It’s finally here.  Some people dream of having kids from a young age, and others later.  Regardless it becomes real and exciting and scary the moment you hear you are pregnant.  Now you are finally at the point where mom is in labor (or is scheduled to go in for a pre-planned, medically necessary C Section), and you can’t wait to meet your newborn and neither can your family.  But now, because of COVID-19, you may all have to wait.  That’s what hospitals in New York were telling partners, grandparents, siblings, and more: that in the age of social distancing, you can’t come meet your newborn.  You can’t care for your partner, who will have to go through labor, delivery, feeding, and recovery alone.  And in New Jersey this restriction is being considered as well.  A “necessary precaution” of the world we currently live in.

As just one example of this, Mount Sinai Health System’s restrictions allowed zero visitors (not even the father), until New York put a stop to it.  Mount Sinai is a health system that has 15 locations around the New York Area.  They justified their decision by stating that they are doing this “to provide the safest environment possible to protect our patients, staff and visitors.”  (Well, if having birthing partners, who are emotional support in the very least.  present is a risk, then perhaps there should be no visitors at all.)  The hospitals say they want to “prevent avoidable exposure to mothers and babies,” and claim their moves are “critical to ensure that we can continue to slow the spread of COVID-19.”  Mount Sinai acknowledges “how important it is to connect with loved ones,” but makes the decision to prevent such connections.  More than 600,000 people had signed this petition to attempt to have these restrictions lifted.

Now here’s the good news for New Jersey residents (for now) – the two largest hospital systems in the state, Hackensack Meridian Health and Atlantic Health, are both allowing one visitor or “support person” in maternity wards.  As recently as 8:48am on March 25th, Atlantic Health updated their visitor policy to no longer allow visitors for surgical patients, but still allow a “designated support person for patients in the maternity centers.”  We can only hope this continues – but what if it doesn’t?

While this is going on, the courts are doing everything they can to prevent the spread of this disease, including by going almost completely virtual.  The Supreme Court, the Administrative Office of the Courts, and the local Assignment Judges should be commended on getting everyone “up to speed” on virtual hearings as quickly as possible, and so far the court system is moving as best it can.  Obviously, in these times, it is important, as attorneys, that we not overburden the courts with issues that can be worked out between parties.  At Daly & Associates, for example, we are encouraging all of our clients to utilize mediation and other “out of court” measures to settle their matters before going to court.  However, a parent’s attendance at the birth of the child is a momentous occasion, which may not be repeated, and it’s not one that should simply be delayed.  This is a potentially emergent matter – and it’s likely only a matter of time before the courts are asked to weigh in on this issue.

Here are some facts and arguments we suggest lawyers and litigants consider when advocating on behalf of a client should they seek to file an emergent application on this issue, taking into account the factors the Courts consider for emergent applications:

1. Whether the petitioner will suffer irreparable harm.

In considering irreparable harm, one should first consider who the “petitioner” is.  Should mom be suing for a support person?  Should the partner be suing for the right to be a support person and to the see their child born?  Or should the parents be suing on behalf of their unborn child?

Here is one of the most stunning facts that calls into question the decisions of hospitals that suspend all maternity visitations.  The World Health Organization is against it, even in light of COVID-19.  According to their “Q&A on COVID-19, pregnancy, childbirth and breastfeeding,” the WHO states that “all pregnant women…have the right to high quality care before, during, and after childbirth. … A safe and positive childbirth experience includes: … having a companion of choice present during delivery.”  So in spite of COVID-19, the WHO still believes in the importance of having a support person present.  It’s not hard to see why they’ve come to this conclusion.  According to developmental and behavioral pediatrician at The University of California at Davis’ Dr. Mary Beth Steinfeld, “a normal, full-term baby is…programmed to initiate and enter into a bonding relationship. … When a caregiver consistently responds to an infant’s needs, a trusting relationship and lifelong attachment develops.  This sets the stage for the growing child to enter healthy relationships with other people throughout life and to appropriately experience and express a full range of emotions.”  Dr. Steinfeld furthers “the first few days of life are believed to offer an optimum opportunity for bonding to take place.”  But do they need both parents there?  According to Dr. Steinfeld, “[a]bsolutely.”  The National Institute of Health, WebMD, Psychology Today, Sanford Health, and Medscape have some of additional details on the data and research regarding the importance of immediate bonding for both parents. 

Further, without a support person, moms may be more susceptible to post-partum depression (see the CDC’s fact sheet on depression in women, which notes “stressful life events” and “low social support” as risk factors).  And the newborn risks missing what Dr. Steinfeld calls the “optimum opportunity” for bonding to take place.  Clearly, there is irreparable harm to all of these parties.

2. The legal right underlying the petitioner’s claim is settled.

Once you have proven there is irreparable harm, you must show a settled legal right.  In this case, one need only look to the WHO’s standards as showing a legal right.  You could also look to the fact that most U.S. hospitals allow bonding as a standard practice.  According to Dr. Steinfeld “standard practice in most U.S. hospitals allows mothers and babies as much time as possible together after birth.  Even when babies are born ill or premature, the importance of bonding is recognized.  Whenever possible, health care providers in intensive care units try to create opportunities for parents to spend time holding and caring for their babies.”

According to Atlantic Health, patients have a right “to receive considerate and respectful care consistent with sound nursing and medical practices.”  Hackensack Meridian says right on their website for maternity services that they “encourage the father or support person to take an active role in the birthing experience,” and even note that “it takes a village to have a child.”  The hospitals themselves recognize this important right.

3. Whether the petitioner is likely to prevail on the underlying claim.

Given the wealth of information about the importance of bonding, as well as the rights as defined by the hospitals themselves, one can clearly make an argument that a petitioner is likely to prevail on an underlying claim.  You may also have specific circumstances to further support your claim – for example, if mom is giving birth by way of Cesarian-Section, she will have limited mobility and it will be even more important to have someone there to help.  And in the era of COVID-19, we already know nurses and doctors are stretched thin; won’t they feel better knowing someone else is there to watch over mom and baby and only alert them when something has gone wrong so they can focus on other patients?

4. The relative hardship to the parties in granting or denying the requested relief.

The hardship to the hospital is obvious, and the factor the hospital will likely focus on the most is that they are trying to prevent the spread of COVID-19 to other patients and healthcare workers.  They are doing their part to “flatten the curve” by mandating social distancing.  But the articles referenced above make very clear the hardship to the parents and child may outweigh those and certainly a hospital, better than most institutions, can protect again the potential for cross-contamination.  When balancing all of the factors, a court may have a difficult time finding the hospital’s hardship overcomes the hardship of the parents and child, especially given their parens patriae power.

All of this is very new with unforeseen consequences and it is obviously important that we all take part in “flattening the curve” to preventing the spread of this disease.  However, it is also important that we look to protect our parents and children and their future.  We certainly do not want to not handicap that future by over-restricting ourselves in the present.  If you or someone you know has any questions regarding the topic of this article or other family, domestic violence, municipal court, or criminal law issues, we encourage you to reach out to Daly & Associates at (973) 292-9222.  We are working remotely, but are fully ready and able to help your family in this difficult time

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