Human Rights in Childbirth Conference

The Hague, The Netherlands May 31 – June 1, 2012 / 2012 / What are the rights and responsibilities of birthing women? Who decides how 2012 a baby is born? Who chooses where a birth takes place? Who bears the ultimate responsibility for a birth and its outcome? What are the legal rights of birthing women? What are the responsibilities of doctors, midwives and other caregivers in childbirth? What are the rights and interests of the unborn, and BYNKERS how are they protected? / BYNKERSHOEK CONFERENCE PAPERS RIGHTSHUMAN IN CHILDBIRTH This Bynkershoek Conference Papers contain the “letters to the conference” HOEK or articles of the panelists present at the International Conference on Human Rights in Childbirth, held in The Hague, 31 May-1 June 2012. The conference was organized by the Bynkershoek Research Center on Reproductive Rights CONFERENCE PAPERS for multi-disciplinary exploration of the above questions, seeking clarity on the scope of birthing women’s human rights to authority, support and choice in childbirth. / HUMAN RIGHTS IN

In December, 2010, the European Court of Human Rights (ECtHR) issued the fi rst holding of a high human rights tribunal addressing the legal authority of CHILDBIRTH birthing women as a human rights issue. In the case of Ternovszky v. Hungary, the ECtHR stated that “(…) the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent. The Court is satisfi ed that the circumstances of giving birth incontestably form part of one’s private life for the purposes of [Article 8 of the European Convention on Human Rights],” and imposed positive obligations on member states for the protection of these rights.

The two-day conference was designed to unpack the theoretical and practical signifi cance of the Ternovszky holding. The fi rst day will focus on the international and fundamental human rights issues at stake. The second day will focus on the Dutch birth system, and the role of home and hospital birth in its past, present and future. On both days, four panels of multi-disciplinary experts will systematically address the science, ethics, and professional issues at stake in legal questions around childbirth.

This Bynkershoek collection of Conference Papers will assist participants in the INTERNATIONAL CONFERENCE conference understand the presentations of the panelists and to prepare for OF JURISTS, MIDWIVES & robust discussion, and might be of interest to other audiences concerned with this topic. OBSTETRICIANS EDITOR: HERMINE HAYES-KLEIN

Artikelnummer: 159123990001 BHP / HUMAN RIGHTS IN CHILDBIRTH

/2012 BYNKERS HOEK Conference Papers / HUMAN RIGHTS in childbirth

International conference of jurists, midwives & obstetricians

editor: HERMINE HAYES-KLEIN Colofon

Advisory Board Jeroen Vervliet

Editorial Board Ernst van Bemmelen van Gent, Editor in Chief Joris Sprakel, Associate Editor Hilde Cadenau Abiola Makinwa Michael Vagias William Worster

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Artikelnummer 159123990001 / Foreword

As the director of the Bynkershoek Institute’s Thanks to Sandra Bruin, Dutch mother of 5, math- Research Center for Reproductive Rights, I would ematician, for planting the seed for this confer- like to thank every panelist in the Human Rights in ence, and then doing so much to bring it to life. Childbirth Conference of 2012 who contributed to this pre-conference collection. These papers are, Thanks to the extraordinary team of students, mid- by themselves, an extremely valuable product of wives, doulas, psychologists, mothers and fathers this event. who contributed so many hours over the last year to transforming the Human Rights in Childbirth Thanks to the director of the Bynkershoek Institute Conference from dream to reality. It has been a and The Hague University’s International and privilege and great pleasure to collaborate with European Law program, Ernst van Bemmelen van you. Gent, for your unwavering support and assistance with this project. This collection was produced with some haste, in order to make it available to panelists and regis- Thanks to The Hague University law student Mela- tered audience members in advance of the confer- nie van Leeuwen, without whom this publication ence. We have therefore been less rigorous than would not have been possible, for all your work in we will be in post-conference publications about gathering, organizing, and formatting this collec- citations and copy-editing, and request the read- tion. er’s indulgence in that regard. The purpose of this collection is to familiarize the reader with the range Thanks to Amsterdam-based Hungarian psychol- of perspectives that contributors are bringing to ogist Julia Karadi for gathering the Hungarian con- the event. These opinions, including my own, are tributions to this collection, along with involving but a starting point. Our greatest hope for the con- most of the Hungarian conference panelists. ference itself, is that we can all develop more Thanks to British attorney and Hague-based doula nuanced ideas on the issues at hand, through Nicola Philbin for assistance with copy-editing. open-minded listening and conversation.

Thanks to Amsterdam doula Joyce Pula, and Rot- Hermine Hayes-Klein, Rotterdam/Portland, May terdam midwife Simone Valk, for the co-organiza- 2012 tion of this entire conference, and in particular with assistance around the production of this collec- tion.

FOREWORD 5 6 HUMAN RIGHTS IN CHILDBIRTH / Table of Contents

05 45 Foreword Introductory Statement By Elizabeth Prochaska 11 Introduction 47 Letter to the Conference By Karen 25 Guililand Day 1: International and Fundamental Human Rights in Childbirth 50 To: Colleagues and friends in support of 26 Dutch Midwifery By Barbara Katz Rothman Letter to the conference By Ina May Gaskin 53 Panel 2: Safety, Risk, Costs & Benefits: 29 Decision-Making in Childbirth Panel 1: Ternovszky v. Hungary: Context and Consequences of the ECHR Decision 54 The Birthplace in England Research 30 Programme Background Q&A Peter Letter to the Conference By Anna Brocklehurst (Head researcher of the Ternovzsky study) 34 61 Letter to the Conference By Agnes Gereb, Joint Letter to Participants in the Human panelist in absentia Rights in Childbirth Conference By Robbie Davis-Floyd and Debra Pascali Bonaro 37 Letter to the Conference By Istvan 64 Marton Notes On Maternity Care By Soo Downe 39 66 Justice and Home Birth in Hungary: Show The Crisis Continues - Birthing while Trials in the 21st Century By Imre Szebik Black in the USA By Jennie Joseph 41 68 Letter to the Conference By Stefania Empty Promises: the Dangers of Risk Kapronczay Discourses By Jo Murphy-Lawless 43 Letter to the Conference By Felícia Vinicze, panelist in absentia

TABLE OF CONTENTS 7 74 116 Letter to the Conference The Human A Midwife Under Investigation By Becky Right to Choice in Childbirth By Hélène Reed Vadeboncoeur 118 76 Letter to the Conference By Elke Heckel Our Choice, the Only Choice for Us… A Breech at Home By Marieke de Haas - van 122 Bommel The Choice of Child Delivery is a European Human Right By Marlies Eggermont 79 Panel 3: The Rights of the Baby 125 Day 2: The Dutch Birth System 80 Letter to the Conference By Susan 126 Bewley Letter to the Conference By Raymond de Vries 81 Childbirth as a Human Right: The Voice of 129 the Baby By Barbara Harper Panel 5: Perinatal Mortality in the Netherlands: Facts, Myths, and Policy 85 The Rights of the Human Newborn Baby By 130 Michel Odent The Surgeon versus the Ignorant Midwife By Mariel Croon 92 I Alone Have the Right to Speak for My 132 Unborn Baby By Roanna Rosewood Paradox of the Dutch Maternity Care System by Ank de Jonge 96 Home Birth, Human Rights and Official 135 Bias: Israel, Hungary and the ECHR By Panel 6: Cases on the Edge: “Illegal” Noam Zohar Home Births in the Netherlands 101 136 From Womb to World, the Journey that Future Mothers or Incubators? By Wilma Shapes our Life by Anna Verwaal Duijst 105 139 Panel 4: Collaboration, Competition, Letter to the Conference By Robert Money and Monopoly Kottenhagen 106 143 No Place Like Home By Barbara Hewson Birth: A Human Rights Issue? By Rebekka Visser 108 In Pursuit of the Benefits of 146 Physiological Birth By Amali Lokugamage Letter to the Conference By Monique Severijns 115 Joint Letter to the Conference By Debra 149 Pascali-Bonero Letter to the Conference By JOKE MEULMEESTER

8 HUMAN RIGHTS IN CHILDBIRTH 151 Panel 7: Money and the Professions 152 Home Birth Through The Ages By Marian van Huis 156 DUTCH WOMEN STILL WANT HOME BIRTH BY RACHEL VERWEY 159 Panel 8: Ternovszky in Holland: Future of Choice 160 Taboos in Maternity Care Education: Intimacy, Love, Sexuality and Death By Marjolein R. Faber 163 Ternovszky v. Hungary: Discussions Around a Woman’s Right to Decide About Her Own Sexual and Reproductive Health By Gunilla Kleiverda 168 Who is the Boss? By Angela Verbeeten 169 Letter to the Conference By Jennifer Walker 171 Program

TABLE OF CONTENTS 9 10 HUMAN RIGHTS IN CHILDBIRTH / Introduction

I am an American lawyer and the mother of two stop, and dangerous complications could arise. small boys, ages 4 and 1. I lived in the Netherlands The book described some of the hormonal mecha- from 2007 – 2012. I spent this year organizing the nisms at play in this phenomenon. Human Rights in Childbirth conference in The Hague, with a team of Dutch and international stu- These facts cast women’s reproductive history in a dents, parents, midwives and doulas. We all did new light for me. If shame and anxiety literally this work on a volunteer basis, on top of our “real” impede women’s ability to open up and birth their jobs and family responsibilities. I write this Intro- babies, what are the implications for cultural and duction to explain how I came to this project. religious traditions in which women have been taught from girlhood to view their bodies with It isn’t insignificant that childbirth, as a human shame? I considered Victorian drawings of male rights issue, rests on the right to privacy. Childbirth doctors delivering babies through holes in sheets, is among the most personal of topics. It is at the to preserve the birthing woman’s “modesty.” Given heart of family, reproduction, sexuality, and emo- Ina May’s disclosure of the physical effect of inhi- tionality. Like most people with an interest in child- bition or anxiety during childbirth, given traditions birth, my interest has developed through a back- of feminine shame and modesty, and the myriad and-forth of personal experience and theoretical, reasons why a birthing woman could feel anxious scientific, and ethical study. Like everybody else, or unsupported during labor, perhaps what was my perspective on childbirth is rooted in my own amazing wasn’t how many women used to die in experience. childbirth—but how many women survived.

My Story After reading Ina May’s book, I began to ask my American girlfriends to tell me about the births of I didn’t think much about childbirth until 2005, a their babies. All of these women had delivered in few years before I had my first child, when a preg- the hospital, with the expectation that medical nant girlfriend asked me to read a book so we intervention would be available in the background, could discuss it. The book was Ina May’s Guide to if an emergency arose. But as things played out, Childbirth, by Ina May Gaskin. The first half of the almost all of them experienced an “emergency” book was a collection of first-person birth stories. birth. Most of my friends’ births were induced or I read them with great curiosity, realizing that I had augmented with synthetic oxytocin, about half never really heard birth stories before. Why don’t ended with cesarean surgery, and the babies were women talk about the day they birthed their often whisked away before their mothers could babies, I wondered? The second half of the book even lay eyes on them. These women heard their consisted of Ina May’s analysis of what she had babies’ cries before they saw them or touched learned over 25 years as an American midwife. them. The first image that many friends saw of She had observed, over many births, that women their new babies was on their husband’s camera who gave birth in safe, loving, and supportive envi- phone, after he followed the baby to the other side ronments were almost always able to deliver with- of the hospital room and brought the photo back out medical assistance. Conversely, she explained to his wife. that if a birthing woman experienced anxiety, fear, or shame during her labor, the labor could slow or

INTRODUCTION 11 My friends did not much like to dwell on these these protocols, they can fairly be called iatro- births. They were assured by well-meaning friends genic. and family that the only thing that mattered was that they and their babies were healthy and alive. Some of my friends have managed to achieve the So they moved on. Such stories stood in sharp kinds of births that they had hoped for in hospital contrast to the accounts I had read, in Ina May’s environments. But there was often a sense that books and elsewhere, of women who had given they had done so despite the environment in which birth at home, with midwives, or in other circum- they had delivered, with its protocols and “rules.” stances in which they felt safe, loved, seen and Given what I had learned, and especially given the supported. These women loved to talk about the psycho-physiological facts that I first encountered births of their babies, which they described as in Ina May’s Guide to Childbirth, I felt that the saf- transformative, empowering, sacred events in their est, healthiest way to give birth, for myself, would lives. be at home with a midwife, reserving doctors and hospitals for emergency backup. I asked friends if they had considered birthing at home. Some of them had, but told me that it was In 2007, 7 months pregnant with my first child, I impossible for legal or financial reasons. A friend in moved with my husband to Rotterdam, the Neth- Indiana told me that home birth was illegal there, erlands, where he took a job with a famous Dutch and that a midwife could go to jail for attending a architect. I read about the Dutch birth system, birthing woman at home. Friends in other states which had developed along an alternate path to told me that their health insurance would not pay the Anglo-American model. The Dutch had never midwives or reimburse the costs of home birth. come to define all birth as a medical event that can Even though, in absolute terms, a home birth was only be managed by doctors in hospitals. Rather, much less expensive than a hospital birth ($3,000 the Dutch retained a view of birth as a normal life to $5,000 for a home birth, and $10,000 - $20,000 event, with the potential to become pathological in for a typical hospital birth), the insurance compa- some situations. Under this paradigm, the majority nies would cover only hospital birth, making home of births were attended by highly-skilled, profes- birth unaffordable for many. In addition, there were sional midwives, often at home. Doctors reserved alarming stories of American women who had their expertise for pathological or emergency planned a home birth, but transferred to the hospi- cases. As significant as the Dutch concept of birth tal during or after labor, and had received treat- was the relationship between Dutch doctors and ment there that was, at best, clumsy (home birth midwives—in the Dutch tradition, these profes- was so rare that hospitals seemed to lack proto- sions collaborated as complementary service pro- cols for home birth transfers), and at worst, pun- viders for the birthing population, rather than com- ishing. petitors for control of the birth market.

As a lawyer trained at the University of Chicago, I The practical significance of this paradigm differ- saw these problems through a prism of law—in ence was immediately apparent. My husband and particular, human rights, contract law, and tort I acquired affordable health insurance with a main- law—and economics—in particular, monopoly and stream Dutch provider. When I called to tell them market failure. It seemed clear from the evidence that I was pregnant, they asked whether I would that midwifery and medicine should have comple- deliver at home, or in the hospital. I told them that mentary and collaborative roles in birth care. Like I hoped to give birth at home, and within a week, my friends, I wished to give myself the best chance that insurance company sent me a box full of all for a healthy birth, but to know that medicine the supplies I would need for a home birth. My would back me up in the event that my baby and I husband asked around at his office for a midwife needed it. I learned the concept of iatrogenic recommendation. I was connected with Laura, health problems, the fact that medical complica- who lived about an hour away, outside Amster- tions can be caused by medical treatment. Many dam. At our first meeting, I knew that I had found a medical protocols, such as making women labor guide whom I could trust to provide genuine sup- and birth on their backs in a bed, strapped to a port during birth. Laura spent 2 hours getting to machine, had no basis in scientific evidence, and know me, discussing the emotional issues that in fact work against the physiological birth pro- might arise for me during birth, answering my cess. When complications arise as a result of questions. I had never considered water birth, so Laura sent me home with a book about it, which

12 HUMAN RIGHTS IN CHILDBIRTH convinced me that a water birth could be pleasant standing birth center or a birth center within a hos- for myself and my baby. I easily arranged to rent a pital, or to birth in the hospital under the care of a birth pool, and two weeks before my due date, a midwife or an obstetrician-gynecologist. I could strong young Dutch woman climbed the steep even have chosen for an elective cesarean sec- stairs to my apartment and set up the pool beside tion. Any of these choices would have been sup- a sunny window. ported by the healthcare system and covered by health insurance. Because she lived at some distance, Laura advised me to register with my local midwifery Because the healthcare system was structured to clinic, so that I would have midwives on hand who enable these choices, it was not only financially could come to me in 10 minutes or less if the need possible to give birth at home, it was literally safer arose. She arranged an appointment for me with a than it would have been in the U.S. I knew that, in neighborhood clinic associated with the hospital the event that I might need to transfer to the hos- near my home. I visited these midwives for my pital for any reason, emergency or non-emergency, regular checkups in the last two months of my the hospital would be equipped to deal with that pregnancy, meeting with Laura less frequently, but transfer in a straight-forward way. My midwife for longer sessions. I was thus exposed to two dif- could call ahead and arrange the transfer, alerting ferent models of midwifery. Laura worked as a solo staff to my needs on arrival. She would escort me practitioner, although she had relationships with a to the hospital herself, rather than dropping me at few midwives who could back each other up in the the emergency room and driving away to escape event of a holiday or two births in one day. Laura arrest, as would be the case in many American only accepted 4 clients per month, so that she states. Dutch hospital staff would recognize home would have enough time to get to know each birth as a legitimate choice, and deal with any woman, and thus provide meaningful assistance complications that might arise the way that they during labor and delivery. would if these complications arose during a hospi- tal birth, without the dangerous delays that could The Rotterdam clinic with which I worked was result from their opprobrium or bewilderment. more typical: 6 or 7 midwives worked in a busy practice with dozens of women per month. Each In this context, I could safely choose for home visit lasted about 10 minutes, during which time birth. My husband supported me in this choice. My they would check my blood pressure and do other due date arrived, and I felt strong, healthy and routine tests, and offer to answer any questions I ready to birth my baby. Three days after my due might have. I would see a different midwife at each date, I visited my local clinic for a checkup. The visit, and if I had delivered with them, I would have midwife on call informed me that the baby’s head been attended by whichever midwife was on duty was not yet engaged in my pelvis, and that she at the time. There wasn’t much of an opportunity wanted to send me to the hospital for an ultra- to build a personal relationship, or even to learn sound. I asked what the hospital ultrasound could each others’ names. determine. She said that it would reveal whether the baby was too big for my pelvis, and if this was The clinic reminded me of a regular medical prac- the reason why he wasn’t engaged. I asked tice in the U.S., the kind where I had received my whether this ultrasound would be performed prenatal care before moving to Rotterdam. There externally, or whether there would also be an inter- were some differences, though: this clinic was nal (vaginal) exam. She said that I would only need located outside of the hospital, reflecting the inde- an external ultrasound. pendence of Dutch midwifery. And all the mid- wives in this practice had experience and exper- I went to the hospital, and was eventually ushered tise with both home and hospital deliveries, and into the office of a young doctor, not much older were willing and able to attend me at the location than myself. He reviewed my file on his computer, of my choice. without eye contact or conversation. I asked what he would do, and he said that he would utilize And this was the most significant aspect of the ultrasound to determine whether the baby was too Dutch birth system: I had choice. I had the choice big for my pelvis. He then informed me that he to birth at home with a midwife or at home with a would first do an external ultrasound, and then an doctor (some general practitioners in the Nether- internal exam, glancing at me for the first time as lands still attend home births), to birth at a free- he said this. I had never had an internal exam from

INTRODUCTION 13 a male practitioner, but decided against making ultrasound couldn’t possibly tell me whether your fuss about it. baby’s head is too big for your pelvis; there is no way to tell before the birth.” I said, “I don’t under- I lay down and he performed the exam. At first he stand… why am I here? What was the reason for worked silently. I asked, “Well? What are you see- this examination?” He said, “I will report these ing?” He said, “Placenta high… lots of water, that’s findings to your midwives, and we will arrange for good… baby looks normal… do you know the your induction if the baby doesn’t come this sex?” I said, “Yes. Can you tell whether the head is week.” The interview was over. I left. too big for my pelvis?” The doctor said, “I’ll need to do the internal first.” He proceeded; it was I cried with frustration. I called Laura, and asked, uncomfortable. He withdrew his hand and said, “How long does it take a cervix to efface?” She “You can get dressed.” said, “Oh, Hermine. The fact that your cervix is still closed means that the baby probably will not I said, “Well, doctor? Is the baby’s head too big for come today or tomorrow. You are fine. Fill up your my pelvis?” birth pool, take a float, and relax. Enjoy these last days, before your baby arrives.” I took her advice. He said, “I’ll have to check my computer. But your cervix is not effaced, and the baby is not engaged.” I had one more visit with my local midwives before my baby’s birth. The midwife on call informed me “How long does it take a cervix to efface? Does that the doctor had never sent over any records or this mean the baby won’t be here for weeks?” report from his examination. She told me that I should report for induction the next day, at 10 days “Things look normal, though I’ll have to check my overdue, because he would be expecting me then. computer. But you are at increased risk for a I said that I did not want to induce until at least 14 cesarean section, and should definitely plan on days overdue. The midwife told me that I should delivering in the hospital.” go anyway, because I might need this doctor later and didn’t want to make him angry, and that “Increased risk for a cesarean section? Why might “maybe he would let me go a few more days.” I need a cesarean?” Later that day, I went into labor. I labored through “Well, if your labor did not progress at a normal the night, by candlelight, while my husband slept. pace… or if your baby were too big to fit out of In the morning, Laura arrived with Melanie and your pelvis.” Annina, two young German midwives who had come to Holland to study with her, and who I had “Is there reason to believe that I am at increased also invited to join my birth because they seemed risk for either of these complications? Why do you so warm and open-hearted. These three midwives think that I should deliver at the hospital?” supported me through that day, in a circle of calm and love. The contractions were heavy, the hardest “You can have your midwife at the hospital.” work I had ever done. With each one, I screamed the loudest scream I had ever made in my life. I “Doctor. I want to give birth at home, if it is safe for couldn’t imagine being such a noisy animal any- me and my baby. I will deliver at the hospital, if place other than my home. No matter how over- there is a medical reason to do so. Please tell me, whelmed and out-of-control I felt, the faces sur- do you see a medical reason why I need to deliver rounding me reflected peace and a quiet encour- at the hospital?” agement. My husband later told me that he, too, was overwhelmed—by the level of intensity, hour “I’ll need to check my computer.” after hour. But because the midwives were there, both to meet my needs and to answer his ques- I dressed and met him back at his desk. He tapped tions and assure him that what was happening at the computer. I asked him what he saw. He said, was normal, he was able to go through his own “I already told you.” I said, “Please tell me again.” process, and rest when he needed to rest. He said, “Placenta high, good water level, baby looks normal… increased risk cesarean section.” I In Laura, I had a practitioner who I could really said, “Why? Did the ultrasound indicate that the trust. She quietly protected my birthing environ- baby’s head is too big for my pelvis?” He said, “An ment, sending away curious well-wishers from the

14 HUMAN RIGHTS IN CHILDBIRTH door with assurance that their support could be replaced by the most profound joy and bliss I had felt, and was appreciated. I could trust that she ever experienced. would intervene or send me to the hospital if I needed it, and, of tremendous significance to me, We sat in that pool for 35 minutes, looking at our that she wouldn’t intervene if I didn’t need it. With new baby. Laura, Melanie and Annina sang a song her Dutch training, her 20 years of experience, and of welcome to the baby, in Dutch and then in Ger- her ability to utilize her intuition by remaining abso- man; they sounded like angels. The whole thing lutely present to me and my unborn baby, Laura felt like a total miracle. It created a memory that I had judgment. She didn’t work mechanically; she can turn to again and again, to recapture a bit of didn’t make decisions to protect herself from that bliss. When I stood to leave the pool, my baby abstract “what-ifs;” she carefully observed my felt the gravity on his body, and cried for the first labor and used her judgment. It was for this judg- time. I felt one more contraction, and birthed his ment that I had hired her—that, and for her gentle- placenta; Annina caught it in a bowl. Melanie cut ness, wisdom, and kindness. his cord, which had long stopped pulsing, and we were both dried off, wrapped up, and tucked When I reached full dilation, she checked me and together into my own warm, cozy bed. found a lip of cervix preventing the baby’s head from coming down. I had read stories of women This was a supported birth. My care providers who pushed for hours against undiscovered cervi- attended to my needs, as they arose, on my terms. cal lips, until their exhaustion necessitated a They did not subject me to protocols that would cesarean section. Laura massaged that lip over have been inappropriate for my needs, such as the baby’s head, and with the next contraction, my imposing a time limit on the second stage (Annina body started to push my baby out. told me that I would have been prepped for sur- gery after 90 minutes in Germany) or giving me a The pushing-out of my baby, the so-called “sec- shot of artificial oxytocin to hasten expulsion of the ond stage” of labor, lasted one hour and forty-five placenta. Most importantly, they did not separate minutes. Nobody told me what to do, or shouted my baby and me, in the precious and sacred time “push.” It would have been absurd; my body was after his birth. I had birthed him, and they let me doing the work, and I was only along for the ride. have him: my prize. And they let him have me: his My body pushed, moved, and screamed when home. and how it needed to in order to give birth; any interference, orders, or restrictions would have From my post-partum bed, I looked up at Laura obstructed the process and felt like torture. My and said, “I love you, Laura!” I meant it. I still do. husband was in the pool with me, and supported my exhausted body between contractions. The In 2010, I gave birth to my second son, again at midwives were just there, circling the pool, peace- home with Laura. It was a faster birth, but possibly ful. Women talk about how childbirth can be a gate more intense, and very hard work, but again I through which they pass into motherhood, and for received the care and support that my body me, this stage was that gate. My brain told me that needed to take this particular birth journey. As with what was happening was impossible, that the the first birth, I saw no strangers, but only loving baby couldn’t possibly fit out of me. I was afraid. faces; as with the first, I was free to become a wild As the baby came down, as he started to emerge, animal; as with the first, the time after the birth was I looked to Laura and begged, “Please! Get it out!” the best possible foundation to life and to mother- She looked me calmly in the eyes and said, “I can- hood that I could have wished for my baby and not do that for you. You need to push your baby myself. out.” This was a life-changing moment for me. I realized, indeed, that only I could do this work, just I don’t believe that it would have been possible, for as only I would mother this baby. And so I pushed, me personally, to deliver my babies at the hospital and Melanie received him out of me, and handed without a medical emergency arising. If anybody him to me beneath the water. I brought him to the talked to me in a rational way during my labors, my air. His face was new. He was alert and peaceful, pain increased significantly during that moment. I and looked straight up over my shoulder into his needed peace, freedom of movement, to be unin- father’s eyes. The room expanded with love, with hibited, and especially, I needed the security that life. My pain and fear vanished instantly, and were came with knowing that no strangers could or would enter my space. Strangers, instructions,

