By Emily Nelson, JHBL Staff Member
Despite the beauty of bringing a child into the world, childbirth can be a terrifying and violent experience that leaves mothers with lasting trauma. Over the last few centuries in the Western world, childbirth has become a medical operation where the mother is treated as a sacrificial vessel for the fetus inside her.[1] This overmedicalization of childbirth has opened the door for the silent abuse of mothers in labor. The legal system gives little recourse for mothers who are forced to undergo intense medical procedures such as cesareans and episiotomies. While there needs to be hospital culture and medical reform as well, this post focuses on legal and policy reform for women who have reported abuse and violence at the hands of care providers during childbirth.
One of the first articles on women who have suffered violence during childbirth in America was published by the Ladies’ Home Journal in 1958, despite this violence occurring for centuries. The article, “Cruelty in Maternity Wards”, focused on the unspeakable horrors of childbirth in a hospital setting. The article included a story about a woman having her legs tied together so that she didn’t give birth before her obstetrician had finished his dinner. Other common phenomena included women being held down for hours in the lithotomy position (legs flexed, separated, and restrained in stirrups), and doctors hitting women and threatening them with the death of their baby if the women cried or screamed during labor.[2]
Although attempts have been made by different organizations to address physician abuse of mothers, women have continued to report traumatic and violent birth stories. Women still suffer different forms of abuse that are unique to childbirth: (1) denial of the right to informed choice; (2) physicians forcing women to have a cesarean when it is not medically necessary; and (3) physicians denying women the right to refuse harmful medical operations.[3] One study compiled women’s traumatic birthing stories from many resources to show the prevalence of this gendered violence. Because of the power dynamic between patients and doctors, many women report (primarily male) doctors forcing the mothers to undergo any procedures, from painful vaginal exams to c-sections without adequate anesthesia. Women also still report care providers who tell women not to cry or scream or other comments with overtly sexist tones: “Come on, you need to open your legs, obviously you didn’t mind that nine months ago.”[4]
Many women compare their violent birth experiences to sexual assault and rape. One woman said that her labor experience triggered her memory of being gang-raped when she was fifteen years old because the nurses and physicians forcefully manipulated her body and yelled at her in the same way that her rapists did. Triggering memories of sexual assault and rape is common as women report that many hospitals ignore their explicit refusals to have any men in the room during childbirth because of their past trauma. In the same way that sexual assault leaves victims with posttraumatic stress disorder, women who have these traumatic birthing experiences are later diagnosed with PTSD and live the rest of their lives suffering from this disorder.
However, nothing has been done to address this gendered violence by legislatures globally until recently. Argentina was one of the first countries to adopt a legal framework that ensured women had a right to a humanized childbirth experience in 2004. Argentina outlined certain rights women have during pregnancy including, “to be informed about the different medical interventions that may take place during these processes so that they can choose freely when there are different alternatives” and “to be treated with respect, and in an individual and personalized way that guarantees privacy throughout the care process and takes into account their cultural patterns.”[5] A few years later, in 2007, Venezuela passed a law to protect women from all forms of gender-based violence, including the term “obstetric violence”. Obstetric violence describes violence by care providers during pregnancy, childbirth, and postpartum; and can take many different forms, ranging from nonconsensual procedures to failing to get informed consent from the mother to emotional manipulation. The inclusion of this term in the legislature held care providers responsible for their violence towards patients and neutralized the power dynamic that hospitals perpetuate.
In the United States, the legal system protects medical care providers, meaning women rarely win malpractice suits against their obstetricians. The legal system inherently ranks the baby’s life as more important than the mother’s, and treats the doctor’s decisions as protecting the baby and the mother’s choices as selfish. According to Maria T.R. Borges, “Criminal prosecutions of physicians in the context of forced obstetric care are basically nonexistent…Courts have done all this without recognizing that coerced procedures in childbirth are linked to a broader context of violence against women.”[6] Women almost never bring a civil suit against a care provider and if they do, the physician usually prevails because courts rarely “recognize the extent of the harm generated by coerced childbirth procedures.”[7] Malatesta v. Brookwood Med. Ctr., Ala. Cir. Lexis 642, 642 (2016) is a rare case of a mother prevailing in a malpractice suit. Caroline Malatesta did not win because of the torture she endured, but because the facility promised her a natural birth and personalized birthing plan. Because of the violent physical assault she suffered during labor, she was later diagnosed with PTSD and pudendal neuralgia, which prevents her from having sex and children ever again. Despite the distressing and horrifying facts of her case, she could not criminally prosecute any of her care providers because there is no United States law that would punish physicians who are violent towards mothers in childbirth.
One of the most disturbing parts of this case is that doulas and midwives were not surprised by the violence towards Malatesta; in fact, one doula said, “You pretty much one percent of the time see women getting the care that is appropriate for them…either it’s how they’re spoken to, or nonconsensual vaginal exams. It’s nonconsensual episiotomy or coercion, or bullying, or scare tactics.”[8] This doula’s experience is not unique. A survey in 2014 of more than 2,000 doulas, childbirth educators, and labor and delivery nurses in the United States and Canada, reported that almost 90 percent of them have seen a care provider perform procedures “without giving a woman a choice or time to consider.”[9] According to Pregnancy Justice, one in six women report mistreatment by healthcare providers during childbirth.
While there are different organizations focused on teaching women their rights in childbirth and empowering women and their partners to advocate for themselves during pregnancy and labor, the legal system needs to implement protection for women and provide them a legal framework so they can receive justice after traumatic and violent births. Incorporating the term “obstetric violence” into American legislature like Argentina and Venezuela would include this specific type of violence in the definition of gendered violence that is already present in American laws.
