Human Rights in Childbirth

A woman’s first need for childbirth is survival, for herself and for her baby.  The acknowledgment of preventable maternal mortality as a human rights issue has resulted in the focus of development funds on maternal healthcare around the world. Although only 16 of the 189 signatories to the Millenium Declaration will meet the targets of MDG5 by 2015, thousands of lives have been saved.  Maternal deaths reduced from about 376,000 in 1990 to 293,000 in 2013.

Survival isn’t a birthing woman’s only need, nor is it her only human right. Women also have the rights to autonomy, privacy, and freedom from discrimination. In spite of this, Human Rights in Childbirth receives reports of birthing women in both the developed and the developing world being denied care, and of women being bullied, coerced, and forced into medical procedures that that they neither want nor need. Birthing women are not objects to be processed. They are human beings and citizens with full claims upon healthcare and human rights.

The Right to Equal Treatment

The human right to freedom from discrimination means that all people are entitled to exercise the full range of human rights, without facing different treatment on the basis of personal characteristics.  The sharpest product of inequality in maternity care is mortality discrepancies.  Between nations, and within nations, women of color are at significantly increased risk of dying in childbirth and of seeing their babies die in childbirth, compared to whiter women.  Some of this inequality occurs at a systemic level, through problems with poverty, nutrition, and access to healthcare.  Some of it occurs at an individual level, when women are treated as “less than” by their providers because of some category in which they are perceived to belong.  The not-listening and disrespect that accompany prejudice don’t just injure dignity—they kill mothers and their babies.  A woman needs to be able to talk to her care providers when something is going wrong around childbirth, and she needs to be heard.

The Right to Autonomy

The human right to make autonomous decisions about one’s own body is enshrined in legal protections like the rights of informed consent and refusal.  These rights are not nullified just because a woman is also making decisions for her unborn baby.  The person giving birth is the person best positioned to weigh their needs and options in combination with the needs of the unborn child in whom they are investing their womb, labor, and life force.  The assumption that a woman who questions her provider’s advice is in conflict with her unborn child is both disrespectful to that mother and irrational, in light of the global cesarean pandemic and other evidence of massive overutilization of medical intervention in developed maternity care systems.  With cesarean rates skyrocketing past 20%, 30%, 50%, and 70% in different countries, the human right to refuse surgery has never been more critical.

Shared decision-making is an admirable ambition for doctor-patient communication. But in the event of a disagreement about what to do at a given moment in a birth, somebody holds the authority to make the final decision. Informed consent rests upon an assumption that, despite the esoteric nature of medical knowledge, ordinary people can assess their medical alternatives and make decisions about them.  Decision-making in healthcare is a personal process that incorporates the individual’s history, cultural and spiritual values, and family values, to name a few.  Birth providers need to respect each patient’s right to make decisions in accordance with their personal needs and values, even if the provider disagrees with those decisions.  With rights comes responsibility: legal systems need to protect providers from liability for patients’ healthcare decisions, if those providers are supporting their patients in the exercise of genuine informed consent.

The Right to Privacy

In 2010, the European Court of Human Rights recognized that the right to privacy, the foundation of reproductive rights in Europe and the United States, applies to childbirth.  In the case of Ternovszky v. Hungary, the Court held that, as a woman has the right to choose whether to give birth to a child, she also has the right to choose the circumstances in which she gives birth. Ternovszky applied that right to the choice between giving birth in a hospital or at home, with a doctor or with a midwife.  The Court held that the state violates this human right if it fails to legitimize the choice for home birth through regulation, and if it sanctions birth professionals, in particular midwives, for supporting women in that choice by attending them at home.

That holding was revolutionary because it opened up a consideration of the state’s obligations around childbirth and medical monopoly  The right to informed consent and refusal means that nobody has a legal obligation to enter a hospital, and that they can leave at any time.  But without a legitimate choice for home birth, that leaves many women unwilling to give birth in a hospital with only the choice for an underground birth, attended by providers who are legally vulnerable for being there.  Many hospitals in the United States and elsewhere refuse to acknowledge women’s right to refuse surgery and support them in a vaginal birth.  When women have nowhere else to turn, they are forced to choose between unwanted surgery and unassisted home birth without secure medical backup.   That’s not safety.  When the law circumscribes women’s birth choices instead of supporting them, it makes birth less safe, not more.

The human right to privacy provides a lens through which legislation and regulations affecting childbirth and midwifery can be viewed.  The law has one job regarding women’s reproductive choices, and that is to ask, “What are women actually choosing?  And how can healthcare support those choices to optimize health and safety?”  With out-of-hospital birth, the proven way to do that is to promote transparency, respect, and continuity of care between midwives and medical providers.

How much would change if it were really clear to everybody in the delivery room that the birthing woman is the person with the right to make all the decisions?  How much would change if law and practice aligned to reflect the human right to choose the circumstances of childbirth, and to uphold every pregnant person’s right to make supported decisions for her body and her baby? 

These are achievable goals that could create a profound shift in maternity care.  But women are going to have to stand up for these rights, with political activism and legal advocacy.  The challenge with human rights is to get them translated into protected legal rights, jurisdiction by jurisdiction. Even in Europe, Ternovszky is only an abstraction until each European nation translates its holding into regulations and practices that reflect it.

As the global community reassesses the mechanisms by which maternity care systems protect maternal and fetal health, it is important to recognize the full spectrum of human rights at stake in childbirth.  Systems of care need to attend not only to the physical survival of mother and baby, but to their psychological and emotional well-being during birth, postnatally, and in the years to come.  The best way to promote truly healthy outcomes, reduce inefficiencies and abuse, and protect birthing women from systemic dysfunction is to recognize and promote the fundamental human rights of birthing women.