INTRODUCTION 15 restrictions, or discompassionate treatment would complaints were not filed by the parents involved, have all transformed the intensity of labor into who were happy and grateful for her services, but agony, and I would have utilized epidural anesthe- by medical providers who had learned about these sia. That alone would have made for a very differ- births after the fact. Some months after my own ent birth, and would also have increased my risk baby was born, I asked her to connect me with the for a range of subsequent interventions. Birthing mothers who had chosen these births, so that I my babies was, by far, the hardest work I ever did. could hear their stories. The women I spoke with The only place I could have done that work was in were grounded, stable Dutch mothers. They had my own home, surrounded by calm, loving, and made highly informed and embodied decisions familiar faces. I am eternally grateful that I had this that, given the options available to them, the saf- opportunity. est choice that they could make for the birth of their twins was to labor at home, and transfer to The Personal Becomes Political the hospital only if a problem arose during the delivery. Both mothers had faced punitive legal In 2008, I started teaching law in the International consequences for their choices. and European L.L.B. program at The Hague Uni- versity. I worked with students and colleagues I began to research the question, “Is it illegal to from all over the world. Teaching law in The Hague give birth at home to twins in the Netherlands?” opened my American perspective on rights, which The legal issue beneath this question seemed to had been based in notions of civil and constitu- end up at disagreements within the Netherlands tional rights, to see human rights. I chuckle to about the legal status of the Verloskundige Indica- myself that constitutional rights were established tie List, or VIL, which translates as Obstetric Indi- by the founding fathers; human rights, by the cation List. The VIL is a professional protocol that Founding Father. Working with my colleagues and defines the indications that, if present, trigger the students over the next few years helped me to transfer of a pregnant or birthing woman from mid- think more deeply about the legal, economic and wifery, or “first line” care, to gynecological, or social context in which people make choices and “second line” care. At the risk of over-simplifying a in which human rights are meaningful. rather long story, the VIL was drafted in profes- sional collaboration between doctors and mid- I recommended Laura to every pregnant woman I wives. The list of indications for transfer grows knew, and those who followed up with her were with each revision of the VIL. Those who write extremely satisfied with the care they received about the Dutch birth system generally write during childbirth. One of these friends was sup- something like, “as long as a woman has a healthy ported by Laura in a home VBAC, after two trau- pregnancy without any medical indications preg- matic deliveries in New York and in Spain. Her third nant, she can give birth at home with a midwife. If birth went quickly and smoothly, and Laura saw a medical indication arises, she is transferred to her health and strength in the moment and let her gynecological care, and can no longer give birth at push her baby out at home, instead of going in to home.” the hospital as originally planned. The experience was profoundly healing for my friend and for her These analyses ignore a complex, but important, husband, and a much stronger and happier begin- question: What if a woman chooses to give birth at ning to the mothering of her third child than had home, and/or with a midwife, despite the presence occurred after her previous births. Laura men- of a VIL indication? What does it mean to say that tioned to me then that very few midwives in Hol- she “can no longer give birth at home;” is the VIL a land would support a home VBAC. This was when law binding on birthing women? Are midwives and I realized that Laura was not only extraordinary, doctors legally bound to mechanically follow the even by Dutch standards, in her willingness to VIL, even if, in their experienced judgment, an support her clients on their terms, but that she alternate course of action would be in the best might be legally vulnerable for doing so. interest of this mother and this baby?

Around the time that my second baby was born in Many within the Netherlands, including those in 2010, Laura told me that she was being called positions of power within the healthcare system, before the Dutch Inspectorate for Healthcare for state that the VIL “must” be followed, and that a complaints based on her support of two women midwife who deviates from it should be punished. who had chosen to birth their twins at home. The When pressed, they will either admit that, “techni-

16 HUMAN RIGHTS IN CHILDBIRTH cally speaking,” no medical protocols negate a decision about the future of the Dutch system, patient’s human right to refuse treatment or give there needs to be an opportunity for all the parties informed consent to any healthcare service, and invested in that system—the doctors, midwives, that the VIL is no exception to this, or they will nurses, mothers, fathers, politicians, social work- claim that the VIL is indeed an exception, because ers, lawyers, ethicists, and so forth—to exchange deviation from the VIL compromises the interests perspectives and ideas about how the system can of the being-born child, and that this is illegal (or be optimized to both deliver the highest quality of should be). The few midwives who are willing to healthcare while respecting the rights and dignity deviate from formulaic application of the VIL, and of birthing women. who are sought out by birthing women for this flex- ibility and guarantee that decisions will be based Ternovszky v. Hungary on judgment about their real needs, face legal pro- ceedings on what seems to be the latter argument. In December 2010, the European Court of Human Rights made a powerful holding right at the center In the course of this research, I learned a lot about of the questions I was researching for the Nether- complexities and controversies within the Dutch lands. In a short and simple opinion on the case of birth system. I spoke with doctors who told me Ternovszky v. Hungary, the Court held that legal that home birth is a vestige from a by-gone era, authority and meaningful choice in childbirth is a and that Dutch doctors have come to view mid- human rights issue. There is much in the opinion wives as competitors who control too large a share that can be considered radical, in light of prevailing of the birth market. I spoke with Dutch midwives, birth practices across Europe and around the who told me that changes in the financing of birth world. This is not the moment for an exhaustive care necessitated the kind of large, busy practice analysis of the holding. These points suffice, for that made it difficult to build relationships with cli- this introduction: ents, and that this loss of connection, in turn, affected the ever-rising rate at which midwives 1. The Court located the human rights at stake in transferred women to medical care. I read Dutch the right to privacy, the source for other repro- media articles stating that the Dutch perinatal mor- ductive rights across jurisdictions. Article 8 of tality rate is high, relative to other European coun- the European Convention on Human Rights tries, and read disjointed debates about whether states that “Everyone has the right to respect home birth and midwifery are killing Dutch babies. for his private and family life, his home and his I came to see that the Dutch birth system is at a correspondence.” The Ternovszky Court used cross-road. It may abandon its unique approach to powerful, even poetic, language in its holding: birth as a physiological event, and adopt the med- “’Private life’ is a broad term encompassing, ical model ubiquitous elsewhere in the developed inter alia, aspects of an individual’s physical world. Or it may change in other ways. and social identity including the right to per- sonal autonomy, personal development and to What seemed to be missing from the conversa- establish and develop relationships with other tions and controversies within the Dutch birth sys- human beings and the outside world [cite tem was the position of the mother as an active omitted], and it incorporates the right to decision-maker in childbirth, and a meaningful respect for both the decisions to become and debate on how women’s choices can be respected not to become a parent [cite omitted]. The at the same time that birth professionals are notion of a freedom implies some measure of empowered to deliver care within the boundaries choice as to its exercise. The notion of per- of their expertise and judgment. In recent years, sonal autonomy is a fundamental principle the Dutch birth system has predominately been underlying the interpretation of the guarantees discussed from a risk/safety perspective, with the of Article 8 [cite omitted]. Therefore the right usual impasses that this debate meets in other concerning the decision to become a parent jurisdictions. While at least one governmental includes the right of choosing the circum- organization had brought together midwives and stances of becoming a parent. The Court is different medical professionals for collaboration, satisfied that the circumstances of giving birth there remains a need to bring care providers incontestably form part of one’s private life for together with women, families, and professionals the purposes of this provision; and the [Hun- with other relevant perspectives. If the Nether- garian] Government did not contest this lands is going to make a collectively intelligent issue.” Ternovszky v. Hungary, (Judgment)

INTRODUCTION 17 ECHR 67545/09 (14 December 2010) para 22, questions of authority and support arise around italics mine. “high-risk” births. But after that shift, the problems 2. The Court discussed the Dutch birth system look strikingly similar to those playing out in other extensively, in its quotation of a World Health jurisdictions, which can be summed up with the Organization report on physiological birth. The question: who gets to make the final decision report pointed to the Netherlands as the Euro- about how a baby is born? pean system with meaningful choice for home birth, and noted, significantly in light of current Meanwhile, in Eastern Europe, midwives contin- trends in Dutch birth care: “There was no evi- ued to face prison for supporting any women at all dence that this system of care for pregnant in out-of-hospital birth. The Ternovszky case was women can be improved by increasing medi- brought in the face of proceedings against Hun- calization of birth.” Ternovszky v. Hungary, garian doctor-midwife Agnes Gereb, the beloved (Judgment) ECHR 67545/09 (14 December midwife of the plaintiff, Anna Ternovszky. Even 2010) para 11. after the Ternovszky holding, criminal charges 3. The Ternovszky holding imposes positive obli- against Agnes Gereb went forward. In early 2012, gations on all European States to comply with an appellate judge in Budapest upheld a lower its basic instructions for ensuring that preg- court’s judgment against Gereb, and sentenced nant women have a genuine choice to birth her to two years in prison. Gereb lives in house outside the hospital if they so choose. These arrest pending the Hungarian president’s consid- instructions came down to two points, in the eration of a clemency petition in her case. Hungarian context: a. The State must not sustain a regulatory or The only experts permitted to testify to the safety legal framework that generates ambiguity of home birth in the Hungarian trials were obstetri- about whether home birth is “legal.” It cian-gynecologists. As in many healthcare com- must provide for home birth within its munities, the Hungarian professional ob-gyn orga- healthcare regulations. nization has long maintained uniform opposition to b. The State may not bring legal proceedings home birth. against healthcare professionals for sup- porting women in their choice to birth out- Although it doesn’t use economic terminology, the side a hospital. The Court held that the Ternovszky holding is about medical monopoly persecution of midwives for supporting over childbirth. State-sanctioned medical monop- home birth is a violation of the rights of the oly over birth care violates birthing women’s birthing women who would wish to rely human right to choose the circumstances in which upon such professional support. they give birth. The case imposes positive obliga- tions on the state to refrain from supporting and I was struck by how little attention this holding had reinforcing that monopoly, by unquestioningly received in the European and International press, legitimizing the self-serving medical claim that all in light of its implications for birth politics and birth belongs in the hospital, and using the power existing healthcare systems. And I was fascinated of the state to turn that claim into Law. The signifi- by the implications of this case for Europe gener- cance of its holding extends beyond the choice to ally, and for the very different healthcare systems birth outside the hospital. Ternovszky situates of Hungary and the Netherlands, in particular. My birthing women as the ultimate decision-makers research on the legality of twins births indicated to regarding the circumstances in which they bring me there is, in fact, significant ambiguity within the forth their babies. Women, not their healthcare Netherlands about the legality of home birth in the providers, have the final say regarding what they face of VIL indications, arising out of uncertainty do and what will be done to them around the birth about the legal status of the VIL itself. And further- of their babies. If birthing women have a human more, I personally knew several Dutch midwives right to choose the circumstances in which they facing legal proceedings for supporting such give birth, then nobody can tell them that they births, a fact that had the expected consequence “must” lie down on a bed, tether to an electronic of deterring other professionals from doing so and fetal monitor, accept induction at 41 weeks, or operated to restrict the choice for home birth for anything else. They can only be advised, not many women. Because the Netherlands offered ordered. genuine choice for “low-risk” women, the whole issue faced in other countries is shifted, so that

18 HUMAN RIGHTS IN CHILDBIRTH A year and a half after the Court issued its judg- of Ternovszky rights, whatever their own birth ment, the rights that it articulates remain an choices would be. abstraction in most, if not all, jurisdictions. The holding, and its orders, provide a new lens through Why Does Choice Matter? which to consider how genuinely “woman-cen- tered care” would operate in practice. The cases I have heard and read hundreds, if not thousands, of twins and breech home births in the Nether- of birth stories since I first opened Ina May’s Guide lands are important not only for the few women to Childbirth. After my first birth in 2007, many who choose for these births, just as Ternovszky more girlfriends told me birth stories that I now isn’t important only for the few women who choose recognized from experience: around their due home birth in other jurisdictions. These cases are date, their care providers started to talk about important because they illuminate the system’s induction, cesarean section, and medical emer- bottom-line assumption about who is the ultimate gency, often without providing reasons why any of decision-maker in childbirth. Do birthing women these particular women actually needed these have an obligation to obey their doctors’ orders? interventions. The difference between the out- Or do doctors and midwives have an obligation to come of these stories, and my own experience, support birthing women on their terms? What is was that I had somewhere else to turn when that the place of the unborn baby, of its rights or inter- young man directed me toward a medical birth ests, and who has the moral and legal authority to with no rational justification. I had Laura. I had make decisions for it? How do the relationships choice. I was able to walk out of that doctor’s between doctors, midwives, and nurses support office and turn to a healthcare worker that I could or undermine woman-centered care and protect trust to guide and support me along whatever path the rights expressed in Ternovszky? my particular birth would take. My girlfriends didn’t have such choices. By their due dates, they felt These questions are not academic. Ternovszky v. locked in to care with the providers who were now Hungary is law, and any jurisdiction faced with the doing a total about-face on their birth plans, and demands of its female citizens to come into com- explaining these changes not with reason, but with pliance with this law will have to answer these vague warnings that babies do die and that deci- questions, among others. sions should be left to the experts.

Holdings of the European Court of Human Rights As I thought about my American friends’ experi- are binding on all European signatories to the ences, I was troubled by the context in which they European Convention on Human Rights. Many, if had chosen the care providers that smiled at their not all, of these jurisdictions could stand to recon- natural birth plans but led half of them into surgical sider their birth systems in light of the questions of births. I saw how many hurdles these women legal authority and supported choice raised by faced if they wanted to give themselves a good Ternovszky. Moreover, the fundamental human shot at a non-medical birth. I understood, by now, rights discussed by the Court are meaningful in all that these hurdles did not exist for reasons of the jurisdictions in which human rights are mean- safety or health, but for reasons of money and ingful. The European Court of Human Rights power. grounded the Ternovszky holding in the fundamen- tal human rights to privacy and autonomy. These I want to ensure that all women have real options rights are sacrosanct in constitutional democra- for childbirth. The pregnant women of the 21st cen- cies, and in particular the United States. Faced tury may well choose, for the most part, to deliver with a plaintiff like Anna Ternovszky, would an in hospitals under medical protocols. But unless American court deny that pregnant women retain women have real alternatives, which are as the right to give birth to their children in a way that robustly supported by their healthcare system as reflects their family’s personal values? Would it the choice for hospital birth, that choice is not deny that a pregnant woman retains authority over meaningful. Indeed, the safety of women who do her physical body? Of course, to deny that women choose hospital birth can only be ensured if they have authority over their bodies, and in particular have the option to walk out and deliver under a over their reproductive capacities, has a significant different model of care, even if they do not exer- historical context. It is for this reason that all cise that choice. The location of legal authority women should be concerned with the protection over childbirth decisions in birthing women, and the assurance that the state will protect the exis-

INTRODUCTION 19 tence of meaningful choice, would significantly belief that such intervention is in the best interest affect the way that conversations occur between of this mother and this baby in this birth. Economic women and their care providers at home or hospi- studies indicate that financial incentives play a role tal. A different dynamic is in place when a doctor in obstetric care. 2 Healthcare providers report that gives a recommendation with the knowledge that they recommend interventions, including cesar- the woman can take or leave the advice, than ean, for “liability reasons.” There is an oft-repeated when that doctor believes that the woman can story that a doctor might be sued for not doing a legally be forced if she doesn’t comply. cesarean section, but never for doing one.

This is the problem of monopoly: capitalism If this liability story is true, then the law is failing to assumes that the tension of competition is neces- do its job. If the law operates efficiently, liability sary to ensure quality, whether of goods or of ser- incentives will reflect the reality of costs and ben- vices. When women have no other choices, their efits in decision-making, and will lead practitioners only choice is to do what they’re told. to make decisions that accurately, or at least care- fully, weigh the risks and benefits of the available The legal authority for decision-making in child- choices. Cesarean sections, and other birth inter- birth must rest in the hands of the birthing woman, ventions, have very real risks and costs. If the law in light of developments in obstetric practice is delivering a “free pass” for doctors to deliver worldwide. The cesarean section rate in the United babies by surgery, a choice that may further be States is now over 33%. This seven-fold increase influenced, even unconsciously, by factors of of surgical birth, between my mother’s generation finance and convenience, then the law is creating and my own, has not resulted in more live babies. perverse incentives in obstetrical care. Meanwhile, maternal mortality in the United States is rising, not falling. 1 Might this rise in maternal As a consumer, I find it unacceptable that I might mortality reflect the fact that cesarean section ever receive healthcare advice, and especially without medical necessity increases the risk of emergency advice, that is motivated by any reason death for the mother, relative to vaginal birth? other than my health and well-being, including Given that risk alone, how could anybody other during birth the well-being of my baby. The evi- than the mother have the legal power to choose dence that women’s and babies’ health is only one for cesarean delivery? And yet, there have been factor, and not always the predominant one, in cases of women refusing cesarean section at obstetric decision-making is deeply troubling. No American hospitals with 50% cesarean rates, and woman would ever imagine, during labor and doctors able to pick up the phone and get a court childbirth, that she is being advised to submit to order to literally force the woman into surgical interventions that are not necessary, or that her birth. This is frightening: a doctor who cuts babies care provider is making that advice for any reason out of half of all mothers, with the power to force other than her health. any mother to submit to his decision to cut her, too. The cesarean pandemic has gone global, as Issues of force and power in obstetric care reflect developing nations like China, India, and many in a sense in which providers might feel that their ser- South America report cesarean rates of over 50%, vices represent an exception to the usual con- and 90 – 100% in private hospitals. sumer-provider relations. They don’t. If I hire a doctor or a midwife, they work for me. I retain them This last point, that there is evidence world-wide to provide the services in which they have skill and that for-profit medical institutions conduct more expertise, and to provide counsel based on that expensive interventions, up to and including expertise. I remain absolutely free to take or leave cesarean section, than not-for-profit institutions, their advice, incorporating it, as I should, into my reflects a critical reason why Ternovszky must become a meaningful reality. Widespread evi- dence indicates that healthcare practitioners, 2 See, for example, J. Gruber and M. Owings, “Physician Financial Incentives and Caesarean Section Delivery,” including both doctors and midwives, too often Rand Journal of Economics, 1998; J. Currie & B. recommend interventions for reasons other than a MacLeod, “First Do No Harm? Tort Reforms and Birth Outcomes,” Quarterly Journal of Economics, 2007; Dranove and Y. Watanabe, “Influence and Deterrence: 1 More information on this fact can be found at Ina May How Obstetricians Respond to Litigation Against Gaskin’s Safe Motherhood Quilt Project, Themselves and their Colleagues,” American Law and http://www.rememberthemothers.org/. Economics Review, 2011.

20 HUMAN RIGHTS IN CHILDBIRTH own factors and values relevant to the decisions at Laura actively assists in some births, helps some hand. The freedom to decline medical services, in newborns to take struggling first breaths, transfers particular, is enshrined in the human right to refuse some of her clients to the hospital during or after treatment, and the civil right of informed consent. delivery. But she also knows how to hold a light for birthing women as they take their own journey, to The fact that I carry my child in my body does not stand beside a woman and do nothing but support somehow upend the status quo of consumer-ser- her. That helped me to avoid an emergency birth. vice provider relations, and make it so that I am working for them and must do what they tell me or They say a good surgeon knows when to operate, be forced. To suggest that anybody is more but a better surgeon knows when not to operate. invested than the mother in the outcome of a birth Perhaps a good midwife knows how to transfer and the well-being of her child is deeply problem- care, but a better midwife knows how not to. atic. Even more problematic is the assumption that obstetrician-gynecologists are always perfectly Laura is one of many exceptional birth care provid- aligned with the interests of an unborn baby, and ers, in many jurisdictions, who face legal or profes- that the moment a mother declines their advice or sional punishment for failing to conform to larger their services, she falls into conflict with the inter- trends in unnecessary medicalization and liability- ests of her baby, and relinquishes responsibility driven care. I was lucky that I was able to find and and authority over it. hire such a care provider, but such care shouldn’t be reserved for a lucky few. I will do what I can to It is all well and good to talk about trust and joint ensure that such a choice exists for all birthing decision-making between women and their care women, in every jurisdiction. providers. But in the event of disagreement, some- one needs to make the final decision, and society The Human Rights in Childbirth should trust a birthing woman to be that person. It Conference is critical that women retain the legal authority, and the meaningful ability, to walk away from birth care This conference began as an idea; really, a dream. providers who treat them with disrespect or rec- Invite people with a wide range of perspectives to ommend interventions that the mothers feel come together and talk about modern obstetric unwise or unnecessary in their case. It is critical, in care and issues of autonomy, respect, abuse, law, a world in which the majority of babies in many and economics at stake in such care. The director jurisdictions are being born through surgery, to of the Hague University’s International and Euro- retain a meaningful choice for physiological birth, pean Law program at the Hague University, Ernst even if only a few women exercise that choice. It is van Bemmelen van Gent, heard out the idea, told critical that women retain the ability to choose for me that the university’s auditorium could seat 500, care providers, with non-surgical skills, who are took out his calendar book, and said, “How about genuinely committed to using their best judgment, May?” I sent invitations to Ina May Gaskin and in the moment, about what is needed for the birth Raymond de Vries; they responded and agreed to at hand—and that such providers retain the legal come share their wisdom. The way this conference ability to do so, even if such care is the exception has come together since then has reflected the in their professional culture. timeliness of the issues at stake and the urgency with which people need clarity about the role of My midwife, Laura, is one of these care providers. rights and law in childbirth care. Given the panelist She, Melanie and Annina empowered me to have list, as reflected in this collection, the event has the experience of discovering that I must, and grown beyond a conference: it is a summit. The could, birth my baby. Laura knew the difference world’s most thoughtful and prolific thinkers, writ- between a cry for help, when active assistance is ers, and actors in childbirth are coming to The genuinely needed, and the moment in my labor Hague to share their perspective and to hear oth- when I faced my own wall, and needed support ers. If meaningful action in the protection of birth and encouragement to surmount it. Nobody took rights is possible, this is an assembly capable of that opportunity away from me by “rescuing” me generating it. from my body, like applying forceps and an episi- otomy. They were not needed. I birthed my baby Because there will be so many disciplines repre- without damage. sented—lawyers, doctors, midwives, nurses, ethi- cists, anthropologists, policy makers, and most of

INTRODUCTION 21 all, mothers and fathers— and also so many cul- This Publication tural perspectives, given that attendees are com- ing from all over the world—there will be many The two days of this conference will consist of 4 opinions on the issues discussed. This essay panels each, for a total of 8 panels. Because the expresses my own opinions, as a product of my goal of the conference is dialogue and discussion, perspective. I have invited many panelists who panelists will not make extended presentations or have different opinions on these matters, and are speak at podiums. Instead, panelists will speak for capable of expressing them well, in public. My 5 minutes each, after which the floor will be hope is that through discussion and perhaps even opened for audience participation and general dis- debate, we can all come away with a more cussion. For this reason, we invited panelists to nuanced understanding of human rights in child- submit a writing in advance of the conference, to birth. Through mutual understanding, we are more be shared with other panelists and registered capable of achieving solutions acceptable to all. attendees. We explained that these writings could serve to familiarize other panelists and audience The two days of the conference will address two members with the general (or specific) perspective over-arching goals. First, the conference aims to of each panelist, and thus enable us to skip such bring attention to the case of Ternovszky v. Hun- introductions and get right down to discussion. gary, and to create a forum for exploration of its practical implications and the legal issues that Panelists were invited to either write an article, or must be addressed when the case is applied. The to draft a “letter to the conference,” explaining 1) problems addressed by the Ternovszky case exist why they are coming to this conference, 2) why around the world, and certainly in the United they feel that the issues of the conference are States. The Ternovszky holding is a powerful tool important or relevant, and 3) what they hope will for the consideration of potential solutions to occur at and come out of this event. those problems, worldwide. The result is this remarkable and wide-ranging col- The second goal of the conference is to bring lection. It contains the voices of mothers, doctors, together the widest range possible of stakeholders midwives, lawyers, nurses, sociologists, anthro- in the Dutch birth system for mutually respectful pologists, ethicists, and other individuals from the dialogue about the present and future state of the far reaches of the planet. Because the timeframe system, and the meaning of “woman-centered for production of this collection has been short, care” in the Netherlands. The Ternovszky holding and considering its purpose, editing was limited. can remain in the background of that discussion, The authors herein write in their own voices, many as just one lens through which current issues in in English as a second language. It is a tremen- the system can be viewed. Because this confer- dous pleasure to read all these voices, and to ence is organized from a legal and a woman-cen- encounter each of these perspectives. tered perspective (quite literally, by a lawyer and mother, along with law students and other moth- This collection is only the beginning of the conver- ers), it provides a space that is not vested in the sation. It reflects the promise of the event for interests of either doctors or of midwives, but which we will gather at the end of May. On behalf where these professionals can meet on neutral of the Bynkershoek Institute, the Hague University ground. At the same time, the conference will bring of Applied Sciences, and the organizing team of together members of the Dutch birth community the Human Rights in Childbirth Conference of with the international community, both so that the 2012, I warmly welcome you to The Hague and international community can bear witness to the look forward with great anticipation to the discus- Dutch conversation, and so that it can testify to the sions to come. unique and important model that the Dutch sys- tem provides to the world. Hermine Hayes-Klein, Rotterdam/Portland, May 2012

22 HUMAN RIGHTS IN CHILDBIRTH About Hermine Hayes-Klein

Hermine Hayes-Klein grew up in Lexington, Mas- sachusetts, USA. She attended college and law school at the University of Chicago, receiving her B.A. in 1997 and her J.D. in 2001. She practiced law in New york and Connecticut for six years before moving to the Netherlands, in 2007. She taught law at the International and European Law L.L.B. program at The Hague University from 2008 to 2012, and became the director of the Bynker- shoek Institute’s Research Center for Reproduc- tive Rights (RCRR) in 2011. In the Spring of 2012, Hermine moved with her family to Portland, Ore- gon, USA. She will continue as the director of the RCRR from Portland, and will also return to the practice of law.

