Birthrights is seeking two maternity professionals – one midwife and one obstetrician – to join its board of trustees.
The deadline for applications is 13 March 2014.
If you are considering becoming a trustee read more about what the role entails and how to apply here: Trustee advert 2015_FINAL pdf.
Press Release: 19 February 2015
If passed the amendment to the Serious Crimes Bill (which MPs are due to vote on on Monday 23 February) could lead to a woman who has been pressurised in to an unwanted abortion being given a prison sentence. Moreover, it may deter midwives and doctors from giving vital individual counselling and support to women around these issues for fears they themselves may be charged with a crime.
Rebecca Schiller, co-chair of Birthrights says, “Attempting to tackle the complex social and cultural issues at the root of gender bias by criminalising vulnerable women is damaging to us all. Once again it punishes women for broader issues while pretending to protect them. It is right that we should tackle gender discrimination in this country but this amendment would do nothing to address the underlying issues in communities who may put pressure on women to have an abortion based on gender. Women need to be free to make decisions about their reproductive futures without fear of criminal sanctions. I fear that, were this amendment to be passed, it could be a step to encroaching on all women’s rights to abortion.”
“Existing legislation and guidance is sufficient. A 2012 undercover investigation found no doctors willing to perform abortions solely based on gender and Department of Health guidance is already clear that abortion based solely on gender is not permitted. This amendment adds nothing to protect women, but would prevent those who have concerns about gender-specific foetal abnormalities from accessing abortion. Women in South Asian communities are also being profiled by this amendment and are likely to face difficulty accessing abortion for any reason should it be passed.”
Rebecca Schiller’s book All That Matters: Women’s Rights in Childbirth is published by the Guardian’s e-imprint as part of the Guardian Shorts series. Ebook: £1.99, with 10% profits going to Birthrights.
Press Release 4 February 2015
Women’s charity condemns guilty verdict as Indiana woman is charged with ‘feticide’ and child neglect.
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The European Court of Human Rights gave judgment in Dubská v Czech Republic last week. The Court found that Czech legislation prohibiting midwives attendance at home births did not interfere with women’s right to private life under Article 8 of the European Convention.
The decision came as a surprise to maternity professionals and campaigners across Europe, who had welcomed the Court’s previous decision in Ternovszky v Hungary which enshrined an obligation on the state to respect women’s choice of place of birth. In the wake of recent advances in women’s reproductive rights (including the Court’s recent judgment in Konovalova v Russia), the Dubská judgment represents a regressive step in protection for women’s autonomy. The Court appeared to believe that it was safeguarding the safety of mothers and babies. The decision will achieve quite the reverse. Prohibiting midwives from attending women at home poses a grave threat to the health and well-being of women and babies.
Czech maternity care
Before analysing the decision, we first need to appreciate the context in which the case was brought. Maternity care in eastern Europe is provided almost exclusively in hospital. There are very few birth centres. The quality of care has been widely condemned by international organisations as disrespectful and over-medicalised, and the cause of serious physical and psychological harm to women and babies. The Court recorded “testimonies from numerous mothers” describing a plethora of human rights violations, including forced medical procedures, unnecessary separation of mother and baby and mandatory monitoring in hospital for 72 hours after birth. The medical staff were described as “arrogant, intimidating, disrespectful and patronising“.
In Hanzelkovi v Czech Republic, a judgment given by the Court on the same day as Dubská, the forcible return of a healthy baby to a Czech hospital for the mandatory 72 hour period post-birth was found to constitute a violation of Article 8. The Court in Dubská did not connect the dots: women faced with hospital care that violates their rights will seek alternative maternity care that safeguards their dignity. The law must support them in that choice.
Ms Dubská and Ms Krejzová
In 2011, two Czech women, Ms Dubská and Ms Krejzová, sought midwives to support them to give birth at home. Czech law regulating the provision of maternity care stipulates that intrapartum care can only be provided in a medical institution which has to meet minimum requirements relating to the provision of technical equipment. Providing care outside such a setting is unlawful. As the Court recognised, the law effectively amounted to a ban on midwives attending women at home.
