How should Health Care Professionals handle a maternal request for caesarean?

Its been unusually noisy in the maternity world over the summer, as media reports have reignited discussion about what a safe” birth looks like. At Birthrights we believe that the need to listen to women is the mast that all those who care about the safety of women and babies during birth, can cling to when the seas of discussion get rough. 

Many women want to avoid unnecessary interventions in childbirth and, on the 15th August, Birthrights CEO Rebecca Schiller wrote about the vital role midwifery care plays in ensuring women who don’t need and want intervention have the best chance of avoiding it safely

We have also been working hard to support a smaller but important group of women who feel a planned caesarean section is the right choice for them. We created our recent maternal request for caesarean campaign to ensure that these women’s voices were heard and to discover the barriers to their requests being granted

In this blog post, our Trustee, midwife Simon Mehigan, shares his experience of working with women who want a caesarean for no medical reason, and why the approach of a number of Trusts to shut off this option from the outset, is counter-productive.

“A few years I was employed as a consultant midwife at a large teaching hospital in the Northwest of England. One of my responsibilities was to see all the women requesting a caesarean section in the absence of what was considered to be a medical reason.

Over the course of three years I saw over 500 women. I saw the majority of these women just once with a follow up either by email or by phone. Some I saw twice and for a small proportion I took over all of their care, as it was apparent that continuity would have a significant impact on their decision-making. Here’s what I learnt:

Saying no initially to a womens request for an elective caesarean section creates an antagonistic starting point for discussion and doesnt reduce the overall caesarean rate.

I very quickly discovered that by telling women very early on in my conversation with them that “if a caesarean section is ultimately what you want I will help arrange that for you”, that they relaxed, were prepared to listen to what I had to say and were receptive to discussing alternatives.

In fact having met me and discussed their options, 85% of women opted to aim for a vaginal birth of their own accord and over 70% of those women ended up having a vaginal birth.

A couple of women actually informed me after our consultation that because I had said I would support them in their request for a caesarean section that they no longer wanted one. Being told “no” by consultants had made them more determined to have a caesarean section because they were not prepared to let someone else make decisions about their birth.

A de-brief of their last birth often alters a womens view.

A number of women didn’t understand what happened to them last time. Going through it with them, explaining why things might have happened often helped women in realising that things could be different in this new pregnancy and birth.

After 28 weeks it is more difficult to alter the view that caesarean section is the right choice

Many Trusts schedule these conversations for the last few weeks in pregnancy and yet what I experienced was a direct correlation between the gestation at which I met women for the first time and whether they would be open to explore options that might ultimately feel better to them than a caesarean section. The later I saw them the less likely they were to consider any other options.

The plans of care I developed in conjunction with the women often focused on having an uncomplicated birth with a low threshold for a caesarean section.

The majority of women I saw had had a previous traumatic birth experience. Common themes were a lack of control, lack of communication from staff and a negative experience of induction. Therefore the plans we made together often stated no induction of labour, no rotational forceps, minimal examinations and diverting to a caesarean rather than trying other interventions if the birth wasn’t completely straightforward

Once a decision had been made a line had to be drawn.

Women found it very stressful having to revisit their decision every time they met a health professional.

A caesarean is the right choice for some women.

I have over the years met many women that have felt a caesarean section was the right choice for them. They could all explain rationally why they wanted to birth their babies in that way.

By listening to them, talking to them as an equal and ensuring they felt in control of the process they not only developed confidence in their bodies but more importantly in their caregivers and the organisation irrespective of whether their final decision was to opt for a caesarean section.

In over 20 years as a midwife I have yet to meet a woman that has made irrational decisions or choices. They have always been the right choice for that women based on her individual circumstances.”

