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Blindfolded woman holding justice scales

Eva Bredler kickstarts the blog series dedicated to exploring naming and framings of violations in maternity care. Her blog post exposes different constructions of violence in human rights law versus social sciences and offers encouraging insights into bridging this divide.

Testimonies of facility-based childbirth around the globe reveal that birthing people often experience humiliations, negligence, threats, and interventions without informed consent such as vaginal examinations, episiotomies and caesarean sections. Social sciences use different names for these phenomena, such as ‘disrespect and abuse’, ‘mistreatment’ or ‘obstetric violence’. Although these concepts differ in emphasis, they all depict both the individual and the structural nature of what is happening in the birthing room. They denote not only e.g. physical violence, but also discrimination and health system deficiencies. In this post, I do not aim at advocating for or against any of these concepts, but rather seek to analyse how they translate into human rights doctrine taking the example of ‘obstetric violence’.

In 2019, the then United Nations Special Rapporteur on violence against women, Dubravka Šimonović, published a “Report on a human rights-based approach to mistreatment and violence against women in reproductive health services with a focus on childbirth and obstetric violence”, building on social sciences research. In her report, she addressed the terminological difficulties she faced: “the Special Rapporteur will use the term ‘obstetric violence’ when referring to violence experienced by women during facility-based childbirth. Obstetric violence … is not yet in use in international human rights law and, to address it under the existing international framework on the human rights of women, the Special Rapporteur will also use ‘violence against women during childbirth’” (para 12). In so doing, she differentiated between legal discourse and lived experiences, and for purposes of human rights law used the term ‘violence against women’. Why so?

To answer that question, it is crucial to understand the mechanics of international law. In general, international law depends on the consent of sovereign States. States have their own – historically contingent – social, cultural, and legal traditions. To safeguard these traditions, they are reluctant to tie themselves to universal human rights, especially when it comes to issues related to gender where national traditions differ enormously. As the concept of ‘violence against women’ has been used for over 30 years in United Nations conferences and treaty regime, it is efficient to rely on this concept for the purposes of human rights law.

‘Violence against women’ is “violence that is directed against a woman because she is a woman or that affects women disproportionately” and includes “acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty” (CEDAW, General Recommendation No. 19, para 6). This definition is relatively broad, encompassing non-physical and non-intentional harm. Yet it arguably does not include what Johan Galtung first coined as ‘structural violence’, that is the avoidable impairment of fundamental human needs. Structural violence knows no perpetrator, it is rather an indirect systematic impairment built into our social structures, manifesting as unequal life chances. With that in mind, ‘violence against women’ should be interpreted in light of the ordinary meaning of the terms in their context. Relevant CEDAW documents differentiate between “violence” on the one hand and “inequality” or “discrimination” on the other, and contrast “actual or threatened violence” with its “underlying consequences” (para 11), “causes” (para 24(c)) and “practices that perpetuate” it (para. 24(e)). In light of this, I argue that ‘violence against women’ denotes the individual consequence of structural violence, manifesting as personal harm. This is where the legal concept of violence against women in childbirth and the sociological concept of obstetric violence do not align. However, the structural moment of obstetric violence is not lost in interdisciplinary translation – in fact, anti-discrimination law equips legal doctrine with a precise analytical tool to address structural implications. With 189 States parties, the Convention on the Elimination of All Discrimination Against Women (CEDAW) is one of the core international anti-discrimination law instruments.

Article 12(1) CEDAW obliges States to guarantee non-discriminatory access to health services, ensuring informed consent as well as respectful and dignified treatment (General Recommendation No. 24, para 22). Substantive equality requires States parties to attend to gender-based health risks, and to accommodate the specific needs of marginalized women (General Recommendation No. 24, para 12). According to Article 12(2) CEDAW, States parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period. Both obligations require States to take measures “to the maximum extent of their available resources” (General Recommendation No. 24, para 17).

Two cases in point, adjudged by the Committee overseeing CEDAW: In Alyne da Silva Pimentel v. Brazil, a poor woman of Afro-Brazilian descent died from obstetric complications after being denied maternal health care in private as well as public facilities. The Committee found Brazil systematically failed to meet the specific health needs of women, thereby violating the right to non-discrimination not only based on gender, but notably on race and socio-economic status, too. Over 10 years later, the Committee first used the term ‘obstetric violence’ in S.F.M. v. Spain. During childbirth, S.F.M. underwent a cascade of interventions without her consent, and initiated judicial proceedings against the hospital to no avail. The Committee found that S.F.M. was subjected to stereotypical and thus discriminatory treatment both in the hospital and in the judicial proceedings (para 7.5). It is noteworthy that in both cases the Committee did not just remedy the individual harm suffered by the respective claimants. Rather, it granted so-called transformative reparations in order for the State to implement structural improvements. In Alyne and S.F.M., the Committee recommended, amongst others, providing for sufficient information and informed consent at every stage of childbirth as well as professional training for health workers. 

The cases demonstrate how ‘violence’ travels across disciplines, yet there is no transdisciplinary understanding of violence. I argue that this is no hindrance – in fact, it is highly productive. By using one word for lived experiences and another for its translation into human rights doctrine, the wrong birthing people experienced can be subsumed under already established human rights obligations, and thus trigger international State responsibility.

Eva Bredler, PhD candidate and Research Assistant, University of Münster, Germany