Wednesday, June 03, 2015

legal rights in childbirth?

Bec and Lucinda
For some years I have been troubled by apparently common misunderstandings of a woman's *rights* in maternity care.   I have pondered these questions publicly on this and other blogs; questions of choice and informed decision making. 

Consider these statements:
You [a competent adult] have the *right* to bodily autonomy.  This means that noone is permitted to do anything to you without your permission.

In any health care situation, including maternity care, you [a competent adult] have the *right* to decline a treatment or intervention.

These legal rights are well established, and I am not going to spend time discussing them. 

Now consider the following statement, which appeared this week in a news article titled Risky underground homebirths: freebirths tipped to rise:

"Women have the legal *right* to birth how they want to"
A legal right? 

Surely not!

Even in the most ideal maternity care situations there will be some women who, in order to protect the life and wellbeing of the mother and her baby, will be advised to undergo surgery.   What happened to these women's legal rights to birth how they want to?

Maternity care in the developing world is often far from ideal.  Women whose health has been compromised by war, social exclusion, poverty, poor nutrition, disease, and other preventable conditions give birth to babies often in shocking conditions, with high rates of mortality and morbidity.  Do these women have a legal right to birth how they want to?  No!

Giving birth is a natural, spontaneous phenomenon, if a woman's body is left to its own devices.
Babies will be born naturally whether someone is monitoring progress or not.   
The sort of birth that the mother wants, which according to the quote above is her legal *right*, may be very different from the natural outcome.  

Giving birth spontaneously is, in my mind, a woman's *natural right* (not a legal right), just as we have a natural right to breathe, or walk, or perform any other natural function of our bodies.  Women do have a natural right to birth their babies.  Midwives are in the unique position to protect and work with that natural process, giving the mother confidence as she navigates the most challenging terrain.  The only way we can achieve our natural right to birth is if we stay on that natural pathway, and for the majority of women, this is a wonderful and rewarding phenomenon, working with the amazing hormonal cocktail that sets up powerful maternal instincts and bonding/attachment for mother and baby.
Those who have access to modern hospitals are not bound to use their natural right: they can obtain medical management and intervention, which is provided in modern societies along with other medical services.   We are privileged to have this access, and even a degree of choice in planning the way babies are born.  But, access to choice in the way a baby is born is not a simple matter.  It's not a legal right. 

I think it would be silly to argue that women have any legal right to a particular medically managed pathway in childbirth.

So, with great respect, I would like to suggest that midwives and maternity activists stop saying that women have a legal right to birth how they want to. It's nonsense.

Why am I so concerned about this question?

I have read coroner's findings, acted as an expert witness, and discussed cases with peers, and the recurrent theme has been this distorted belief, on the part of the midwives, that women should be able to choose the sort of birth they want, and that the midwife should facilitate this choice.  Midwives working under this belief have forgotten the harsh reality that preventable death and disability is often not far away.

The mother who wants an 'undisturbed' birth, and tells the midwife that she does not want any monitoring of her own vital signs or her baby's.  Yes, she gives birth, and usually the baby's condition is good.   ...

The mother who has various medical conditions including unmanaged gestational diabetes, wants a VBA2C, and who decides that there is too much negative energy in the hospital, so she finds an independent midwife who commits to homebirth.  ...

The mother who feels that she suffered trauma in her previous birth, in which labour was augmented, and a forceps birth resulted in severe perineal tearing which was repaired.  She does not know what she should do.  Should she request an elective caesarean birth? ...

These mothers may not be claiming any legal right to the sort of birth they want.  But they are looking for competent professional care.  A midwife can proceed on life's path with the woman, and provide information, support, expert advice, and sometimes guidance.

The midwife can support the woman's natural right to spontaneous birth, in the setting that is considered most appropriate at the time. 

In relation to human rights and birth at home, the judgment of the European Court of Human Rights in the case of Ternovski v Hungary (2010) is significant.