INTRODUCTION 23 24 HUMAN RIGHTS IN CHILDBIRTH / Day 1: International and Fundamental Human Rights in Childbirth

DAY 1: INTERNATIONAL AND FUNDAMENTAL HUMAN RIGHTS IN CHILDBIRTH 25 Letter to the conference By Ina May Gaskin

First, I would like to congratulate the organizers of lation, the risks of cesareans are hidden from this conference for the excellent work that has cre- women to the point that many women who have ated such a fascinating and compelling pro- absorbed the high level of cultural fear of birth gramme of discussion on these important matters. have come to believe that cesareans are safer than The Ternovszky v. Hungary judgement sets a physiological birth. much-needed precedent, since I hear from women from several countries which are on a track to Lisa Chalidze, a US human rights attorney, has restrict or outlaw home birth, as if choice regarding written: “American research consistently suggests place of birth is one that women are not compe- that the effort to reduce growing C-section rates is tent to make for themselves. I come from the US, more a process of changing physician behavior where our obstetrical establishment has made than of medical education and clinical need. Doc- home birth the scapegoat for everything that could tors perform unneeded and unwanted cesarean be wrong with maternity care, even though the sections.” Women who attempt to avoid unneces- percentage of the population having planned sary cesareans are viewed as irrational, irrespon- home births has never exceeded a mere 1 percent. sible, callous, and uncaring for their own children. The US maternity care industry processes more But when doctors hold monopoly power over birth than four million births every year, with more in systems in which midwives have been elimi- money per capita spent on maternity care than any nated or marginalized, it becomes necessary for other country, while producing the highest mater- human rights advocates to defend the rights of nal mortality rate among countries of high eco- mothers and families seeking solutions to these nomic status. Maternity care is very big business dangers to their health and well-being. for hospitals in the US and big business as well for the powerful insurance industry. The need for women to hold the right of choice about place and birth attendant is even more vital The furor over home birth has continued over the today than it was when I began my career in mid- last four decades, and unfortunately, it has dis- wifery. When I began in 1970, the US cesarean rate tracted attention from the very real problems in US was only 5 percent. Today it is 33 percent nation- maternity care—our high and increasing rates of ally and well over 50 percent in many hospitals. cesarean operations, induced labors, maternal There are no national strategies being offered that mortality, the restrictions placed on vaginal births could possibly lower it, even though there are after cesarean, the small number of midwife- plenty of US obstetricians who understand well assisted births, and the lack of a system for accu- the dangers of such high rates of surgical interven- rately counting and reviewing the causes for tion in birth. California, for instance, reported a tri- maternal deaths and near-misses. pling of the maternal death rate between 1996 and 2006, with much of this increase being associated Because maternal mortality is masked in several with cesarean section. (This figure, by the way, has ways, the public remains unaware of the real dan- not reached the national media, which seems to gers of such high rates of medical intervention. prefer maintaining the myths that were set in place Cultural ideology and fetal protectionist beliefs at least a century ago, during the obstetrical cam- have even led some doctors, backed by judges, to paign to eliminate midwifery). perform forced cesareans in the US. In this formu-

26 HUMAN RIGHTS IN CHILDBIRTH As caesarean rates continue to rise in my own been eliminated early in the 20th century, because country, obstetricians’ competencies to perform obstetrical leaders at the time saw no reason for its the manipulations that are sometimes necessary continued existence, and because of the benefits will continue to atrophy. We reached the stage in medicated birth and caesarean sections provide to the 1980s when very few obstetricians still had the for-profit hospitals, insurance companies and the clinical skills to deal with breech presentations. I drug industry, though often not to the women. know cases in which this level of incompetence resulted in mothers’ or babies’ deaths. The old The Farm Midwifery Center saying that when one’s only tool is a hammer, With a strong motivation to become a midwife in a everything begins to look like a nail applies here. I country that lacked opportunities for such an edu- have just published an article in a medical journal cational path, Gaskin founded The Farm Midwifery about how our two major obstetrics textbooks Center in 1971. The Center became well known have left out any discussion of the phenomenon of during the 1970s as a place where authentic mid- pseudocyesis (false pregnancy), with the result wifery was practiced and taught. that an unknown number of non-pregnant women have found out that they were not pregnant only When the U.S. caesarian rate was 5% in the early after their abdomens were opened for cesarean 1970s, the Farm Midwifery Center reported a 1.7% section. rate. When the U.S. caesarian rate had risen to over 30% in 2005, the rate at the Farm Midwifery I hope that this conference organized around the Center was still about 2%, even though the prac- theme of human rights in birth will be the first of tice delivered many twins and breech babies, as many. Women and midwives need the help of well as births by mothers of more than six babies. human rights attorneys to win the battle over women’s bodies that has been going on for centu- Achievements in teaching & campaigning ries. I thank the Bynkershoek Institute for providing Over all these years, Gaskin has assisted some a place for the first of these important discussions. 1200 unmedicated births and together with her partners, more than 3000. Her work and expertise About Ina May Gaskin have pioneered midwifery education for decades, preserving knowledge mostly forgotten in techni- Ina May Gaskin has been called “the most famous cally dominated births. Her “Gaskin Maneuver”, an midwife in the world”. A pioneer in a millennium- obstetrical procedure she learned from traditional old profession on the brink of extinction in her Guatemalan midwives, is now taught internation- country, she combines scientific evidence and ally. Birth videos have helped promote her tech- analysis with her own broad experience in exercis- niques for the prevention of protracted labours, ing natural medicine. Ina May Gaskin is a role routine episiotomies, and for successful breech model for midwives who still dare to think in differ- and twin births. ent paths, trying to implement more humane obstetrics in their countries, and providing women For more than a decade, Gaskin has led a cam- with the chance to choose the way of giving birth paign to promote awareness of the dangers of the that seems right for them. use of Cytotec (generic name: misoprostol) to induce labour for reasons of convenience. Her Ina May Gaskin was born on 8 March, 1940. She is 2000 article published by the online journal Salon. the wife of the first Right Livelihood Award Laure- com has been credited with prompting the drug’s ate Stephen Gaskin, who received the Prize with manufacturer, G.D. Searle, to issue a letter to all his organisation PLENTY International in 1980. U.S. maternity care providers warning against its use in pregnant women. Ina May Gaskin’s first midwifery experience was in 1970, when she assisted at a birth in a school bus Setting standards for midwifery and maternity on Stephen’s speaking tour of universities and care churches prior to the establishment of The Farm, In 1982, recognising the need for high standards an intentional community in Tennessee, and the for midwifery practice and education, Gaskin subsequent development of Plenty International. became one of the founding members of the Mid- This experience inspired her to study midwifery as wives Alliance of North America (MANA). She a way of providing birth choices for women in her served on the MANA Board of Directors from 1982 country, where the profession of midwifery had to 2002, and as its President for six years.

DAY 1: INTERNATIONAL AND FUNDAMENTAL HUMAN RIGHTS IN CHILDBIRTH 27 MANA later gave rise to the Midwifery Education Teaching. Gaskin has lectured to physicians and and Accreditation Council (MEAC), and to the midwives throughout the U.S., in Argentina, Can- North American Registry of Midwives (NARM), an ada, Mexico, Brazil, Costa Rica, Sweden, Norway, organisation which created a national compe- Denmark, Iceland, Germany, Switzerland, Israel, tency-based certification credential for U.S. mid- Italy, Austria, France, the Netherlands, Slovenia, wives. These developments have led to the pas- Russia, Hungary, the Czech Republic, Spain, Aus- sage of laws recognizing the NARM midwifery tralia, New Zealand, and Japan. credential in more than half of the states so far. Gaskin and her colleagues have been deeply She also promotes breastfeeding and fights involved in this process for more than 25 years. against hospital routines which unnecessarily sep- arate newborns from their mothers, as well as puri- Analyzing maternal death rates tanical attitudes which discourage many women In the late 90s, in order to build a valid case for from breastfeeding. In some U.S. states it is still policy recommendations, Gaskin began her study unusual for breastfeeding mothers to be seen in of maternal mortality rates. While anecdotal evi- public, and some mothers have been threatened dence suggests that rising death rates are at least with arrest for doing so. partly – if not even to a significant degree – due to the rise in caesarean sections and the use of miso- Books & Publications prostol to induce labour, autopsies after maternal In 1975, Gaskin’s Spiritual Midwifery was an deaths are rare even in the U.S. In addition, the immediate bestseller and soon became regarded lack of any mandatory federal standard death cer- as the bible of home birth and woman-centered tificate makes collecting data difficult and incom- midwifery. Having been translated into Dutch, Ger- plete. man, Danish, Russian, and Spanish, the book has convinced countless women that labour and birth In April 2011, the Maternal Accountability Act got can be approached without fear, and with confi- introduced into Congress, which would make dence that most women’s bodies are still perfectly mandatory the use of a standard Death Certificate capable of giving birth. Recent books include Ina allowing the extent of birth-related deaths to be May’s Guide to Childbirth (2003), Ina May’s Guide recorded. Ina May Gaskin has been a fierce sup- to Breastfeeding (2009), and Birth Matters: A Mid- porter of this Act. wife’s Manifesta (2011). Ina May Gaskin also con- tributed to an anthology of U.S. midwifes that pio- Current main fields of activity neered the return of that profession in the USA In 2011, Ina May Gaskin’s main mission was: called Into These Hands. Wisdom from Midwives The Safe Motherhood Quilt Project, in which a quilt (2011). is made of patches, each with the name of a woman who died in childbirth in the US since In 2009, Gaskin received an Honorary Doctorate 1982. The Project aims at summoning the national from Thames Valley University in London. In 2011, will to take the first step toward lowering the cur- Gaskin was given the Right Livelihood Award (also rently rising maternal death rate by creating a con- known as the Alternative Nobel Prize) for “her sistent, mandatory system for reporting, classify- whole-life’s work teaching and advocating safe, ing, and counting the maternal deaths in the US woman-centered methods that best promote the and reviewing and analyzing their causes. physical and mental health of mother and child.” The Award was presented before the Swedish Par- An information campaign, aiming at women, mid- liament in Stockholm. wives, nurses and physicians, about the potential “side effects” (maternal and fetal death) of using misoprostol to induce labour.

28 HUMAN RIGHTS IN CHILDBIRTH / Panel 1: Ternovszky v. Hungary: Context and Consequences of the ECHR Decision

This panel will lay the groundwork for the confer- Panelists are: ence through an overview of the Ternovszky v. - Anna Ternovszky, Mother from Hungary Hungary case, the European Court of Human - Agnes Gereb, Obstetrician-Midwife from Hun- Rights (ECHR) holding, and its legal significance. gary in absentia This will include a discussion of the Hungarian - Istvan Marton, Obstetrician-Gynecologist and birth system for a contextual analysis of how Professor from Hungary choice in childbirth can be supported or under- - Imre Szebik, Bioethicist from Hungary mined. The panel will consider the legal proceed- - Stefania Kapronczay, Human Rights Attorney ings against Hungarian obstetrician-midwife from Hungary Agnes Gereb, and how they gave rise to Ter- - Felícia Vincze, Midwife from Hungary in absen- novszky. It will also explain the role of the ECHR in tia articulating and applying human rights, and - Elizabeth Prochaska, Human Rights Attorney describe the human rights articulated by the Court from United Kingdom in the Ternovzsky case. What does it mean to say - Karen Guilliland, Midwife from New Zealand that a woman has a human right to choose the cir- - Barbara Katz Rothman, Sociologist from USA cumstances in which she gives birth? What are the implications of this case for all European nations? Panelists will describe the Hungarian govern- ment’s reaction and response to the holding, in both its legislature and its judiciary. Is Hungary in compliance with Ternovszky?

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 29 Letter to the Conference By Anna Ternovzsky

I am just like millions of other moms who wished to tion, caring about nothing else but me and my decide – and still hope to be able to do so in the babies. The person to whom I feel most indebted future as well – where and under what conditions I is my beloved midwife, Ágnes Geréb, who spent would deliver my two babies. My continuous aim 20-30 hours helping me relentlessly, giving me her going forward is to help as much as I can, so oth- undivided attention, her utmost love and respect, ers like me will have the same right; to make up standing by my side as I was giving birth to my their minds freely without their decision being boys under the most peaceful and undisturbed determined by others. It is everybody’s right to do conditions. Feeling safe and secure, to me, meant so! Right? We shouldn’t even have to talk about being at home in those situations, surrounded by rights here, as these issues pertain to the very core the well-known scents and lights that are part of of our lives. However, the legal system we live in my everyday life, having the loving presence of my has such influence and so much power over how husband, my siblings and friends, as well as the we do things. And these kinds of regulations that support of my midwives and doulas. are trying to control what we know best from our instincts are clear signs that the ancient faith we I remember, I spent 10 hours sitting in the bathtub, used to have in women has been lost somewhere and at every contraction my helpers opened the along the way. Throughout the history of human- tap and ran some warm water in, they fanned me kind there was one thing always certain: women to feel better, or gave me some drink to refresh a knew how to give birth, how to bring another life to bit; comforted me as I was vomiting. They gave me this world. And we used to be respected for that. help and support in every way that one can pos- We were trusted and appreciated. But what has all sibly need in such a situation. Ági kneeled on the that become? Our ancient wisdom is being rough stone floor; massaging my back, singing doubted; and we, mothers, are being judged - and giving me compresses, holding my hand tight something which deeply saddens my heart. whenever I asked. I did not feel uncomfortable for a second, not even when I was on my hands and I hope that by addressing this issue the way this knees, yowling and writhing completely naked. I conference intends to, step by step, we will be did not have to “behave,” nobody said anything – I able to help not only mothers, but also doctors, felt accepted. I felt as if I was going to die from the midwives and doulas who have dedicated their pain, but feeling such faith from them, knowing lives to this sacred goal. I hope our attention to this that they believed I could bear it, gave me tremen- important topic will bring about the right condi- dous strength, which was a very new feeling, tions for them to continue to follow their calling. something I enjoyed utterly. I had a chance to experience that I possess the ability to bring my Well, I am a mother who decided to give birth to child to this world by myself. I was given an oppor- my two little boys at home, surrounded by my fam- tunity to have a real meeting with myself and expe- ily, my loved ones and the midwives and doulas of rience the immense power that lies within me. To my choice. It was the best choice I have made in this day it gives me great strength to recall and my life. Their deliveries are my most precious build upon that feeling. By being able to focus memories, something I will always treasure. And I inward, I was also allowed to pay attention and feel will forever be grateful to those who were by my how I was working in sync with my baby. I felt how side at that time, helping me with love and devo- we fought as a team; when my uterus contracted,

30 HUMAN RIGHTS IN CHILDBIRTH and he gathered all his strength, pushing his way birth, I knew without a doubt that Ági was the doc- outward. I could feel his every movement, and it tor and midwife who would do everything for me was simply the most amazing cooperation and my baby’s safety. Strangely, the Hungarian between the two of us. The love that surrounded courts and our Medical Chamber gives this benefit me as I was pushing him out was also something I of the doubt to all doctors, while assuming that Ági will never forget; my sister and my doula were alone wouldn’t do everything she could to the best kneeling face to face, their legs formed my live of her knowledge. birth chair. My husband was holding me from above, and Ágnes Geréb and Ágnes Király, my two Agnes Gereb has assisted home births for 22 midwives, were massaging my perineum with years. According to the Hungarian statistics, dur- warm oil, so it wouldn’t break. They put hot com- ing that time there were nearly 5500 perinatal presses on my tummy, and that is how my first boy deaths in connection with hospital births. There arrived in this world. Ági used her own mouth to are no guarantees in childbirth, no matter where or suck the amniotic fluid out of my baby’s nose and how it occurs. Everybody assumes that the doc- mouth, then she smiled at me and said, “The first tors involved in those 5500 hospital births did kiss was mine.” Then she put him on my body, and everything humanly possible to save the babies. I began breastfeeding. Nobody took him away None of these people have been accused of any from me, not even for a second. We were able to negligence or sent to prison as a result. Why was stay together for hours and days in complete Agnes Gereb subjected to a different set of peace. It is something that I will forever appreciate. assumptions, ones that seemed to presume her bad intent? I find her demonization for having I try to imagine what it is like for a baby to leave the assisted in a birth where a baby died following safety of his or her mother’s womb and arrive in shoulder dystocia very hard to accept, knowing this unknown world. How scary and painful the that babies die in hospitals, in Hungary and else- journey must be in and of itself, and where, every year due to shoulder dystocia. As when he or she arrives, the temperature changes, long as such a double standard is present, which the sharp light in the eyes must be devastating, the assumes good faith for medical workers and bad first gasps for air; everything is new. The only thing faith for midwives, so that the midwives alone face that remains the same is the baby’s mother. The criminal punishment for outcomes that can occur familiar rhythm of her heartbeat, the warmth of her in any birth, home or hospital, how can I choose body, her voice; the only place safe is with her. for home birth, no matter how strongly I feel that it That is why I feel that it is crucial for my baby to is the right option for me and my newborn? stay with me upon his birth; something that is allowed in some cases in hospitals, yet also pro- In addition, at the time of my second pregnancy hibited in many situations unfortunately. there were several other charges brought against Ági, which very much reminded me of the witch Why and how did I turn to the European Court of hunts of the old days. These charges made me Human Rights in Strasbourg? When I was preg- fearful for Ági if she were to assist in my baby’s nant with my second child, Ági’s persecution had birth. I was extremely concerned that I would not already begun.There were several cases against have a chance to have my baby at home as a her, and it was impossible to know where exactly result of the situation, or that even on parole Ági things would stand by the the ninth month of my could only be present in secret, so we wouldn’t pregnancy. It became clear to me that the Hungar- bring any more trouble on her. It was the most ian law at that time would not allow me to give undignified situation I have ever been in, for my birth with medical supervision at home without wish to have Ágnes Geréb and Ágnes Király pres- breaking the rules. That was when I turned to ent at the birth of our second son too, shrouded Strasbourg and asked for some kind of remedy. I with secrecy and fear. was scared of many things. I was especially wor- ried that I could get Ági in even more trouble if I was expecting our second boy surrounded by there were any complications around my baby’s these fears, so it was natural that I often found birth. I didn’t want to have such responsibility myself discussing these issues at the kindergarten weigh on her shoulders, since it was not her, but with other mothers who gave birth at home. One of myself, who made this conscious decision and the moms was working at the Hungarian Civil Lib- accepted all risks involved in my home birth. erties Union as an attorney, and with my rebellious Based on the experience I had at my first child’s curiosity I asked her if there was a higher court to

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 31 which people can turn in such situations. She said imposed sanctions, as well as the lack of special there was, the European Court of Human Rights in and comprehensive regulations, restricted my Strasbourg. She explained that it is only possible decision-making ability in terms of home birth. for private individuals to file a lawsuit, and in such cases it would have to be someone who is preg- Despite the court’s ruling in Strasbourg, Ágnes nant. I was expecting our second baby at the time, Geréb was subsequently sentenced to prison for and my immediate reaction was that I would love two years, something that deeply upsets and terri- to be that person. When we looked at each other fies me. Shouldn’t the European Court’s ruling on we broke out in laughter, though we both knew I my case mean that a midwife like Agnes cannot be was not at all joking. Things quickly sped up after subjected to such extraordinary punishment for that, when Dr. Tamás Fazekas, one of the attor- supporting home birth? neys at the Hungarian Civil Liberties Union con- tacted me. He had been involved in Ági’s case for Following the European Court’s decision, Hungary a long time by then. We met, discussed the details, passed regulations addressing home birth, but and soon afterwards we filed the paperwork. subjected it to many arbitrary restrictions. The new Hungarian regulation states that the costs of home In legal terms, we condemned the state of Hun- births are not covered by our social insurance gary for the violation of two articles of the Euro- even if the mother is entitled to receive medical pean Convention of Human Rights; the one deal- services as part of her health insurance. To me this ing with one’s right to privacy as well as its anti- means again that the state looks at me differently discrimination regulation. from all the women who give birth in hospitals and; therefore, mandates that I pay for what they con- The state’s response to our claim contained a kind sider a silly hobby. of cynicism that I still can’t comprehend after all these years. Denying all accusations, their short This is a terrible discrimination. I personally could rejection said that since I refused the health ser- not afford to pay the expenses, but even if my vices (hospital birth) offered by the state – which, financial situation allowed me to I still would not do they added, also violated my child’s right to life – I so, because I feel outraged that such service is not was not entitled to demand any kind of “alterna- available to everyone on a universal basis. What tive” healthcare services from them. Of course, by else can be more fundamental in any country than no means was it my intention to refuse health ser- the healthcare provided for a mother who is giving vices. birth to her baby?

