Season 3 of Orange is the New Black is (almost) here! While creator Jenji Kohan and the whole cast have been pretty tight-lipped about what we can expect this season, which starts streaming on Netflix this Friday, we do know that one of the themes is motherhood. This season, Dayanara Diaz (Dascha Polanco) is going to have her baby while she’s still in jail.
Pregnancy behind bars actually isn’t uncommon in the United States. Most of the time, though, people enter prison already pregnant instead of becoming pregnant after they’re incarcerated. The latter has happened, though it’s usually not the result of a swoon-y romance like Daya and guard John Bennett’s (Matt McGorry) relationship. The Bureau of Justice found that nearly 3 percent of women entering federal prison are pregnant upon arrival. That number jumps to 4 percent for people in state prisons and 5 percent for those in local jails. While Kohan has stated that this season will be lighter than the last, real-life pregnancy behind bars isn’t fluffy stuff.
Here are five things to keep in mind while watching what unfolds with Daya, Bennett, and their baby.
1. Giving birth in shackles and chains is still a reality.
At the end of the second season, Officer Caputo (Nick Sandow), in his new role as assistant to the warden, threatens to send Daya to a higher-security prison to give birth in shackles and chains. Shackling, as I’ve described in previous articles, is the practice of restraining a person with handcuffs, a waist chain, and ankle cuffs. If you’ve ever seen old movies of a chain gang, that’s what shackling looks like. And yes, this happens to pregnant women too.
Legally speaking, Caputo’s threat is an empty one. In 2008, the Federal Bureau of Prisons revised its policy to ban shackling during labor, delivery, and postpartum recovery except under extreme circumstances. In addition, 21 states have legislation limiting or prohibiting shackling during labor. But, as advocates in Massachusetts and New York have found, laws aren’t always followed. Reproductive justice advocate and fellow Bitch writer Rachel Roth recently noted that, in the year since Massachusetts passed its law, women are still shackled on their way to the hospital. The Correctional Association of New York, a prison watchdog group, found that women are routinely shackled during pregnancy and, despite the 2009 anti-shackling legislation, during labor, delivery, and postpartum recovery.
So just because shackling is illegal doesn’t mean it doesn’t happen.
2. Medical care for pregnant people is not good.
Even after prison officials learned about Daya’s pregnancy, she doesn’t have any appointments with a doctor. Sadly, medical neglect is more common than not behind bars. It may take a pregnant woman several weeks, if not months, before she sees a doctor. Sometimes prison procedures make seeking medical care challenging—one pregnant woman recalled having to wait for hours on a narrow bench, which she described as a plank, in a small holding cell before she could see the doctor. She often gave up and forfeited her appointment when the pain and discomfort became too great. Only when she began bleeding was she rushed to the jail’s clinic and then to an outside hospital for treatment. In some prisons, there is only one ob-gyn for hundreds of women, meaning long waits and the potential to overlook problems.
3. “Should you be carrying that?”
Once prison administrators learn about Daya’s pregnancy, aside from the lack of medical care, they express their concern for her delicate state. “Should you be carrying that?” Caputo asks Daya as she carries a large tray of food from the kitchen to the cafeteria.
In real life, aside from being assigned a bottom bunk and getting a pregnancy snack, most jails and prisons don’t give any special treatment for pregnancy. Women may be housed on upper floors and are given the same amount of time to get up and down the stairs as their non-pregnant counterparts. In some prisons, they’re not allowed to work certain jobs; in others, they’re still assigned heavy manual labor. Even after giving birth, they are expected to continue working their assigned jobs, which can be heavy cleaning (such as buffing floors) with exposure to toxic chemicals.
4. Moms in prison only see their babies for a day or two.
In most jails and prisons, new mothers get to spend 24 to 48 hours with their babies in the hospital. If they’re lucky, they get to keep their newborns with them in the same room. In some cases, they’re kept in the hospital’s prison wing while the babies go to the hospital nursery, drastically limiting the amount of time the two can spend together. Once those 24 to 48 hours are up, it’s usually time to say goodbye with mom being taken back to the jail or prison and the baby being picked up by family members, friends or, if no one is available to take the baby, foster care.
5. Women who are serving longer terms are often forced to give up their kids.
In 1997, President Bill Clinton signed into law the federal Adoption and Safe Families Act (ASFA). Under ASFA, if a child has spent 15 of the past 22 months in foster care, the state must begin procedures to terminate parental rights. This termination means that the parent no longer has any right to know where her child is or to communicate with that child. When ASFA was passed, only Nebraska and New Mexico contained exceptions for incarcerated parents. But in the 48 other states, once the child entered foster care, the clock started ticking. In addition, given the gendered way parenting works in our society, children of incarcerated mothers are five times more likely than children of incarcerated fathers to end up in foster care.
In 2010, New York passed the ASFA Expanded Discretion bill, which gave family court judges and foster care workers the discretion to not terminate parental rights if a parent was incarcerated or in drug treatment. In 2013, Washington state passed the Children of Incarcerated Parents bill, which allows the courts to delay termination if incarceration is the reason for the child’s continued foster care placement. Given that Daya’s mother is in prison alongside her and that Bennett would face his own prison sentence if he ‘fesses up to fatherhood, we may see foster care mentioned in this season.