Unable to obtain midwifery support at home, Ms Dubská gave birth alone without any professional assistance. As her decision to freebirth illustrates, women will continue to choose to exercise their basic reproductive autonomy and give birth outside medical institutions regardless of whether the state gives them its blessing.
Ms Krejzová gave birth at the closest hospital where she believed she could access respectful care. It was 140km away from her home. Even at this “respectful hospital”, her healthy child was separated from her at birth for routine monitoring despite her objections.
Ternovszky v Hungary
The question for the Court in Dubská was whether the Czech law prohibiting midwifery support at home constituted a lawful restriction on women’s right to private life. The answer to this question ought already to have been apparent from the decision of the Court in Ternovszky v Hungary. In that case the Court considered the Hungarian government’s failure to regulate home birth, which left midwives susceptible to disciplinary and criminal sanctions. The Court held that:
(i) Women’s decisions about childbirth were an expression of physical autonomy that were protected by the right to private life in Article 8.
(ii) Any legislation that dissuaded health professionals from attending a woman at home represented an interference with her private life.
(iii) Women were entitled to “a legal and institutional environment that enables their choice“.
(iv) Regulation of midwives was essential to ensure that women’s choices could be respected.
The only difference between Ternovszky and Dubská was that Hungarian law did not ban home birth, instead the lack of regulation made it effectively impossible. There is no doubt that if the Court in Ternovszky had been considering a legislative prohibition on midwifery assistance, it would have reached the same conclusion – the right to choose where to give birth requires legal and institutional support from the state. Without such support, the right is eviscerated.
Remarkably, the Court in Dubská made no effort to explain its departure from the reasoning in Ternovszky. The two cases were decided by different sections of the Court (Ternovszky by the second section, Dubská by the fifth) and none of the same judges were involved in the decision. The sections cannot overrule one another and their judgments ought to be informed by earlier decisions of the Court. The Dubská decision does not overrule Ternovszky, but the incoherence between them creates confusion and ambiguity. Dubská renders European state’s obligations towards pregnant women uncertain. In response to the decision in Ternovszky the Hungarian government has regulated to permit midwives to attend births outside hospital in certain circumstances. On the basis of the Dubská decision, would Hungary now be justified in reversing that regulation and banning home birth? The credibility of the European Court is undermined by inconsistencies like this.
Is banning home birth really about safety?
The Court in Dubská accepted that the prohibition on midwifery support at home birth pursued the legitimate aim of protecting the safety of mothers and babies. This assertion should have been more carefully scrutinised.
The dissenting judge, Judge Lemmens from Belgium, astutely pointed out that there is no prohibition on mothers from giving birth at home, only on midwives from assisting them. As he said: “I cannot understand how such a system, taken as a whole, can be seen as compatible with the stated aim of protection of the health of the mothers and their children.” If the aim of the Czech system is to protect health, and the government accepts that some women will choose to give birth at home (as Ms Dubská did), the system should enable the assistance of a midwife to ensure the safety of women and babies at home.