Simon Mehigan

Do I have a right to a c-section? Update on Oxford University Hospitals

On 24th May we launched a campaign to engage with Trusts who state that they do not offer maternal request caesarean sections, thereby denying women the individual respect and consideration they are entitled to. The first Trust we wrote to was Oxford University Hospitals whose policy on offering planned caesarean sections is stated in this leaflet:

http://www.ouh.nhs.uk/patient-guide/leaflets/files/10405Pcaesarean.pdf

OUH responded to our original letter stating that their approach was in full compliance with NICE guidelines, and that they offered a “kind, friendly and professional service”. Unfortunately the reports we have received of women not being listened too, being left shaken by consultations, and being left distressed and anxious knowing that their request for a caesarean section would not be granted by OUH, are at odds with OUH’s account.  Therefore, this week, we wrote again to the Trust, their Commissioners, Healthwatch Oxfordshire and the CQC, to share some of your stories and to urge them to reconsider their approach. If you would like to tell us about your experience or requesting a maternal request caesarean section at OUH or elsewhere, please comment below…

Letter to R Schiller (Birthrights) from OUH

Second letter to OUH from Birthrights with case studies

Birthrights on Mumsnet

We’re really pleased to announce that we have not only updated our own set of factsheets, but have partnered with Mumsnet, to update our answers to their most frequently asked questions about rights relating to pregnancy and birth.

You can find Mumsnet users’ questions and our answers here. Ranging from common concerns about the right to an epidural or a homebirth, to more specific questions about water birth and antenatal check-ups our work with Mumsnet helps us to give definitive answers to millions of women.

We’ve grateful once again to the team at Mumsnet HQ for the chance to speak directly to so many women directly affected by these issues.

About Mumsnet

Mumsnet is the UK’s largest network for parents, with over 10.5 million unique visitors per month clocking up over 100 million page views. It has 170 local sites and a network of 10,000 bloggers and vloggers. It regularly campaigns on issues including support for families of children with special educational needs, improvements in miscarriage care and freedom of speech on the internet.

Mumsnet logo

 

Rapid Resolution and Redress scheme – consultation now open

A Rapid Resolution and Redress scheme was one of the key recommendations coming out of the Better Births report. This month the Department of Health has launched a consultation on this proposal.

Currently families whose children have suffered severe injury due to negligent maternity care have to wait an average of 11.5 agonising years to receive compensation. A Rapid Resolution and Redress scheme should offer a shorter, more supportive option for parents.

Birthrights will be responding and will be publishing a guide to the proposals on our website in the next few weeks. If you have direct experience we would particularly urge you to respond to this consultation and use this opportunity to have your voice heard.

The closing date for the consultation is 26th May.

A view from India: Human Rights in Childbirth

Today is Human Rights Day 2016. Every year on the 10 December we commemorate the day on which, in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. So on this day, when we think about how we can stand up for human rights both here in the UK, and all over the world, we are sharing a guest blog post from Lina Duncan, a midwife (@MumbaiMidwife), who has written about her experience of childbirth in India…

Trigger warning – this piece discusses a stillbirth

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I have lived and worked in urban India for nine years and during that time I have found that midwives are missing from the system. I have witnessed how hospital policies, mixed with religious or family tradition, harm women and their babies.

I have heard and read hundreds of stories about women in India who have been pressured into potentially unnecessary interventions with inaccurate, fear-mongering information. This breaks women. It damages them before they even begin to birth and care for their babies. Most women do not speak of these things because they are told that a healthy mother and baby is all that matters.

I have seen and heard of many tragic situations of pregnancy loss or stillbirth where the mother was not told the truth. In each case, the mother was told her baby was in the NICU. She was lied to and denied the right to meet her baby, to make memories, to grieve, to hold her baby. Mothers are too often then silenced in their grief.

I do not believe that a healthy mother and a healthy baby are all that matters. I believe that the truth also matters. Facts, and language, are vital, so that women have all the information they need to make informed decisions. This is especially the case when a care provider has to give difficult, or potentially devastating news.

Truth + Kindness + Compassion = (usually) Satisfaction and Comfort

Half-truths + Lies + Fear = Broken Trust, Fear and Trauma

++++++

I have a friend. She looks a little wild, maybe that’s why I liked her from the start. She often has a vacant look in her eyes. Frequently, she adjusts her clothes and shows me bruises from her alcoholic husband.

