by Rangita de Silva de Alwis
The post is dedicated to Judge Nancy Gertner of Harvard Law School (former member of the Presidential Commission on the US Supreme Court) for her pioneering work in the area of reproductive health.
In a historic decision that has major consequences on violence against women in the health care system, at its 84th Session in February 2023, the Convention on the Elimination of Discrimination against Women (CEDAW) Committee in the Communication No. 154/2020 submitted by Spain's MDCP (under the Convention's Optional Protocol), recommended that the State party (Spain) provide effective reparation and financial compensation for the damages that MDCP suffered as a consequence of obstetric violence.
Radhika Coomaraswamy, the former UN Under-Secretary-General and the first UN Special Rapporteur on Violence against Women, applauded the CEDAW Committee's decision and commented: "Obstetric violence is a very important concept that captures the day-to-day hidden violence that is often directed against women. In my work as Special Rapporteur on Violence Against Women, I met many women who suffered from this kind of violence. I am glad that the CEDAW Committee names this violation. Hopefully, governments, multilateral agencies, and non-governmental organizations will take note."
The CEDAW Committee has, in prior individual communications, decided on facts similar to those in the case of MDCP in the communications of NAE v. Spain ( 2019) and S. FM v. Spain (2018). In those decisions, the Committee has held that the State party was in violation of several rights guarantees of the CEDAW, including, Article 2 on anti-discrimination, Article 5 on anti-gender stereotypes, and Article 12 on the right to health, including reproductive health.
The term "obstetric violence" recognizes how individual instances of obstetric abuse are part of the broader ecosystem of gender-based violence as they result in a loss of autonomy and the ability to decide freely about women's bodies and sexuality. The naming of "obstetric violence" as a way to shed light on previously unacknowledged harm is important because abuse in obstetric and gynecological care is a type of violence often left out of lawmaking on violence against women or gender-based violence. Moreover, the definition of obstetric violence as a subset of gendered violence highlights that it is also a form of structural discrimination and, therefore, needs to be addressed through systemic measures.
The World Health Organization (WHO) has acknowledged that "[m]any women across the globe experience disrespectful, abusive or neglectful treatment during childbirth in facilities."[1] Obstetrics violence includes, but is not limited to, violations of the rights to informed consent and bodily autonomy, which lead to both physical, psychological, and emotional ha ms. Mistreatment during childbirth may be perpetrated by health care professionals well as other professional staff during labor and delivery. The phenomenon is often complicated by the power dynamics present in many doctor-patient relationships.
There is no definition of obstetric violence that is universally recognized in global public health discourse, and the categorization offered by the CEDAW is fluid, part of a continuum, and non-exhaustive. Although the violence includes a wide range of practices, there is obvious overlap between abusive, coercive, and disrespectful treatment. Therefore, the categorization offered by the CEDAW Committee implicitly acknowledges that many incidents women report involve multiple forms of conduct that together may rise to the level of violence.
The discourse on obstetric violence is growing and has been featured in scholarship in the US.[2] Most references to obstetric violence are still limited to those addressing developments outside the United States.[3] Prompted by advocates in Latin America who have tackled the issue of mistreatment in childbirth directly and, in some jurisdictions, secured legal sanctions against such conduct, advocates around the world have begun to adopt the language of "obstetric violence" to describe and condemn these abuses.
In Latin America, increased attention to the pervasiveness of abusive practices in obstetric care sparked strong grassroots obstetric rights movements. Argentina adopted a legal framework that granted women the right to a humanized childbirth experience in 2004. This framework introduced a human rights-based approach to childbirth meant to guarantee a more dignified and respectful experience in facility-based childbirth. In 2007, Venezuela passed a comprehensive legal framework to protect the "right of women to a life free of violence," which included specific provisions to address the abuse and disrespect of medical professionals against pregnant women. This law begins with definitions of gender-based violence and defines "obstetric violence" as the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, and an abuse of medication. Moreover, it addresses the way in which obstetrics violence pathologizes childbirth, causing women's loss of autonomy and their ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women. The Venezuelan law criminalizes several types of obstetric violence, including the performance of cesarean sections and the practice of artificially accelerating labor without informed and voluntary consent.
Addressing this yet largely unnamed violence, a former CEDAW Committee Chair, Dubravka Šimonović, tells me, "In 2019, as a Special Rapporteur on violence against women, its causes and consequences, I presented to the UN Human rights Council my thematic report a human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence. I have received testimonies from many women victims that voiced the fact that violence against women in childbirth is so normalized that it is not (yet) considered violence against women." As Simonovic explains, "The main aim of my report was to frame obstetric violence as gender-based violence against women and girls and a violation of their human rights, with corresponding obligations for States to develop appropriate human rights-based laws, policies, and national women's reproductive health strategies and that they ensure the proper application of informed consent. " She argues strongly that "states should conduct an independent investigation into women's allegations of mistreatment and gender-based violence in healthcare facilities and publish the results and recommendations." In her report, Šimonović further called upon States to: "establish human rights-based accountability mechanisms to ensure redress for victims of mistreatment and violence, including financial compensation, acknowledgment of wrongdoing, formal apology, and guarantees of non-repetition."
In the final analysis, of this important decision, the CEDAW Committee articulated an understanding of obstetric violence, beginning with a detailed examination of mistreatment perpetrated by healthcare providers. This case draws on the individual narrative of MDCP to illustrate the serious consequences of health care mistreatment. After developing a nuanced view of obstetric mistreatment and its implications, the CEDAW Committee's recommendations examined the failure of law, policy, and regulation to provide meaningful prevention of obstetrics violence or recourse to remedies in light of harm. Finally, the Committee identifies several factors that create conditions that allow the mistreatment of women during childbirth to occur, including structural factors related to economic and social norms related to gender and pregnancy that shape how health care is delivered. The Committee concludes by calling upon Spain's healthcare systems to offer a shift in obstetric care culture and, ultimately, to secure remedies through the human rights framework of the CEDAW. The CEDAW Committee not only upholds the rights of the victims of obstetric violence to full reparation but also calls for the recognition and prevention of such future forms of violence.
[1] THE WORLD HEALTH ORGANIZATION, IN THE PREVENTION AND ELIMINATION OF DISRESPECT AND ABUSE DURING FACILITY-BASED CHILDBIRTH (2015), http://www.who.int/reproductivehealth/topics/maternal_perinatal/statement-childbirth/en/ [https://perma.cc/E2UH-L7WP] advocating a plan to prevent "disrespectful, abusive, or neglectful treatment" received endorsements by over 90 organizations.
[2] See Farah Diaz-Tello, Invisible Wounds: Obstetric Violence in the United States, 24 REP OD. HEALTH MATTERS 56 (2016)
[3] See Debts of Democracy: Framing Issues and Reimagining Democracy in Twenty-First Century Argentine Social Movements, 30 H RV. UM. TS. J. 165, 201 (2017) (mentioning obstetric violence in context of Argentine dictatorship's impact on women's reproductive health); Liiri Oja & Alicia Ely Yamin, "Woman" in the European Human Rights System: How is the Reproductive Rights Jurisprudence of the European Court of Human Rights Constructing Narratives of Women's Citizenship?, 32 CO UM. J. GENDER & L. 62, 79 (2016) (noting use of term "obstetric violence" throughout Latin America).
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