Slow but Steady: Is the Istanbul Convention the Key to Tackling Obstetric Violence in the UK?
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On 21st July 2022, the United Kingdom officially ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, also known as the Istanbul Convention. This came into force on 1st November 2022. The United Kingdom is the 37th state to ratify the Convention. In light of the recent Ockenden and Kirkup reports highlighting the systemic abuse of women and preventable maternal injuries and fatalities (termed Obstetric Violence) in United Kingdom maternity wards, this blog will argue that despite certain worrying gaps, the Istanbul Convention could be used by activists as an new tool for demanding change within the clinical context and a way to legally hold the state accountable for systemic abuses which will, ultimately, prevent this form of violence against women.
The use of the term ‘violence’ when describing the systemic harm within maternity care is controversial. Medical professionals in particular resist the term, arguing that the nature of their profession is to heal, rather than maliciously harm women. Using the term ‘violence’ to describe medical practices could therefore damage the morale of an already overworked and underfunded group of individuals. Yet qualitative studies show that many women do experience harm which meets the threshold of ‘violence’, despite medical professionals believing the procedure to be routine. Therefore I argue that obstetric violence deserves to be situated, and rely upon the mechanisms and language of, the violence against women movement. The term is undoubtedly inflammatory, yet I do not employ it with medical professionals in mind but because it focuses on the lived experiences of victims. The term is a form of ‘epistemic rupture’, which is necessarily radical and deliberately associated with shocking imagery in order to highlight the seriousness of this lesser known area of abuse. Ultimately, once we accept that this form of systemic harm belongs within the violence against women movement, the Istanbul Convention could then be an exceptionally valuable tool to hold the state to account for these systemic abuses.
The Istanbul Convention
The Istanbul Convention is a human rights treaty created by the Council of Europe, which became effective in 2014. The Convention aims to ‘protect women from all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence’ (Article 1§1a). Violence against women is, by the Convention’s definition, a form of discrimination, grounded in historical patriarchal influences, and its aim is thus to put pressure on states to take active steps to eliminate all forms of discrimination against women and to promote substantive equality between men and women.
The Convention is one of three prominent, binding regional documents on the elimination of violence against women, alongside the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará).
A Step in the Right Direction
Ratification of the Istanbul Convention is an important step towards combatting Obstetric Violence for two reasons. Firstly, it explicitly codifies some of the most important non-binding statements from the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) General Recommendations 19 and 24 and secondly, it explicitly recognises for the first time the innate links between structural violence and gender.
At an international level, there is no legally binding instrument designed to tackle violence against women. Instead, there are a number of ‘soft laws’ such as the United Nations’ Declaration on the Elimination of Violence against Women. The UN CEDAW Committee focuses on ensuring substantive equality is realised between men and women. They have made some limited attempts to combat obstetric violence, which have caused some to argue that the CEDAW Committee has now built the groundwork to effectively deal with this subject matter. However the CEDAW Committee’s recent interventions are not only rare, but limited, due to the lack of explicit definition of violence within the Convention. Instead the Committee could only describe obstetric violence as facility-based violence against women. The UN CEDAW Committee has also, thus far, failed to release further guidance on the parameters of obstetric violence in the form of a general recommendation. Thus, under its current formulation, CEDAW is unable to explicitly outline the boundaries of actionable claims of violence.
Without a universal convention, the Istanbul Convention is currently one of only three regional documents which explicitly defines what should be viewed as legally actionable, violent acts against women, and which allows activists to bring claims against the state when they fail in their obligations to prevent this. This is an important step forward, and is reflective of the recommendations made in the Final Activity Report of the Council of Europe Task Force, which suggested that legally non-binding recommendations did not have the appropriate force to spark change. Indeed, many of the themes codified within the Istanbul Convention are already visible in CEDAW’s General Recommendations 19 and 24 (such as the requirement put upon state Parties to take all necessary legislative and other measures to promote and protect the right for women to live free from violence in both the public and the private sphere). The Istanbul Convention therefore equips activists with the tools to demand tangible change by setting clear markers for when states have, or have not, adhered to their obligations under international law.
The Linking of Structural Violence and Gender
A second important aspect of the Istanbul Convention is that it makes direct links between hidden (structural) violence and gender. Violence against women often has a structural element, where policies reflect deeply imbedded social mechanisms, designed to keep women in a subordinate position. Alongside explicit reference to this within the preamble, the Istanbul Convention is also the first treaty to apply a gender perspective to the design and evaluation of the impact of measures taken by state parties to implement more equal frameworks. This requires parties to consider how inequalities within patriarchal society might mean that policies are ineffective to combat experiences of violence. Links between gender and structural violence are incredibly important within the obstetric context, where the female body has been historically under-researched, leading to a number of hidden barriers to accessing appropriate treatment.