Why then would the state outlaw midwifery support for home birth? The answer is obvious to those who appreciate the history of professional rivalry between midwives and obstetricians and the role that eastern European governments have played in ensuring obstetric monopoly. Judge Lemmens summed it up:
“Without suggesting that health considerations are totally absent, I think that it is clear that other considerations also come into play. As in other countries, the issue of home births seems to be the object of a form of power struggle between doctors and midwives. … When the issue of home births came up for examination in 2012, the Ministry of Health set up an expert committee composed of representatives of care recipients, midwives, physicians’ associations, the Ministry itself, the Commissioner for Human Rights and public-health insurance companies. However, the representatives of the physicians’ associations boycotted the meeting, arguing that there was no need to change the existing legal framework. Subsequently, no doubt after some efficient lobbying, they managed to obtain from the Ministry that it removed from the committee the representatives of care recipients, midwives and the Commissioner for Human Rights, with the argument that only with the remaining composition would it be possible for the committee to agree on certain conclusions. I am not aware whether, once the committee had been cleansed, it was capable of making any suggestion at all. Having regard to the foregoing, I believe that the public-health argument put forward by the Government should not be overestimated.“
In its uncritical acceptance of the government’s “safety” argument, the Court failed to appreciate the risk that is created by refusing to support home birth. Women cannot be compelled to attend hospital. Some will decide to give birth at home without assistance, as Ms Dubská did. Thankfully, no harm came to her and her baby. If she had experienced complications during labour and she or her baby had died, wouldn’t the Czech state bear responsibility for failing to enable professional support to be provided to her during birth? It would certainly be arguable that the state would have breached its positive obligation under Article 2 to prevent foreseeable risk to life.
Far from safeguarding health, prohibiting trained, professional caregivers from attending women during birth displays a cavalier attitude to the safety of women and babies.
A curious feature of the Court’s decision is its conclusion on the risk of home birth. The parties presented the Court with the latest evidence on the safety of giving birth at home. As the Court accepted, the studies showed that for many women the home is a safe environment in which to give birth. More than that, the Birthplace Study (cited by the Court) showed that home is actually safer for multiparous women and their babies because it avoids the risks for the health of mother and baby created by unnecessary treatment in hospital. The modern conflation of safety with hospital-based care has been conclusively debunked by recent research, which shows that continuity of care throughout pregnancy and birth with a midwife who builds a relationship with the woman is by far the safest model of care. In the Czech context, giving birth at home with a trusted midwife offers women the chance to avoid the abusive treatment meted out by hospitals (Judge Villiger’s claim that home birth is merely about “comfort” suggests that he needs to meet a woman who has had her perineum forcibly cut).
Despite apparently appreciating that there is now a scientific consensus on the safety home birth, the Court raised the spectre of “unexpected difficulties” that could occur at home (“acute lack of oxygen supply to the foetus or profuse bleedings, or events which require specialised medical intervention, such as a caesarean section or the need to put a newborn on neonatal assistance“). They had been told of these difficulties by a Czech obstetrician, who gave oral evidence to the Court during the hearing. The purpose of the large-scale studies cited by the Court is to objectively examine whether or not unexpected difficulties that arise during birth at home in fact lead to maternal or neo-natal injury or death. The conclusion that home birth is safe takes into account these unexpected difficulties and as the studies show, they do not lead to greater incidence of neonatal morbidity than birth in hospital. The Cochrane Review on Planned Hospital Birth Versus Planned Home Birth (made available to the court, but not cited by it) considered the incidence of unforeseen complications at home birth in depth, concluding that the risks of complications in low-risk pregnancies were fractional (equivalent to the risk of being killed in a traffic accident during any one year), many such complications could in fact be managed at home and medical interventions could themselves lead to complications during birth that could cause injury and death to mother and baby.
In its focus on the potential complications, the Court fell into the age-old mistake of preferring a personal account (by a doctor implicated in the “power struggle” described by Judge Lemmens) over tested evidence of risk.
The Court accepted that the Czech prohibition interfered with women’s right to choose where to give birth. The real question was whether the interference was “necessary in a democratic society” – was it justified? In answering this question, the Court chose to invoke “the margin of appreciation”. This doctrine offers the Court a means of respecting individual state’s decision-making when a case raises particularly sensitive political or social issues (it has been used to avoid determining abortion rights case, for example). The Court surveys European practice and determines whether or not there is a European consensus on an issue. (It did not do this in Ternovszky because it determined that the lack of regulation violated the principle of legality, which is not subject to the margin of appreciation.)
