How Can a State Agency Justify Taking Custody of a Fetus Before Birth?

Author(s): Scott Douglas Jacobsen

Publication (Outlet/Website): The Good Men Project

Publication Date (yyyy/mm/dd): 2025/03/31

Pregnancy Justice, a U.S. non-profit, defends the rights of pregnant individuals, advocating against unlawful surveillance and medical privacy violations. Staff attorney Caitlyn Garcia discussed a lawsuit against Vermont’s DCF, which unlawfully assessed A.V.’s parental capacity before birth. DCF’s actions led to A.V.’s newborn being removed, delaying reunification. The case highlights Vermont’s high-risk pregnancy docket, where medical providers share private data with DCF without consent. Garcia emphasizes the need for policy changes to ensure medical care is not weaponized, protecting parental rights and reproductive autonomy. The lawsuit seeks accountability, damages, and systemic reform against pregnancy-based surveillance.

Scott Douglas Jacobsen: Pregnancy Justice is a U.S. non-profit organization dedicated to defending the rights and dignity of pregnant individuals, regardless of pregnancy outcomes, including birth, loss, or abortion. Founded in 2001 as National Advocates for Pregnant Women, it was rebranded to its current name in 2022. Caitlyn Garcia serves as a staff attorney at Pregnancy Justice, focusing on legal advocacy and research. A 2020 graduate of Brooklyn Law School, she previously worked with Brooklyn Defender Services Family Defense Practice. Caitlyn, thank you for joining me today. I appreciate it.

Caitlyn Garcia: Thank you for having me.

Jacobsen: Regarding the lawsuit against the Vermont Department for Children and Families (DCF), what are the key legal claims in this case?

Garcia: We filed this lawsuit on behalf of our client, A.V., on January 16, 2025. To provide some background, A.V. became pregnant in 2021. She contacted LUND, a Vermont-based organization providing services to parents and families, and relocated to a shelter. While she was at the shelter, the Vermont Department for Children and Families initiated an assessment of her parental capacity, alleging that she had untreated mental health concerns.

This assessment was conducted without A.V. being notified and without any formal mental health evaluation. When A.V. was in labour at the hospital, DCF again intervened, filing a motion for temporary custody of her baby—before the baby was even born.

The motion contained inaccurate statements, raising significant legal concerns. A hearing was held, and A.V. ultimately consented to a vacuum-assisted delivery, followed by an emergency C-section. Immediately after birth, her baby was taken from her, denying her the opportunity for immediate skin-to-skin contact and early bonding.

DCF then delayed reunification between A.V. and her child despite never filing for formal termination of her parental rights. Months later, she was finally reunified with her baby after enduring the trauma of family separation.

A key issue in this case is that DCF did not have the legal authority to open an assessment before A.V.’s child was born. A fetus is not legally recognized as a child under Vermont law. Through our investigation, we uncovered DCF’s high-risk pregnancy calendar, a system used to track and surveil expecting parents, which raises serious concerns about privacy violations and overreach.

In this case, LUND and Copley Hospital shared information about A.V. with DCF without her knowledge or authorization. Our claims in the lawsuit focus on constitutional violations under Vermont state law, particularly the improper sharing of confidential medical information and the infringement of A.V.’s right to make medical decisions.

Being pregnant does not mean you lose your rights. This lawsuit seeks accountability for the violations of A.V.’s reproductive rights and the legal protections that were denied to her.

And we’re hoping to learn more about the high-risk pregnancy docket or calendar I referenced earlier through discovery and further investigation. This appears to be part of a broader pattern or practice of surveilling pregnant women—not just A.V., but other pregnant women in Vermont. Hopefully, with discovery, we will obtain more information about this aspect of the case and move forward in preventing DCF from harming parents in this way. We also aim to prevent other parents from being placed on this high-risk pregnancy docket or calendar and having their rights violated.

The complaint also includes Count 13, the first-ever legal claim based on Article 22 of the Vermont Constitution: Proposition 5, or the Reproductive Liberty Amendment. This is a significant development, as we are bringing the first case that invokes this claim. We will see how it plays out.

Jacobsen: Regarding DCF and the initial investigation, what legal authority, if any, does DCF have to assess an expectant parent’s parental capacity?

Garcia: DCF can open an assessment of parental capacity. However, as was not the case here, they are supposed to do so only when an actual, living child exists. A.V. had not yet given birth to her baby.

That was a major issue. Additionally, they are required to notify the parent. A.V. should have been informed that an assessment was being opened and that DCF was initiating an investigation. Yet, she was not notified.

Not only did they fail to inform her, but they also opened the assessment concerning a fetus. Both of these actions were improper and against Vermont law.

We are working closely with local counsel in Vermont, including the ACLU of Vermont and Sarah Starr, who are key players and well-versed in Vermont law. We are also collaborating with a law firm to ensure that A.V.’s rights are fully vindicated.

