The Times gets it wrong: midwifery is safe and women’s birth decisions are not a ‘fad’

A journalist called me recently asking for a quote for a story he was writing about maternity care. He told me that he was going to expose the dangers of giving birth in midwifery-led units where, he claimed, more babies came to harm than in obstetric facilities. He could not respond to my request for evidence to support his claim. And of course, there isn’t any, because all the research, including large government-funded studies in the UK and abroad, show that giving birth in a midwifery-led unit is safer for healthy women and their babies than giving birth in obstetric units (see the Cochrane review for a summary).

But the journalist was merely giving voice to a persistent demonification of midwives that is based not on evidence, but on centuries of mistrust, professional turfwars and, ultimately, fear of women’s labouring bodies. Midwives, those purveyors of female knowledge, burnt at the stake as witches in early modern Europe, have transmogriphied into modern incompetents who cost the NHS millions in litigation.

The latest incarnation of this trend towards midwife-blaming came in yesterday’s Times editorial (paywall). Commenting on a Leicester University study into stillbirth rates in the UK, it claimed that ‘the roots of the problem are inadequate monitoring before birth, inadequate Times editorialinvestigation after it and a faddish bias in favour of midwife-led “natural” maternity care.’

Antenatal monitoring can be fatally haphazard, but as the Times itself reported last year, stillbirth rates are falling following improvements in standarised antenatal growth measurements. The Times’ suggestion that independent inquiries should be conducted after a stillbirth is a useful one and would help prevent the obfuscation and cover-up that parents experience too often in the NHS. The idea that fetal electronic monitoring, ‘resisted by natural childbirth advocates‘, offers a wonder solution to stillbirth is sadly misguided. If only a technology were capable of preventing death. As NICE has concluded, the use of electronic fetal monitoring is guided by the imperatives of litigation rather than by any clinical evidence that it improves birth outcomes for babies.

But it is the notion of a ‘faddish bias’ for midwife-led care that must be most vigorously challenged. As the evidence I cited to the journalist shows, midwifery-led care is safe. In fact, research shows that the safest form of maternity care is one-to-one care provided by the same midwife throughout pregnancy and birth. The reason is obvious: a midwife who provides continuous care for a woman will know her well and will be in a much better position to appreciate any problems that may arise and follow-up if they do.

Evidence aside, it is profoundly demeaning to suggest that the decisions a woman makes about how to give birth are a ‘fad’. Inevitably, all birth choices are shaped by cultural norms, but that makes them no less an expression of an individual’s fundamental human right to physical autonomy. At Birthrights, we hear from women who want to give birth in every conceivable way – naturally, via elective c-section, without any medical assistance at all. None of these choices are ‘fads’. All of them represent the very real wishes of women who approach birth influenced by their own histories and perspectives. Belittling women’s childbirth decisions is just another form of discrimination that women encounter in daily life; it is another way to say that women are stupid and that they do not know best. As Baroness Hale put it in the recent Supreme Court case on consent in maternity care, ‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.’

Elizabeth Prochaska, Birthrights

Dubska v Czech Republic: A blow to women’s reproductive rights in Europe

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.European-Court-of-Human-Rights

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.

Unexpected difficulties”

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.

European consensus

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.

Bearing burdens

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

Consent and student medics – European Court ruling

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.Student-midwives 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.

Home v hospital – the debate continues with publication of NICE consultation

National Institute for Health and Clinical Excellence_0Here we are again: home versus hospital versus midwifery led unit. Which place is ‘safer’, which mothers are putting their babies ‘at risk’ and so on and on. The place of birth debate is back in the news after NICE published its consultation into its guidelines on choosing place of birth. It plans to revise its guidance to recommend that women with ‘low risk’ pregnancies are advised by their midwives to give birth in a midwifery-led unit (an MLU), and for low risk second-time mothers, at an MLU or at home. The recommendations are based on the Birthplace Study, which was published in 2011, and has already has a significant impact on the advice given to women in the UK.

As ever, the debate neatly divides women into two groups: ‘low risk’ and ‘high-risk’. Each woman is expected to make her choices in line with her label. But risk is a political concept, particularly in maternity care. It can reflect discriminatory assumptions (just look at how obese and older mothers are treated). It can be used to enforce shocking violations of women’s autonomy (witness recent forced c-section cases in the UK and Brazil). And yet no one questions what ‘risk’ means and who determines it, or whether there might be something other than risk to consider, say the long-term physical and psychological health of the mother or the integrity of the family unit. We fixate on the risks of childbirth, which are generally fractional, and forget what childbirth is about: the creation of a family, making sure the mother and baby come out of the experience attached to one another and not torn apart by birth.