It was a wonderful feeling to learn that we won, There is another section of the regulation making and that the Court condemned the state of Hun- another home birth impossible for me. One part of garian birth policies, ordering my country to create the regulation classifies a baby whose expected the necessary regulations as soon as possible. birth weight is above 4000 grams to be non-eligi- The Court’s ruling restored my faith, as well as the ble for home birth. I have two concerns when it faith of many people in Hungary and abroad, that comes to the objectivity of this stipulation; one something will finally happen, and the long- being that the projection of an ultrasound can be awaited regulation will be created at last. I was off by as much as 500 grams, and the other being quite satisfied with the fact that the process has the fact that the mother’s size is not taken into started, and the new legislation to regulate birth consideration in any way. For instance, I am 180 got passed as a result. However, I continued to centimeter tall and both my children were born at have some questions and fears ever since. home weighing over 4000 grams. Perhaps if I underwent some serious weight loss program, it The Court had a firm position that one’s right to would give me some hope that the state might privacy, in itself, included the right to determine allow me to bring my third child to this world at the circumstances in which one’s baby should be home. born. According to the judges’ reasoning, the sec- tion of my government’s previous regulation (which Considering all of the above, I continue to believe imposed a fine on midwives assisting home births) that the decision is still not in the hands of women. was violating my rights, as well as the rights of The regulation of home births has began in Hun- other expecting mothers. The court also stated gary, yet under the current conditions I would not that the fact that I was under the threat of the be able to take advantage of this option for all the

32 HUMAN RIGHTS IN CHILDBIRTH reasons I have just mentioned. As a result, I would phrase; however, I can also see very well that in be forced to give birth in a hospital, or to do it all order to make such a thing happen, we need to by myself at home, without any supervision. work together in a well-established international collaboration. Let’s make Ági’s case (and the Finally, I would like to express my sincere hope growing number of these alarming cases sur- that the process, the change that began in Hun- rounding midwifery) serve as a strong wake up gary, will not come to a halt; that it will continue to call, and use it to guide us through our joint efforts, develop for another twenty or thirty years and rep- so finally the right to undisturbed home birth can resent as well the interest of those mothers who become available worldwide, regardless of one’s choose to give birth at home. I believe that it is a background or location. program which can be done in close cooperation with all participants involved: vocational colleges, About Anna Ternovszky doctors, midwives, doulas experienced in home births, the mothers themselves, of course, as well Anna Ternovszky is photographer and ceramist. At as those who create the framework for our deci- the moment she is a mother on a fulltime basis, sions: our politicians. and she is managing her own business which pro- duces and distributes environment friendly pack- I hope we are not far from the day when the idea of aging. ‘equal rights’ will no longer be a simple catch

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 33 Letter to the Conference By Agnes Gereb, panelist in absentia

It is a great pleasure to me that – even from my I see the newly developed situation in Hungary house arrest – I have a way to attend this incredi- two-sided at the moment. It seems to me that as a bly important event, a conference with an attempt result of the growing public pressure, our govern- to bring these crucial current issues to the table. It ment felt it was forced to legalize and approve of saddens me that I cannot be there in person. That home births. The approach of our new legislation I am unable to hug Michel Odent, for example, seems to be driven by the desire to save the who was honorary president of our foundation – babies from their mothers, who are considered with an aim to support undisturbed births both in irresponsible by our politicians and hospital staff and out of hospitals – for several years, beginning because they choose to opt for giving birth at in 1993. That I cannot have a chance to talk to Ina home. In order to save the babies, this law creates May, as well as to so many other participants with very strict conditions. I would like to highlight three whom I have been paddling in the same boat, and subject areas in regard to the situation in Hungary. to whom I would like to express my gratitude for I feel all three have equal weight. the amazing international collaboration providing me support over the past couple of years. I would 1. The law which was passed about a year ago like to thank the organizers for making this event left prenatal care exclusively in the hands of OB possible, on which – without exaggeration – the Gynecologists. This means that the recognition of whole world is keeping its eyes. midwives and the legalization of the work they do is only a farce. In regards to the subject of this conference: The new legislation in Hungary is a crucial mile- 2. The criminalization of home births as well as stone, which aims to address the most important the involvement of midwives has not ceased to issues in regards to home birth. Finding the safest exist; neither in retrospect nor for the future. and most ideal way to have babies is the number one concern, so I feel Hungarian mothers deserve 3. Freedom of choice is strongly restricted by the the same kind of care and attention as well. I am fact that as a result of our new legislation, not very pleased to see that Hungarian women are everyone has equal access to give birth at home. offered more choices; and I hope it is only the first step to many more changes to come. I hope Hun- I.) gary will continue on this important journey and It was over two decades ago that I decided to have remain interested in having our voice heard, keep- midwifery recognized as a separate profession in ing this an open debate, so the desires and moti- Hungary; so that the work of independent mid- vations of all mothers can be understood by those wives and doulas would be legalized, and these to whom they entrust these life changing deci- professionals could finally step out of illegality and sions. Such work should always be based on a utilize their expertise while freely practicing their mutual cooperation between obstetricians, mid- work. However, instead of legalizing the work of wives, and politicians, as well as the mothers of our midwives and doulas, the State of Hungary did course, as they are the ones who know what’s not regulate the knowledge-education criteria of best for their babies. our profession and our labor rights, but rather cre- ated a regulation which contains the expert opin- ion of OB Gynecologists in Hungary in regard to

34 HUMAN RIGHTS IN CHILDBIRTH who is allowed to give birth at home and who isn’t, tions. I believe it simply isn’t right for a person to and the kinds of equipment midwives must carry be punished for choosing to give birth at home. To (for example, they made electronic fetal heart mon- better illustrate my point, let me give you an exam- itors mandatory as part of a midwife’s bag). The ple here: when a mother with an Rh negative blood recognition of midwifery would mean that the Hun- type delivers her baby in a hospital, and her baby’s garian midwifery vocational college would also be blood type turns out to be Rh positive, the mother established beside the one that the OB Gynecolo- may need to receive Anti-D antibody in order to gists currently have, and they would have to protect her next baby. When someone gives birth become peers in representing the expertise of at home both this examination for the baby, as well midwives. Another fundamental aspect of this sit- as the related injection shot have to be financed by uation is that by such recognition, midwife experts the parents. If they can’t afford it, they will simply and OB Gynecologist experts – acknowledging be left without proper treatment or the midwife has each other’s skills and expertise mutually and to pay for it. Shouldn’t it be the shared primary using it to the benefit of all mothers – would sud- interest of our state and the mothers to ensure that denly have a supporting role when assisting at every mother’s child is safe and healthy irrespec- births. The law in the present day Hungary contin- tive of the actual location of a birth? Isn’t this a ues to subjugate midwives, as is the case within form of discrimination? the hierarchy of hospitals. As part of the prenatal care, obstetricians continue to be the ones to The current law regulating home births in Hungary decide who can fit the home birth criteria (which is filled with the misconceptions that people now are also determined by them), and who are the believe, as a result of a well organized obstetrician ones that fail to satisfy their requirements. This team lobbying to convince the public during the 22 clearly shows the lack of trust in midwives and that years I spent proving the contrary. It disregards all their expertise is only seemingly recognized. As a WHO recommendations and falsifies the actual result, midwives are unable to offer “primary care,” statistics, which would clearly show that giving which is the method that best safeguards the birth at home with no complications is just as safe health of those involved, since in those cases the as it is to deliver a baby in a hospital if the mother same person is able to care for mom and baby so wishes. By making Hungarian insurance com- during the pregnancy, the actual birth and the peri- panies believe that home birth is a dangerous natal period. hobby practiced mainly by rich and careless women, convincing them that it is only supported II.) by crazy, irresponsible fools, who belong to some In order for the criminalization of midwives to be kind of a sect, the obstetrician lobby finally suc- abolished in Hungary, there should be a responsi- ceeded at finding the right teammate for their bat- bility system established within our profession. tle. Depicting one side in such a manner and then There should be a midwife expert ensuring justice, contrasting it with the safe and well-equipped hos- an active board protecting midwives, as well as pitals that offer exceptional expert care (in their safeguarding the rules of their profession. As part viewpoint) allowed this very cooperative team to of any prosecution we would urgently need a raise the insurance costs to such an extent that it forum, which could investigate the problematic is making the work of midwives simply impossible. births that have been assisted by midwives – the They are only able to perform their duties if the same way the issues that arise within hospital self-fulfilling prophecy becomes true: that getting walls are not investigated by a judge, but rather a a license legally can only be possible if one invests group of medical experts. It has not been made the price of a half house to begin with, which possible in Hungary as of yet; therefore, the pos- should be just enough for the person to establish sibility of criminalization continues to be a threat in his or her practice. This means a midwife must be the future. It is very easy to make doulas and mid- either rich or – what is more likely – willing to join wives inferior under such circumstances. an obstetrician - with all the disadvantages that come with such ties, of course. And if one man- III.) ages to overcome all the difficulties and succeeds What I personally like most about my work assist- at establishing a practice, a mother will still have to ing home births is that I feel that everybody is pay twice the current Hungarian minimum wage equal. I feel it is essential for every member of our for every home birth just to keep this operation society to get access to such an option, regardless running. Therefore, it is very obvious that home of their financial circumstances or any other condi- birth in my country is just about to become the

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 35 privilege of the wealthy indeed – something which About Agnes Gereb was not the case during the 22 years of my prac- tice! Agnes Gereb worked 17 years in a hospital as obstetrician. In the meantime she obtained a Marsden Wagner MD, who was the head of the diploma of psychology and graduated as a mid- perinatal department at WHO for one and a half wife. She realized that the profession she has been decades expressed his point very well in a short looking for is not obstetrics but independent mid- statement he made: “In every country where I have wifery, as an autonomous profession (which seen real progress in maternity care, it was wom- implies an equal, and not subordinate role with the en’s groups working together with midwives that obstetrician within maternity care). She is - and made the difference.” That is exactly how my team has been since then - working to establish this has worked in the past 22 years and it is now being independent profession in Hungary, and at the replaced by solutions that are seemingly helpful. same time to spread the possiblity of undisturbed But obstetricians are going to keep control of birth. The doula profession has been introduced in childbirth and of the independence of women, Hungary by her and her colleagues, which since mothers or midwives alike – this is the message then became eligible also in hospitals. She is in hidden behind the façade of safety promised by captivity since 5 october 2010, at the moment, the medical team. under house arrest. She has four children, and one stepchild, who gave birth to all six of her grand- children.

36 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Istvan Marton

Reproduction is the most essential, basic function After the 1956 revolution, women got back the of all species – humans including. European cul- right to terminate unwanted pregnancy. Those sur- ture, civilization, ethical and religious aspects have gical terminations played an essential role later in heavily influenced local traditions of childbirth. the high preterm birth rate, and infertility. To reduce perinatal mortality, pregnancy care and childbirth Perinatal morbidity and mortality were nearly gained political attention. A network of nurses equally high in Western and Central Europe. The (Védőnöi hálózat) was responsible for pregnancy work of Hungary-born Ignac Semmelweis and the care and follow-up, and a safe hospital delivery British Lister, concerning aseptic measures, were system introduced, closing down local „birthing revolutionary in reducing maternal mortality. homes.” Following World War II, Soviet-controlled Hungar- ian clinical health care followed the authoritarian Obstetricians in maternity wards offered individual feudalistic approach, while Western civilization care for expecting mothers, including personal formalized and respected basic human rights, support at delivery. Some 70% of the population including medical services. received ordinary services, 30 % personal care for gratitude money (cash, tax free!) Under Soviet domination, the professional and honest Hungarian doctors served the patients’ Up to the World War II, village people delivered at interest according to their best intention. Theoreti- home, supported by very experienced, registered cally, the „free for all” - medical insurance created midwives. When delivery became hospitalized, all a disgraceful system, offering slightly better ser- obstetric activity, including childbirth, was defined vices for those few who were willing to express as a medical event, covered by social security and their satisfaction with an „honorarium.„ This grati- only and exclusively controlled by obstetricians (or tude money distorted medical services, particu- residents under supervision). Local midwives, hav- larly pregnancy care and childbirth, and fully esca- ing lost their license to give full care and take lated by the 1970s. Doctors’ salaries were more or responsibility for pregnant women, moved to the less equal to any qualified workers, but their hospitals and worked under the Obstetricians. income depended on the gratitude money! High Labour wards at big hospitals had 3 – 6 delivery rank bureaucrats and party officials received spe- beds in one big hall, often without any visual sepa- cial medical care within a closed system (Kútvöl- ration. gyi). Changing legal background (1997) –fetuses human Under Communist dictatorship, the reproduction rights generated defensive obstetric care and lim- rate was influenced by strict fertility control mea- ited expectant mothers’ ability to control labour. sures. Before the era of the Pill, birth control was As a result, Caesarean Section ratio increased, expensive, and access limited. Abortion was for- and women looked for alternative options, like bidden, and doctors and women were imprisoned home birth. for the illegal termination of pregnancy (1949- 1956).

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 37 Slow political, economic progress, traveling, and melweis University in Budapest, and his M.Sc. at professional information in the early 1980s gener- Leeds (1978) Coming back from UK (1980) became ated public demand for less formal pregnancy Sen. Consultant and Lecturer in MAV Hospital. care and hospital birth regulation. At the MAV hos- MAV Hospital was the only independent health pital, as fully responsible senior Consultant, I initi- care provider at that time. He initiated the “Family ated „parental courses” (Szülők iskolája), opened friendly” obstetrics in Hungary, including special up individual labour wards, let fathers-to-be physi- pregnancy care courses, private delivery rooms cally support their spouse in labour, and stopped allowing - fathers to be - being present (contrary to routine (mandatory) episiotomy. In my unit, mid- the strict medical staff only attitude), no mandatory wives were allowed to actively participate in preg- episiotomy, late cord clamping, water delivery, nancy care and education, and could be invited as early and unlimited breast feeding, rooming in , personal midwife at labour, delivering babies with- early discharge (one day v. 6 days). out episiotomy (but still I, the senior Obstetrician, was legally responsible!). At first, these changes Became invited member of WHO Scientific Advi- generated professional opposition, but later sory Committee (1980). Founded the Hungarian became theoretically accepted. Those measures Osteoporosis and Osteoarthrosis Society (HOOS), reduced the cesarean section rate as well, in the became elected Chairman of IOF Patient Societ- MAV Hospital. ies. Acted as Scientific advisor of EU Parliament Hungarian Section.(2004) Social security covered medical services – includ- ing childbirth – have been legally controlled and Dr Marton was founding member of the first post- formally regulated. Later, strict protocols were war Rotary Club in Eastern Europe (reestablished introduced to fix legal requirements. in Hungary in 1988), crossed the Atlantic with 4 friends on a sailboat (2009). A few years later Agnes Gereb reopened a birthing center, educated doulas and expecting couples, Published professional (Cardiotocograpfy, Osteo- and helped home deliveries. She received strong porosis) and informative books (Pregnancy care Parliamentary attention, moral and financial sup- 100.000 copies!, Ageing, Life style advisory, Trans- port. atlantic sailing).

About Istvan Marton At present, he is a visiting lecturer at Semmelweis Istvan Marton earned his MD (1966) and Med. Medical School, run life style courses in Florida, Habil. (Professorship 1997) degrees at the Sem- and works as Sen. NGO advisor.

38 HUMAN RIGHTS IN CHILDBIRTH Justice and Home Birth in Hungary: Show Trials in the 21st Century By Imre Szebik

There is a war in obstetrics in Hungary. The objec- The objectivity of obstetricians who testified as tive of this war is to maintain professional domi- experts in cases of home birth is questioned for nance and to protect the financial income of several reasons: obstetricians working in hospitals at the price of 1. The practice of home birth offers an alternative women’s safety and scientific truth. It would be approach in pregnancy care. This approach is not unfair and unjust to condemn the obstetric profes- arbitrary or idiosyncratic, but is usually based on sion as such; however, the vast majority of official scientific evidence. Many ineffective or even harm- professional statements and expert opinions ful practices, however, that are routinely adminis- related to home birth do confirm an intention to tered at the majority of hospital deliveries are not eliminate the practice and practitioners of home applied at home birth, and their absence can be birth. The existence of home births is a threat to seen as an implicit criticism of current Hungarian the hegemony of obstetric profession for different hospital protocols. reasons. 2. Although home birth services are not covered The home birth movement demonstrated that mid- by the National Health Insurance Fund, the prac- wives can safely and effectively manage deliveries tice of home birth offered a fair and equitable of healthy women, thus making the presence of financial model for pregnant women. During preg- qualified obstetricians unnecessary in the majority nancy, women in Hungary are required to attend of cases. Moreover, the professional activities of visits at private clinics if they want to avoid embar- midwives brought into question the necessity and rassingly long waiting time. These private visits are benefit of many practices routinely administered at not covered by the National Health Insurance hospital births (episiotomy, induced labour, spinal Fund. Moreover, if a pregnant woman prefers to position, etc.). deliver with an obstetrician she selects, for this she usually has to pay out of her own pocket (this is a One manifestation of this war in Hungary is the form of informal payment or tipping). These pay- criminal prosecution of the midwives who attend ments serve as a major source of income for home birth. Although the government of Hungary obstetricians. The amount a pregnant woman is issued a governmental decree regulating home required to pay for regular pregnancy care and for birth, as long as criminal prosecution is a standard hospital delivery is at least three to four times practice to judge the professional activity of mid- higher than the amount she is expected to pay for wives in cases of bad outcome, it is hard to believe home birth. Again, the practice of home birth in that there will be peace around home birth. Hungary not only offers a fair and transparent financial model for pregnancy care, but implicitly In the course of the recent criminal trial of Agnes criticizes corrupt practices often present in hospi- Gereb and other home birth midwives, we wit- tal pregnancy care. nessed that, in their testimony, expert obstetri- cians falsified scientific evidence and came to 3. Planned home birth has been shown to be a unfounded conclusions regarding cases of home- safe and convenient option for healthy women in birth. industrialized countries, when professional birth attendants are present. In the majority of cases, these professionals are midwives. In Hungary,

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 39 hospital births are almost exclusively attended by ing, on the grounds that uterine massage is an obstetricians, and midwives have an inferior role. unacceptable anti-bleeding measure. However, The mere existence of home birth demonstrates uterine massage is a well-known technique that obstetricians are not routinely needed for described in midwifery textbooks. healthy deliveries, a realization that threatens to diminish the prestige of male-dominant obstetric * Obstetrician-midwife Dr. Ágnes Geréb was con- care in Hungary. This is perceived by many obste- demned because she did not administer nasal tricians as a threat to their income. suctioning for the newborn baby, although based on the results of clinical trials the routine use of this The obstetrician called to testify as expert wit- nasal suctioning is considered to cause more harm nesses during the criminal trials unanimously than good. expressed their disapproval of home birth because of its alleged increased risk, compared to hospital * Obstetrician-midwife Dr. Ágnes Geréb was con- birth. This unfounded bottom-line dominated their demned because she did not apply episiotomy in statements, opinions and conclusions. Some the case of shoulder dystocia, although there is examples: scientific evidence that episiotomy does not advance the process of birth in shoulder dystocia. * Obstetrician-midwife Dr. Ágnes Geréb was con- demned because of professional misconduct for One can see that the obstetricians who testified to not incubating a newborn baby who lacked breath- the above-mentioned opinions not only neglected ing. Instead, she applied the standard reanimation scientific evidence, but they applied double stan- technique with a mask. This is a double standard, dards when judging the professional activity of since health care professionals in hospital delivery midwives at home births. units do not incubate newborn babies before resuscitation either. In fact, courses on resuscita- About Imre Szebik tion teach that reanimation with mask is an effi- cient technique under standard circumstances. Imre Szebik is a physician-bioethicist, he works Professionals working at perinatal intensive care currently as a research associate at the Institute of units and in perinatal ambulance cars certainly Behavioural Sciences of Semmelweis Medical have sufficient skills to incubate babies, but this is University, Budapest, Hungary. He is one of the not a requirement in standard hospital wards. founding member of the Alliance of Physicians for the Freedom and Safety of Childbirth. * Midwife Ágnes Király was condemned for using uterine massage to decrease postpartum bleed-

40 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Stefania Kapronczay

Dear Colleagues, teed by Article 8 of the Convention. The Court held that the right to respect for private life includes the I am very pleased about being invited to this con- right to choose the circumstances of birth. „There- ference. I believe that meeting all of you with differ- fore the right concerning the decision to become a ent backgrounds provides me a great opportunity parent includes the right of choosing the circum- to learn from your experience and discuss one of stances of becoming a parent. The Court is satis- the most burning issues in the field of reproductive fied that the circumstances of giving birth incon- rights and health. testably form part of one’s private life for the pur- poses of this provision.”1 I lead the Patients` Rights Program of the Hungar- ian Civil Liberties Union, which is concerned with The Judges argued that the section of the Hungar- homebirth related issues, among others. HCLU ian Government Decree that imposes fines on attorney Tamas Fazekas filed a case at the Euro- midwives assisting at home births constitutes an pean Court of Human Rights (EctHR) at the end of interference with the exercise of the rights of the 2009, on behalf of Anna Ternovszky. In 2009, Ms. complainant and of similarly situated pregnant Ternovszky was pregnant with her second child, mothers. According to the Court’s opinion, the and wanted to give birth at home. This is the core threat of sanctions – along with the absence of a case of this conference. specialized, comprehensive regulation in this area – are detrimental to the complainant’s ability to Before filing the application with the ECtHR, we choose home birth. This, in turn, constitutes a vio- participated in many consultations with the Hun- lation of the legal security for the exercise of pri- garian Ministry of Health, wrote letters to its deci- vacy rights, and in particular, violates the principle sion-makers, and filed a petition to the Hungarian of legal certainty. Constitutional Court as well. Despite the existing and growing demand for regulation on homebirth, Shortly after the judgement was handed down, the there was still no legislation on how a woman regulation on out-of-hospital birth was adopted could exercise her right to choose the place of and came into force in April, 2011. In the opinion of birth. This right derives undoubtedly from the Hun- the HCLU, the new Government Decree violates garian Constitution. Besides the lack of regulation, the requirement of equal opportunity on several threatening midwives with sanctions for providing points. Moreover, the necessary reform regarding homebirth services also hindered the exercise of obstetrical services stopped at this point despite the right. In our application to the ECtHR, the the promise of the governmental representatives. HCLU claimed a violation of the right to privacy. The adopted regulation does not meet the criteria of free and real choice: it lists home birth among In December, 2010 the Court handed down its the non-financed services (that is, services that judgment, holding that the Hungarian state vio- will not be covered by health insurance), it imposes lated the “right to respect for private life” guaran- more severe conditions on women choosing teed by the European Convention on Human homebirth than on those choosing hospital birth, Rights. In a 6-1 decision, the Court held that the failure of the Hungarian state to regulate the issue 1 Case of Ternovszky v. Hungary (application no. results in a violation of the right to privacy guaran- 67545/09), final judgment, 14 December 2010, para 22.

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 41 and it does not ensure the equal recognition of In March, 2012 it was announced in a press release homebirth professionals. that the first baby had been born out-of-hospital under the new legislation. I think it is telling that it In the meantime, criminal proceedings against took almost a year to obtain all the documents Agnes Gereb, the leading figure of the Hungarian necessary to comply with the law. Because of the homebirth movement, and four other midwives, austere regulations and criminal sanctions applied moved forward. Agnes Gereb is a highly experi- to Ms. Gereb, very few planned homebirths are enced gynecologist, midwife and internationally taking place. recognized home birth expert, who helped deliver more than 3 thousand babies. The HCLU’s Legal I am also aware of the Czech situation, in which Aid Service provided legal representation. the professional body of gynecologists issued a collective opinion condemning homebirth, similar In our opinion, Ms. Gereb did not receive a fair to the 2002 opinion of the Hungarian gynecolo- trial. Even though a number of leading interna- gists’ professional body. In Hungary, this opinion tional experts, including the former president of was amended. Even though the vast majority of the World Health Organization, certified that Ms. obstetricians and gynecologists still claim that Gereb did not commit an error, the court did not homebirth is hazardous, they took part in the con- take these certifications into account and refused sultation of the regulation and acknowledged the to hear them as witnesses. The only expert wit- necessity of it. nesses that the court allowed to testify were Hun- garian doctors, many of whom have long-stand- I am very much looking forward to discussing all ing, uniform opposition to home birth. The court the different aspects of the Ternovszky v. Hungary applied a legal double standard: it differentiates case and also in a broader context, the implica- between institutionalized birth and home birth. tions of free choice in childbirth. I believe that this While hospital doctors rarely face criminal charges two-day conference will provide an opportunity to and are acquitted in most cases, midwives are learn how the right to free choice and in particular, immediately charged in case of complications dur- the principle of informed consent, can be sup- ing birth. In Hungary, only the opinions of doctors ported or undermined in relation with childbirth. In working in hospitals – who have no experience my opinion this event is a good chance to acquire whatsoever in home birth – are taken into consid- a deeper understanding of the judgment in the Ter- eration. novszky v. Hungary case and its practical implica- tions. This can lead us to finding new ways to In February, 2012, obstetrician-midwife Agnes achieve better enforcement of sexual and repro- Gereb stood before a Hungarian appellate judge, ductive rights and health, and to protect the rights and was sentenced to two years in prison for of birthing women in Hungary, in the Netherlands, engaging in professional misconduct resulting in and in other countries as well. death and in permanent disability. She is also banned from practicing her profession for 10 About Stefania Kapronczay years. This is the second instance decision, so there can be no appeal against this judgment. A Stefania Kapronczay holds a J.D. degree and will petition has been submitted to the President of soon obtain her sociology diploma as well. She is Hungary to grant Ms. Gereb immunity. The case is the head of the Patients Rights Program of the pending. Ms. Gereb will not need to start serving Hungarian Civil Liberties Union which is con- her sentence until the decision is made. cerned for home birth related issues also. In the framework of this program, the Ternovszky case was filed to the European Court of Human Rights.

