By Dr Cathérine Van de Graaf*
‘Childbirth does not make a woman of unsound mind’ wrote author and radio journalist Heleen Debruyne in the Belgian quality newspaper De Standaard on the 27th of April 2021. In her contribution, she referenced a well-known Belgian gynaecologist who stated that doctors should be able to make decisions, even if the mother does not approve. Debruyne posits that such conduct would violate patient rights and that, even during childbirth, consent should be obtained for every medical intervention. She argued: ‘this is not [based on] a whim of hypersensitive women but [on] a judgment of the European Court of Human Rights’.
A few weeks prior to this contribution, two Belgian government parties requested during a senate hearing that more data would be collected in order to map the occurrence of obstetric violence. The term covers a wide range of mistreatment of women and other persons giving birth. It first surfaced in the 2007 Venezuelan legal framework that sought to protect ‘the right of women to a life free of violence’.
‘the appropriation of women’s bodies and reproductive processes by health personnel, which is embodied in a dehumanizing treatment, in abuses of medicalization and pathologizing of natural processes, thus causing loss of autonomy and of free decision-making on a woman’s own body and sexuality, negatively influencing women’s quality of life’
The importance of this innovation is exactly linked to the fact that it brings abuses in obstetric and gynaecological care into the conversation on violence against women as a form of gendered violence. The earlier included statement by the gynaecologist could be seen as a clear example of ‘the paternalistic medical culture that pervades the obstetric world’.
Traumatic experiences during the process of childbirth are trivialised with the idea that as long as there is a healthy child at the end of it, there is really nothing to complain about [here]. Obstetric violence is thus linked to a power imbalance caused, on the one hand, by being a patient and, on the other, by being a woman [here]. As such, it is apparent that other characteristics such as ethnicity and socioeconomic status can contribute to the creation of a more vulnerable position for the person giving birth.
Over the last three decades, there has been increasing mobilisation from NGOs and international human rights bodies to address abuses that occur during childbirth. Yet,
Debruyne referred to the jurisprudence of the European Court of Human Rights (ECtHR or Court) in particular. It is mainly under Article 8 of the European Convention on Human Rights (ECHR) which protects the right to private and family life that the Court has dealt with the issue. Indeed, the ECtHR has found that the medical personnel’s disregard for the patient’s right to be duly informed can trigger the State’s responsibility under Article 8 of the Convention (see Codarcea v. Romania, §105). This includes informing patients of foreseeable consequences of a planned medical procedure on their physical integrity (Csoma v. Romania, §42). In V.C. v. Slovakia, where a sterilisation occurred of a Roma woman without informed consent, the Court considered that the gross disregard for her right to autonomy and choice as a patient displayed by the medical staff reached the threshold of Article 3. Additionally, in Konovalova v. Russia, the Court found that presence of medical students during childbirth without having cemented a need to obtain the permission of the person giving birth in the relevant legal provision, failed to comply with the requirement of lawfulness set forth in Article 8 § 2 ECHR.
At the same time, the Court confirmed its attention for the uniqueness and delicateness of the process of giving birth in a woman’s life (Dubska and Krejzova v. Czech Republic, §163). As such, the protection of Article 8 incorporates the right of choosing the circumstances of giving birth (see Ternovszky v. Hungary, §22). Home births are often proposed as an alternative to highly medicalised hospital births during which mother’s voices might be disregarded. The Court has recognised multiple times that in maternity wards the wishes of mothers-to-be are not always fully respected and referred in this context to reports of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) (for instance in Pojatina v. Croatia, §81). In Ternovszky v. Hungary, a violation of Article 8 was found as a real choice for home birth did not exist. Yet, when discussing other obstructions to home birth, the ECtHR has ruled them to be proportionate to the legitimate aim of protecting the rights and health of others. As such, while the Court – in general terms – emphasizes the importance of having control over the experience of giving birth, a big win for freedom of choice cannot be inferred from its jurisprudence. In this context, the Court has been criticised for being blind to the ‘gendered reality of childbirth’[here] as well as disregarding ‘what it means to effectively secure a human right’[here].
Thus, as highlighted by Debruyne, the ECtHR is indeed adamant about obtaining patients’ permission for medical procedures, including during the process of giving birth. Yet, it is exactly this equating of childbirth to other medical procedures that certain voices within the movement against obstetric violence are wary of. In the future, the development of the Court’s jurisprudence and its engagement with other regional and international systems will certainly be interesting to monitor.
 Ley Orgánica sobre el Derecho de las Mujeres a una Vida Libre de Violencia arts. 15(13), 51, Mar. 19, 2007, 38678 Boletin Oficial 353348 (Venez.) [Law on the Right of Women to a Life Free of Violence] In this law, obstetric violence is defined as a subset of violence against women.  Farrah Diaz-Tello, “Invisible wounds: obstetric violence in the United States”, Reproductive health matters 24.47 (2016) 56-64; Women’s Global Network for Reproductive Rights, http://www.may28.org/obstetric-violence  Report of the Special Rapporteur on violence against women, its causes and consequences: Note by the Secretary-General §34, http://undocs.org/A/74/137  Nora Peterson, De Facto Feminism: An Analysis of the Respectful Childbirth Movement in Hungary (Central European University 2017) 56.  Maria T R Borges, “A violent birth: reframing coerced procedures during childbirth as obstetric violence”, Duke Law Journal 67 (2017), 827, 828.  Caitlin McCartney, “Childbirth Rights: Legal Uncertainties under the European Convention after Ternovsky v. Hungary”, North Carolina Journal of International Law and Commercial Regulation 40 (2014), 543.
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