The only way to respect each individual woman – low risk or high risk – is to ensure that she has a relationship with one midwife throughout her pregnancy and labour who she can trust to provide her with balanced information and empathetic support. A midwife who will stand by her as she faces the inevitable and unavoidable risks of being human.

Obstetric violence in Brazil

This week a court in Brazil authorised the forcible removal of a woman from her home and the performance of a cesarean section against her will. You can read the Brazilian news reports here, translated here. obstetric-violence

The justification? An obstetrician told the judge that a c-section was necessary to protect the fetus from potential harm. The mother did not suffer from any mental health disorder, she had mental capacity, and she had agreed to labour naturally in hospital. Her crime? According to news reports, she was deemed ‘high risk’ because she had had two previous c-sections and her baby was breech. She was in well-established labour when she was taken from her home by police and medical personnel.

Risk can never be a justification for authorising a violent physical assault on a woman. It is a very poor basis on which to make judicial decisions that have a long-lasting and profound effect on a person’s physical integrity. Risk might sound appealingly scientific and rational, but it is not. The risk of uterine rupture is around 0.5%. Put another way, there is a 99.5% chance that it will not happen. Which way you look at it depends on your personal sensitivity to risk. Some obstetricians would present the risk in one way, others would present it in another. Some support a woman to have a vaginal birth after two c-sections, others would recommend a c-section. Risk can never provide a sound legal basis for justifying an assault. When it is used to compel women to receive medical interventions, it is an expression of violent patriarchy, pure and simple. Would a Brazilian court order a man to undergo an invasive kidney transplant to save his dying child? No. Only women’s bodies are treated as public objects subject to the whims of the medical profession backed by the coercive power of the state.

Brazil is known for its appalling treatment of pregnant women. The United Nations Committee on the Elimination of Discrimination against Women ruled in 2011 that health services in Brazil discriminated against a pregnant woman after she miscarried and was left to die in a primary care clinic. Risk to women’s lives is overlooked, risk to the life of the fetus apparently justifies grossly disproportionate state intervention.

We must hope that the response to this case will mark a sea-change in the treatment of pregnant women in Brazil.

You can sign the Avaaz petition here.

‘Captured womb’: feminism, childbirth and motherhood

Deborah Talbot explores the relationship between birthing experiences and the transition to motherhood.

Ann Oakley wrote in her seminal work on childbirth and motherhood, Women Confined, that ‘the medicalisation of childbirth has changed the subjective experience of reproduction altogether, making dependence on others instead of dependence on self a condition of the achievement of motherhood’ (1980, p.98). For Oakley, a core part of the feminist project was control over one’s own body; childbirth, in the context of increasing medical intervWomen Confinedentions, no matter how well-meaning, was a critical moment in the social control of women’s bodies.  The core question of ‘who owns my body, myself or the state’ is answered in Oakley’s work.

Yet since then there has been a resounding silence on the relationship between the feminist project, birthing and motherhood. Of course birth doulas and midwives talk about these matters, and the natural birth movement through organisations such as the National Childbirth Trust have highlighted some core concerns (albeit with their own strictures), and there has been specialised research done, but it has thus far remained on the margins of debate. Of course, rape, contraception, work and childcare are important aspects of women’s equality; although arguably the equation of work with equality – a capitalist hijacking of oppression – unravels when children arrive, and is perhaps more to do with the lack of flexible work and work/life balance for all, than the lack of childcare as successive governments have claimed.  The embodiments involved with being pregnant, giving birth, being a mother, seem to sit uncomfortably and messily with recent feminist demands for equality and inclusion, precisely because it is a condition of difference and, in our work obsessed and micromanaged society, deviance.

These issues were all raised in the first seminar of a new seminar series organised by Birthrights and myself, and sponsored by Centre for Citizenship, Identity and Governance at The Open University.

Elizabeth Prochaska presented a range of perspectives around dignity in birth, including highlighting the importance of rethinking the feminist project to be inclusive of birthing and motherhood. So she argued that ‘there is a need to match up feminist discourse with women’s experiences of their bodily integrity through pregnancy and childbirth…feminism is quite uncomfortable with the concept of motherhood. It doesn’t know what to say about it or construct it in any positive way’. She cited the case in 2013 in Essex of a women who had her baby removed from her by forced caesarian section because of a breakdown; this underlies the increasing lack of control women have over their own bodies and when, in the words of an article of the Lancet (2010) ‘Women have the right to choose how and where to give birth, but they do not have the right to put their baby at risk.’