42 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Felícia Vinicze, panelist in absentia

Human Rights in Childbirth. Reading the title of the with legs in stirrups, mother and baby separated conference, many thoughts came up in my mind. right after the birth, nursing strictly once in every Yesterday, I attended a birth in a hospital as a three hours, etc. At the time I did not know much doula. Being a homebirth midwife, sometimes it is about birth and the way it should be – I accepted almost painful to witness the very different everything as normal and I could not imagine that approach towards mothers and babies in hospi- it could be otherwise. tals. Why do I still go to hospitals? Because it is not about me. It is all about the mother. She chose Then we moved to Canada, where I had my sixth to give birth in a hospital (like most women today) baby with a midwife. I got my prenatal and post- and I respect her decision. partum care from her too. She was a trusted friend during that time, she was patient and gentle, gave Just a few months ago, I was in the same hospital me all the facts before each decision so I could with another mother. Incidentally, the same hospi- make informed choices. She used practically no tal midwife was on duty that night as yesterday, interventions at all, let me go through labour at my but she was very different then. She clearly made own pace, was there for me all the time. The baby me feel unwelcome and made my job difficult. Yes- stayed with me, and we were both so much hap- terday however, everything went well, not only pier this way. It was the first time I saw that a new- could I help the mother avoid many unnecessary born is looking for his mother’s breast and starts interventions, but my presence (and probably nursing on his own. some of the recent press coverage about the first legal home birth in Hungary a week ago) also pro- I realized what was taken from me and from my voked questions from the midwife about the differ- five older children. I have never put it this way, but ences between their practise and a home birth – this is what „Human Rights in Childbirth” really she even agreed to give a little more freedom for mean to me personally. the mother. I was happy to see that she realized that their current practice was not the only possi- The experience of my sixth birth changed my life ble way of childbirth, and not necessarily the best forever. I completed a doula training, then I started one, either. I am convinced that through good my studies at the Midwives College of Utah’s Mas- working relationships with hospital midwives, we ters program. I apprenticed with homebirth mid- fulfill another part of our mission, equally important wives in the United States. I wrote my thesis about as providing home birth services to a very few routine hospital interventions from the perspective mothers. We need to think of the more than 99% of educating Hungarian mothers. of mothers who still prefer in-hospital birth. After my graduation (and the birth of my seventh I was one of those mothers, too. I myself had my child in our home), we moved back to Hungary. At first five children in our local hospital, the same the time, homebirth was illegal, which practically one where I was yesterday. The practice was – made it available for families. Agnes Gereb and much as it is today – very conservative: enema, about 15 more midwives offered homebirth, mainly shaving, artificial rupture of membranes, fundal in Budapest, the capital of Hungary. Agnes was pressure, injudicious use of oxytocin, no food or under prosecution, officially for malpractice, but drink during labour, pushing in the supine position her case was clearly used to discourage home-

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 43 birth and make it unpopular in the media (since discriminatory treatment from the state health and then she received a 2-year prison sentence, which judiciary system. Human Rights in Childbirth is had no precedent in Hungary). Agnes accompa- also about receiving information and making one’s nied close to 4000 home births in Hungary in the own decisions – something that hospitals often last 17 years, and she had many supporters, who neglect. organized protests and even achieved a European Court decision which required the regulation of The legalization of home birth, and our success in home birth in Hungary. (Before regulation, many of securing the first license (for a long time thought those who had their babies at home faced difficul- impossible by many Hungarian midwives) is a big ties when getting birth certificates for their babies.) step towards granting the freedom of choice for Following the change of government, the newly Hungarian mothers, but it is not the end of our formed Ministry of National Resources started struggle. We have to go on, and let women know working on the regulation of homebirth in 2010. I that they have choices. We have to teach them had the opportunity to attend the meetings and what a normal birth looks like, and what babies send in my suggestions to the Ministry. To my need. Besides, real choices cannot be limited to great surprise, all the experts participating in the many hospitals and a very few homebirth mid- regulation process wanted this to work. It was a wives. There need to be more alternatives, which very positive experience. means more midwives to choose from in every region of the country, prenatal and postpartum Finally, on April 1, 2011 homebirth became regu- care offered by midwives, birth centers and, as in lated in Hungary. Since this was the first time in Canada, independent midwives offering birth in this country that out-of-hospital birth was regu- hospitals. lated, there were some points of the regulation that needed to be changed before midwives could About Felicía Venicze actually get licensed. We contacted the ministry again and they changed the regulation. This made Felícia Venicze is a licensed midwife working in it possible for us to apply for a license. There are out-of-hospital settings and as a doula in hospi- still too many requirements, but I managed to get tals. A former student and current instructor of everything that was needed. I established my own MCU, the Midwives College of Utah, teaching Epi- practice, becoming the first licensed midwife in demiology, Fetal Health Surveillance, Obstetrical Hungary on March 12, 2012. Pharmacology and Anatomy. Board member of the Hungarian Midwives Association. Member of Human Rights in Childbirth is about the mother the working group assisting the Ministry of National and the child. They need midwives who can help Resources in the regulation of out-of-hospital them throughout their pregnancy, birth, and post- births and in creating the first midwifery protocol partum period, without the fear of persecution and for independent and in-hospital midwives.

44 HUMAN RIGHTS IN CHILDBIRTH Introductory Statement By Elizabeth Prochaska

I am delighted to attend this conference in the One of the greatest threats to home birth in the UK company of so many passionate advocates for are the cuts to health service resources. Many home birth. We are often ostracized and ridiculed, NHS Trusts state that out-of-hospital services are even in those countries where home birth is an more costly than maternity care on labour wards accepted part of national health policy, so it will be and justify withdrawal of services on the basis of a great pleasure to meet and share ideas and reduced funds. As the Birthplace in England Study experiences. showed,4 in fact out-of-hospital births are more cost effective than hospital births, but this does My experience of choosing a home birth for my not seem to be widely appreciated. As yet, the UK daughter born in 2010 revealed to me the medical, courts have not considered withdrawal of out-of- bureaucratic and political barriers that exist to pre- hospital birth services. vent women exercising autonomous choices about how and where they wish to give birth. After When home birth does reach the courts, the Ter- experiencing a wonderful home birth in the care of novszky v Hungary case is a cause for great opti- kind and skilled midwives, I was inspired to try and mism. It establishes without doubt that the right to help other women who wished to take control of choose where to give birth is protected under Arti- their birth experiences. My professional back- cle 8 of the European Convention on Human ground as a barrister specializing in human rights Rights. Article 8 is not an absolute right and inter- law gives me a very useful platform from which to ferences with it can be justified. But under the provide advice and representation to women and Convention, interferences with a person’s physical birth rights organizations in the UK and abroad. autonomy generally require a strong justification and I would expect a court to scrutinize a decision In the UK, home birth rates currently stand at to refuse to provide home birth very closely. While around 2.5%.1 There is great public controversy we wait for judicial consideration of the issue, the about the decision to give birth at home and the Ternovzsky case is a powerful lobbying tool that tabloid press has waged a relentless campaign should be brought to the attention of policy-mak- against “hippy mothers” who choose home birth. ers and healthcare providers. Nonetheless, official Department of Health policy promotes home birth as a choice that must be A recent case of mine illustrates that it is worth guaranteed to all ‘low-risk’ women.2 Midwives are fighting decisions to refuse a home birth (even at a required by their professional regulatory body to late stage in pregnancy). A large London hospital attend women in labour and must have the rele- recently decided to “suspend” its home birth ser- vant training to do so.3 And yet, women continue vice for a month due to staff shortages and to be refused the choice of home birth. informed women who had planned home births that they would be transferred to hospital by ambulance whether they consented to transfer or not. A woman who was 37 weeks pregnant and 1 See www.birthchoiceuk.com for comprehensive UK birth statistics. 2 Department of Health, ‘Maternity Matters: Choice, 4 National Perinatal Epidemiology Unit, Birthplace in Access and Continuity of Care in a Safe Service’ (2007). England Study (2011) available at https://www.npeu. 3 Nursing and Midwifery Council Circular 6/2006. ox.ac.uk/birthplace.

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 45 had been promised a home birth by the hospital About Elizabeth Prochaska since the start of her pregnancy contacted me through the Association for Improvement in Mater- Elizabeth Prochaska is a human rights lawyer nity Services (AIMS). We decided to threaten legal based at Matrix Chambers in London. She has a action, relying in part on the Ternovszky case. The particular interest and expertise in women’s rights hospital rapidly backed down and agreed to pro- in childbirth and frequently represents mothers vide independent midwives to attend all the and health professionals in legal proceedings affected women at home. relating to birth. She is mother to Eva, born at home in 2010. This conference gives us the opportunity to share our experiences of the obstacles to home birth in our respective countries. I hope that together we can start to develop strategic ideas about a way forward for birth rights across Europe.

46 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Karen Guililand

Being born is the first fundamental life truth for all gan New Zealand midwives and women used to humans regardless of where we live. Therefore it illustrate this understanding. Women’s access to follows that making sure birth is a safe and cele- legal authority is a gender issue so it follows that brated event for most women and their families is where midwives are strong, women are strong and the objective we must work towards if we are to vice versa. New Zealand is the country setting but evolve to a more inclusive and humanistic world. I strongly believe our experiences have transfer- Achieving this objective relies on an agreed set of ability across the world’s maternity services. This values and rights—including gender equity rules is why I am at this conference. that are shared across cultures and societies. I am privileged. I live in a country that recognizes a The recent case (Ternovsky v Hungary 2012) in the woman as a person with human rights to auton- European Court of Human Rights illustrates how omy and self-determination. I have state funded far a woman in some cultures has to go to claim access to an education at all levels that I choose her right to self-determination. That she has to and I am not excluded from any aspect of life in take this route demonstrates the distance there is New Zealand on the basis of my gender or race. to go before humans can agree on what consti- tutes a liberated and civil society. I also have statutory rights as a consumer/patient/ client of the health services. The Code of Health However there are examples where positive and and Disability Consumer Services Rights estab- progressive change to social value systems has lishes the rights of consumers, and the obligations resulted in women being recognized as persons and duties of health providers to comply with the with rights. Code. It is a regulation under the Health and Dis- ability Commissioner Act (1994). It includes my It is important we record and disseminate these right to respect and freedom from discrimination, stories of success in order to encourage the posi- coercion, harassment, and exploitation, the right tive changes we want elsewhere-changes where to be fully informed, the right to make an informed all women are considered equal persons with the choice and give informed consent. I have the right social and legal authority to make their own to refuse services and to withdraw consent to ser- informed choices and determine their own futures. vices. I also have the right to express a preference as to who will provide services and have that pref- I have a story to tell. It is one case study that illus- erence met where practicable. trates the successful redesign of a nation’s mater- nity service to recognize the rights of women to be If I am a mother-to-be, I have total rights over my in control of their bodies, especially during preg- pregnant body. The wellbeing of my fetus is my nancy and birth. It is also the story of the develop- sole responsibility. I can consent to treatment or ment of an autonomous women’s profession… advice or I can refuse advice and/or treatment for midwifery. Rights recognition for birthing women either me or my fetus. My baby assumes rights as and their attending midwives needs to occur on a a human at birth. Parents, not health profession- parallel timeline because their needs are inter- als, also have the first right to the decision making twined….one cannot flourish without the other; over the wellbeing of their newborns. Women need midwives need women was the slo-

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 47 I have a right to a free maternity service, and the hospital. Some 6% of women choose to birth at right to choose who provides my maternity care. home. Once pregnant, I can choose my Lead Maternity Carer (LMC) to coordinate all care for both me and All of the services I require are fully government my fetus/baby over my whole maternity experi- funded (including home birth). This is so whether I ence. I may choose a midwife, a family doctor with am rich or poor, live in a city, a town or in a remote obstetric training, or an obstetrician to be my rural community. LMC. Midwife rights My LMC is almost always a midwife (85% of women choose a midwife) and she provides all my As a midwife, I am autonomous in my clinical deci- care from pregnancy test to 6 weeks post partum. sion making. I am responsible and accountable for She (99% are women) works in partnership with the information and advice I give and the consulta- me and my family to ensure a healthy outcome is tions and referrals I make and the prescriptions I achieved for me and my baby. She is my advocate write. I am responsible and accountable for the within the health system, providing holistic, per- diagnoses and treatments I provide. sonalized care and supporting others to under- stand my needs and expectations. I have access to a degree level specialist mid- wifery education. I have not needed to be a nurse I may visit her community clinic for my antenatal first since 1994. I have the right to practice under visits, or she may come to my home. Once in the Health Practitioners Competency Assurance labour, she comes to me at my choice of birth Act 2003— the same legislation framework for all place, wherever that may be. If I have my baby in health professionals, including doctors. Under this hospital, she provides all the labour and birth care, Act each profession has a specific definition and is and her practice partner or hospital midwives pro- recognized as autonomous according to their vide back-up cover if necessary. Once my baby is scope of practice. I am supported by the specific born, she and the hospital midwives work from the midwifery regulatory authority — the Midwifery care plan we have made together over my preg- Council of New Zealand — which protects public nancy to provide post natal care in hospital (usu- safety by setting and providing the quality frame- ally about 48 hours but more if complications). She works I require to practice and maintain my stan- then visits me at home for my post natal care. My dards of care. LMC (or her backup midwife) is available for urgent calls 24hours a day, seven days a week by cell I receive support and guidance from a strong and phone throughout my whole maternity episode. committed professional association— the New Zealand College of Midwives— which provides If we decide I need other opinions and advice from ongoing education to ensure I remain skilled and obstetricians, pediatricians, social workers or any evidence informed throughout my career. I am other health specialist group, my LMC midwife required to provide evidence of my competence arranges a consultation or referral to an additional every three years to the regulatory body through or alternative service at no cost to me. If either me my peers and my clients who formally feedback or my baby’s health deteriorates to a point where and review my work and outcomes. my midwife is outside her scope of practice she will transfer care to an obstetric hospital team. Her I can choose how I work in a way which supports decisions are guided by my wishes and by a set of the woman dominant profession of which I am a referral guidelines that every health professional member. I can be employed or self-employed and grouping in maternity has agreed are best prac- can work in the community, a birthing unit or a tice. My LMC midwife and I can decide if she hospital. I can take a caseload of women and remains by my side as support during this transfer choose the number of women I take to suit my cir- and treatment time. Once the need for additional cumstances or I can work in a hospital on set care is over, the obstetric team usually transfers duties and timetables. my care back to my LMC midwife. If employed, I have access to a specialist mid- I can choose where I want to give birth and who I wifery union to protect my rights as an employee. have to support and attend me. My birth place choices include my home, a birthing centre or a

48 HUMAN RIGHTS IN CHILDBIRTH If self-employed, I have access to an organisation is an essential component of that debate. My story that helps me with my business management and will also include some explanation and analysis of claiming my fees from government. how New zealand women and midwives rede- signed their maternity services to achieve this Regardless of my workplace setting, my profes- model of care. sional association provides full professional indemnity insurance to protect my legal rights. I hope the discussion provides ideas and momen- tum for those of us demanding positive change for I am paid well by my country’s standards, and in women. Ideas that sustain us to keep driving for- 2009 midwives were in the top 3% of income earn- ward until we have a global society that accepts ers. All LMCs, whether they are midwives, family the rights of women to control their pregnancy and doctors or obstetricians, are paid from the same birthing experiences, the rights of the women to schedule of government fees as they provide the choose how they involve their baby’s father and same normal birth services. Obstetricians are the family in the pregnancy and birth process, and the only providers who, if they choose, are able to rights of midwives to be autonomous in providing charge their clients a fee over and above the gov- skills and support for them all to have a safe and ernment entitlement fee. Many do not. Most celebrated birth. obstetricians specialize in complicated obstetrics and work in publically funded hospitals to ensure About Karen Guililand all women have universal access to obstetric care when required. This way of providing maternity Karen has been a long time leader of midwifery in care is markedly cheaper than others, provides New zealand and has significant experience in better outcomes on a range of indicators and is a management, governance and strategic roles. more woman and family centered service – one Within the health sector this has included board that recognizes the needs and rights of women directorships, advisory group membership and and their families. participation in policy development for maternity services. This conference is an innovative forum for global debate on how to achieve a better world for Karen is currently the Asia Pacific representative women, mothers and babies. Establishing a for the International Confederation of Midwives maternity service which empowers and protects (ICM) and has been awarded membership of the women and their physiological function to repro- New Zealand Order of Merit (MNZM). duce the human race when and where they choose

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 49 To: Colleagues and friends in support of Dutch Midwifery By Barbara Katz Rothman

This will be an historic gathering, a moment of lable territory under individual control. In a dis- thanks and appreciation as well as, sadly, a much- agreement between medical knowledge and needed moment of support. Many of us, from all authority on the one hand, and bodily autonomy around the world, have drawn on the Dutch model on the other, there are few cases were medicine of midwifery care as we develop our own local rules. The burden is overwhelmingly on those who systems. We have looked to the Netherlands and wish to violate individual autonomy to show com- been inspired: it works. Dutch midwifery is a work- pelling reasons – individual incapacity, extraordi- ing system in a world in which so much of mid- nary state needs. So, to take a simple example, if wifery knowledge and practice had been lost to an individual with a physical condition that medi- obstetrical care. The limits of that obstetric care cine has declared easily diagnosable and readily are increasingly becoming clear: Obstetrics is, treatable, nonetheless chooses not to avail him/ after all, a surgical specialty and the ever-rising herself of medical treatment, so be it. Early can- rates of Cesarean Section bear testimony to that. cers, diabetes, even a gangrenous leg: an individ- And while a number of things can help to bring ual can say no. The data is not the determinative down the C Section rate in any given hospital or factor. Individual bodily autonomy is. city, the single most effective intervention has been the move to midwifery care. One of the things we are now seeing in biomedical practice is a sudden call for such autonomy, a I come from the United States, where we all-but- defense of the right to choose, in the case of lost our midwifery services, traditions and knowl- cesarean sections ‘on maternal request.’ While edge to a medical monopoly. It is important to many US physicians and hospitals have steadily note, as has been noted over and over again, that refused to perform VBACs, vaginal births after a medicine as a profession gained authority over Cesarean Section, declaring (against the available childbirth long before it had anything to offer in data) that they are not safe, they have somehow safety for women or babies. As the physicians found themselves calling on the value of individual took over, the infant and maternal morbidity and autonomy to support elective, that is acknowl- mortality rates rose: iatrogenic and nosocomial edged-to-be non-medically-indicated, definitively infections were rampant; effective interventions ‘unnecessary’ Cesarean sections. At first, there were all but nil. were in fact very few of these maternal requests. What we did see were situations in which physi- I say this because we must understand that the cians strongly urged women to have Cesarean debate about the best place to give birth and the sections and then claimed that the women were best attendants for birth has not, in over two cen- demanding them. As the physician-led discussion turies, been grounded in data, and even with all of cesarean section on maternal request has the data we do have on the side of home birth and moved on into the public sphere, it is quite possi- midwifery, we cannot expect or hope data to win ble that we are indeed seeing more such requests. the argument. And, oddly, there is a sense in which Every choice occurs in a context. Faced with as data alone should not be the determinative factor. much as a 50% chance of a cesarean in a healthy first birth in some US hospitals, and a rare shot at Our shared cultures, and our international law, a successful VBAC in those same institutions, declare the boundary of the body as a fairly invio-

50 HUMAN RIGHTS IN CHILDBIRTH women may well choose to schedule their sec- Which brings us back to the issue at hand: the tions. rights of individual women to request and to receive midwifery care in the settings of their It is important to point out that this medical cry of choice, including their own homes. I have com- ‘maternal demand’ occurs just as there is clear pletely and utterly given up on arguing this based international concern about the rising rates of on the safety data. At least in the United States, I cesarean sections, and repeated calls to set lower feel that each time I present the data on the safety targets. of home birth, each time I say ‘home birth with a qualified midwife is as safe or safer than birth in a We have a long history of medicine over-using, hospital’ I might as well be saying ‘and cows fly at over ’selling’ one or another technology, proce- night.’ I have come to understand the difference dure, or practice, and then, when the evidence between actual safety, actual risks, and the emo- mounts against it, turning around and blaming tional resonance of risk. There is, in short, a differ- women for requesting it or holding on to it. Exam- ence between ‘being safe’ and ‘feeling safe.’ You ples we in the United States are all too familiar with might find this easiest to understand in the arena include the over-use of antibiotics, the ‘back to of transportation: however much we may intellec- sleep’ campaign, and ‘drive through obstetrics.’ tually understand that the drive to and from the After decades of giving antibiotics ‘just in case,’ or airport is the riskiest part of any flight, that is not ‘to be on the safe side,’ evidence made it clear that the lived experience of many passengers. And air- it was not only totally ineffective but a dangerous lines understand that. It has become common for practice to use antibiotics for viral infections. And pilots to address the passengers, to stop piloting then the problem doctors faced was that mothers and make calm announcements in intelligent, in- ‘demanded’ antibiotics for their children. After control voices, about the weather, our time of decades of teaching mothers to put their babies arrival and other matters. Does it in any way make down on their bellies so that they not aspirate the flight safer for the pilot to be telling you what vomit and die (a consideration for deeply anesthe- you can see out of the left side windows? But it tized newborns after standard U.S. medical births does, apparently, make people feel safer. from roughly the 1940’s to 70’s) evidence brought us the ‘back to sleep’ campaign to prevent “SIDS,” Medical care has shown itself expert at creating – and a campaign of blame against resistant feelings, perhaps illusions, of safety. Even a free- grandmother’s ‘old wives tales,’ particularly Afri- standing birth center, with no objective techno- can American women who persisted in putting the logical or any other identifiable advantages over a babies down on their bellies. (Hackett 2009) After home, comes to have some of the aura of pseudo- decades of detaining healthy post-partum women safety that hospitals have created. I’ve heard peo- and newborns in hospitals, dramatically increasing ple say, perfectly seriously, that homes aren’t ‘ster- the chances of nosocomial infections while ile’ enough for births. Hospitals which are an decreasing the success of breastfeeding, an evi- extraordinary pool of infection are perceived as dence-based attempt to reverse the practice ‘clean,’ having ‘sterile’ environments. People brought us cries of ‘drive through obstetrics’ and a worry about birthing at home without the security patient-voiced demand for longer stays. of electronic monitoring. Beeping, flashing machines have been marketed as protective, and For each of these, at the point where the tide was fetal monitors, with no evidence of doing anything turning, increased ‘patient autonomy’ might well but increasing section rates with no advantage to have brought us a prolonged continuation of med- maternal or fetal health, became totally entrenched ical error. As it may with Cesarean Sections. in the Obstetrical environment. People think sci- ence will protect them from the volatility of nature The problem lies not with our respect for individual and the body. Medicine has long draped itself in bodily autonomy. The problem lies with our over- the mantle of ‘science,’ but only lately has even dependence on medical autonomy and the medi- tried to provide ‘evidence based’ care. Like the cal monopoly that exists in most of the world. As pilot’s voice, the snapping on of rubber gloves, the long as medicine controls the place of birth, the steady beeping of the machines, create feelings of management of birth, and the research on birth, safety. genuine alternatives to medical care will not be available. The data – and yes, I cannot stop myself, I turn again to the data as if that would make a difference

PANEL 1: TERNOVSZKY V. HUNGARY: CONTEXT AND CONSEQUENCES OF THE ECHR DECISION 51 -- shows us that midwifery attended home births able when surgical and other medical services are are safe. We have the Dutch experience, and we needed, but state support also makes home birth also have research in the United States, Canada, appear to be safe, makes it feel safe. the United Kingdom, and around the world. Being safe it not the issue: but feeling safe still is. This is A fully empowered profession of midwifery, with one of the places that the power of the state full home birth services and support, will increase comes in. By supporting medical autonomy, and home-birth-safety. Midwives will be free to do mid- subverting midwifery autonomy, state licensing wifery-based research, and to practice truly evi- and legislation weighs in against patient bodily dence-based midwifery. Under those circum- autonomy, if a woman is worried, as she appar- stances, and only under those circumstances, can ently has reason to be in Hungary and some states a woman genuinely make autonomous choices for of the US, that her midwife/provider will be midwifery and home birth care. arrested, she cannot feel safe in her choice. If she has to lie to protect her midwife, as many of us About Barbara Katz Rothman have had to do -- lying about length of labor, lying about interventions, lying about choices -- that Barbara Katz Rothman, PhD, is Professor of Soci- does not help her to feel safe. An act of aggression ology, Public Health, Disability Studies and Wom- against a midwife at a home birth is an act of en’s Studies at the City University of New york, aggression against the woman, a violation of her and on the faculty of the Masters in Health and bodily autonomy and freedom. Society at the Charite in Berlin, the University of Plymouth in the UK, and the International Mid- It is incumbent on us to work not only for the safety wifery Preparation Program at Ryerson University and availability of home birth but also for its social in Toronto Canada. She is a former Leverhulme acceptability and integration into systems of Professor, held a Fulbright Professorship at the health care. State support, such as that provided University of Groningen in the Netherlands, and a by the Netherlands, and following that example Maria-Goepert-Mayer Professorship at the Univer- and building on it, New Zealand, Canada and parts sity of Osnabrueck in Germany. Her books include of the United States, makes home birth not only In Labor; The Tentative Pregnancy; Recreating safe, in that it provides for the education and train- Motherhood; The Book of Life; Weaving a Family; ing of providers and makes transfer services avail- Untangling Race and Adoption; Laboring On.