Jacobsen: What is the significance of Vermont’s Article 22? What does the Reproductive Liberty Amendment say, particularly about this case?

Garcia: Certainly. Article 22 was enacted in 2022. It is also known as Proposition 5 or the Reproductive Liberty Amendment.

Essentially, it constitutionalized Vermont’s commitment to individual reproductive autonomy. In the complaint, we quote directly from the amendment, which states that:

“An individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s life course and shall not be denied or infringed unless justified by a compelling state interest achieved by the least restrictive means.”

This provision strongly emphasizes personal autonomy. As I mentioned earlier, women and individuals do not lose their rights to personal autonomy simply because they become pregnant.

We further argue that DCF’s pattern and practice of surveilling pregnant Vermonters interferes with that reproductive liberty by placing them on the high-risk pregnancy docket or calendar. This leads to unwarranted investigations and intrusions.

Women have no way of knowing that they have been placed on the high-risk pregnancy docket or calendar. They also have no way of removing themselves from it. As a result, their reproductive rights are violated. Simply because they are pregnant, they are subjected to additional surveillance with no means of avoiding it.

Jacobsen: What evidence did DCF present in court to obtain custody of A.V.’s fetus?

Garcia: They cited the claim that A.V. had untreated mental health concerns. However, as I mentioned earlier, those claims were unsubstantiated. She was never given a mental health evaluation, which was a significant issue.

They also submitted an affidavit listing the baby’s birthdate—even though the baby had not yet been born. This meant the court was presented with incorrect information, which, in a way, misled the court by providing false details.

DCF also claimed that A.V. was “failing to push” or give birth in a manner that the hospital deemed necessary. In reality, A.V. had already agreed to a vacuum-assisted delivery and ultimately consented to a C-section. The hearing then concluded, and she gave birth via C-section.

The court relied on these claims despite concerns about the accuracy of the information and how it was obtained. LUND and the hospital provided details to DCF, raising further concerns about privacy violations.

We see this kind of coordination between hospitals, medical providers, and Child Protective Services in many other cases. Pregnancy Justice works on cases across the country, and we have observed a troubling pattern of hospitals and medical providers sharing information with CPS to surveil families and parents. This is a growing problem nationwide.

Jacobsen: What accountability measures are currently in place for DCF’s potentially illegal actions, particularly when they are overly intrusive, lack evidence, or violate an individual’s rights?

Garcia: A.V. has filed for multiple forms of legal relief.

First, she is seeking damages to compensate her for violating her rights.

Second, she requests punitive damages against DCF for its unlawful, willful, egregious, and malicious misconduct, which directly caused her harm.

Third, she is seeking an injunction, which would require DCF to stop these practices, delete all records related to A.V., including confidential counselling and medical records, and end this unlawful pattern of surveilling pregnant individuals.

Fourth, she has asked for a declaratory judgment, which would establish that DCF violated her constitutional, statutory, and common law rights and that this pattern of behaviour is unlawful.

Under the law, she is entitled to seek all these different forms of relief.

The court also has the discretion to determine what additional relief may be appropriate. As the case progresses, we hope the court will recognize the severity of these violations and grant the necessary relief to A.V. and others affected by similar actions.

Jacobsen: Regarding Vermont and the broader context of cases similar to A.V.’s under Pregnancy Justice, what are the recurring themes? Additionally, what policy changes could increase accountability for organizations acting against the best interests of individuals like A.V.? Conversely, what policies could be implemented to enhance protections for individuals like A.V.?

Garcia: Certainly. As I mentioned earlier, we are seeing hospitals and medical providers collaborate with Child Protective Services (CPS) and share information, including confidential and protected information, without proper consent. Holding both healthcare providers and agencies accountable for improperly sharing this information is essential.

We have seen hospitals drug test individuals without their consent or informed consent and then share those results with CPS, leading to family court cases and prolonged investigations—sometimes lasting 60 days or more. In these cases, ensuring informed consent is critical. Individuals need to be fully aware that they are being drug tested and that the results of these tests could be shared with CPS.

Policies holding providers accountable are necessary so pregnant individuals feel comfortable disclosing personal information. For example, suppose a pregnant person has a substance use disorder and needs treatment. In that case, they should feel safe discussing this with their healthcare provider without fear of punitive consequences.

When individuals trust their providers, they are more likely to seek help, which benefits not only the parent but also the child and the entire family. This creates a twofold solution—ensuring accountability for agencies and providers while prioritizing informed consent. Hence, individuals understand the potential consequences of disclosing sensitive information, such as undergoing a drug test or speaking with a healthcare provider, if that information is shared externally.

Jacobsen: If confidential information shared by an individual like A.V. is improperly disclosed, what are the potential safety and privacy concerns that arise? Specifically, what happens when an unsubstantiated mental health status is documented as part of the record, even without evidence? Could this have professional or long-term implications if such information is publicized?

