May 16, 2016: Please view Breaking Promises: Violations of the Massachusetts Pregnancy Standards & Anti-Shackling Law, a report by Prisoners’ Legal Services and the Prison Birth Project.
YOUR RIGHTS IF PREGNANT AND INCARCERATED
While you are pregnant your health needs extra attention to ensure that you and your baby are healthy and that you have as few complications as possible during your pregnancy. You should be able to ensure that your health and that of the baby is protected even while you are in jail or prison. On May 15, 2014, Massachusetts passed a law, G.L. c. 127, § 118, making it illegal to shackle pregnant women in most circumstances and requiring correctional facilities that hold women to provide basic prenatal education and care. This law is very important in establishing the rights of pregnant women incarcerated in Massachusetts. Its requirements apply to all correctional facilities in the state.
If you are a pregnant woman incarcerated in Massachusetts, you can contact PLS for assistance in obtaining the rights provided by this law. We are especially interested in tracking and addressing any improper use of restraints on pregnant and post-partum women. If you are expecting to give birth while incarcerated, please contact PLS in advance of your due date and discuss your situation with us. If you would like us to advocate for removing restraints, if any restraints are used during your labor or post-partum period, it would be best for us to have releases of information on file. Even if you don’t want us to contact the facility regarding your situation, we would appreciate you contacting us to let us know what your experience was so that we can assess whether each facility is following the statute as required.
If you feel the facility or medical staff are not following the requirements of the law, you should file a grievance (a medical grievance if it is medical staff who are not following the law, a facility grievance if it is the correctional staff not following the law) and be sure to appeal any denial of that grievance. You need to file the grievance even if you also contact PLS for assistance.
The full language of G.L. c. 127, § 118 is below. Some of the important rights provided by the law are:
(a) Health care
- All pregnant women must be provided counseling and written material, in a form she can understand, on pregnancy options and correctional facility policies and practices regarding care and labor for pregnant women. This means the material must be in, or translated into, a language the woman understands.
- All pregnant and postpartum women must be provided regular prenatal and postpartum medical care.
- All pregnant and postpartum women must be provided the opportunity for at least 1 hour of recreation each day.
- All pregnant and postpartum women must be provided a diet containing the nutrients necessary to maintain a healthy pregnancy, including prenatal vitamins and supplements, and written information regarding prenatal nutrition, maintaining a healthy pregnancy and childbirth.
- All pregnant and postpartum women must be provided the opportunity for postpartum screening for depression. A woman suffering from postpartum depression must have regular access to a mental health clinician and must not be subject to isolation unless she poses a serious risk of harm to herself or others.
- All pregnant and postpartum women must be provided appropriate clothing, undergarments and sanitary materials.
- Prior to her release, facility medical staff must provide a pregnant woman with counseling and discharge planning in order to ensure continuity of pregnancy-related care in the community, including uninterrupted substance abuse treatment.
(b) Restraints and transportation
- All pregnant women in their second and third trimesters of pregnancy or during recuperation after childbirth must be transported to and from visits to medical providers and court in a vehicle with seatbelts and may only be restrained using handcuffs in front.
- Leg or waist restraints shall not be used on a pregnant or postpartum woman under any circumstances.
- A woman in any stage of labor or delivery, as determined by a health care professional, must not be placed in restraints at any time, including during transportation. There is no exception to this requirement.
- If a correction officer is present in the room during a woman’s physical examinations, labor or childbirth, the officer should be female and should be positioned to maximize the woman’s privacy.
- During post-partum recuperation, the new mother will remain in the hospital until the attending physician certifies that she may be safely discharged. A woman in post-partum recuperation must not be placed in restraints, except under extraordinary circumstances. “Extraordinary circumstances” requires a correction officer determining that the specific woman presents an immediate and serious threat to herself or others or an immediate and credible risk of escape that cannot be curtailed by other reasonable means. An officer finding extraordinary circumstances requiring restraint of a post-childbirth woman must document, in writing, the reasons for that finding, the kind of restraints used and the reasons those restraints were considered the least restrictive available and the most reasonable under the circumstances. The superintendent must approve the use of any restraints on a post-partum woman due to extraordinary circumstances.
- If the attending physician or nurse treating the pregnant or post-partum woman requests that restraints be removed for medical reasons, the correction officer must immediately remove all restraints.
If you are restrained while you are in labor, this office will advocate for you to be removed from restraints. You can contact us from any DOC facility at *9004# or any county facility by calling collect at 617-482-4124. If you are unable to call, you can also ask your medical provider or your family to contact our office to report this problem. We will need releases of information to get any information when we advocate, so it is best to get releases of information on file with this office in advance if you anticipate being incarcerated at the time you give birth.
In 1992, this office worked out a formal Agreement with the DOC in a case called McDonald v. Fair, No. 80352 (Mass. Super. Ct. Apr. 7 1992) about the care pregnant women are entitled to at MCI-Framingham. The most important parts of that case, beyond what G.L. c. 127, § 118 requires, are listed below. If you are pregnant and incarcerated somewhere other than MCI-Framingham, this Agreement does not apply to you, but you are covered by the law described above.
Diet and Vitamins
- Once your pregnancy has been confirmed, the HSU must notify the Food Services Unit, who must place you on the pregnancy diet which should ensure that you get proper nutrients for the baby’s development. Within 2 working days of the confirmation of pregnancy, the HSU must also request that you be seen by a dietician.
- The dietician’s consult form will become part of your medical record.
- If you have additional medically based dietary needs or restrictions (for example a diabetic diet), those requirements must also be provided by the dietician to the Food Services Unit in writing, and written into your medical file.
- Whenever you believe that a meal does not conform to the required diet, you should report this to the Institutional Grievance Coordinator on the institutional grievance form. You may also approach food service personnel, shift commanders, and others to voice dietary concerns or problems immediately.
- The DOC must keep the name of each pregnant prisoner on the “Diet Roster” maintained in the Food Services Unit.
Prenatal and Postpartum Counseling
- The DOC must offer pregnant prisoners access to weekly prenatal classes providing counseling and education.
- The DOC must maintain weekly prenatal clinics at MCI-Framingham. Each pregnant prisoner shall be given access monthly at such clinics, or more frequently if medically necessary.
- The DOC must provide access to mental health counseling and HIV counseling.
- The DOC must offer you contact, including telephone access, with the Department of Social Services if your child is to be placed in the Department of Social Services custody.
- The DOC must provide pregnant prisoners with maternity tops, maternity slacks or jeans and larger sizes of underwear.
- After intake medical screening, within 48 hours of entrance into MCI Framingham, a pregnant prisoner must be seen by a physician, or nurse practitioner, or perinatal nurse coordinator, who must ask about the following areas:
Unusual bleeding or vaginal discharge
Presence of an I.U.D.
Breast masses or nipple discharge
- After you have been medically screened, if you are pregnant but have no other medical or mental health issues, you should not be placed with unscreened prisoners.
- After medical screening, pregnant prisoners admitted to MCI Framingham who have health or mental health issues aside from pregnancy, must be placed in the HSU, with only medically screened prisoners. You should not come into physical contact with prisoners who are quarantined.
- The DOC must ensure that pregnant women being transported to outside medical care, or courts or hospitals, receive the total dietary intake specified above.
Prenatal and Postpartum Medical Examinations
- Pregnant prisoners shall be provided with regular prenatal (before birth) and postpartum (after birth) medical examinations and treatment as medically indicated.
- If you are designated “high risk” status by an obstetrician, the DOC must follow all medical recommendations that are confirmed by the on-site medical personnel of MCI Framingham.