52 HUMAN RIGHTS IN CHILDBIRTH / Panel 2: Safety, Risk, Costs & Benefits: Decision-Making in Childbirth

This panel will explore the ways in which perspec- The panelists are: tive informs an assessment of best course of - Peter Brocklehurst, Doctor and Director of action in childbirth. Why might the people involved Perinatal Epidemiology Unit from the UK with a birth have different opinions about how that - Robbie Davis-Floyd, Medical Anthropologist birth should be handled? Mothers, doctors and from the US midwives each perform their own cost-benefit or - Soo Downe, Professor of Midwifery Science risk-utility analysis on the basis of the variables from the UK that matter to them, either consciously or uncon- - Elitsa Golab, Civil and Constitutional Rights sciously. What are the factors that weigh in the Lawyer from the US balance when doctors recommend a particular - Jennie Joseph, Midwife and Executive Direc- choice or intervention? What are the factors that tor of Commonsense Childbirth Inc. from the birthing women weigh in the balance, and how US might they differ? The panel will consider the role - Jo Murphy-Lawless, Sociologist and Historian of variables including fear of litigation for health- from Ireland care workers and past sexual trauma for birthing - Helene Vadeboncoeur, Public Health women, amongst others. Researcher from Canada - Marieke de Haas- van Bommel, Mother from Panel 2 will also discuss the relationship between the Netherlands statistical and individualized assessments of safety and risk. Is a 1% risk in a particular popula- tion a 1% risk for any given individual in that popu- lation? Panelists will assess recent scientific data on the relative “safety” and significance of home and hospital birth, and discuss the relevant of this data for choice in childbirth.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 53 The Birthplace in England Research Programme Background Q&A Peter Brocklehurst (Lead Researcher of the study)

What is the Birthplace Research Programme? The Birthplace National Cohort The Birthplace in England Research Programme is Study a multi-disciplinary research progamme, jointly funded by the National Institute for Health What is the Birthplace national cohort study? Research (NIHR) Service Delivery and Organisa- The Birthplace national cohort study was designed tion programme and the Department of Health to answer questions about the risks and benefits Policy Research Programme. of giving birth in different settings, focusing in par- ticular on birth outcomes in healthy women with Why was Birthplace carried out? straightforward pregnancies who are at ‘low risk’ Birthplace was conducted to fill important gaps in of complications. the evidence relating to the availability, safety, organisation and costs of maternity services pro- The study collected data on care in labour, delivery vided for women in labour in four birth settings: in and birth outcomes for the mother and baby for hospital obstetric units, in midwifery units situated over 64,000 ‘low risk’ births in England including alongside obstetric units in hospital (AMUs), in nearly 17,000 planned ‘low risk’ home births, freestanding midwifery units (FMUs), and at home. 28,000 planned ‘low risk’ midwifery unit births (AMUs and FMUs) and nearly 20,000 planned ‘low What questions has the research addressed? risk’ obstetric unit births. The Birthplace research programme addressed a number of questions. The study achieved an exceptionally high level of - Are there differences in outcomes for the participation and coverage. Over 97% of NHS mother and baby between the different birth trusts providing home birth services and nearly settings? 90% of all midwifery units in England took part. - Are there differences between birth settings in Data on births in obstetric units, which were used costs and cost-effectiveness? as a comparison group, were collected from a rep- - How is maternity care currently organized and resentative, random sample of 36 obstetric units is this changing? spread across England. - What are the organizational features of the maternity care system that may affect quality The completeness and quality of the data were and safety of care in different settings? extremely high: most units and trusts were able to provide data on over 85% of their eligible births Who carried out the research? and fewer than 4% of the records had important Birthplace was conducted by researchers from the information about the mother or baby missing. The National Perinatal Epidemiology Unit (NPEU) at the high quality of the data, and other features of the University of Oxford together with researchers study, help ensure that the findings are robust and from King’s College London and City University. that differences in outcome between the birth set- The Birthplace collaborative group, led by Profes- tings are likely to represent real differences. sor Peter Brocklehurst, included senior academics and clinicians and representatives of various bod- Outcomes in the planned home and midwifery unit ies including the Royal College of Midwives and births were compared with planned births in the the NCT (formerly National Childbirth Trust). obstetric unit. To ensure that the groups were

54 HUMAN RIGHTS IN CHILDBIRTH comparable, the main analysis looked only at In an obstetric unit (OU), care is provided by a women who, at the start of labour, were healthy team of midwives and doctors. Midwives provide and did not have known risk factors for complica- care to all women in an obstetric unit, whether or tions, such as high blood pressure, diabetes, not they are considered at high or low risk, and problems in a previous pregnancy or birth, or com- take primary responsibility for women with plications in the current pregnancy. Also, because straightforward pregnancies during labour and women who choose to give birth at home or in a birth. Obstetricians have primary professional midwifery unit can be different from those who responsibility for women at high risk of complica- choose an obstetric unit, the analysis took account tions during labour and birth and for women who of differences in the maternal characteristics when develop complications during labour and birth. making comparisons (such as age or whether this Obstetric units are always situated in hospitals was the first pregnancy). where diagnostic and medical treatment services - including obstetric, neonatal and anesthetic care Why study planned place of birth? - are available on site. Obstetric units provide care By studying planned place of birth at the start of to low and higher risk women. ‘Higher risk’ care in labour, Birthplace results will enable women– those who have health problems and/or midwives and doctors to give women information less straightforward pregnancies - should normally that is most relevant to their decision making. This be advised to give birth in an obstetric unit. In mid- time point – the start of care in labour - is most wifery units, midwives take the primary profes- relevant because throughout pregnancy a wom- sional responsibility for labour care. This is some- an’s health and aspects of her pregnancy can times described as midwifery-led care. change. A woman can change her planned place of birth if her low risk pregnancy becomes higher Alongside midwifery units (AMUs) are situated in risk, or vice versa. However, at the end of preg- the same hospital or on the same site as an nancy, women have to decide where they want to obstetric unit so have access to obstetric, neona- give birth without knowing whether their labour will tal or anesthetic care on site, although women actually be straightforward or whether it will be may need to be physically transferred to the prolonged or a complication will develop. For this obstetric unit if they need obstetric care. reason, they and their midwives need information about the benefits and risks of choosing a particu- Freestanding midwifery units (FMUs) are not situ- lar birth setting, based on what can be known at ated in a hospital or site with an obstetric unit or the point at which they make a final decision about neonatal unit. This means that if the woman needs where the woman plans to give birth. It is useful for obstetric or anesthetic care or the baby requires women to be told what proportion of women like neonatal care they need to be transferred - typi- them, in that particular kind of birth setting, have a cally by ambulance or car - ‘normal birth’ with no medical interventions; if they to another hospital where these services are pro- are considering a homebirth or birth in a midwifery vided. unit (alongside or freestanding) to know what pro- portion of women need to transfer for care in an Midwifery units offer care to women with straight- obstetric unit; and, for each setting, to know what forward pregnancies. proportion have a baby born with a poor outcome, compared with those who plan to give birth in an Where and when did the cohort study take place? obstetric unit. The study included births in NHS hospitals and trusts in England between 1 April 2008 and 30 Birthplace looks at births in different settings. What April 2010. is the difference between an obstetric unit, an alongside midwifery unit and a freestanding mid- How did the study define women at ‘low risk’? wifery unit? A woman was considered at ‘low risk’ of compli- There are two key differences – the person who cations if she was healthy and the pregnancy was has clinical responsibility for the care provided straightforward. The definition of ‘low risk’ was (midwives or obstetricians) and whether or not the based on the National Institute for Health and Clin- unit is situated in a hospital with on-site availability ical Excellence (NICE) Intrapartum Care Guideline of obstetric, neonatal and anesthetic care. (http://guidance.nice.org.uk/CG55). The guideline recommends that women at ‘higher risk’ should

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 55 normally be advised to give birth in an obstetric there were any difference in outcome between the unit. birth settings.

More common reasons for women NOT being How were the benefits and risks for the mother considered ‘low risk’ are if they: assessed? - have medical conditions such as high blood Safety for the mother was measured by looking pressure, diabetes, epilepsy, hyperthyroidism both at poor medical outcomes, such as serious or infections which present a potential risk to perineal tears or need for a blood transfusion, and the baby; also at whether the woman received obstetric - are obese (Body Mass Index > 35 kg/m2); interventions, such as an emergency caesarean - are giving birth preterm (before 37 weeks), section or a forceps or ventouse delivery. have had a previous caesarean section or experienced serious complications in a previ- The study also measured ‘positive’ outcomes for ous birth; the mother, such as having a birth without any - are expecting twins or the baby is in a breech medical interventions – sometimes referred to as a presentation; ‘normal birth’ - and whether the mother breastfed - know that they require a caesarean section or her baby at least once. are having induction of labour for any reason. What did the study show about safety of planning The study looked at the ‘safety’ of birth for the birth in different settings? baby and the mother. Giving birth is generally very safe. For ‘low risk’ How was ‘safety’ measured for the baby? women the incidence of adverse perinatal out- Safety for the baby was measured by looking at comes (intrapartum stillbirth, early neonatal death, how often any baby had any of the following neonatal encephalopathy, meconium aspiration adverse outcomes: stillbirth during labour, death syndrome, and specified birth related injuries of the baby in the first week after birth, neonatal including brachial plexus injury) was low (4.3 encephalopathy (disordered brain function caused events per 1000 births). by oxygen deprivation before or during birth), meconium aspiration syndrome (where the baby Midwifery units appear to be safe for the baby and breathes meconium into their lungs), and physical offer benefits for the mother. For planned births in birth injuries such as brachial plexus injury, and freestanding midwifery units and alongside mid- bone fractures. wifery units there were no significant differences in adverse perinatal outcomes compared with These outcomes were chosen because differ- planned birth in an obstetric unit. Women who ences in how often these events occurred might planned birth in a midwifery unit (AMU or FMU) reflect differences in the quality of care received had significantly fewer interventions, including during the birth. substantially fewer intrapartum caesarean sec- tions, and more ‘normal births’ than women who And are all these outcomes equally bad? planned birth in an obstetric unit. No. The outcomes range in severity. Some are clearly serious and tragic events such as stillbirth For women having a second or subsequent baby, or death of the baby, some are potentially life- home births and midwifery unit births threatening, and some may result in long-term dis- appear to be safe for the baby and offer benefits ability in a proportion of babies. But others are less for the mother. For women having a second or severe and involve conditions which may require subsequent baby, there were no significant differ- treatment, perhaps in a neonatal unit, but which ences in adverse perinatal outcomes between may not necessarily result in any long-term prob- planned home births or midwifery unit births and lems for the baby. planned births in obstetric units.

Why did the study group together serious and less For women having a first baby, a planned home serious outcomes for the baby? birth increases the risk for the baby. For women The individual outcomes are all uncommon so if having a first baby, there were 9.3 adverse perina- they had been considered individually the num- tal outcome events per 1000 planned home births bers would have been too small to see clearly if compared with 5.3 per 1000 births for births planned in obstetric units, and this finding was

56 HUMAN RIGHTS IN CHILDBIRTH statistically significant. For women having a first Are outcomes worse for women who are trans- baby, there is a fairly high probability of being ferred? transferred to an obstetric unit during labour or Women transfer for many reasons during labour, immediately after the birth. For women having a sometimes for ‘straightforward’ reasons such as first baby, the transfer rate during labour or imme- wanting an epidural, but sometimes because the diately after the birth was 45% for planned home midwife has concerns about the mother or baby. births, 36% for planned FMU births and 40% for Because of this, women who transfer, on average, planned AMU births. have more labour complications than women who do not transfer. So, although women who transfer For women having a second or subsequent baby, have worse outcomes than those who do not, it the transfer rate is around 10%. For women having seems probable that this is mainly due to the med- a second or subsequent baby, the proportion of ical reason that led to the transfer. women transferred to an obstetric unit during labour or immediately after the birth was 12% for For women who develop complications at home or planned home births, 9% for planned FMU births in a midwifery unit, it is likely that transfer to an and 13% for planned AMU births. obstetric unit where they can receive additional observation, treatment or medical care, is the best Is it safe for a woman to have a first baby at home? way of ensuring a good outcome. The study found that a woman having a first baby at home is more likely to have a ‘normal birth’ but The Birthplace Cost- there is a fairly high probability (45%) of being Effectiveness Analysis transferred to hospital during labour or immedi- ately after birth and there appears to be an What was the Birthplace cost-effectiveness study? increased risk of an adverse outcome for the baby The Birthplace health economic study collected (9.3 adverse perinatal outcomes per 1000 planned additional data alongside the cohort study to home births compared with 5.3 per 1000 births for enable the costs and cost-effectiveness of births births planned in obstetric units). planned in each setting to be estimated. The study calculated the following measures of cost-effec- Are midwifery unit births as safe as births in a hos- tiveness for each planned place of birth pital obstetric unit? relative to planned birth in an obstetric unit: The study cannot prove with absolute certainty - The incremental cost1 per ‘adverse perinatal that there are no differences in safety between the outcome’ avoided; settings but, overall, the study found that propor- - The incremental cost per ‘adverse maternal tions of babies with an adverse outcome were outcome’ avoided; similar in births planned in midwifery units (AMUs - The incremental cost per additional ‘normal and FMUs) compared with births planned in birth’. obstetric units. For women who did not have com- plications when they presented for care in labour, ‘Incremental costs’ for each non-obstetric unit outcomes were almost identical in births planned birth setting were calculated as the additional in midwifery units and obstetric units (3.1 adverse costs over and above the average cost of care in perinatal outcomes per 1000 births for births an obstetric unit. A negative ‘incremental cost’ planned in an obstetric unit compared with 3.2 per represents a cost saving. 1000 births in freestanding midwifery units and 3.4 per 1000 births in alongside midwifery units). ‘Adverse perinatal outcome’ and ‘normal’ birth were calculated as in the cohort study. Midwifery units were also safe for the mother, and women who planned birth in a midwifery unit were ‘Adverse maternal outcome’ was defined as the significantly more likely to have a ‘normal birth’ woman experiencing any of the following: general without medical interventions, and were less likely anesthetic, instrumental birth (forceps or ven- to have their baby delivered by caesarean section, touse), caesarean section, severe perineal trauma, forceps or ventouse. For example, more than three blood transfusion, or admission to an intensive quarters of all women in the planned home and care/high dependency unit. midwifery unit groups had a ‘normal birth’ without medical interventions, compared with 58% of women in the obstetric unit group.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 57 How do NHS costs compare in the different set- - For maternal outcomes (‘adverse maternal tings? outcome ‘avoided and ‘normal birth’), planned On average, costs per birth were highest for birth at home was the most cost effective planned obstetric unit births and lowest for option. planned home births. Average costs were as fol- - For women having a first baby, planned home lows: birth was the most cost-effective option by - £1631 for a planned birth in an obstetric unit; standard health-economic criteria, despite the - £1461 for a planned birth in an alongside mid- fact that outcomes for the baby were, on aver- wifery unit (AMU); age, less good. - £1435 for a planned birth in a freestanding - For women having a second or subsequent midwifery unit (FMU); baby, planned home birth was also the most - £1067 for a planned home birth; cost-effective option, reflecting the fact that in this group of women, planned home births are These figures include all NHS costs associated cheaper and outcomes for the baby are with the birth itself – for example midwifery care broadly similar to those in an obstetric unit. during labour and immediately after the birth, the cost of any medical care and procedures needed The Birthplace Mapping Maternity in hospital, and the cost of any stay in hospital, Care Study midwifery unit, or neonatal unit immediately after the birth either by the mother or the baby. The What was the Birthplace Mapping maternity care costs for planned home and midwifery unit births study? take account of interventions and treatment that a The study used data collected from maternity units woman may receive if she is transferred into hos- and trusts in 2007 and 2010 to describe how pital during labour or after the birth. The costs do maternity care is organized across England and not include any longer term costs of care. how services have changed in recent years.

Why are obstetric unit births more expensive? What did the Birthplace mapping maternity care Don’t home births take study find? up more of a midwife’s time? The number of midwifery units in England Women having a baby at home or in a midwifery increased between 2007 and 2010, but while unit typically receive more one-to-one care from a options for planning birth has increased in many midwife but, despite this, planned birth in an areas, around half of all trusts currently have no obstetric unit is more expensive overall. This is midwifery units. Most of the recent increase has because hospital overheads tend to be higher and been in ‘alongside midwifery units’, which provide women who plan birth in an obstetric unit tend to midwifery-led care in the same hospital as an have more interventions, such as caesarean sec- obstetric unit. tion, which are expensive. Which birth setting is most cost-effective? There were marked differences in the availability of A cost-effectiveness analysis compares the cost midwifery units in different geographical areas. and health effects of an intervention in order to The proportion of trusts with a midwifery unit was decide if an intervention represents value for highest in the South-West and East Midlands and money. Cost-effectiveness analysis is useful when lowest in the North-West, Yorkshire and Humber- trying to decide if it is worth paying more money side, and London. for a better outcome (health effect). Although the number of midwifery units has The analysis showed that planned birth at home, in increased, midwifery units tend to be much smaller a freestanding midwifery unit or an alongside mid- than obstetric units and hence the vast majority of wifery unit were all cost-saving relative to planned births continue to occur in obstetric units. Home birth in an obstetric unit but effectiveness, and births account for a relatively small proportion of hence cost-effectiveness, depended both on all births (<3%). whether the analysis focused on outcomes for the mother or outcomes for the baby, and on whether Are all midwifery or obstetric units the same? the woman was having a first or subsequent baby: There was marked variation in midwifery staffing levels and the bed capacity in all types of unit car- ing for women during labour and birth, and

58 HUMAN RIGHTS IN CHILDBIRTH between units of the same kind, based on ratios of of evidence-based information on which to base midwives and beds to women delivering. These their decision. Women’s views of safe care were differences were not related to the absolute size of influenced by what was locally on offer, their previ- maternity unit reflected in the numbers of women ous experience and that of other women that they giving birth. The study did not explore whether knew. The possibility of being transferred during these differences affected the quality of care. The labour was a major consideration when women Birthplace researchers plan to undertake further made a decision around where to give birth, and analysis to explore whether any of these charac- women often cited concerns about transfer dis- teristics affect birth outcomes. tance as reasons for planning birth in hospital.

Who is eligible to give birth in a midwifery unit? Deployment of community midwives across multi- Midwifery units cater for ‘low risk’ women but ple settings was a key challenge for managers in many have their own admission guidelines and all four case study sites. In addition, some com- exclusion criteria. The most common ‘critical’ munity midwives reported a sense of isolation and exclusion criteria were: preterm labour, known exposure when attending births at home, lack of breech presentation at term, twins, planned epidu- recent experience in attending births and con- ral. Many units also placed some restrictions on cerns about midwifery staff coverage for home the admission of women who were obese or had births. In all sites this was mitigated where mid- had a previous caesarean section. wives were able to look after women in both the community and hospital settings, for example The Birthplace Qualitative within team or caseload models. In addition, a Organisational Case Studies ‘hub and spoke’ model (obstetric unit with an alongside midwifery unit, serving a number of free- What were the Birthplace organizational case stud- standing midwife units) where midwives rotate ies? through all parts of the service could offer a useful The Birthplace case studies explored the mater- model for other services who provide a full range nity care systems in four NHS trusts. The Trusts of birth settings, across a wide geographical area. were chosen because they had been designated as providing good quality care by the Health Care The management of complications during labour Commission in 2007 and hence could provide or immediately after birth. and transfer emerged as examples of good quality services. The four trusts a key issue in all the case studies. These included were also chosen to exemplify different models of avoiding delay due to time and distance taken to service configuration – one trust had only an transfer, and ensuring smooth handover and col- obstetric unit, one had an obstetric unit and an laboration between staff. Effective and safe trans- alongside midwifery unit, another an obstetric unit fer was judged to be dependent on good commu- and a freestanding midwifery unit, and one had an nication systems, clear guidelines that were used obstetric unit, an alongside midwifery unit and a appropriately to support decision-making, trusting freestanding midwifery unit. and respectful relationships between staff groups, management of conflict over resources, and the The researchers used qualitative methods – direct confidence and competence of professionals. observation and interviews with staff and users – to try to tease out what might be the important Although some women’s experience of transfer features that enable these trusts to provide high and a possible need for medical intervention was quality services. characterized by feelings of worry, disempower- ment or disappointment, most women interviewed Who are the case study results aimed at? in the case study sites were prepared for the The findings are probably of most relevance to ser- unpredictability of events in childbirth. Clear and vice managers, health professionals and commis- careful explanation of events by professionals was sioners/ policy makers, but may also be of interest a common theme that ran through women’s posi- to women and organizations that represent the tive narratives about their need for medical inter- interests of maternity services users. vention. Trust in professionals was an important aspect of feeling safe, physically and psychologi- What did the case studies show? cally. Some women were not aware that they had a choice of where to give birth, and lacked sources

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 59 However, despite the fact that the case study sites About Peter Brocklehurst were chosen because they were considered to provide high quality care, some women described Peter Brocklehurst is Director of the Institute for difficulty in being listened to when they raised con- Women’s Health at University College London, cerns about complications they had noticed them- having previously been Director of the National selves, and the experience of speaking up and not Perinatal Epidemiology Unit (NPEU), University of being heard was a safety issue. When the few Oxford. Peter remains at the NPEU for part of his women who felt unable to ask about their options time where he is Co-Director of the Policy or challenge professional views were interviewed, Research Unit in Maternal Health and Care, and he they experienced feelings of frustration, self- remains Professor of Perinatal Epidemiology at blame or anger and felt this resulted in delay in the Oxford. management of complications. Peter graduated in Medicine from Dundee Univer- Acknowledgement sity in 1985. After post-graduate training in Obstet- rics and Gynecology he was admitted to the The Birthplace in England Research Programme RCOG in 1991. He was awarded an MSc in Epide- combines the Evaluation of Maternity Units in Eng- miology from the London School of Hygiene and land study funded in 2006 by the National Institute Tropical Medicine in 1994, and then joined the for Health Research Service Delivery and Organi- NPEU as a research fellow in perinatal trials, sation (NIHR SDO) programme, and the Birth at becoming a consultant clinical epidemiologist and Home in England study funded in 2007 by the then Director. He is a Fellow of the Royal College Department of Health Policy Research Programme of Obstetricians and Gynecologists and Fellow of (DH PRP). The views and opinions expressed by the Faculty of Public Health. the authors do not necessarily reflect those of the NHS, NIHR, NIHR SDO, DH PRP or the Depart- Peter currently leads a large programme of clinical ment of Health. trials in perinatal care as well as a large observa- tional study to evaluate the outcomes associated Further Information with planned birth in hospital, midwifery-units and home. He created UKOSS, the UK Obstetric Sur- NPEU website: https://www.npeu.ox.ac.uk/birth- veillance System, a system to measure the inci- place dence and outcomes of a range of rare disorders Full study reports: http://www.sdo.nihr.ac.uk/proj- of pregnancy. details.php?ref=08-1604-140 email: [email protected] Peter chairs numerous steering committees and data monitoring committees, and is a member of National Perinatal Epidemiology Unit the executive and board of the NIHR Medicines for University of Oxford, Old Road Campus, Heading- Children Research Network (www.mcrn.org.uk) ton, Oxford, OX3 7LF and the National Reproductive Health Research T: +44 (0)1865 289700 F: +44 (0)1865 289701 W: Network (www.rcog.org.uk/national-reproduc- www.npeu.ox.ac.uk tive-health-research-network). In 2010 he was made a NIHR Senior Investigator.

