'Obstetric Violence and the Law': British Academy Postdoctoral Research Fellow Camilla Pickles
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Obstetric violence is a global issue which is experienced by pregnant and birthing people in developed and developing countries. Also, it is found to take place in public and private health care facilities. Obstetric violence concerns disrespectful, abusive and coercive treatment of pregnant and birthing people during obstetric care and results in a violation of their autonomy, human rights and sexual and reproductive health. Some examples of obstetric violence include medical neglect, verbal and physical abuse, humiliation, shouting, scolding, threatening, and crude and aggressive attacks on women’s sexuality. At times this conduct is intentionally employed to assert authority, remove agency and cast shame on women. Performing procedures without informed consent, with coerced consent, or enforcing procedures by an order of court are also deemed examples of obstetric violence. Procedures that have been identified as forms of obstetric violence are those that are imposed on women as routine (without having any scientific foundation) and without informed consent. These include unnecessary caesarean-section deliveries and episiotomies, manual revision of women’s uterine cavities without pain relief, inserting long-term birth control mechanisms directly after birth, collective vaginal examinations for training purposes, restraining women to the delivery table, and forced or coerced sterilisations. Obstetric violence is characterised as a form of gender-based violence and is recognised as taking place an individual and/or structural level.
The issue of obstetric violence has not gone unnoticed. Health care providers, scholars, activists, and organisations within the reproductive health care sector are the primary commentators on disrespectful and abusive care. They have mobilised to advocate against obstetric violence and adopted a health-systems approach to the issue by releasing international, regional and domestic health care guidelines, policies, recommendations or protocols directed towards ensuring respectful, evidence-based and patient-centred obstetric care. Some argue that the hierarchical nature of health care relationships demands restructuring, they advocate for accountability within the maternity or reproductive health care industry, and call for improved training and resource allocations for facilities. The majority of the recommendations adopt a human rights framework to justify calls for increased protection from disrespectful and abusive obstetric care. However, it is noteworthy that obstetric care guidelines, policies and recommendations are not binding in law and this demonstrates the limitation of a health-systems approach to the issue of obstetric violence. How can compliance be enforced? How can individual and state accountability take place in cases of noncompliance?
To this end, the application of the law in relation to obstetric violence, as a specific form of violence, has not been fully explored or meaningfully developed. There are very few legal perspectives on obstetric violence despite its worldwide prevalence. Those which are available generally originate from Argentina, Mexico and Venezuela and are primarily in Spanish. Existing Latin American obstetric violence legislation tend to be limited to obstetric care during childbirth. Further, the provisions do not obligate states to improve the allocation of resources and the provisions do not provide enforcement mechanisms for those instances where states fail to act in relation to the incidence of obstetric violence. Most of the harms perpetrated against birthing and pregnant people constitute crimes in common law jurisdictions but there are no readily available cases holding abusive health care providers responsible. There are few cases holding states accountable for resource deficient and suboptimum facilities. Obstetric violence is a grave violation yet the law remains unresponsive.
There is a clear gap between medicine, the law and pregnant and birthing people’s human rights. The law is not responding to the lived realities of obstetric care providers and obstetric patients. Further, the law and obstetric practice with its guidelines, protocols and recommendations are out of sync. As long as this gap continues, there will be a lack of accountability and pregnant and birthing women’s rights will be vulnerable to continued violation.
The law relevant to pregnancy, childbirth and obstetric care must be developed and this research project seeks to achieve this end. It considers the scope of the term ‘obstetric violence’ and it questions its suitability as a legal expression of abusive and disrespectful treatment during pregnancy and birth. The research project considers what legal mechanisms are available in civil, criminal, constitutional and human rights law in domestic, regional and international spheres to address instances of obstetric violence and questions whether these mechanisms will adequately address obstetric violence or offer any recourse to victims. Linked to this, the project examines the effectiveness of existing obstetric violence legislation and questions whether these enactments are effective in overcoming obstetric violence. Ultimately, the project will determine how the law can be used to meaningfully address obstetric violence thus providing a legal framework to ensure respect towards pregnant and birthing people and individual and state accountability.