In Dubská, the Court set out practice of 32 states in the Council of Europe (relying on material presented by the parties, which omitted a number of states, including Denmark, Norway, Iceland, Portugal and Bulgaria). It noted that “Only in a handful of States can a health professional face a sanction for the simple fact of having assisted with a planned home birth (Croatia, Lithuania and Ukraine).” The other states listed by the Court either expressly regulate home birth, are on the verge of doing so, or tolerate it without imposing sanctions on midwives. The Czech system belonged in the handful of states that sanction midwives who attend out of hospital births. On the Court’s own analysis, the Czech system is an outlier. But most importantly, the Czech Supreme Court had itself suggested that the Czech prohibition violated Article 8 in its judgment quashing criminal charges brought against a home birth midwife. It is troubling to see the margin of appreciation being used to adopt a more restrictive view of human rights than the court of the respondent state.
The Court concluded that in light of the public health concerns of the Czech government, and the “unexpected difficulties” of home birth, expecting Czech women to give birth in hospital did not cause them to bear “a disproportionate and excessive burden“. The language of excessive burden is more commonly used in cases involving the right to property and expropriation of land by the state. It is peculiar to see it deployed in a case such at this, which involves fundamental rights to physical autonomy and integrity. The Court’s conclusion is also dubious in light of the facts of Ms Dubská and Ms Krejzová cases. Giving birth alone and travelling 140km to give birth in hospital seem like considerable burdens to bear, to say nothing of the burdens borne by Czech women who are subjected to the catalogue of degrading procedures practiced in Czech maternity hospitals.
What next for reproductive rights in the European Court?
All is not lost! There are several other cases from other eastern European states that are awaiting determination. Kosaite-Cypiene v Lithuania will be decided by the second section, the same section that determined the Ternovszky case. In the meantime, the Dubska judgment will be appealed to the Grand Chamber. There is no guarantee that the Grand Chamber will choose to hear the appeal, but the general importance of the issue, the inconsistency with Ternovszky, and the upcoming cases from other countries, all suggest that there is a good chance that the appeal will be heard. If it is, the Grand Chamber will face a choice: to support women’s right to choose where they give birth and in so doing to safeguard their health, or to condemn them to choose between the risks of a hospital birth or the risks of birthing alone.
Elizabeth Prochaska, Birthrights
The Court of Appeal has ruled that the mother of a girl born with Foetal Alcohol Syndrome did not commit a crime under the Offences Against the Person Act 1861 by drinking during pregnancy. A council in the North West of England had hoped to prove that a crime had been committed in order to claim criminal injuries compensation for the child.
The Court stated: “the role of the state in these circumstances should be to provide care and support for the child who has suffered harm to the extent that this is necessary. It should not be to pay compensation on the basis that the child is the victim of a crime by her mother.”
Birthrights and the British Pregnancy Advisory Service (bpas) intervened in the case because they believed it would establish a legal precedent which could be used to prosecute women who drink while pregnant and would do nothing for the health of alcoholic mothers and their babies.You can read our intervention here: BPAS-Birthrights CP v CICA Intervention.
We welcome the ruling today. Rebecca Schiller, co-chair of Birthrights and Ann Furedi, chief executive of the British Pregnancy Advisory Service explain:
“This is an extremely important ruling for women everywhere. The UK’s courts have recognised that women must be able to make their own decisions about their pregnancies.
“Both the immediate and broader implications of the case were troubling. In seeking to establish that the damage caused to a foetus through heavy drinking was a criminal offence, the case called into question women’s legal status while pregnant, and right to make their own decisions. Any ruling which found that drinking while pregnant constituted a ‘crime of violence’ could have paved the way to the criminalisation of pregnant women’s behaviour – an alarming prospect given the ever expanding list of activities women are warned may pose a risk to the health of their baby.
“A small number of women drink very heavily throughout their pregnancy. Their problems will not be helped either by the threat of prosecution – making them even less likely to seek help – or through ever more warnings about the dangers of drinking while pregnant. Women in this situation need rapid access to specialist help and support, as do children born with disability caused by alcohol abuse. This case was brought by the council in order to win compensation for a child born with Foetal Alcohol Syndrome, which could be used to fund her care. We must find a way to ensure that the small number of children born with this condition have the resources they need to live their lives to the full without resorting to criminalising their mothers.”