60 HUMAN RIGHTS IN CHILDBIRTH JOINT LETTER TO PARTICIPANTS IN THE HUMAN RIGHTS IN CHILDBIRTH CONFERENCE By Robbie Davis-Floyd and Debra Pascali Bonaro

Some years ago at the ICM Congress in Vienna, than 1% at home. We lost homebirth as a viable tired of critiquing the formerly Western and now option in the early 1900s when obstetricians made global technocratic obstetrical system, one of us the decision not to let midwives get even a toehold (Robbie) conceived the idea of creating an edited in our maternity care system because of the profit- book that would describe at least some of the ability of birth. They simply did not want the com- many excellent birth models that were currently in petition, so they engaged in a national and very existence, and decided to call that book Birth successful campaign to convince women that Models That Work, which she co-edited with Les- midwives were primitive vestiges who had no ley Barclay of Australia, Betty-Anne Daviss of Can- place in the modern world. ada, and Jan Tritten of the U.S. When the natural birth movement began to blos- It was totally clear to all of us at the time that the som in the U.S. during the 1970s, midwives made Netherlands had the very best birth/maternity care a comeback—a midwifery renaissance—and the model on the globe, so clearly Chapter 1 should Dutch model was always their lighthouse and their be about the Dutch system. Raymond De Vries, inspiration. A midwife for every mother—most of with the help of others, wrote that chapter. The us could only dream of that! A 70% home birth rate book was published in 2009. In his chapter, De up to the 1970s, with great outcomes—super- Vries noted that the collective opinion in Europe WOW! decades ago was that “the Dutch are always 50 years behind the rest of Europe, so of course they And then with growing sadness, we watched the cling to their ‘primitive’ home birth system—they Dutch home birth rate drop down and down—and will grow out of it as the rest of us did.” then celebrated when it held steady at 30% for over a decade—that was so very much better than Yet for birth activists and midwives around the the less than 1% homebirth rate in the US. And we world, the Dutch model in 2009 constituted not a celebrated when the Dutch government actually premodern vestige of the past but a postmodern studied the evidence and made its decision, dur- vanguard of the future! All birth activists in all ing the 1990s, to continue to massively support countries looked to the Netherlands as the most home birth. positive available model of enlightened, evidence- based treatment of birth. Then we worried because it became clear to us that Dutch midwives themselves were limiting the In the U.S., obstetricians are the first line of care, number of home births—they apparently wanted and women only choose midwives if they truly to maintain their excellent statistics so starting want personalized care and an empowering birth “risking out” way too many women (according to experience with a woman who will stay by their their own reports to us at conferences). During side. Even to be able to make that choice, they those years (the 1990s), it was apparent to us that have to know that midwives exist and are compe- the Dutch home birth rate could have been 60% tent, certified professionals. Many American instead of 30%--and that midwives themselves women don’t even know that simple fact, as mid- were lowering the home birth statistics. wives in the US today still only attend around 9% of births—8% of those in the hospital and less

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 61 We worried when it became evident to us that the hospital in early labor, you send her home with Dutch midwives were massively overworked, with her midwife and doula to support her until she caseloads per year that no midwife who attends reaches 5-6 cm, and then give her the epidural she births at home should be forced to carry. We cel- wants! ebrated when Dutch midwives rallied and got those caseload requirements down to sustainable Dutch obstetricians are traveling to international levels! conferences where they are getting imbued with a technocratic ideology that does not support the We worry today about your VIL (Verloskundige normal physiology of birth that used to be their Indicatie Lijst = Obstetric Indication List), which as bottom line! we understand prohibits VBACs, breeches, and many other types of conditions from taking place We applaud the introduction of doulas into the at home. Apparently it is being taken as law when Dutch maternity care system. Your homebirth mid- it is actually not, resulting in some midwives hav- wives are too busy doing too many prenatal exams ing to go to court to explain why they did not rigor- and giving too much postnatal care to be able to ously follow it—resulting in more and more mid- spend countless hours with laboring women in wives being afraid not to follow it, even if they feel their homes. Doulas are the solution! They can go confident in themselves about attending some to be with the mother for those hours, freeing the births on that list at home. midwives to stop by to check on progress and then go on to their other duties until the mother or We also worry about the way you calculate your family calls and decides with the midwife, “It’s time perinatal mortality rate (PNMR). As we understand for you to come!” it, you calculate it from 22 weeks on while other countries calculate it from 26 weeks or later, mak- At the same time, we lament the closing of so ing your rates look worse than they would if you many small Dutch polytechnic clinics in rural areas used a different calculation. and small communities. your current law appar- And of course we are concerned that home birth in ently requires that home births take place within 30 the Netherlands keeps losing ground—in the last minutes of a hospital. Shutting down those small ten years it has gone from 30% to 20% of all hospitals means that fewer and fewer Dutch births. That’s still better than every other devel- women who live more than 30 minutes away from oped country, yet not nearly as good as it used to a larger hospital have the option of home birth. be. Concomitantly, the Dutch cesarean rate has Don’t you understand that what women around now risen to 15%--still a model for the rest of the the world want most from their health care sys- world—still the lowest rate in the developed world, tems is community-based care? Globally speak- still within WHO parameters—yet still rising above ing, women do not want to have to travel to access the 10-12% rate that Dutch obs used to cleave to, health care. They want it right there, readily avail- and still rising. able and accessible, in their communities. In shut- ting down your smaller maternity units, you are Apparently, some younger Dutch midwives seem denying women the option they most desire. We to prefer hospital practice with its regular hours, strongly suggest that this is a mistake. and some younger, professional Dutch women seem to want to “catch up” with the rest of Europe At the same time as we lament every small mater- and opt for epidurals instead of choosing the pain nity unit that you close down, we applaud your of labor and the many rewards and sense of tri- recent decision to open dozens of birth centers umph that transcending that pain can bring. Some across the Netherlands, all located close to hospi- of your hospitals are now actively marketing and tals, so that women can both comply with the law promoting epidural use, even very early in labor. and achieve an optimal birth in a home-like set- Given too early, epidurals increasingly necessitate ting. We (still)believe that home birth is better for syntocinon augmentation and therefore increas- the women who want it, but we also believe that ingly lead to more cesareans. We certainly do not birth centers are a far better option for women want to deny women that choice, yet we certainly desiring normal, physiologic birth than hospitals. want Dutch midwives and doctors to follow the We recognize the building of birth centers as an scientific evidence and not administer epidurals effort on your part to keep undisturbed birth alive until the mother reaches at least 5 cm dilation. So and well in the Netherlands, and hope that you will we strongly suggest that if a woman comes into also keep home birth alive and well!

62 HUMAN RIGHTS IN CHILDBIRTH We continue to celebrate that fact that in the Neth- About Robbie Davis-Floyd erlands, obstetricians are not the first line of care (as they usually are in the US)—a newly pregnant Robbie Davis-Floyd PhD, Senior Research Fellow, women goes to her local midwife first, and can Dept. of Anthropology, University of Texas Austin only get referred to an ob if she thinks there is rea- and Fellow of the Society for Applied Anthropol- son. And the concept of “referring back”—that if ogy, is a medical anthropologist specializing in the the problem gets resolved, the ob will redefine the anthropology of reproduction. An international pregnancy as normal, and will refer the woman speaker and researcher, she is author of over 80 back to the midwife—that never, ever happens in articles and of Birth as an American Rite of Pas- the US and it seems absolutely brilliant and com- sage (1992, 2004); coauthor of From Doctor to monsensical to us! Healer: The Transformative Journey (1998); and lead editor of 10 collections, including Childbirth Please know that American midwives, doulas, and Authoritative Knowledge: Cross-Cultural Per- birth activists, and reproductive anthropologists, spectives (1997); Cyborg Babies: From Techno- as well as thousands of others around the world, Sex to Techno-Tots (1998); and Mainstreaming have for decades now held the Dutch birth system Midwives: The Politics of Change (2006). Her most as the standard for optimal birth. We beg you to recent collection is Birth Models That Work (2009), hold to that standard—a standard based on phys- which highlights optimal models of birth care iologic vaginal birth as the norm. Around the world, around the world. Her research on global trends cesarean rates are soaring to record highs, and and transformations in childbirth, obstetrics, and concomitantly, obstetricians and midwives alike midwifery is ongoing—her current research project are losing or never learning the skills needed to studies the paradigm shifts of holistic obstetri- support normal (physiologic) birth. your country cians in Brazil. Birth Models That Work, Volume II: has long constituted an island of sanity and com- Birth on the Global Edge, co-edited with Betty- petence in the midst of an ever-growing ocean of Anne Daviss, is in process. Robbie speaks fre- media-generated fear and over-reliance on tech- quently at national and international childbirth, nological interventions during birth. obstetrical, and midwifery conferences around the world. She currently serves as Editor for the Inter- The midwives and birthing women of the world are national MotherBaby Childbirth Initiative (IMBCI): still counting on your country to continue being the 10 Steps to Optimal Maternity Care (www.imbci. vanguard of a better future for birth—please do not org), Board Member of the International Mother let us down! Baby Childbirth Organization (IMBCO), Senior Advisor to the Council on Anthropology and Reproduction, and Associate Editor of Medical Anthropology Quarterly.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 63 Notes On Maternity Care By Soo Downe

My first experience of maternity care was as a So what might the solution be? It does seem to me visitor to a maternity mission station in the home- that positive, respectful relationships need to be land of Boputhswana in apartheid South Africa in reciprocal. And this means they have to operate the late 1970’s. This was a road to Damascus across the whole system in which people are living experience for me. I had never considered mid- and working. Staff need to feel supported, wifery as a career, but there I witnessed Black respected, and trusted before they can support, South African women labouring calmly and confi- respect and trust colleagues and the women and dently, supported with great care, skill and tender- families they care for. But this is cyclical – peers ness by White South African nuns. I was suddenly and childbearing women need to feel the same and unshakably convinced that if we get childbirth way before they can reciprocate. right, we get the world right. My experience since then, as a student midwife, then a practicing mid- To start this positive (virtuous) cycle going, to wife, then a midwife researcher has led me to escape from the vicious circle of disrespect and understand that part of what made this experience abuse, someone has to have the courage to say I so powerful was the unconditionally positive, will not behave in this way anymore. Once one per- mutually trusting relationships that I perceived son makes a stand, this becomes catalytic. Once between the laboring women and the midwives. one person is seen to treat women well, and col- Sadly, witnessing a lack of such relationships in leagues see how good it makes them feel, and some circumstances has led me to this realization. how well women respond, they start to think, Sometimes the issues that get in the way of posi- “Actually, that is how I want to be, too.” This has a tive relationships between childbearing women ripple effect, on other peers, on managers, on sup- and their carers are to do with personality, some- port workers, on childbearing women, and on their times to do with the environment in which labour families. In my experience, once we start working takes place, and sometimes around how valued like this, once we have the courage to take the first staff in particular, or women in general, feel. step away from the vicious circle of toxic relation- ships and towards the virtuous cycle of positive In my experience, though, the common factor is regard for each other, we start to realize how much that individuals are not ‘seen’ by each other; that emotional energy we have put into sustaining is, they are in the same physical space, but they these toxic systems. This emotional energy is then are not relating as fellow human beings. This does released as a feeling of wellbeing, and of capacity seem to be much more prevalent in settings where for innovation, and for new, exciting and fulfilling rules, regulations, and procedures become the directions: it is a kind of food for the soul. In an guiding force for behavior. In those kinds of envi- almost magical way, positive relationships in posi- ronments, interpersonal relationships seem to be tive environments generate more positive relation- much more liable to collapse. The human concern ships in positive environments. with which many caregivers enter maternity care (and, indeed, health care in general) seems to be It’s very simple really. Having the courage to make completely swamped by institutional concerns. each relationship we have with women and col- This is stripping the soul from maternity care, and leagues a positive one changes the world, for our- this is traumatic for childbearing women, for their selves and our society, as well as for our work- families, and for staff themselves, ultimately. place and for the women and families we care for.

64 HUMAN RIGHTS IN CHILDBIRTH Based on all my experiences since then, I still She currently chairs the UK Royal College of Mid- believe now what I learned in South Africa more wives Campaign for Normal Birth steering commit- than 30 years ago: if we get birth (relationships) tee, and she co-chairs the ICM Research Standing right – we get the world right. So, all it takes is for Committee. She has been a member of a number each of us, at each encounter with clinical col- of national midwifery committees, and she recently leagues (junior and senior), support staff, admin chaired the joint Royal College of Obstetricians and domestic staff, and childbearing women and and Gynecologists/National Patient Safety Agency their families, to decide to treat each other well: so subcommittee on the nature of evidence for that we can change the world for the better, maternity care. one birth at a time. She is a member of the UK Medical Research Council College of Experts, and has held a number [This essay was first published on the White Rib- of visiting professorships, most recently in Bel- bon Alliance for Disrespect and Abuse Agenda gium, Hong Kong, and Sweden. Blog, January 2012] Her main research focus is the nature of, and cul- About Soo Downe ture around, normal birth. She is the editor of Nor- mal Birth, Evidence and Debate (2004, 2008), and Professor Soo Downe, BA(hons), RM, MSc, PhD. the founder of the International Normal Birth Soo spent 15 years working as a midwife in vari- Research conference series. As well as running a ous clinical, research, and project development number of locally funded projects, she is currently roles at Derby City General Hospital. From January the principle investigator on two large funded 2001 Soo has worked at the University of Central studies, the SHIP trial of the use of self-hypnosis in Lancashire (UCLan) in England, where she is now labour (funded by the NHS RfPB) and an EU COST the Professor of Midwifery Studies. She set up the Action on childbirth contexts, cultures and conse- UCLan Midwifery Studies Research Unit in Octo- quences. ber 2002. She now leads the Research in Child- birth and Health (ReaCH) group.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 65 The Crisis Continues - Birthing while Black in the USA By Jennie Joseph

If the United States of America is ever going to be and specialists to manage and deliver babies for able to do better than ranking 50th in the world normal, healthy and straightforward cases. The when it comes to maternal mortality, and 41st system is structured around perverse incentives when it comes to infant mortality then it is time that maintain the billions of dollars generated for to stop the posturing and pretense and move to such service, at the expense of women’s health. action. National cesarean section rates are so high at 33%, with some hospitals reporting 50%, that Here are the facts. Amnesty International brought women are at risk for surgical births simply due to our focus front and center with the publication in the ‘cascade of interventions’ that has become 2010 of Deadly Delivery: The Maternal Health Care standard hospital fare. The maintenance of the Crisis in the USA1. It was a wake-up call for so status quo dictates that the institutionalized rac- many. yet in the same year that the European ism, sexism and classism that continue to leave Court of Human rights ruled to protect the “right to the disenfranchised helpless, remains in place, respect for private life” in Ternovsky v. Hungary, adding considerable risk to an already calamitous the vast majority of Americans continued to be situation. Lack of access to quality care and sensi- unaware that there was anything wrong in their tive providers allows low risk women to develop own country, let alone ‘a human rights crisis’. high-risk pregnancies and high-risk perinatal ser- The fact is, that of the four million women who give vices to be woefully inadequate to serve their iat- birth in the US each year, every 15 minutes there is rogenic needs. Persistent and apparently intracta- a woman in serious jeopardy, battling a ‘near-miss’ ble racial disparities also clearly show that some- incident that could take her life and leave her baby thing is amiss – regardless of socio-economic without a mother. Sadly, African American women status Black women are losing their lives, their continue to be unduly at risk, being 3-4 times as health and/or their babies disproportionately. likely to be the near miss or to die giving birth as Statements with statistics such as the following White women, as well as their babies being at 2-4 leave one speechless – “The U.S. infant mortality times as likely to be born preterm or low birth rate (IMR) differs among racial and ethnic groups, weight. and these differences may contribute to the high U.S. IMR. Specifically, in 2008, the IMR for infants Historically we focus on the grim circumstances of born to black mothers was 12.7, more than double third world countries and direct our humanitarian the white IMR of 5.5. This difference has the effect efforts overseas. Deadly Delivery pointed out the of increasing the U.S. IMR, as births to black truth; that in the United States of America mothers make up 16% of U.S. births, but 30.4% of women are dying giving birth and worse yet, in U.S. infant deaths in 2008.”2 (Emphasis mine) many cases we don’t even really know how, why or where. The American system of maternity care is different to most other systems around the world because it depends on highly trained surgeons 2 The U.S. Infant Mortality Rate: International Comparisons, Underlying Factors, and Federal 1 http://www.amnestyusa.org/our-work/campaigns/ Programs demand-dignity/maternal-health-is-a-human-right/ Elayne J. Heisler, Analyst in Health Services. April 4, maternal-health-in-the-us 2012 Congressional Research Service www.crs.gov

66 HUMAN RIGHTS IN CHILDBIRTH Quality maternity care systems that reflect the provide a service to the local Orlando area com- midwifery model of care, that are accessible munity by offering quality maternity care for all regardless of insurance or financial status and that women, no matter their choice of delivery site or are culturally competent, provide an immediate ability to pay. and cost effective way to reduce disparities and improve perinatal health. Worldwide, women are Jennie Joseph was featured as a Community Hero cared for and delivered by midwives – practitio- in the Orlando Times for her ability to improve ners trained as experts in normal physiological women’s health in Central Florida and was nomi- pregnancy and birth. Midwives delivered the vast nated for the Orange County Black History Month majority of Americans until the early 20th century, Humanitarian Award in 2006 and an Onyx Award in when physicians began to expand their practices 2007. She was a recipient of the The Visionary and encouraged women, especially the affluent, Award in 2005 and the prestigious Central Florida into hospitals for delivery. The systematic disman- Women’s Resource Center 2007 Summit Award tling of midwifery has had an unparalleled impact, for community service. She recently received the still being felt today. American midwifery is Senator Paula Hawkins Family Service Award for strengthening again, and we are here to serve. I her service to children and families. She frequently salute all the practitioners, provider agencies, con- speaks in her community, has hosted a local radio sultants, policy makers, professional organizations program, is featured in a 2009 documentary called and consumer organizations that care enough to Reducing Infant Mortality, and the recently stand for change. Our system is broken, and our released documentary No Woman, No Cry from women and babies are dying. The time to act is model and activist Christy Turlington. She is often NOW. called upon for commentary on childbearing issues, and travels to international conferences as About Jennie Joseph an expert panelist and speaker.

Jennie Joseph moved to the United States in 1989 Ms. Joseph is the National Chair for the Midwives and began a journey which has culminated in the Alliance of North America, Midwives of Color sec- formation of an innovative maternal child health- tion. She opened her own Florida licensed school, care system, The JJ Way®, which is changing Commonsense Childbirth School of Midwifery in lives in Central Florida. A British-trained midwife January 2010. She is the former Chair for the Flor- and women’s health advocate she has consis- ida State Council of Licensed Midwifery and con- tently fought for the right of every woman to have tinues to serve as a member. A long standing the opportunity of a healthy baby. member of the Orange County Healthy Start Coali- tion and an advocate for the plight of newborns Jennie was born and raised in England when her and infants, Ms. Joseph developed the “Save Our parents emigrated from Barbados, West Indies in Babies” initiative as well as The JJ Way® Maternal the 1950’s. She received her midwifery education Child Health care system - a program geared from Barnet School of Nursing and Midwifery in towards addressing the poor perinatal outcomes affiliation with Edgware General Hospital in Lon- of African American pregnant women and babies don in 1981. After moving to Florida in 1989, Ms. (recognized nationally as an effective program and Joseph pursued a Midwifery license through the an emerging „best practice”). State and was the first foreign-trained midwife to be licensed under the newly re-opened Midwifery Jennie’s book Beautiful! Images of Health, Joy and Practice Act in 1994. As Executive Director of The Vitality in Pregnancy and Birth was published in Birth Place (www.thebirthplace.org) a free-stand- 2007. This compilation of incredible photographs ing birthing facility in Winter Garden, Florida, Ms. of pregnant and parenting women and their fami- Joseph sees women from all walks of life who are lies speaks to the power of persistence in bringing expecting healthy babies and who choose a natu- about change and has become an iconic repre- ral birth. Due to the overwhelming need she cre- sentation of her strong belief that “Every woman ated Commonsense Childbirth, a non-profit cor- wants a healthy baby and every woman deserves poration where she has also made it her mission to one”.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 67 Empty Promises: the Dangers of Risk Discourses By Jo Murphy-Lawless

Local events lead to a debacle tage hospitals were under increasing threat of clo- sure (O’Connor, 1995: 12-13). Each of our over In December, 2011, new legislation in the Republic 100 obstetric consultants commanded and con- of Ireland, The Nurses and Midwives Act, was tinues to command lucrative fees from their private signed into law. It restored the standing of Irish practices, in addition to their generous contracts midwifery as a separate profession for the first with the state for providing care to women in pub- time since 1950, when midwives lost their sepa- lic wards. These private practices have attracted rate identity and their Central Midwives Board and at least half the women from upper professional were merged into a purely nursing regulatory and lower professional classes giving birth (Wiley structure. The fact that it has taken over half a cen- and Merriman, 1996:110-111). tury to retract the 1950 law might lead an outsider to surmise that Irish midwives have faced a con- Stemming from the Commission’s report and up to sistent struggle to assert themselves. Indeed they 2010, there were modest but crucial develop- have. The recommendation to change the law was ments to support midwifery-led care, giving rise to made in 1998 by a government-appointed Com- hopes that we might at long last establish the mission on Nursing. The Commission also recom- foundations on which outstanding midwifery-led mended direct entry midwifery education pro- care for women would become the common grammes, pilot projects to support home birth, expectation. We were not foolishly ambitious in and the establishment of midwifery-led units in these hopes, but as with any effort to dislodge an contrast to the prevailing model of centralised entrenched status quo, it required determined obstetric care units (Commission on Nursing, work and not a little good fortune politically to 1998). The Commission Report was the first occa- emerge with direct entry midwifery degrees, sev- sion where the Department of Health was officially eral very small-scale DOMINO and home birth challenged to consider seriously the contribution schemes and two small midwifery-led units, MLUs of midwives to women’s wellbeing in childbirth, (Devane et al, 2007; Begley et al. 2011; Murphy- not acting simply as subordinated ‘obstetric Lawless, 2011). nurses’ to obstetricians. In the wake of these initiatives, the Irish Depart- Throughout the twentieth century, obstetric-driven ment of Health and its operational arm, the Health ideologies tightened their hold on Irish maternity Services Executive (HSE), sanctioned two national services. Backed unquestioningly by successive review committees, one on Models of Care and a governments, the obstetric profession controlled second, called a Domiciliary Birth Implementation increasingly large, centralised units and maternity Group. For many midwives, this might have hospitals. By the late 1970s, home births had appeared as a chance to engage more produc- dropped to 0.5 per cent of the total number of tively with policy processes to expand midwifery- births, mostly being handled by a tiny number of led care and to support a more positive framework independent midwives. Ninety-one per cent of for home birth in Ireland. Those of us with a firm total births were taking place in consultant-run understanding of the power relations that have units split between public and private provision, characterized obstetric hegemony were less opti- with state-paid midwives providing hands-on care mistic about the outcomes, given the deeply con- in both divisions, while the remaining small cot- servative frame of reference of Irish obstetrics.

