Why the Context of Childbirth Matters for Human Rights Law

‘Gravity of Tenderness’ by The Fabler.

Childbirth is a life-changing event in a woman’s life. Yet a significant proportion of women worldwide experience obstetric violence and mistreatment during childbirth at the hands of healthcare providers. Recent decisions of the CEDAW Committee (see here and here) and the Inter-American Court of Human Rights (see here and here) have recognised the existence of this problem, highlighting the duty of States to guarantee and respect women’s rights in the childbirth context. Although cultures vary around the world, this blog post focuses on aspects common to societies with a Western approach to medicine, as this is where obstetric violence and mistreatment in childbirth is generally reported, according to the evidence.

Childbirth is not only the act of delivering a baby; it occurs in a certain context and has particular meanings. It has a physiological, social, experiential, and political character, and the interaction of these features determines how childbirth is understood in society today. Examining these aspects is essential, as they have significant consequences for women and must therefore be considered when defining and implementing human rights obligations regarding childbirth.

By drawing on other disciplines that can illuminate aspects the law alone cannot explain, this understanding can be integrated into legal analysis by shaping the interpretation of women’s rights and clarifying the scope of State obligations – as reflected in the jurisprudence of the Inter-American Court of Human Rights – thereby enabling international human rights law and then, national legal systems, to better respond to women’s experiences in childbirth.

Childbirth Is Not Only About Biology

‘Childbirth’ is the physiological process of giving birth. Yet it is not only a physical phenomenon; it also relates to the woman’s overall well-being. Birth in humans is usually performed with the assistance of another person, and although women may give birth unattended, mortality rates are lower if they are assisted. However, the most important reason for assistance in childbirth is the security and emotional support that birth attendants provide for women, as they are aware of their vulnerability during that process.

The Social Side of Childbirth

The notion of childbirth is also related to its social organisation: it is shaped and defined by the culture in which it occurs. Moreover, the meaning of childbirth is closely linked to society’s attitudes regarding women, with the management of childbirth having implications for both women and society.

Two concepts are relevant here: motherhood and vulnerability. ‘Motherhood’ is the state of being a mother. While not every woman wants to have children, the likelihood of bearing children is a crucial part of many women’s identity. Then, although not all women will become mothers, they all have, in theory, the possibility of becoming mothers.

From a woman’s perspective, the birth of a first child is a defining moment: one that in a few hours may involve a significant role change and legal responsibility for another person. Giving birth is not just delivering a baby: women turn into ‘mothers’ and can experience feelings of loss in several aspects of their lives, including identity, work, lifestyle, and relationship with their partner.

Motherhood can be understood as an institution – how society defines it – and as an experience – how women who become mothers perceive it. However, the experiential side is generally neglected by society. Furthermore, society links the ability to give birth or childbearing with the ‘social mothering of children’ or childrearing. The powerful influence of these conceptions, along with the changes to women’s lives, means they may experience further difficulties.

Meanwhile, being vulnerable means to be exposed to the danger of a harm while having the inability to protect oneself. Vulnerability arises from the interaction of an individual’s personal characteristics and their particular circumstances. Individuals are not vulnerable per se; situations make them so. Despite this, most societies consider childbirth a moment of potential vulnerability for women and babies.

A woman may experience different layers of vulnerability during childbirth: her previous circumstances, those faced during labour, and the culture of childbirth. Physical, psychological and sociological threats or barriers may increase a woman’s vulnerability, while conditions during labour itself – such as an unknown environment, physical exposure, and lack of control over one’s own body – can further augment it.

The Experience of Childbirth

In addition to the physiological and social sides, childbirth has an experiential one. The effect of the childbirth experience is so strong that it may have a permanent positive or negative impact on women’s development. The first childbirth, in particular, can positively or negatively influence the meaning attached to reproduction and to future reproductive experiences.

For most women, the process of understanding and integrating what happened during childbirth takes time. This may be a reason why women cannot recognise abuse immediately after it has occurred. Despite this, evidence shows that women’s memories of childbirth events remain accurate many years later, with minor lapses or errors in details. Furthermore, negative events do not become more positive, and their significance seems to increase over time, while positive events remain the same.

Not only physiological and medical but also psychological and social factors have an impact on the assessment women make of their childbirth experiences, and the way women are treated and how they conduct themselves during labour are more important than the clinical aspects. In this regard, the woman’s feeling of being in control and the level of support of health professionals are both elements of a positive childbirth experience.

Women’s perception of birth changes over time, probably due to the halo effect: the joy and relief of delivering a healthy baby overshadow disappointment or anger at difficult interactions with staff or unwanted medical procedures. However, later in time, memories may become clearer and negative aspects may be more clearly perceived.