In addition, it is important to note that obstetric violence is especially severe for women of color; Pregnancy Justice also reports that Black women are 3-4 times more likely to die from pregnancy-related causes than white women. Including obstetric violence in gendered violence would help target systemic racism and sexism. The medical and legal systems treat women as subhuman when they are giving birth and the first step to treating women in labor with respect as human beings is to spread awareness of obstetric violence. By specifically including obstetric violence in the American legal framework, women who suffer abuse at the hands of care providers during labor will be seen as victims of violence who need legal justice as much as any other victim of violence.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Emily is a second-year student at Suffolk Law and Staff Member on the Health and Biomedical Law Journal. Currently, Emily works at a real estate law firm. She is interested in intellectual property and health law.
Sources
Alexa Richardson, The Case for Affirmative Consent in Childbirth, 37 Berkeley J. Gender L. & Just. 1, 4 (2022).
Birth Rights: A resource for everyday people to defend human rights during labor and birth, Birth Rights Bar Association, https://birthrightsbar.org/resources/Documents/BIRTH%20RIGHTS-%20A%20resource%20for%20everyday%20people%20to%20defend%20human%20rights%20during%20labor%20and%20birth.pdf.
Gill Thomson & Soo Downe, Widening the Trauma Discourse: The Link between Childbirth and Experiences of Abuse, 29 J. Psychosom Obstet Gynaecol 268, 270 (2008), https://pubmed.ncbi.nlm.nih.gov/19065396/.
Heather Joy Baker, “We Don’t Want to Scare the Ladies:” an Investigation of Maternal Rights and Informed Consent throughout the Birth Process, 31 Women’s Rights L. Rep. 538, 541 (2010).
Henci Goer, Cruelty in Maternity Wards: Fifty Years Later, 19 J. Perinatal Educ. 33, 33 (2010)
Law No. 25929, Aug. 25, 2004, [CXII-30489] B.O. 1 (Arg.) https://www.argentina.gob.ar/normativa/nacional/ley-25929-98805/texto.
Louise Marie Roth, et al., A Report on the Cross-National Survey of Doulas, Childbirth Educators and Labor and Delivery Nurses in the United States and Canada, Maternity Support Survey (May 1, 2014), https://maternitysurvey.files.wordpress.com/2014/07/mss-report-5-1-14-final.pdf.
Lynn P. Freedman, et al., Defining Disrespect and Abuse of Women in Childbirth: A Research, Policy and Rights Agenda, Bulletin World Health Org. 915, 916 (2014),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4264393/pdf/BLT.14.137869.pdf/.
Maria T.R. Borges, A Violent Birth: Reframing Coerced Procedures During Childbirth as Obstetric Violence, 67 Duke L.J. 827, 830 (2018).
Pregnancy, Labor and Birth, Pregnancy Justice, https://www.pregnancyjusticeus.org/issues/pregnancy-labor-and-birth/.
Rachel Reed, et al., Women’s Descriptions of Childbirth Trauma Relating to Care Provider Actions and Interactions, 17 BMC Pregnancy & Childbirth 1, 4 (2017),
https://bmcpregnancychildbirth.biomedcentral.com/counter/pdf/10.1186/s12884-016-1197-0.pdf.
Richard Johanson, et al., Has the medicalization of childbirth gone too far?, 324 BMJ 892, 892 (2002).
Rodante van der Waal, et al., Obstetric Violence: An Intersectional Refraction through Abolition Feminism, 3 Feminist Anthropology 1, 2 (2022), https://anthrosource.onlinelibrary.wiley.com/doi/full/10.1002/fea2.12097#:~:text=Obstetric%20violence%2C%20a%20term%20coined,and%20midwifery%20practice%20and%20research.
Sarah Yahr Tucker, There Is a Hidden Epidemic of Doctors Abusing Women in Labor, Doulas Say, VICE, (May 8, 2018), https://www.vice.com/en/article/evqew7/obstetric-violence-doulas-abuse-giving-birth.
Wendy C. Budin, Promoting Birth Advocacy, 27 J. Perinat. Educ. 63, 64 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6388677/.
[1] Richard Johanson, et al., Has the medicalization of childbirth gone too far?, 324 BMJ 892, 892 (2002).
[2] Henci Goer, Cruelty in Maternity Wards: Fifty Years Later, 19 J. Perinatal Educ. 33, 37 (2010).
[3] Id. at 33.
[4] Id. at 35.
[5] Law No. 25929, Aug. 25, 2004, [CXII-30489] B.O. 1 (Arg.) https://www.argentina.gob.ar/normativa/nacional/ley-25929-98805/texto
[6] Maria T.R. Borges, A Violent Birth: Reframing Coerced Procedures During Childbirth as Obstetric Violence, 67 Duke L.J. 827, 833 (2018).
[7] Id.
[8] Sarah Yahr Tucker, There Is a Hidden Epidemic of Doctors Abusing Women in Labor, Doulas Say, VICE, (May 8, 2018), https://www.vice.com/en/article/evqew7/obstetric-violence-doulas-abuse-giving-birth.
[9] Louise Marie Roth, et al., A Report on the Cross-National Survey of Doulas, Childbirth Educators and Labor and Delivery Nurses in the United States and Canada, Maternity Support Survey (May 1, 2014), https://maternitysurvey.files.wordpress.com/2014/07/mss-report-5-1-14-final.pdf.