Nicky McGuinness presented research around midwives’ perspectives, touching on issues of consent and control even for the most committed midwives. Her research showed that her sample thought and cared deeply about how women were treated during labour, but that ‘there was a feeling that sometimes biased presentation and/or coercion was used to manipulate women to make certain choices that were in line with recommendations and guidelines‘. The subsequent discussion focused on the surveillance and control of women’s bodies through the dominance of risk management in the NHS, where women’s compliance is expected and delivered, and midwives use of guidelines secured, through the threat of likely harm or risk particularly to the baby. The discussion was very lively and demonstrated an appetite not just for thinking about birthing and motherhood, but how we might begin to articulate a narrative of resistance.

I will present the next seminar on the 26th February, and will be taking forward these themes by examining research I conducted in 2013 exploring the relationship between birthing experiences and the transition to motherhood.

For further information on the seminar series and to register for future events follow this link.

 

Do I have a right to choose a caesarean section?

This is the first article in a series responding to questions Birthrights receives from women and healthcare professionals. If you have a question you’d like answered, please get in touch.

Birthrights is regularly asked whether women are legally entitled to a cesarean section. The question is asked both by women who seek an elective c-section and by healthcare professionals who wish to understand their obligations towards women who choose c-sections.

c-sectionWhile women have no statutory entitlement to any particular type of maternity care in the UK, the decisions of healthcare professionals about the care that they give to women must be lawful. That means decisions must be taken in accordance with the general principles of the law, and where the care is provided by the NHS, that includes the principles of public and human rights law.

It goes without saying that a decision not to perform a c-section where it is clinically necessary to avoid harm to mother or child could lead to a retrospective claim for damages for clinical negligence. Where there is a threat to the life of mother or child, hospitals and individual clinicians are obliged to take steps to save life under Article 2 of the European Convention on Human Rights, enacted in UK law by the Human Rights Act 1998. But these are not the concerns of mothers who request a c-section when there is no immediate clinical necessity for the operation.

Women have a right to make choices about the circumstances in which they give birth. This simple but powerful principle was established by the European Court of Human Rights in Ternovszky v Hungary (2010) under the right to private life in Article 8 of the European Convention which encompasses rights to physical autonomy and integrity. Article 8 is a ‘qualified right’ and so limitations on the right are permitted. The Ternovszky case concerned the right to give birth at home, but the principle applies equally to all choices that women make about childbirth. The decision represents a profound challenge to medical authority: if women have a legal right to make a choice, any limitation on that right must be justified. The decision-maker, whether a hospital or a doctor or midwife, must give proportionate reasons for their decision based on the individual circumstances of the woman and their reasons can be tested in court before a judge.

To take the experiences of a number of women who have contacted Birthrights recently, if a women requests a c-section after a previous traumatic vaginal birth and explains to her midwife and obstetrician that she is afraid of giving birth vaginally again, the reasons given to her for refusing to offer a c-section can be scrutinised and balanced against her reasons for requesting a c-section. A court has not considered this sort of case before (and it seems unlikely that a case would reach court given the cost of litigation versus the much lower cost of simply providing the surgery), but a judge would undoubtedly take into account the serious effects of refusing the operation on the mother alongside obstetric risk as assessed by the doctor and, potentially, the financial cost of a c-section.

Some cases would be stronger than others. As recent research by the Royal College of Obstetricians and Gynaecologists revealed, in some UK hospitals women have a 40% chance of an emergency c-section after an induction. If a woman requests a c-section in order to avoid the induction process and the high odds of an emergency c-section or instrumental birth, and consequent potential trauma, a decision to refuse to perform the operation might be hard to justify. (And, of course, a failure to explain the likelihood of a c-section in these circumstances disables the woman’s ability to make an informed choice and casts doubt on her consent to the induction.)

We are often asked whether NICE guidelines have legal force to compel a doctor to provide a c-section. The NICE guideline on elective c-sections without a clinical indication states that women ought to be offered a c-section after discussion and an offer of mental health support. NICE guidelines are not legally binding on medical professionals. However, where a decision is made to depart form a guideline, reasons need to be given and exceptions considered in each individual case.

US research reveals widespread mistreatment of pregnant women

A study just published in the USA finds horrifying mistreatment of pregnant women based on misguided application of ‘pro-life’ laws.

The groundbreaking research reveals how attempts to create a separate legal entity for fetuses have led to arrests, detentions, and forced medical interventions on pregnant women.

Co-authored by Lynn Paltrow at National Advocates for Pregnant Women, an inspirational organisation fighting hard to resist the rising incursions on pregnant women’s autonomy in the name of their unborn child.