Garcia: I’m not sure how to answer this. Of course, the availability of improperly obtained and unlawfully acquired information is always a concern.

First, suppose an individual is placed on this high-risk pregnancy docket or calendar without their knowledge and without any means to remove themselves. In that case, they cannot correct the issue. They are listed due to inaccurate or misleading information. Yet, they cannot challenge or remove themselves from that designation. That is a serious issue.

Second, A.V. did not have a mental health disorder, and she was never even evaluated. She did not undergo a full mental health assessment, which makes DCF’s claims even more problematic. Suppose authorities assert that an individual has a condition without scientific evidence or proper evaluation. In that case, it can lead to long-term legal and personal consequences.

This misinformation ultimately ends up in the court’s hands, and the court relies on the information provided to make decisions. It is critical that courts receive accurate and verified information and that individuals have a fair opportunity to correct false records.

I cannot say more at this stage, but we hope to learn more about the high-risk pregnancy docket or calendar through the discovery process. Specifically, we need to answer:

• Who is on that docket?
• How long are individuals kept on it?
• What criteria are used to place them there?

These are critical questions that need answers.

Jacobsen: How does this Vermont case compare to similar cases across the United States? While there are common themes, different states and cities have varying levels of protection. Do any states or cities have better or worse policies regarding these issues?

Garcia: Certainly. We are seeing a consistent pattern across states—hospitals and medical providers collaborating with Child Protective Services (CPS), conducting unauthorized testing, and reporting unverified mental health claims about individuals.

Vermont has strong legal protections, which help pursue justice for A.V. However, even in states that are generally considered more protective—such as New York—we still see hospitals conducting unauthorized testing, reporting patients without consent, and engaging in discriminatory practices against pregnant individuals.

Because we handle cases across multiple states, Pregnancy Justice has observed national patterns. I work on cases in Alabama, Mississippi, North Carolina, South Carolina, Vermont, and New York so that I can speak to the differences in legal landscapes across these regions.

We have also discussed our Fetal Personhood Report and Pregnancy Criminalization Report, which highlight these broader systemic issues.

A key concern in A.V.’s case is fetal personhood—her baby had not yet been born, yet DCF attempted to gain custody of the fetus before birth. That is a serious legal and human rights issue.

You probably already have this report—you might have seen this chart before. We may have discussed it previously, but in our latest report, Pregnancy as a Crime, on page 19, there is a chart titled “The Role of the Family Policing System,” which is what we call child welfare in pregnancy-related prosecutions.

But there is a chart titled “The Role of the Family Policing System.” It highlights how many of these cases—although they are criminal, and A.V.’s case was not—underscore how information obtained in the medical system is often used.

It illustrates the critical role that medical providers and child welfare agencies play in these prosecutions. This is the broader issue Caitlyn was referring to—while we may not have many cases with the same fact pattern as A.V.’s, this situation indicates a systemic issue.

Medical settings are increasingly being co-opted—patients’ private medical information is being obtained and used to build cases against them, often in coordination with child welfare agencies.

Jacobsen: I just read the page now. These 210 files—these are from across the United States?

Garcia: Correct. Cases like these are not uncommon, and they often involve the same elements.

Jacobsen: What argument can they make against this? You are citing government sources—citation 59 is the White House. What are the big takeaways, Caitlyn, as we wrap up?

Garcia: The big takeaways are to hold agencies and providers accountable for sharing confidential and unlawfully obtained information.

We must also protect the rights of pregnant individuals, and states need to review their laws to understand how they are used. Even in Vermont, where the laws are strong, DCF still works unlawfully with outside organizations.

Both providers and DCF must be held accountable for their actions. This ties into the broader issue of separating medical treatment and care from punishment.

A.V. went to the hospital expecting medical care and compassionate treatment—not to have her rights violated. We must ensure that care is not weaponized as a tool for punishment.

Some people forget that both the family policing system and the criminal legal system exist. These systems often work together, and even though A.V. did not face criminal charges, she was still subjected to family court proceedings.

These systems frequently overlap, punishing parents both criminally and civilly, which increases the harm and stress they experience. It is important to recognize how extensive these harms are and to separate medical care from legal punishment.

A.V. should have experienced the joy of having her first baby, with crucial moments like skin-to-skin contact and bonding—essential in a child’s early life. Instead, she was robbed of those experiences.

You cannot get those moments back. While this case is about A.V.’s rights, it will impact all pregnant women in Vermont because of the discovery process and the broader claims against DCF for surveilling pregnant Vermonters.

I hope this case sends a message to other states. As we move forward with discovery, I hope other states recognize this as a serious issue and take steps to prevent similar violations.

This case should guide agencies, making them realize that this kind of surveillance must end here.

Jacobsen: Caitlyn, thank you for your time.

Garcia: Awesome.

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