We welcome the new NICE intrapartum guideline published today, which offers pregnant women the hope of genuine choice about where and how they give birth. Sadly we hear too often from women who are unable to access the kind of care they feel will best meet their needs. Homebirth services are frequently suspended and birth centre provision can be patchy while some women face difficulty planning an elective caesarean, accessing water birth or an epidural. We hope that these guidelines will spark genuine change and enable a maternity system to emerge that champions women’s needs.
The Court of Appeal hears the case of CP v Criminal Injuries Compensation Authority today. It will be considering whether consumption of alcohol during pregnancy can constitute the crime of poisoning. Birthrights and the British Pregnancy Advisory Service (bpas) have provided written submissions to the Court to highlight the serious potential consequences for women’s health and autonomy.
You can read our submission to the court here: BPAS-Birthrights CP v CICA Intervention
In the case, a council in the North-West of England is seeking to prove that the mother of a six-year-old girl born with Foetal Alcohol Syndrome (FAS) committed a crime under the Offences Against the Persons Act 1861 by drinking during pregnancy. The case is of profound social significance, as if the court were to interpret the law as requested by the council, it would establish a legal precedent which could be used to prosecute women who drink while pregnant.
Similar developments in U.S. have resulted in the incarceration of women. Consequently, the American organisation National Advocates for Pregnant Women (NAPW) have called on the court to ‘reject efforts to create criminal penalties as a mechanism for addressing health problems women may face during pregnancy.’
FAS is a complex condition, denoting a collection of features including retarded growth, facial abnormalities and intellectual impairment, and there is continuing uncertainty in the medical community over the relationship between alcohol consumption and harm to the foetus. While it occurs in babies born to alcoholic women, most babies of alcoholic women will not be affected, as other factors – including nutritional status, genetic make-up of mother and foetus, age and general health – are also believed to play a role. There were 252 diagnoses of the syndrome in England in 2012-2013.
Pregnant women with addiction problems need rapid access to specialist support services, as do children born with disability caused by drug or alcohol abuse. Birthrights and bpas do not believe that mothers and their babies will be best served by treating pregnant women who need help as criminals.
“Viewing these cases as potential criminal offences will do nothing for the health of women and their babies. There is a strong public interest in promoting the good health of pregnant women and babies, but, as long-standing government policy recognises, this interest is best served by treating addiction and substance abuse in pregnancy as a public health, not criminal, issue,” said Ann Furedi, chief executive of bpas and Rebecca Schiller, co-chair of Birthrights.
“As well as undermining women’s ability to make their own choices while pregnant, women with substance addictions may avoid engaging with health services or feel compelled to terminate their pregnancy rather than continue and face criminal sanctions. It could also make health professionals responsible for reporting women in their care to the police.”
“Both the immediate and broader implications of this case are troubling. Making one particular form of behaviour during pregnancy into a criminal offence would lay the ground for criminalising a wide range of other behaviours because they may too pose a risk to the health of the baby. When we consider that the taking of necessary medication, such as treatment for epilepsy or depression, or the refusal of a caesarean section could be seen to fall into the category of maternal behaviours that may damage the foetus, the trajectory of such an approach is deeply worrying.”
“We should take very seriously any legal developments which call into question pregnant women’s fundamental right to bodily autonomy and right to make their own decisions. Pregnant women deserve support and respect, not the prospect of criminal sanction for behaviour which would not be illegal for anyone else.”
More details about the case are available in our previous post.
The European Court of Human Rights gave judgment last week in Konovalova v Russia. It’s an important decision for maternity rights across Europe, which emphasises the need for women’s informed consent to all decisions in childbirth, even those that health professionals might consider routine or unimportant.
