

Hermine Hayes-Klein
Well, it's kind of like, you know, when you realize like, all three of us care about justice, all three of us are like devoted to it. And it's like when you realize when you look at others and you're like, what would it be like not to care? Like what would it be like to like, be like, yeah, there's people that are mistreated, but I I'm busy making cakes, you know what I mean? Like, like, there are people that's a lot of people, you know, and when you're like, wow, that's just not at all my emotional reality.

If you enjoyed this podcast episode of the Down To Birth Show, please share with your pregnant and postpartum friends.

Share this episode: 

Between episodes, connect with us on Instagram @DownToBirthShow to see behind-the-scenes production clips and join the conversation by responding to our questions and polls related to pregnancy, childbirth and early motherhood.

You can reach us at Contact@DownToBirthShow.com or call (802) 438-3696 (802-GET-DOWN). 

To join our monthly newsletter, text “downtobirth” to 22828.

About Cynthia Overgard

Cynthia is a published writer, advocate, childbirth educator and postpartum support specialist in prenatal/postpartum healthcare and has served thousands of clients since 2007. 

About Trisha Ludwig

Trisha is a Yale-educated Certified Nurse Midwife and International Board Certified Lactation Counselor. She has worked in women's health for more than 15 years.

Want to be on the show?

We'd love to hear your story. 
Please fill out the form if you are interested in being on the show.

screen linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram