Should a Woman Be Shackled While Giving Birth? Most States Think So

Calif. restricts shackling, but the practice persists in most states.

October 9, 2012, 4:54 PM

Oct. 10 2012—, 2012 -- In 33 states across the country, pregnant inmates, including women being held exclusively for immigration-related offenses, can be shackled to their hospital beds during the birthing process.

On September 28, that changed in California. Under a new law, jails will no longer be allowed to use "leg irons, waist chains and handcuffs behind the body" on women during labor, delivery or recovery.

"Pregnant women are the most vulnerable and the least threatening in the prison system and should rarely, if ever, be restrained," Alicia M. Walters, a reproductive justice advocate with the American Civil Liberties Union (ACLU) of Northern California, wrote after the news.

The state's decision is noteworthy in part because it highlights harsh prison conditions for pregnant mothers in the rest of the United States.

While states like Illinois, Texas, Vermont and Colorado also have laws that discourage the practice of shackling female inmates during labor, most states still don't have such regulations on the books. Even in Illinois, where anti-shackling laws are in place, a class-action lawsuit filed by 80 female inmates earlier this year alleged that they were restrained while giving birth and recovering. The women were ultimately granted a $4.1 million settlement from Cook County Jail.

While women's rights advocates want to see shackled childbirth abolished across the board, cases involving immigrant detainees are particularly controversial, since some detainees haven't committed any crime beyond being in the country without status, or crossing the border without authorization.

In particular, jails in Maricopa County, Arizona, have garnered media attention in recent years for their treatment of undocumented pregnant women. Two of the highest profile cases of shackling occurred in the district overseen by the controversial Sheriff Joe Arpaio, who calls himself "America's Toughest Sheriff."

"It doesn't surprise me that these cases have gotten a lot of media attention. A lot of organizations are watching that county closely because of Sheriff Joe," the ACLU's Walters said. "There are a lot of really questionable practices out there, especially when it comes to women of color."

Two mothers, Miriam Mendiola-Martinez and Alma Chacon, said that they faced cruel treatment when they gave birth as inmates at Maricopa jails. Both women, who were in jail for immigration-related offenses, say that they were shackled to their hospital beds with a leg restraint before and after they gave birth, without their husbands and in the presence of a prison guard. Chacon says that she was restrained even as she gave birth.

Mothers in some jails are permitted ongoing access to their newborns in the days and months after they've given birth, but both Mendiola-Martinez and Chacon say they that was not the case for them. The Maricopa County Sheriff's Office did not respond to a request for comment regarding their policy on mothers holding their newborns.

Late last year, Miriam Mendiola-Martinez filed a federal suit against Arpaio, as well as as the officers, doctors and nurses involved in the 2009 incident. The case has not yet been resolved, but earlier this year a law was passed in Arizona prohibiting some of the harsher forms of shackling during labor.

In the state of Arizona, pregnant inmates are still cuffed to their beds and wheelchairs by "soft restraints," according to John J. MacIntyre, deputy chief of the Maricopa County Sheriff's Office. "Soft restraints" signify the use of handcuffs and ankle cuffs with pregnant women, rather than leg irons or waist chains.

All pregnant inmates, regardless of the severity of their offenses, are handcuffed to wheelchairs on their way to the hospital, and are restrained to hospital beds with an ankle bracelet and a "long chain," before and after they give birth, MacIntyre said. He says that Chacon's allegations that she was chained during her birth were untrue. The deputy chief insisted that these precautions are taken because inmates give birth in hospitals that are open to the public and not fortified against escapees in the same way jails and prisons are. He also noted that some inmates do indeed pose risk for escape, and still others, as individuals behind bars, may be violent or dangerous.

But many advocates, including doctors and nurses, say that shackling women at any stage of their pregnancy is damaging to the health of the mothers and the health of their babies. The American Medical Association deemed the practice to be unsafe, "medically hazardous," and "barbaric," in a resolution from 2010.

Malika Saar, an advocate who heads an anti-shackling coalition with The Rebecca Project for Human Rights, believes state law should also take into account the circumstances under which pregnant inmates were put behind bars.

Federal prisons and Immigration and Customs Enforcement (ICE) do not shackle pregnant inmates during the birthing process. However, if a woman goes into labor while placed on a so-called immigration "detainer," a period in which ICE asks local authorities to hold inmates for possible deportation, she will be subject to shackling policies of the local authorities, which vary state-by-state. For those jailed for immigration offenses, the treatment seems particularly extreme, Saar said.

"These mothers are not prosecuted criminals, but simply mothers detained for lack of documentation," she said in an interview with The Huffington Post.

Last year, comedian and immigration reform advocate Stephen Colbert drew attention to the practice of restraining undocumented pregnant women in a segment he called "Labor Chains." Colbert joked that if Americans are to resolve the immigration problem, they must look inside themselves and "scoop out any vestige of human kindness -- especially when it comes to pregnant women."