Ms Konolova gave birth in 1999 in hospital in St Petersburg. During her labour, she was informed that medical students would be present. She objected but the students were permitted to observe the birth nonetheless. She brought legal proceedings against the hospital, alleging that the students had attended without her consent. The Russian courts rejected her complaint and found that Russian law did not require consent for students presence during medical procedures and that the hospital booklet had informed her of their possible presence.
Ms Konolova made an application to the European Court claiming a violation of her right to private life under Article 8 of the European Convention on Human Rights. The Court did not hesitate in its assertion of Ms Konolova’s right to informed consent. It reiterated its finding in Ternovszky v Hungary that decisions about the manner in which a woman gives birth are essential aspects of a woman’s privacy and autonomy. As the Court said:
“Article 8 encompasses the physical integrity of a person, since a person’s body is the most intimate aspect of private life, and medical intervention, even if it is of minor importance, constitutes an interference with this right.”
The Court found that the presence of students at a birth could only be justified if it satisfied the test under Article 8(2), i.e. it was in accordance with the law, including the principles of certainty and foreseeability, and necessary in a democratic society. The Court held that Russian law did not contain adequate safeguards to protect patients from arbitrary interferences with their private life. There was no legal provision requiring patients’ consent for students’ participation in their treatment and the hospital’s information about students was ‘vague’ and did not specify the extent of their involvement in treatment.
If it were ever in doubt, the decision makes it clear that all decisions in childbirth require women’s informed consent.
When it comes to student attendance at births, hospitals should take the following measures to ensure that they do not violate women’s rights:
– Publish a clear policy on student attendance at births that is given to all women ante-natally. It should specify the extent of their participation in any procedures. The policy must make it clear that women have the choice to decline to allow students in the room.
– Ask for women’s consent to student participation at the time of the birth, explaining who the students are, what they will be doing and giving the woman the choice to decline their attendance.
– Respect a woman’s decision to decline to allow students in the room.
A forthcoming court case on criminal injuries compensation for a child whose mother drank during pregnancy could pave the way to the criminalisation of pregnant women’s behaviour, Birthrights and
the British Pregnancy Advisory Service (bpas) warned today.
We have applied with bpas to address the court on the case, which we believe could seriously undermine women’s autonomy while pregnant and their freedom to make decisions for themselves.
A council in the North-West of England is seeking to prove that the mother of a six-year-old girl born with Foetal Alcohol Syndrome (FAS) committed a crime under the Offences Against the Persons Act 1861 by drinking during pregnancy. If the court were to interpret the law as requested by the council, it would establish a legal precedent which could be used to prosecute women who drink while pregnant. Similar developments in the US have resulted in the incarceration of women. The case is due to be heard at the Court of Appeal later this year.
Birthrights has previously blogged about the case here.
FAS is a complex condition, denoting a collection of features including retarded growth, facial abnormalities and intellectual impairment. While it occurs in babies born to alcoholic women, most babies of alcoholic women will not be affected, as other factors – including nutritional status, genetic make-up of mother and foetus, age and general health – are also believed to play a role. There were 252 diagnoses of the syndrome in England in 2012-2013 – a prevalence rate of 0.36 per 1,000 live births (based on 694,241 births in England in 2012).
Pregnant women with addiction problems need rapid access to specialist support services, as do children born with disability caused by drug or alcohol abuse. Birthrights and bpas do not believe that mothers and their babies will be best served by treating pregnant women who need help as criminals.
Viewing these cases as potentially criminal offences will do nothing for the health of women or their babies. As well as undermining women’s ability to make their own choices while pregnant, it is likely to deter those women who do need support from seeking it and put health professionals under pressure to report women to the police. Both the immediate and broader implications of this case are troubling. We should take very seriously any legal developments which call into question the autonomy of pregnant women and right to make their own decisions. Pregnant women deserve support and respect, not the prospect of criminal sanction for behaviour which would not be illegal for anyone else.