Childbirth as a Site of Power and Control

The conception of childbirth is also related to the political system, as the epicentre of political power lies in the definition and dynamics of childbirth. Moreover, the management and control of childbirth is an integral part of how women, and reproduction, in general, are controlled in society. This is largely attributable to the early twentieth century shift in control over childbirth from traditional midwives to male medical practitioners.

Power in the medical setting is a complex phenomenon because of the different relationships that coexist there, such as doctor-patient, professional, and institutional relationships. The doctor’s power consists in determining if the patient fits within a medical category and claiming the ability to treat or cure them. Such power generally operates in veiled ways and is not easily recognisable.  In maternity care, there is often an imbalance of power between doctor and woman, even if the practitioner does not exercise such power over the woman.

Nowadays, medical control over childbirth rests on the assumption that pregnancy is a disease that causes problems and that the medical profession’s methods for dealing with it are the most appropriate ones. This is because medical knowledge is considered ‘authoritative knowledge’ that is limited to certain individuals and distributed in different ways amongst them according to a hierarchy. As a consequence, women’s prior experience and knowledge – embodied knowledge –  are devalued or dismissed by health professionals.

Childbirth and Medicalisation

When the physiological, social, experiential, and political aspects of childbirth interact, an actual – although not necessary – consequence is the medicalisation of childbirth. ‘Medicalisation’ is the definition and treatment of non-medical problems as medical problems, usually in terms of illness and disorders. It also means a way of controlling experiences considered deviant from social norms.

Medicalisation leads to the consideration of pregnancy and childbirth as abnormal or pathological processes that need to be managed by medical professionals.  It also suggests that the dominant conception of health is male biased by assuming that a normal body does not change, unlike those of women. Since the doctor has knowledge and the woman does not, a relationship of dependency is created, enabling the doctor to control both the process of childbirth and the woman’s experience.

According to the World Health Organization, the widespread medicalisation of childbirth leads to a great proportion of healthy pregnant women worldwide undergoing medical interventions during labour. A possible explanation for this high prevalence is that women’s choices are shaped by the system, being the result of a dominant cultural behaviour. As oppression works through prescription – with the oppressed subject following the oppressor’s guidelines – most women give birth in a medicalised context because it is the prescribed behaviour for pregnant women.

What are the Consequences for Women?

Considering childbirth as an abnormal or pathological process, managed with a high level of medical intervention and characterised by an imbalance of power, is not neutral – it has significant consequences for women giving birth.

First, it disregards women’s experiences, showing that the medical discourse on pregnancy and childbirth ‘omits subjectivity’ – it does not view women as subjects. Second, it objectifies women – they are considered passive objects that can be medically manipulated. Third, it situates women in a subordinate position in relation to the medical professional: the treatment of women in childbirth by male doctors resembles that of patients – although pregnancy is not an illness – because they are considered submissive, passive, dependent, and lacking initiative. This puts pregnant women in a situation of double deprivation as they are women and patients at the same time.

Finally, modern management of childbirth undermines or denies the autonomy of women because it assumes they are not responsible individuals and cannot make their own decisions about what is best for them. As a result, women’s experiences of pregnancy and childbirth are ‘alienated’ – defined and controlled by another subject who does not share their goals.

Why is This Important?

Human rights are not abstract principles; they entail concrete obligations for States. These obligations do not operate in a vacuum; they must be implemented at the national level if human rights are to become a reality. Effective implementation at the domestic level requires addressing the root causes of the violations of women’s rights and taking into account their lived experiences. This is why it is essential to understand the physiological, social, experiential and political character of childbirth.

Recent jurisprudence from the Inter-American Court of Human Rights shows how this approach can be applied in practice.  For example, in IV v Bolivia, the Court examined the role of medical power regarding women’s autonomy to make decisions in the childbirth context as part of its reasoning for requiring the woman’s prior, free, full, and informed consent for any medical procedure. In Brítez Arce v Argentina, it declared that the particular vulnerability of women during or immediately after childbirth entails specific State obligations to refrain from practicing obstetric violence.

In both judgments, the Court acknowledged throughout its reasoning the physical and psychological effects of violence and abuse on the victims as well as their broader impact on their lives, and took them into account when granting remedies, which included monetary compensation, measures of rehabilitation, measures of satisfaction, and guarantees of non-repetition. These decisions illustrate how contributions from other disciplines can inform legal analysis and clarify the scope of State obligations regarding childbirth.

States should adopt a similar approach when implementing their human rights obligations at the national level, keeping in mind that a significant amount of cultural change is also required. Only then can obstetric violence and mistreatment in childbirth be effectively addressed, and women’s rights in childbirth be guaranteed and respected.

This blog post is based on the author’s doctoral research at UCL.