M.G.L.A. 127 § 118
Effective: May 15, 2014
Massachusetts General Laws Annotated
Part I. Administration of the Government (Ch. 1-182)
Title XVIII. Prisons, Imprisonment, Paroles and Pardons (Ch. 124-127)
Chapter 127. Officers and Inmates of Penal and Reformatory Institutions. Paroles and Pardons
§ 118. Pregnant and postpartum inmates; standards of care; use of restraints
(a) Upon admission to a correctional facility, while awaiting trial or after sentencing, a female inmate shall be screened and assessed for pregnancy by a licensed health care professional; provided, however, that the inmate shall be informed of any necessary medical tests connected with the pregnancy screening prior to the administration of such tests. A pregnant inmate shall receive nondirective counseling and written material, in a form the inmate can understand, on pregnancy options and correctional facility policies and practices regarding care and labor for pregnant inmates. Correctional facilities housing female inmates shall ensure that at least 1 member of the correctional facility’s medical staff is trained in pregnancy-related care, which shall include knowledge of prenatal nutrition, high-risk pregnancy, addiction and substance abuse during pregnancy and childbirth education.
A pregnant and postpartum inmate shall be provided regular prenatal and postpartum medical care at the correctional facility in which she is housed, including: periodic health monitoring and evaluation during pregnancy; the opportunity for a minimum of 1 hour of ambulatory movement each day; a diet containing the nutrients necessary to maintain a healthy pregnancy, including prenatal vitamins and supplements; postpartum screening for depression; and written information regarding prenatal nutrition, maintaining a healthy pregnancy and childbirth. Pregnant and postpartum inmates shall be provided appropriate clothing, undergarments and sanitary materials.
The department of correction shall, in consultation with the department of public health and the Massachusetts Sheriffs Association, Inc., develop appropriate standards of care for pregnant and postpartum inmates, which shall include, at a minimum, the standards for health services set forth by the National Commission on Correctional Health Care. If a pregnant inmate requires medically necessary, specialized care that is unavailable at the correctional facility, the pregnant inmate shall have access to such care at a supporting medical facility with appropriate expertise.
If a licensed health care professional determines that an inmate is suffering from postpartum depression, she shall have regular access to a mental health clinician. A postpartum inmate shall not be subject to isolation absent an individualized, documented determination that the inmate poses a serious risk of harm to herself or others.
Prior to release, correctional facility medical staff shall provide a pregnant inmate with counseling and discharge planning in order to ensure continuity of pregnancy-related care, including uninterrupted substance abuse treatment.
(b) During the second and third trimesters of pregnancy or during post-delivery recuperation, as determined by the attending physician, an inmate shall be transported to and from visits to medical providers and court proceedings in a vehicle with seatbelts and may only be restrained using handcuffs in front.
A pregnant inmate shall receive labor and delivery care in an accredited hospital and shall not be removed to another penal institution for the purpose of giving birth. An inmate who is in any stage of labor or delivery, as determined by a licensed health care professional, shall not be placed in restraints at any time, including during transportation. If a correction officer is present in the room during the pregnant inmate’s physical examinations, labor or childbirth, the officer shall, if possible, be female. Whenever possible, the correction officer shall be positioned in a location in the room that will ensure, to the extent possible, patient privacy.
During post-delivery recuperation, an inmate shall remain in the hospital until the attending physician certifies that she may be safely discharged and transferred back to the correctional facility. An inmate in post-delivery recuperation shall not be placed in restraints, except under extraordinary circumstances.
For the purposes of this section, “extraordinary circumstances” shall mean a situation in which a correction officer determines that the specific inmate presents an immediate and serious threat to herself or others or in which the inmate presents an immediate and credible risk of escape that cannot be curtailed by other reasonable means. If an inmate is restrained, the restraints shall be the least restrictive available and the most reasonable under the circumstances. Leg or waist restraints shall not be used on a pregnant or postpartum inmate. In the event the correction officer determines that extraordinary circumstances exist and restraints are used, the correction officer shall fully document, in writing, the reasons that the officer determined such extraordinary circumstances existed, the kind of restraints used and the reasons those restraints were considered the least restrictive available and the most reasonable under the circumstances. A superintendent shall approve the use of any restraints used due to extraordinary circumstances either before the officer makes the determination or after the correction officer submits documentation detailing the reasons restraints were required. If the attending physician or nurse treating the pregnant inmate requests that restraints be removed for medical reasons, the correction officer shall immediately remove all restraints.
(c) Nothing in this section shall prohibit the use of hospital restraints requested by a treating physician for the medical safety of a patient.