Reflections on obstetric violence and the law: What remains to be done for women’s rights in childbirth?

Pregnancy and childbirth can be a time of celebration but for many women it can signal a time of suffering, humiliation, objectification, and trauma.

Bohren et al: 'By slapping their laps, the patient will know truly that you care for her.'

Reed et al: 'She said she wanted to do one more cervical check. I consented and when she did it, she grabbed my cervix and pinched it. She would not let go until I consented to letting her break my water. I was in tears from the pain, screaming, begging and sobbing for her to let go and get her hand out of my vagina. She would not let go until I consented, which I finally did.'

d’Oliveira et al: 'Shut your mouth! Stop yelling and push! You knew what you were doing when you had sex, and now you see the result you’re going to cry?'

Obstetric violence is a world-wide phenomenon. It is a form of gender-based violence which occurs during facility-based obstetric care. Women’s Global Network for Reproductive Rights recognise that obstetric violence can take various forms which include denying care, disregarding women’s needs and pain, verbal abuse, physical violence, unnecessary use of medication, forced or coerced medical interventions, and dehumanised and rude treatment.

The central role of human rights in childbirth is widely recognised by activists and organisations including the White Ribbon Alliance, Human Rights in Childbirth and the World Health Organization. Human rights relevant to the fight against obstetric violence include the rights to equality, privacy, dignity, to information and to be free from degrading and inhuman treatment. Human rights function as a tool in the campaign for state accountability in relation to access to appropriate reproductive health care and support demands for women-centred, quality obstetric care founded on respect for autonomy and equality. Therefore, it is not surprising that women’s rights serve as the basis for legislation introduced in Venezuela, Argentina and Mexico which seeks to protect women from instances of obstetric violence, among other forms of gender-based violence.

Obstetric violence is clearly a violation of women’s human rights, but recognising this is not enough. Farah Diaz-Tello highlights that, at times, rights do not translate into remedies. This is evident from experiences in the United States, Czech Republic and Spain where civil and criminal actions founded on obstetric violence have failed. In fact, even obstetric violence legislation in Argentina, Venezuela and Mexico have not been applied to support women’s rights. Diaz-Tello warns 'having a theoretical cause of action is not justice, and many women who have endured serious mistreatment find themselves barred from the courthouse door.' A leading issue is the fact that those in the position to protect and promote access to justice are themselves influenced by the very prejudices that give rise to obstetric violence: medical authority and harmful and discriminatory gender stereotyping of women.

Effective legal mechanisms are important to secure individual accountability and compensation for affected individuals, especially in cases of intentional conduct. However, there are shortcomings to this approach to obstetric violence. States can use the perpetrator/victim narrative to disguise their own failures and avoid accountability. For instance, in South Africa health care providers, faced with an emergency, performed a caesarean-section delivery in a ward instead of in theatre and both the patient and her child died. The Health Minister laid criminal charges against the doctors and effectively shifted attention from the fact that the South African health care system is extremely under-resourced and there are concerning delays in emergency obstetric referrals. Rogelio D’Gregorio raises the same concerns in relation to Venezuelan obstetric violence legislation. The Act penalises individual health personnel for failing to provide emergency obstetric care which, in effect, invisiblises the state’s role in relation to the harms imposed during obstetric care.

Joanna Erdman points out that structural injustices that sustain conditions for obstetric violence will be overlooked if we continue to narrow our focus on individual experiences of obstetric violence. By focusing on the structural dimensions of obstetric violence we can interrogate broader social and cultural dimensions of this form of violence against women and develop adequate interventions to address inadequate resource allocations, poor working conditions, harmful gender norms, problematic power relations within the health care environment and inadequate training programs for health care providers.

Obstetric violence is pervasive and increasingly recognised as being different from other forms of medical violence in terms of the way it is inflicted and the harms it causes. Therefore, the issue may require uniquely devised legal responses which overcome bias to medical authority, harmful gender norms and, depending on the circumstances, offer individual, institutional or state accountability. It is necessary to move beyond merely recognising women’s rights within the context of childbirth and explore the role of the law in facilitating lived experiences of those rights.