In contrast, prior responses to obstetric violence have failed to recognise the links between structural violence and gender. Instead, by using the gender-neutral ‘right to health’ without this necessary gendered slant, remedies have often been ineffective.
Treatment Action Campaign (No 2) is, ostensibly, one of the most progressive human rights cases in which maternal health issues have been explored. In this case, the South African government had refused to provide nevirapine to pregnant mothers living with HIV/AIDS to prevent transmission of the disease to their newborns. Whilst the Constitutional Court found that there had been a breach of the right to health under s 27 of the South African Constitution, it did little to examine the reproductive autonomy of the pregnant women. Instead, the largest focus of this case was on the government’s unjustifiable decision to restrict the medication when the company producing it had offered it to them for free. Albertyn criticises the case for rendering the subjectivity of women invisible. Whilst a strategic move on behalf of the public interest campaign group, who used a ‘save the babies’ campaign in order to win judicial sympathy, there was little focus on the decisional autonomy of women, who, by virtue of the lack of focus on female-health, were indirectly stigmatised as merely ‘vessels of reproduction’ instead of being treated as citizens with self-standing rights. In her feminist reimagining of the case decision, Albertyn suggests that the court should have begun with a ‘recognition of the gendered and intersectional nature of the HIV epidemic and the manner in which women’s decision-making is contextual, relational and constrained.’ Viewing this case through the lens of the gender-neutral human right to health had the effect of stripping any remedies of their efficacy for combatting the underlying issue of discrimination.
In another blog article, I have made similar criticisms of the Ockenden report. I argue that the action plan proposed within the report makes little effort to combat cultural stereotypes of women’s roles. Firstly, the report does not examine the need to enhance woman-led care. Indeed, the report does little to explicitly tackle important issues such as epistemic injustice, where women’s reports of their experiences of pain are not believed, nor taken seriously. Secondly, it makes no attempt to examine how stereotypical attitudes towards women manifest in intersectional discrimination, despite the latest CQC report finding that black women are still four times more likely to die during child birth than white women. It is hard to believe that this statistic is entirely disconnected from studies which show that medical professionals continue to believe racist myths that black women require less pain medication than white women because they have ‘thicker skin’ and ‘less sensitive nerve endings’.
This is not to say that obstetric violence it is not a public health problem. But it is a necessarily gendered health problem and an extreme form of discrimination against women. The Istanbul Convention makes the important step of recognising how violence is perpetuated against women, because they are women. Policies which allow violence to continue are often deeply imbedded with society, to the point that they are often overlooked. Therefore, the Convention could encourage a more gendered approach to examining how structures can facilitate violent practices within the medical context.
A Potential ‘Misstep’?
As noted by the UN Special Rapporteur on violence against women, Rashida Manjoo, despite the positives of the Istanbul Convention, these documents also come with limitations. For instance, when considering how the Istanbul Convention could be used to combat obstetric violence, it is argued that the definition of violence against women is limiting.
The Definition of Violence
The Istanbul Convention does not explicitly reference obstetric violence. However, it does define violence against women as follows:
‘“[V]iolence against women” is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life[.]’ (Article 3a, emphasis added by author.)
This definition could therefore be used to combat the specific harm of obstetric violence. For instance, the requirement that the act ‘results in, or [is] likely to result in’ is helpful. It is victim-centric and does not require women to conform to some pre-defined notion of what a victim of violence must look like in order to satisfy the definition. A similar issue was found in US sexual harassment law, where the test for a violation of Title VII was changed in Harris v Forklift Systems to reflect the fact that women did not need to experience a ‘nervous breakdown’ in order for there to be a recognition of the harm that had been committed. Instead, it is enough if, objectively, the act could result in harm.
However, the main concern with this definition is the use of the term ‘act’, which limits the Istanbul Convention’s capacity to be used effectively in the obstetric context. Whilst acts of violence do occur within the medical setting, focusing merely on acts excludes other forms of violence. Omissions, such as the delayed deprivation of pain relief or lack of consistent compassionate care can be at least as damaging for women, if not more so in some cases. Equally, structural issues, such as a lack of privacy or space for birth partners to be present would be missed under this definition. All of these aspects could be encompassed under the broad definition of violence used within the violence against women movement, and yet are lost within the Istanbul Convention’s definition.
Despite the difficulties outlined with the Istanbul Convention, it is undeniable that the UK ratification is an important step towards combating violence against women. Through this Convention, direct obligations are placed on the state to take positive steps to effectively tackle systemic abuses. Whilst its full implications are currently unclear, it is hoped that the Istanbul Convention will be utilised in such a way as to take positive steps to combat obstetric violence, even if the current definition means that some forms of violence will be missed. The ratification of the Istanbul Convention should, therefore, be viewed as a slow, but steady, step towards the effective tackling of obstetric violence.