A lawsuit filed this week accuses Vermont’s child welfare agency of using baseless allegations about a pregnant woman’s mental health to secretly investigate her and win custody of her daughter before the baby’s birth.

The ACLU of Vermont and Pregnancy Justice, a national advocacy group, filed the lawsuit on Wednesday against the Vermont Department for Children and Families, a counseling center and the hospital where the woman gave birth in February 2022.

In the lawsuit, the state also faces accusations that it routinely tracks pregnant women deemed unsuitable to be mothers.

The lawsuit asks for unspecified monetary damages for the woman, who is identified only by her initials, A.V., and an end to what it describes as an illegal surveillance program.

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The director of a homeless shelter where A.V. stayed in January 2022 told the child welfare agency that she appeared to have untreated paranoia, dissociative behaviors and PTSD, according to the lawsuit. The state began investigating and eventually spoke to the woman’s counselor, midwife and a hospital social worker without her knowledge, even though it had no jurisdiction over fetuses.

The woman remained unaware of the probe until she gave birth and her daughter was immediately taken away, according to ACLU senior staff attorney Harrison Stark.

A.V. had no knowledge that hospital officials were giving updates to the state while she was in labor, including details of her cervix dilation, and that she had lost temporary custody of her baby. The state even sought a court order forcing the woman to undergo a cesarean section, although it was rendered moot because she agreed to the surgery.

The woman was not able to win full custody of her child until seven months later.

“It’s a horrific set of circumstances for our client,” Stark said. “It’s also clear from what has happened that this is not the first time the agency has done this. We have learned from several confidential sources that DCF has a pattern and practice of looking into folks like our client who are pregnant, who are of interest to the agency based on a set of unofficial criteria and who the agency is tracking on what is called a ‘high risk pregnancy docket’ or ‘high risk pregnancy calendar.’”

Department for Children and Families commissioner Chris Winter said the agency will not comment until officials have reviewed the lawsuit and investigated its accusations.

“We take our mission of protecting children and supporting families seriously and work hard to balance the safety and well-being of children with the rights of parents,” he said.

Officials at Lund counseling center, which was named as a defendant, said they learned of the allegations from news reports.

The ACLU of Vermont and Pregnancy Justice filed the lawsuit on Wednesday against the Vermont Department for Children and Families, a counseling center and the hospital where the woman gave birth. (Getty Images )

“We take these matters very seriously and we are actively working to gather more information to understand the situation fully,” interim CEO Ken Schatz said.

Copley Hospital has not commented on the lawsuit.

Several states across the country allow the civil commitment of pregnant women to take custody of a newborn, Pregnancy Justice senior staff attorney Kulsoom Ijaz said. However, it is unclear how common these situations are in the U.S.

Ijaz said what happened to A.V. shows how pregnancy is increasingly used as a justification to block people’s rights.

The organization released a report in September detailing an increase in women being charged with pregnancy-related crimes in the year after the U.S. Supreme Court overturned Roe v. Wade, allowing states to make their own laws regarding abortion. Most of those cases, in which the baby was listed as the victim, included women charged with child abuse, neglect or endangerment over allegations of substance use during pregnancy.

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This photograph shows the logo of the American Civil Liberties Union. (KAREN BLEIER/AFP via Getty Images)

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“What DCF did here is incredibly cruel,” Ijaz said. “It’s discriminatory. Its state sanctioned surveillance and stalking, and it violates Vermont’s newly enshrined right to reproductive autonomy in its state constitution. This is an opportunity for Vermont to signal to other states, as a leader, and say that these rights don’t just exist on paper. They exist in practice, too.”

Stark said the allegations in Vermont are particularly troubling since the state has described itself as a haven for reproductive rights.

“To discover evidence that a state agency is essentially colluding with certain medical providers to collect information without folks’ knowledge or consent and expanding its jurisdiction unlawfully to investigate folks based on what are essentially decisions about their own reproductive health is incredibly alarming,” he said.

The Associated Press contributed to this report.

The Office of Professional Regulation wants to create a new certification process for doulas as the state inches closer towards qualifying doula services for coverage under Medicaid, the federal low-income health insurance program.

Doulas are non-medical professionals who provide support during pregnancy and childbirth, as well as in postpartum care.

About half the states, and Washington D.C., already allow Medicaid coverage for doula care or are in the process of making the change.

And as support grows in Vermont to establish rules for Medicaid reimbursement for doulas, the state wants to set up a certification program to better regulate the practice.

“Essentially, across the country, doulas have never been regulated in any kind of overarching way. There’s no accreditation that’s codified,” said Sarah Teel, a doula who lives in the town of Washington and is a founder of the Doula Association of Vermont. “It’s a non-clinical role. We’re not part of the health care system, and so it hasn’t been a regulated profession.”

But as more states have recognized the advantages of qualifying doulas for Medicaid, which would open up the services to more low-income individuals, Teel said there needs to be some oversight of the profession.

“What has happened over the years with many, many states coming on board and implementing Medicaid coverage is there obviously needs to be some mechanism for the state Medicaid agency to have the assurance that this is a Medicaid provider that can meet the needs of the Medicaid population,” Teel said.

A 2022 report from the U.S. Department of Health and Human Services found that labor support offered by doulas significantly decreased the likelihood of cesarean delivery and reduced the need for epidural analgesia.

Vermont lawmakers last year asked the Office of Professional Regulation to look into the most appropriate way to regulate the industry, as the state contemplates qualifying doula services for Medicaid.

OPR was looking for the “least restrictive” form of regulation, according to a recent report, and it does not recommend registration or licensure at this time.

In the end, the office settled on a voluntary certification of what it calls “community-based perinatal doulas,” which are doulas who “provide doula services to under-resourced and marginalized populations at low- or no-cost, most often through community-based agencies.”

Marti Churchill is a certified nurse midwife, and founder of the volunteer doula program at UVM Medical Center.

Churchill’s program provides free doula care to patients who don’t have the ability to pay for the service.

She said data across the country show that people from low-income backgrounds suffer more complications during pregnancy, and at the same time those populations have trouble accessing doula care.

So opening up Medicaid coverage, Churchill said, would benefit those who most need the service.

“In the rest of the world of medical care if it were a medicine or a pill it would be definitely recommended and prescribed regularly,” Churchill said. “So this is something that’s really needed.”

“We work with doulas all the time during labor and delivery,” said Bronwyn Kenny, an OB-GYN at the University of Vermont Medical Center and a member of the Vermont Medical Society. “We’re not entirely sure how or why it works, but there’s really good evidence that it does reduce things like C-section rates and postpartum depression in other states that have started to cover doula services under Medicaid.”

The Office of Professional Regulation will work with stakeholders to determine the most appropriate certification requirements.

The office also said it will stay in contact with the Department of Vermont Health Access to make sure the new certification program aligns with federal Medicaid requirements.

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