She doesn’t know her birthday, nor her age. She looked about 22 when I first knew her, pregnant with her first son who was born in a temporary shelter where she was living on a disused railway platform.

Fast forward a couple of years. I have not seen her for months. Her chaotic life is mostly about daily survival. She feeds her drunk husband first, of course. Then, her son, and then, her pregnant self. She has not had any antenatal check-ups. I persuade her to go with me to the government hospital, with son in tow because she is afraid to leave him with his father.

I show her what to do and entertain her lovely unruly son who is filthy. Everyone stares at me, and her, and it’s awkward and tedious. It takes about seven hours to get completely registered. She is prescribed vitamins, calcium, protein powder. I get her a few of the important ones and open them so they can’t be sold for liquor.

I don’t see her again for months and I worry.

One day she rocks up and calls my name. She is 39 weeks pregnant. She has had no antenatal care for 30 weeks. She does not want to go back to hospital but her husband thinks it’s a good idea. I go with her. The son stays at ‘home’.

The hospital wants to see a sonogram. The machine is broken. We have to pay 400 rupees (£4) for a private one. She has 10 rupees only. I pay. It takes forever.

I’m ‘not allowed’ in with her. Then the curtains are drawn back and I’m invited in. I know it’s not good news. ‘No heartbeat and only part of the brain,’ says the sonographer, to me. My heart sinks. I ask him to tell my friend as my Hindi is not good enough. He tells her and she smiles and says, ‘let’s go get lunch’. She has not understood.

We get food and find her husband, who is drunk, and her 3-year-old son, who has bloody knees and chin from playing alone in a building site. She is angry. I call my consultant doctor friend who works in a government teaching hospital. He invites us to go there immediately.

Another sonogram. Heavily pregnant woman with confirmed anencephalic baby. Drunk husband. Three-year-old doing somersaults all around the hospital wearing his father’s t-shirt and nothing else. We are a laughing stock and I am requested to stay and admit my friend for induction and then remove the husband and son.

She is disturbed that her son is alone with dad and they are not ‘allowing’ her out of hospital. The hospital requests that she fasts and start induction at 5am the following morning. I ask several times, politely, if I may accompany her but it is not allowed. Baby is breech and still alive. I have had lots of conversations with her about what to expect. It hasn’t sunk in. She either doesn’t understand or doesn’t want to.

That night, I tell her I will come and I will be outside the ward until she gives birth and they let me see her. I tell my friend that when she feels alone, she can know I am just on the other side of the wall. This breaks my heart. I am a midwife.

She has to go into the labour ward alone.

A colleague and I sit on the floor outside the labour room for 19 hours. Being a doula through a wall is very hard, especially knowing what she is about to face. No one should have to labour and birth without a companion.

Around 1am we are called into a little room to look at her little girl who has been born dead. I ask to take a picture for my friend. They assure me that she will be shown her baby but don’t let me in to be with her. I take pictures on my phone. They are lovely doctors but I am so angry.

At 4am they let me in to see her and ask me to buy her tea and food. It had been about 30 hours since she has eaten.

It is easy to find her, sitting up in bed with a big grin, announcing she is starving and asking where her food is. I ask her if she has seen her baby and she says, ‘not yet’. I ask her if she wants to see my photos and she says yes. I tell her that her baby was not born alive, that she was a girl, that her heart had stopped beating before she was born. I tell her the truth. She doesn’t ‘hear’ it. She smiles, asks me to come back in the morning and goes into a deep sleep.

In the early hours of the morning my phone rings. Sobs, deep sobs and demands. ‘Come now’, she says. ‘They have killed my baby,’ she says. My friend is distraught in a room full of mothers with their babies.

The day she is discharged I go to bring her home. She’s a darling and so feisty. She laughs and jokes until we walk arm in arm out of the ward. Then her body begins to shake. She says, ‘I came here to have a baby and I’m leaving with empty arms’. I have tears running down my face as well and passers-by gave us kind looks.

