Obstetric Violence and Informed Consent: Improving Childbirth in the #MeToo Era

By: Emily Wacyk Paski

As the #MeToo movement recently blazed a trail across the globe for survivors of sex- and gender-based violence to share their stories, one related issue remains shadowed: obstetric violence by healthcare providers against birthing patients. That is, however, until the United Nations shed light on the issue this summer when it published a report called “A human rights-based approach to mistreatment and violence against women in reproductive health services with a focus on childbirth and obstetric violence.”[1]

In particular, the report boldly asserts that “informed consent for medical treatment related to reproductive health services and childbirth is a fundamental human right.”[2] When pregnant patients are coerced or uninformed about medical intervention while birthing, medical providers create lasting reproductive trauma, as with other violations illuminated by the #MeToo movement.[3] In 2015, the World Health Organization wrote that such intervention and coercion “not only violates the rights of [pregnant patients] to respectful care, but can also threaten their rights to life, health, bodily integrity, and freedom from discrimination.”[4] One example of coercion is the presentation of consent forms to patients during difficult moments of labor as a “proxy” for the actual consent process, making it hard for them to ask questions and evaluate options.[5]

Before issuing the UN report, the Special Rapporteur collected input from Member States and nongovernmental organizations to identify root causes and structural challenges of the mistreatment; in the end, the Report created recommendations and calls to action for each Member State.[6] Under international law, acts or omissions by private healthcare bodies are attributable to the State if they are empowered by the law to provide a public service.[7] The report sets “a foundation for States in upholding their human rights obligations and developing appropriate laws . . . to ensure a human rights-based approach to healthcare and accountability for human rights violations.”[8]  

For example, the Irish Maternity Support Network, the Abortion Rights Campaign, and Disabled Women Ireland are NGOs that submitted reports to the UN asking for the Special Rapporteur to recommend that Ireland urgently revise its National Consent Policy, thereby protecting expectant parent rights to choose and refuse medical treatment.[9] Ireland has a long history of abuses in childbirth dating back to the use of symphysiotomies through the 1900s – a procedure now condemned as torture.[10] As of May 2019, Ireland’s National Consent Policy, known as Section 7.7.1, essentially made pregnancy an exception to the right to refuse treatment; healthcare practitioners could intervene without consent any time they simply believed that such refusal would pose risk to the unborn fetus.[11] The only way this decision could be challenged was by an application to the High Court.[12] While this tension between the mother’s freedom and the fetus’s health is very real, there is also an inherent power imbalance between a patient and provider, creating high risk for abuse.[13] This can lead providers to manipulate the doctrine of “medical necessity” to justify childbirth abuse – including when women attempt to refuse treatment that is often unnecessary.[14]

Due to the National Consent Policy, a 2014 survey of 2,836 people who gave birth in Ireland between 2010-2014 showed that fifty percent of participants were denied the opportunity to refuse a test, procedure, or treatment during labor.[15] Pregnant patients were also threatened with legal proceedings if they did not consent to cesarean deliveries.[16] The Irish Maternity Support Network reported a lack of accurate patient education, forced sweeping of membranes, routine use of Pitocin, and constant fetal monitoring.[17] In June 2019, one month after these reports were submitted to the Special Rapporteur and one month before the UN issued its recommendations, Ireland finally removed the pregnancy carveout from Section 7.7.1.[18]

While Ireland substantially improved its informed consent policies, can amending national laws to protect against reproductive violence change the #MeToo era? Will the UN’s call to action be enough? The UN report suggests that even with total compliance, other barriers still remain. First, international law does not usually include obstetric violence in its definitions of gender-based violence, making it difficult to identify, enforce, and remedy violations.[19] Further, as for #MeToo sexual abuse survivors, obstetric abuse survivors still face a stigma in sharing details about their reproductive healthcare, making it hard to collect data.[20] Finally, while medical authorities often mean well, patients are vulnerable to the power of their care providers.[21] This is magnified by the fact that an overwhelming number of gynecological authorities are males who have never given birth.[22] Ultimately, like with sexual violence and the #MeToo movement, legal mechanisms will have to work in tandem with cultural and professional advancements to reduce obstetric violence.

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[1] Dubravka Šimonović (U.N. Special Rapporteur on violence against women, its causes and consequences), Human Rights-Based Approach to Mistreatment and Violence Against Women in Reproductive Health Services with a Focus on Childbirth and Obstetric Violence, U.N. Doc. A/74/137 at 4 (July 11, 2019) [hereinafter “UN Report”].

[2] Id. at 12.

[3] Irish Maternity Support Network, Submission of the Irish Maternity Support Network to the Special Rapporteur (May 17, 2019), https://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/Mistreatment.aspx [hereinafter “Irish Maternity Support Network”].

[4] See World Health Organization, The Prevention and Elimination of Disrespect and Abuse During Facility-Based Childbirth, U.N. Doc. WHO/RHR/14.23 (2015); See also UN Report, supra note 1, at 5.

[5] See UN Report, supra note 1, at 5.

[6] See id. at 4-6.

[7] See UN Report, supra note 1, at 6.

[8] Id. at 6.

[9] See Abortion Rights Campaign & Disabled Women Ireland, Submission to the United Nations Special Rapporteur on Violence Against Women on Mistreatment and Violence Against Women During Reproductive Healthcare in Ireland and Northern Ireland, at 1 (May 17, 2019) [hereinafter “Abortion Rights Campaign”]; see also Irish Maternity Support Network, supra note 3.

[10] See Irish Maternity Support Network, supra note 3; see also UN Report, supra note 1, at 8.

[11] See Abortion Rights Campaign, supra note 9, at 3; see also Health Services Executive, National Consent Policy § 7.7.1 (2013).

[12] See Abortion Rights Campaign, supra note 9, at 3.

[13] See Joanna N. Erdman, Commentary: Bioethics, Human Rights and Childbirth, Health and Hum. Rts. J., 17/1 (June 2015), https://www.hhrjournal.org/2015/06/commentary-bioethics-human-rights-and-childbirth/; see also UN Report, supra note 1, at 7.

[14] See Erdman, supra note 13; see also UN Report, supra note 1, at 7.

[15] See Abortion Rights Campaign, supra note 9, at 4.

[16] Id.

[17] Irish Maternity Support Network, supra note 3.

[18] See National Health Advisory Group, Health Services Executive V.1.3 National Consent Policy § 7.7.1 (June 2019), https://www.hse.ie/eng/about/who/qid/other-quality-improvement-programmes/consent/national-consent-policy-hse-v1-3-june-2019.pdf. This decision was also motivated by Ireland’s prior repeal of the “right to life of an unborn child” clause from its constitution. See Irish Maternity Support Network, supra note 3.

[19] See UN Report, supra note 1, at 6.

[20] See Irish Maternity Support Network, supra note 3.

[21] See Erdman, supra note 13; see also UN Report, supra note 1, at 7.

[22] UN Report, supra note 1, at 13.