How To Solve A Problem Like Obstetric Violence: Childbirth, Women’s Autonomy, and the Patriarchy
Posted on 11 Nov 2021 by Emily Girvan-dutton
Disclaimer: The views expressed below are that of the individual author.
Obstetric violence can be defined as the mistreatment of pregnant women and girls during labour by medical staff.
Such treatment may manifest as physical harm, such as the performance of unnecessary procedures or physically restraining the pregnant woman during labour. But obstetric violence can also appear as the violation of a labouring woman’s autonomy. Ignoring her refusals, undermining her embodied knowledge of her own birthing body, dehumanisation of the woman by medical personnel viewing her as little more than an instrument of reproduction, are a few examples to name.
Obstetric violence is not confined to any one country or culture but, rather, affects women in labour wards globally including the UK. Despite the World Health Organisation’s pleas for the recognition of obstetric violence as a “violation of a woman’s fundamental human rights” in 2014 and its call to arms for “women, communities, healthcare providers, managers, health professional training, education and certification bodies, professional associations, governments, health systems stakeholders, researchers, civil society groups and international organization[s]” to come together to fight this rights violation in their respective countries, the UK has still not legally recognised obstetric violence.
In 2007, Venezuela, in a landmark piece of legislation, recognised the harms women were suffering in labour wards by enacting Article 15 of the Organic Law on the Right of Women to a Life Free of Violence. The Article defines this harm as “… the appropriation of a woman’s body and reproductive processes by health personnel, in the form of dehumanizing treatment, abusive medicalization and pathologization of natural processes, involving a woman’s loss of autonomy and of the capacity to freely make her own decisions about her body and her sexuality, which has negative consequences for a woman’s quality of life.” Usually, the perpetrator will be subject to a fine and the court will produce a signed acknowledgement of wrongdoing on the institution/medical personnel’s part.
The lacuna in the UK law that allows pregnant women to be subject to dehumanising and violent treatment by medical practitioners must be remedied. The question must be asked, then, how do we solve a problem like obstetric violence in the UK? Could the Venezuela model be applied? Or maybe obstetric violence could be remedied by either tort law or criminal law? Or, perhaps, a human rights approach is the most appropriate?
The most important thing to note, when considering our options, is to recognise obstetric violence as a two-fold harm. It operates at both the individual level, where the (sexist, racist, classist and ageist) views of some obstetricians and midwives determines how they treat certain women. But also at the structural level, where it is made clear that we are not just dealing with ‘a few bad apples’[1], but instead a system riddled with patriarchal views of women’s reproductive functions, women’s claim to knowledge of their own bodies, and a society desperately trying to control the “loud” feminine birthing body.[2] It is for this latter facet of obstetric violence that it must be understood as more than medical violence, it is distinctively a gendered violence.
Tort law
Turning to the application of tort law and clinical negligence, it is quickly apparent that this ‘remedy’ is inadequate. We could understand obstetric violence as a negligence claim. This would provide the pregnant woman with financial compensation for her suffering. For such a claim to succeed four components are required: a duty of care, breach of that duty, actionable damage, and not too remote/foreseeable damage within that duty. Without any one of these, a claim will fail. The first component is thoroughly satisfied, the existence of a doctor’s duty of care to their patient is well documented.[3]Secondly, as obstetric violence mostly relies upon a lack of valid consent, so too is the breach of duty satisfied following Montgomery.[4]Additionally, treating a patient without consent satisfies the fourth requirement. It is the issue of actionable damage that is of particular concern. Mulligan identifies the main harm of obstetric violence as psychiatric harm.[5]Many women leave violent labours with PTSD or mental distress, difficulties bonding with their baby due to their existence being a reminder of their ordeal.
Although tort law has evolved to recognise psychiatric harm, only harm that “constitutes a recognised psychiatric condition” is acknowledged.[6]For women with PTSD, their claim may succeed. However, for the majority of obstetric violence victims, whereby there is no ‘physical damage’, yet there is mental distress, to evidence, for example, unconsented vaginal examination, their claimwill ultimately fail in the absence of a diagnosis.