My colleagues and I make many visits over the following days and weeks. The family like to see the picture on my phone.

My friend has since had another baby. Her husband sold her when she was only 2 weeks old. This is one woman, one story and she represents many that live in a silent story of abuse and disrespect.

Many of us are longing for the Human Rights in Childbirth conference to be held in Mumbai, February 2017. We hope to hear many women’s stories, hear from researchers, and talk about how a midwifery model of care can be introduced in India. Do follow the conference, and join in the conversation. #breakthesilence

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Maternity Care Failing Some Disabled Women

Research published today (15/09/16) by Bournemouth University and commissioned by Birthrights highlights how maternity care may not be meeting the needs of some pregnant disabled women.

A survey of women with physical or sensory impairment or long term health conditions highlighted how  – despite most women rating the support they received from maternity health carers positively – only 19% of women thought that reasonable adjustments or accommodations had been made for them. Some found birth rooms, postnatal wards and their maternity notes and scans “completely inaccessible”,  while a quarter of women reported that they felt they were treated less favourably because of their disability. Most strikingly, more than half (56%) felt that health care providers did not have appropriate attitudes to disability.

Just over half of the participants expressed dissatisfaction with one or more care providers, particularly their awareness of the impact of disability and their perception that their choices in pregnancy and birth were being reduced or overruled. One participant with a physical impairment and a long-term health condition stated, “No one understood my disability. No one knew how to help or who to send me to for support.” Another added, “I didn’t have any control or any choice. Everything was decided for me.” And one woman said, “They did not listen to me. I advised them on the unique way my body works. They did not listen to my advocates.”

Speaking in advance of the publication of her book Why Human Rights in Childbirth Matter and the Birthrights #newchapter campaign linked to the launch, Rebecca Schiller, chief executive of Birthrights said, “this interim report suggests that there are significant human rights issues at stake for disabled pregnant women in the UK and Ireland. More than a quarter of women we surveyed felt that their rights were either poorly or very poorly respected. This is unacceptable and we will be working hard to address this over the coming years.

After Birthrights’ dignity in childbirth survey (2013) we became concerned that the needs of disabled women in the system were not being met. Though it’s heartening to see how overall most women were satisfied with their care and hear some positive stories of excellent practice there is clearly progress to be made. The women surveyed asked overwhelmingly to be listened to. It is crucial to listen to and trust women to ensure the system is genuinely meeting their requirements and that they are at the heart of decisions about their maternity care. The Equality Act 2010 places a duty on the public sector to provide services that meet the diverse needs of those who use them yet participants indicated worrying lack of attention to accessibility of maternity services and facilities for women with a range of disabilities.

The survey is indicative of a wider problem around women’s rights in childbirth that can impact on all women and often most forcefully on the most vulnerable . This month Birthrights is launching a campaign for a #newchapter in pregnancy and childbirth to ensure safe, quality, respectful care is available to all women. Pregnancy and childbirth are a vulnerable time and the physical and emotional impact on women and their babies of a negative journey through pregnancy and childbirth can be severe.”

Professor Vanora Hundley of Bournemouth University added, “while this is a small survey the findings echo the recommendations of the National Maternity Review published earlier this year, which highlighted the importance of personalised, woman-centred care with continuity of carer. It is clear that these are important considerations for all women, but particularly for those women who have a disability.”

Read the full interim report here. We expected the full report to be released in January 2017 when the qualitative research is completed. With thanks to the Matrix Causes Fund for supporting this work.

Maternity experience of women with physical disabilities

Birthrights are excited to be taking part in a joint research project with Bournemouth University looking at disabled women’s experiences in maternity care. The survey below is open now (deadline extended from 3rd June). If you are a mum with a physical disability, please fill in the survey. Otherwise please share the link. The more women we can reach the better!

Disability survey

This is an area that we want to work more on and are planning some qualitative research with Bournemouth University in the future. The survey results will be shared widely. We will also be using them to inform our training and resources.

With thanks to the Matrix Causes Fund for part-funding this project.

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

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.

‘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.