In many ways, the failure of tort law to compensate obstetric violence victims is a good thing. Tort law is fundamentally unable to understand harms as anything more than an interaction between the claimant and the defendant. It compensates private harms at purely the individual level, unable to respond to the structures in place that educate medical personnel to dehumanise women in this way. Law relating to obstetric violence cannot only serve to compensate the affected woman but should work to eradicate this harm for future pregnant women by targeting the source.
The criminal law
Another possible approach may be the criminal law. Obstetric violence, in its gendered dimension, has often been compared to domestic violence.[7]Another comparison many victims draw is rape.[8]Criminalising obstetric violence would draw attention to its particular violence against the female body in a way tort law fails to. Additionally, declaring the harm as a wrong, more than just an action demanding financial damages as in tort law, has a symbolic quality. It cannot be overstated that the reason rape and domestic violence are dealt with by the criminal law, and not human rights law, is that justice is a satisfactory remedy for victims. Perhaps the same could be said for obstetric violence victims. However, the analogy with rape and domestic violence fails to account for the structural dimension of obstetric violence discussed above. The criminalisation of obstetric violence would potentially lead to cases brought before judges and juries who espouse the very views of pregnant women discussed in this article. Victims would arguablyfind themselves revictimised by legal actors disbelieving, or at best misunderstanding their harm. Additionally, the labelling of doctors as ‘criminals’ would result in severely damaged relations between patients and their physicians that would harm the “collaborative” nature of the birthing process for other women.[9]
Human Rights
Finally, we turn to a human rights approach. This is the approach recommended by the World Health Organisation for recognising the gravity of the harms produced by obstetric violence. It places responsibility for the harms at state level, compelling them to create policies that would fundamentally alter the way medical personnel view pregnant women and their role in relation to them. Obstetric violence as a human rights violation also carries with it a symbolic quality. It can be argued that this harm violates Articles 8 and Articles 3 of the Convention, the right to respect for private life and the right to be free from torture and inhuman and degrading treatment, respectively. Human rights law can remedy the immediate woman concerned and aid in protecting women in the future from suffering the same. One problem with a human rights approach is that financial remedies are not guaranteed, it is up to the discretion of the court. Given the severity of the harm suffered, however, it is difficult to imagine a court not being at least slightly sympathetic to an obstetric violence victim.
It appears a human rights approach would be the best method of resolving the obstetric violence lacuna. But legislation recognising this harm is ineffective if changes are also not made to educate practitioners to address biases in medical care and views of women’s labouring bodies. Therefore, the best way to solve a problem like obstetric violence is to recognise it as a structural, gendered violence and go beyond the law to address it.
[1]R Chadwick, ‘Practices of Silencing – Birth, Marginality and Violence’ in C Pickles and J Herring (eds), Childbirth, Vulnerability and Law: Exploring Issues of Violence and Control, (Routledge 2020) 37.
[2]SC Shabot, ‘Making Loud Bodies “Feminine”: A Feminist-Phenomenological Analysis of Obstetric Violence’ (2016) Human Studies 39, 241.
[3]Bolam v Friern Hospital Management Committee[1957] 1 WLR 583.
[4][2015] UKSC 11.
[5]A Mulligan, ‘Redressing Unauthorised Vaginal Examinations through Litigation’ in C Pickles and J Herring (eds), Women’s Birthing Bodies: Unauthorised Intimate Examinations, Power and Vulnerability (Hart 2020) 175.
[6]ibid.
[7]J Herring, ‘Identifying the Wrong in Obstetric Violence – Lessons from Domestic Violence’ in in C Pickles and J Herring (eds), Childbirth, Vulnerability and Law: Exploring Issues of Violence and Control, (Routledge 2020).
[8]Shabot (n 2) 238.
[9]SC Shabot, ‘We Birth With Others: Towards A Beauvoirian Understanding Of Obstetric Violence’ (2021) European Journal of Women’s Studies28(2), 5.
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