68 HUMAN RIGHTS IN CHILDBIRTH In ways that mystified concerned midwives and requiring them to work within our obstetric units observers, both these national committees for such a length of time, further deskilling them in appeared to have their work absorbed into behind being able to consistently undertake genuine mid- the scenes endeavors to assert an increasingly wifery (Mander et al. 2011). tight regulatory framework especially focused on home births. In 2007, the trade union, the Irish In their political innocence, and wary of practising Nurses Organisation, had said it would no longer with no indemnity insurance at all, SECMs signed pay professional indemnity insurance premiums the MOU, hoping at some later point to roll back for any of its members who worked as indepen- some of these exclusions. Instead, when the long- dent midwives. In this, it replicated moves else- awaited legislation to reform the midwifery profes- where (the UK Royal College of Midwives had sion was introduced in 2010, Section 40 of the Bill withdrawn insurance in a similar move as early as sealed the fate of SECMs, making it a statutory 1994). An interim arrangement involving a hasty requirement that all practising midwives carry pro- drawing up of a Memorandum of Understanding fessional indemnity insurance (PII). The MOU (MOU) gave the group of some fifteen independent which was what is called a service-level agree- midwives, insurance cover but at a considerable ment was now tied in to the proposed legislation price in respect of women’s and midwives’ auton- as the only way whereby midwives could have PII. omy. The Memorandum contained important If they were to practice in breach of the conditions exclusions based on assessments of previous and of the MOU, accepting a woman for a VBAC at current pregnancies: independent midwives, now home for instance, or if they were to practice with- termed self-employed community midwives out PII altogether, once this legislation passed into (SECMs) would be given insurance cover and law, midwives would face criminal proceedings receive payment for their work from the HSE only with a fine of up to 100,000 Euros and a 10 year if women with a wide range of ‘risk factors’ were prison sentence. A concerted campaign over excluded altogether from their client lists. Thus, for many months undertaken by a core group of mid- example, no woman who had a prior Caesarean wives and birth activists and supplemented by the section could be accepted by an SECM for a protests of a number of student midwives failed to VBAC at home. Also excluded were women aged have this clause amended. Thus midwives have 40 or older, with a BMI of more than 35, women become the only health care professionals in Ire- with diabetes and with asthma, women with five land subject to such draconian measures. previous births, women with an ‘ultrasound suspi- Amongst other consequences, if a midwife seeks cion of macrosomia’, and women with a diag- to assist a woman who might have begun to give nosed breech baby. SECMs were also obliged to birth by the roadside as she tries to get to the near- transfer women to hospital, if during intrapartum est maternity unit (a not uncommon occurrence in care, they identified a baby in breech position, Ireland where a number of counties no longer have found membranes ruptured for more than 24 a local maternity unit and women must travel a sig- hours, and if there were ‘delay’ (sic) in the first or nificant distance), the midwife can face prosecu- second stages of labour, meconium stained liquor tion for acting outside the MOU and therefore out- (no grading of that was included), ‘maternal side the Act. Rather than a recognition of what request for epidural pain relief’ et al. It was a long midwifery can do to underwrite best possible care list driven by Irish obstetric imperatives, with no for women, the new 2011 Act has been a disaster evidence at all to back the assertion that this for Irish midwifery and for women seeking good would ‘promote a positive and supportive culture birth. They have been subsumed within the under- for the optimum management of all aspects of standings and schedules demanded by an obstet- healthcare risks in accordance with current best ric establishment increasingly mired in its focus on practice’ (Schedule 5, Memorandum of Under- ‘risk’. standing, HSE). Another curious addendum, given the rapidly rising rates of interventions in Irish Regulating for whose ‘safety’? obstetric units, was that a midwife, upon her qual- ification and full registration with the Irish Nursing Although these developments, outlined above, Board (An Bord Altranais), would need to practice have a particular local context, Irish women and for three years in a hospital setting before being midwives are not alone in facing such restrictions permitted to practise as an independent SECM. It on their practice. In just over a year, UK midwives required a special talent to pursue this logic of will have similar legislation about PII to deal with, undermining our newly-qualified midwives by possibly leading to the demise of genuinely inde-

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 69 pendent midwifery, while the EU itself is enmeshed ‘the mother feels safely “held” by her midwife’, by in enforcing an overall framework for PII legislation the midwife’s consummate skills, and by her care by 2013. for the woman and how that evolves within a rela- tionship anchored by a ‘common viewpoint’ about These growing restrictions and the language in shared values and the woman’s needs. This was which they are expressed by regulatory bodies, the core ethos of the London Albany midwifery institutions and hospitals appear watertight in the practice which ensured that every woman would way they work not least because they are based have full midwifery continuity of care, no matter on or reflect the logic of quantifiable data. Ian what her changing needs were, and perhaps espe- Hacking terms this an ‘assurantial technology’ cially when her needs were complex (Reed, 2008; (1991:184) in which formal institutions engage in Reed and Walton, 2009) and remains core to inde- an ongoing collation of numbers, whereby we pendent midwifery (Milan, 2005). become a highly administered society in all aspects of our lives: On the other hand, formal risk management schedules too frequently protect the interests of ‘The bureaucracy of statistics imposes not just by hospitals, health authorities, and ultimately, the creating administrative rulings but by determining state through its regulatory bodies. If, for example, classifications within which people must think of a woman wants to birth at home because the birth themselves and of the actions that are open to of her previous baby in an overcrowded, under- them’ (1991:194). staffed public hospital, with too few midwives experienced in sustaining the birth process with- Thus in the Irish HSE MOU, in its section on ‘risk out intervention, and a heavy reliance on routine management and incident reporting’, the midwife CTG as part of the local protocols, leading to an is asked to locate women within a series of clas- emergency caesarean section, a common enough sifications to improve ‘service user safety’, that is occurrence, that event itself now precludes the to reduce ‘risk’. A timely collation of data for the woman from giving birth at home as a VBAC. The HSE ‘Risk Register’ and for ‘Clinical Indemnifiers’ woman has already sustained a traumatic and is emphasized and the midwife urged to ‘identify damaging outcome physically and psychologi- and learn from all Service User safety and other cally. The state and its institutions will take no reportable incidents, and will make improvements responsibility whatsoever for the lack of ‘best in practice based on information derived from the practice’ leading to this outcome; indeed the analysis of incidents and local and national experi- woman may well have been told or been encour- ence.’ (HSE MOU). aged to infer that the emergency Caesarean sec- tion ‘saved’ her baby, yet the conditions of care This programmatic language implies methodical, and poor clinical management of her labour will orderly procedures which, in theory, might reas- not be ‘seen’ (Wagner, 2001), as problematic, let sure the woman who wishes to have a home birth alone documented as ‘risk factors’. Her decision that the state’s principal health institutions are to have a subsequent baby at home will be blocked monitoring developments with her best interests because of the obstetric belief that any birth which as their primary concern. The HSE expects a mid- happens beyond the borders of a hospital consti- wife to proceed with caution, using evidence on tutes a greater ‘risk’ compared with birth inside a ‘best practice’, as exemplified by the schedule on hospital simply because it lies beyond that border, the ‘risk’ conditions excluded from home birth. and therefore beyond its control. Looked at closely, these schedules force the mid- wife to redefine herself and her skills as having Underscored by the regulatory proceduralism that limited scope to support women. They cut across we have come to accept as part of ‘good gover- her primary work of caring while reducing the nance’, the institution has the power, to make this woman to a series of conditions, just as obstetric judgement about what constitutes a risk, no mat- thinking has done. They concentrate on what ter how poorly configured the thinking. Ian Hack- Hacking refers to as nebulous ‘disasters, catastro- ing (2003: 22, 24) argues that ‘the choice of risks to phes and threats’ (Hacking, 2001:24) and effec- worry about’ is not based on ‘facts’ per se but is tively deny that the midwife has the skills to almost always contingent, that is, based on cir- respond to complex clinical needs. These sched- cumstances and concerns far removed from ‘evi- ules override what Mavis Kirkham (2010: 254-255) dence’. We might add to that the impact of the defines as the midwife-mother relationship where corrosive fear and distrust of birth that seem to

70 HUMAN RIGHTS IN CHILDBIRTH stalk hospital corridors (Dahlen, 2010). Daily within and Doyle, 2001) of an individual midwife’s skilled our maternity services, midwives and doctors interpretation of a woman’s labour. make use of the ‘shadowy’ nature of risk: a vague statement about ‘exposure to possible harm’ Who bears risk? (Hacking, ibid) is sufficient to bring a woman into compliance with a range of interventions to man- The 2011 UK Birthplace Cohort Study (Brocklehu- age labour and birth (Edwards, 2005; Edwards and rst et al, 2011) has yielded concrete data on a sig- Murphy-Lawless, 2006). It also becomes a kind of nificant cohort of women, 64,500, all designated moral judgement. What appears to be systematic ‘low risk’ who gave birth in four different settings: rigorous thinking about what are defined as ‘risky consultant units, alongside MLUs, freestanding practices’ reinforces a ‘pragmatic discourse of MLUs and home births. The best birth outcomes moral normalcy’ (Erikson and Doyle, 2003:6) which were for multiparous women and their babies born is very hard for a woman to contest. at home. Women in the consultant units, even though designated ‘low-risk’ were most subject to We see this clearly with the extensive use of rou- interventions, including caesarean sections, with tine CTG monitoring (Alfirevic et al., 2006) which is fewer than 40 per cent of them having a baby with- said to be carried out for the safety of the baby, but out intervention. Thus the chimeras of the obstet- leads to an increased number of women having ric imagination dominate care even when the label unnecessary Caesarean sections on the grounds ‘low risk’ can be appended. However, it is women of foetal distress. The latest research data (Devane who carry the adverse effects of these risk read- et al., 2012) shows us that the use of the 20 minute ings. routine admission CTG (endemic in Irish hospitals and difficult for women to refuse) which has the In its efforts to eradicate uncertainty, to make ‘risk’ stated purpose of detecting those babies who are more controllable, obstetrics has nailed its colours ‘at risk’ and need to be born quickly, does not to the mast of probabilistic calculations (even bring down the rate of perinatal mortality, but does when the majority of its practitioners are function- lead to more women having Caesarean sections. ally innumerate – see Gigerenzer, 2002), and it has This is because of the decision-making about dragged midwifery, which for the majority of mid- what notional ‘risks’ should receive attention. In wives in Ireland and the UK is located within the UK, the NICE guidelines on categorizing foetal obstetric units, in its wake. Here it is backed by the heart traces, delineate for clinicians a table to dif- tendency of the late modern state, anxious to ferentiate between gradings of ‘reassuring’, ‘non- offload its responsibilities to its citizens and make ‘reassuring’ and ‘abnormal’ (NICE, 2001). Inevita- them carry the real risks of its concrete withdrawal. bly, for the stressed midwife working under pres- The state must cut costs, we are told, and so it sure within a climate which designates the physiol- does, protecting favoured and more authoritative ogy of birth as unreliable, ‘guidelines’ are trans- groups, according to its lights. Despite the evi- formed into a rigid practice so that reliance on dence of the Birthplace Cohort study about fewer these classifications brings actual risk into being. interventions in midwifery settings and the signifi- As Erickson and Doyle (2003:2) show, the choices cantly lower financial costs attached to those loca- about which risks to focus on are at the core of the tions, the length and quality of midwifery teaching ‘rules, formats, [and] technologies for risk classifi- programmes are cut, as are the numbers of mid- cation’ which make risks ‘visible’, with a concomi- wives employed, MLUS are scaled back or closed tant demand that they be responded to, with more altogether, as are resources to support home birth. intervention. In Irish hospitals, midwives are con- The state also cuts programmes of social support sistently instructed how vital CTG traces are, for the most vulnerable groups in society while should a legal action arise as a result of the birth health inequalities increase (Wilkinson and Pickett, management. The tendency towards seeing the 2010). ‘non-reassuring’ and ‘abnormal’ is doubly rein- forced while the skill of interpreting the meaning of The state and its institutions continue to use decelerations in the context of that individual abstract systems of risk assessment to back their woman’s labour and that individual baby is lost. operations. Giddens argues that this leads to the The CTG machine is a concrete repository of what ‘evaporation of morality’ so that responsibility can be termed ‘systematic knowledge’ which is ends with the ‘instrumental articulation of risk then used to judge ‘the risky conduct’ (Erickson management practices’ (1991:45). This is how we should read recent disturbing figures on rises in

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 71 maternal mortality in the greater London area - Edwards, Nadine (2005) Birthing Autonomy: (Bewley and Helleur, 2012), where it is women from women’s experiences of planning home births. the most marginalized groups of society who are Routledge, London. paying the price for increasing centralization of - Edwards, Nadine and Murphy-Lawless, Jo larger obstetric units, needed we are often told, to (2006) Women’s Perspectives on Risk and deal with the ‘risks’ of more complex pregnancies, Safety in Birth. In Andrew Symon (ed.) Risk while there is a corresponding diminution of the and Choice in Maternity Care. Edinburgh: very midwifery-led services in which women’s Elsevier. needs would be far better and fully met. Erikson, Richard and Doyle, Aaron (2003) Risk and Morality. In Richard Erikson and Aaron Returning to obstetrics, it currently appears to Doyle (eds.) Risk and Morality. Toronto: Univer- exist without the capacity to replace its ill-concep- sity of Toronto Press. tualised imperatives about risk and its demands - Giddens, Anthony (1991) Modernity and Self- for conformity. What it requires is a much more Identity: Self and Society in the Late Modern sensitised scientific practice which gives a central Age. Cambridge: Polity Press. place to working with doubt and uncertainty, an - Gigerenzer, Gerd (2002) Reckoning with Risk: empiricism that privileges skill, which listens with Learning to Live with Uncertainty. London: all the senses, a practice that we can see is at the Penguin. Government of Ireland, Commission heart of genuine midwifery. on Nursing (1998) Report of the Commission on Nursing: A blueprint for the future. Dublin: Bibliography Stationery Office. - Hacking, Ian (1991) How Should We Do the - Alfirevic, Z , Devane D, Gyte GML (2006) Con- History of Statistics? In Graham Burchill et al tinuous cardiotocography (CTG) as a form of (eds.) The Foucault Effect: Studies in Govern- electronic fetal monitoring (EFM) for fetal mentality. Brighton: Harvester Wheatsheaf. assessment during labour. Cochrane Data- (2003) Risk and Dirt. In Richard Erikson and base Systematic Review, 2006, Jul 19:3: Aaron Doyle (eds) Risk and Morality. Toronto: CD006066. University of Toronto Press. - Begley, Cecily et al. (2011) Comparison of - Kirkham, Mavis (2010) The Midwife-Mother midwife-led and consultant-led care of healthy Relationship, 2nd Edition. Basingstoke: Pal- women at low risk of childbirth complications grave Macmillan. in the Republic of Ireland: a randomised trial. - Mander, Rosemary et al. (2011) Working BMC Pregnancy and Childbirth, 11, (85), 2011. together: implications for midwifery education - Bewley, Susan and Helleur, Angela (2012) Ris- of an international weekend workshop. Essen- ing maternal deaths in London, UK. In The tially MIDIRS. September 2011, Volume 2, no. Lancet, Vol. 379, March 31, 2012. P. 1198. 8. Pp. 32-37. - Brocklehurst, Peter et al (2011) Perinatal and - Milan, Melanie (2005) Independent midwifery maternal outcomes by planned place of birth compared with other caseload practice. for healthy women with low risk pregnancies: MIDIRS International Midwifery Digest, 15:4 the Birthplace in England national prospective 2005 cohort study, BMJ 2011;343:d7400 - Murphy-Lawless, Jo (2011) ‘The Ceiling Caves - Dahlen, Hannah ( 2010) Undone by fear? In’: the current state of maternity services in Deluded by trust? In Midwifery (2010) 26, 156– Ireland MIDIRS International Midwifery Digest, 162 December, 2011, 21: 4, pp. 446-451. devane Declan et al (2007) Childbirth policies NICE (NICE, 2001) The use of electronic fetal and practices in Ireland and the journey monitoring: The use and interpretation of car- towards midwifery-led care. Midwifery, diotocography in intrapartum fetal surveil- 23(1):92-101 lance. http://www.nice.org.uk/nicemedia/pdf/ - Devane D, Lalor JG, Daly S, McGuire W, Smith efmguidelinenice.pdf V. (2012) Cardiotocography versus intermittent - Reed, Becky (2008) An unplanned hospital auscultation of fetal heart on admission to birth. In The Practising Midwife, Vol. 11, no. labour ward for assessment of fetal wellbeing. 11, December, 2008: 24-25. Cochrane Database of Systematic Reviews 2012, Issue 2. Art. No.: CD005122. DOI: 10.1002/14651858.CD005122.pub4

72 HUMAN RIGHTS IN CHILDBIRTH - Reed, Becky and Walton, Cathy (2009) The About Jo Murphy Lawless Albany Midwifery Practice. In Robbie Davis- Floyd et al (eds.) Birth Models that Work. Lon- Like many women, I became involved in birth don: University of California Press Ltd. issues through my personal experiences. I was - Wagner, Marsden (2001) Fish Can’t See Water. one of the founder-members of Cuidiú, the Irish In International Journal of Gynecology and Childbirth Trust, in 1980. Developing vigorous Obstetrics, supplement. Pp. S25-S37. responses to the complex politics of birth remains - Wiley, Miriam and Merriman, Barry (1996) integral to my work as a sociologist. I teach in the Women and Health Care in Ireland: Knowl- School of Nursing and Midwifery, Trinity College edge, Attitudes and Behaviour. Dublin: ESRI/ Dublin, and am a member of the Birth Project Oaktree Press. Group which was formed in 2008 with women - Wilkinson, Richard and Pickett, Kate (2010) from Dublin and Edinburgh, to explore ways of The Spirit Level: Why Equality is Better for Eve- working together to support women, birth. ryone. London: Penguin.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 73 Letter to the Conference The Human Right to Choice in Childbirth By Hélène Vadeboncoeur

I have been a birth advocate since the middle of centered care. Nevertheless, I witnessed situa- the 80s, a few years after I gave birth to my daugh- tions where some women more or less had to ter normally (my first child was born by caesarean). ‘accept’ interventions they did not really want. The birth happened at the end of a very stressful Was this really a choice, without adequate infor- pregnancy, having tried for months to find a Cana- mation on negative effects, risks, or alternatives? dian doctor who would ‘agree’ to ‘let me’ have a For instance, some were induced, or had artificial ‘trial-of-labor’ – I very much wanted a VBAC (Vagi- oxytocin to stimulate labour when contractions nal Birth After a Caesarean). I had a VBAC, but my seemed adequate, when these women wanted to wish to give birth myself was not respected by my avoid these interventions. Or I witnessed epidurals doctor, who performed unnecessary and risky administered in the absence of information of their interventions, unwanted by myself, when I was possible side effects or impact. pushing by baby out. I later became a researcher, because I was very preoccupied by the lack of Why is it that, for a couple of centuries, (male) doc- information (to women) that was the norm in tors wanted to put women to sleep when they obstetrics, by the lack of evidence behind prac- were giving birth and that women agreed to it for a tices, by the increasing medicalization of child- long time? Why did doctors and doctors’ associa- birth, and by the way women were too often tions fight a fierce battle to eradicate midwifery in treated while they were in labour and giving birth. I North America in the 20th century, in order to have wanted to contribute to research that would sup- enough ‘material’ (a word that some used to refer port women’s rights in childbirth, and to do to childbearing women)? Why has VBAC been research that would focus on women’s experi- fought for almost a century now in North America, ences of maternity care. when studies have been steadily showing a risk (of uterine rupture) of only 0.5 %, (between 0.2 and One thing that struck me over the years being in 0.7 %) especially when labour is not induced? And this field is that, around childbirth, control was why is it that although VBAC risk is loudly talked used in matters where women could have used about, caesarean risks (much higher for the their power, but were prevented from doing so. My women, including 3 to 11 times the risk that she knowledge of it, in a way, goes back to my own dies, and not without risks for the baby) are mini- birth, when my mother’s doctor forced a gas mask mized and often not mentioned? Why are caesar- over her when I was about to be born, despite her ean rates soaring, this major abdominal operation expressed desire and loud protestations to the now performed, in some countries, on 50 % or contrary. (She had taken birth preparation classes more of the women who carry a child? Could it be at a time when this was quite unheard of). And it that the unique feminine power and ability to continued with my daughter’s birth, ‘my’ doctor give birth is still a threat in our society, and has deciding after 12 minutes of me pushing that I to be repressed, even when doctors are increas- needed help to do so, under the false reason that ingly women? Could it be the fact that birth is a she could have cranial lesions ‘if I pushed too sexual act, which has to be controlled, and even long!’ During my doctoral ethnographic study on repressed – as has been women’s sexuality for a birth, the caregivers in the hospital where I con- long time and still is in many societies? A threat for ducted my research were nice with the childbear- women caregivers also? What would the world be ing women, and the official mission was women-

74 HUMAN RIGHTS IN CHILDBIRTH like if all women could exert their power, in all and preferences. That respect for them during realms of life, including giving birth? labour also implies consideration for the amazing and very powerful accomplishment of their bodies The paradox in western societies is that women (and their minds and souls as well): giving birth to control a lot of aspects of their lives. In Canada, for a child, bringing another human being into the instance, and in Quebec where I live, I could say world. It implies respect for the rhythms and needs that in general, most choices are open to women, of birthing women’s bodies. who are considered as human beings with funda- mental rights and who can pretty much lead the This is why I accepted to be a panelist at this lives they choose to live, including if and when to ground-breaking conference, to participate in this have children. Of course, some are living in vulner- emerging and long-time unrecognized component able contexts, and it is more difficult for them. But of childbirth, women’s rights. Because, since from when pregnant women are admitted to an obstet- the beginning women have been the ones who ric department while in labour, they become a give birth, they have the right to choose with ‘patient,’ and their right to choose diminishes, whom, where, and how they want to do this impor- sometimes considerably, despite articles to the tant and crucial work for humanity. contrary in our health and social services regula- tions and in the general field of patients’ rights. About Hélène Vadeboncoeur Violations of the right to choose and of other rights are commonplace in obstetrics. This is not without Hélène Vadeboncoeur is a Canadian childbirth links to the general field of violence against researcher. She holds a master’s degree in Com- women. munity Health and a Ph.D in Applied Social Sci- ences from the Université de Montréal (Canada). Recently, two international organizations have Her doctoral thesis was on humanization of child- become aware of the disrespect and abuse that birth. During the nineties, she worked for several women too often receive when they are in labour Quebec health institutions on the legalization of and giving birth. This happens not only in develop- midwifery and on the implementation of birth cen- ing countries – as some would like to believe – but ters staffed with midwives. Active member of the in those considered to be ‘developed’ ones, like in perinatal committee of Association pour la santé Canada and USA for instance, as emerging publique du Québec, she was on the scientific research is showing. The powerful USAID Interna- committee of the Conference Birthing the World tional published in 2010 a landscape analysis of (Quebec, Canada : november 2010). She is pres- the situation, identifying 7 categories of disrespect ently co-researcher in two Quebec studies on and abuse during childbirth. It has funded two childbirth – the RCT QUARISMA on lowering cae- research projects in Africa on the subject. And last sarean rates and a study on disrespect and abuse January, the well-known White Ribbon Alliance for during childbirth (Université de Montréal). She Safe Motherhood launched the first ever Charter directed recently a participative and innovative on human rights during childbirth, Respectful action-research study on the experience of emi- Maternity Care: The Universal Rights of Childbear- grating to Canada and being pregnant/having a ing Women, by drawing on relevant extracts from young child. In 2011, she participated as a mem- international human rights instruments. As for this ber of the White Ribbon Alliance for Safe Mother- and other declarations of human rights, of wom- hood’s multidisciplinary and international task en’s rights, they won’t necessarily change things force on respectful maternity care in the elabora- over night, but this new charter tells the world that tion of the charter Respectful Maternity Care : the all women in labour and giving birth deserve to be Universal Rights of Childbearing Women. She is treated with respect, in a manner that allows them on the Board of Directors of the International to keep their dignity, and that respect their choices MotherBaby Childbirth Organization (IMBCO).

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 75 Our Choice, the Only Choice for Us… A Breech at Home By Marieke de Haas - van Bommel

My husband and I made a choice, the best choice didn’t want a c-section. I would give birth to this we could have made as parents-to-be. It was the baby myself! best choice for our unborn baby, I’m absolutely convinced. I am a resident anesthesiologist, and I’ve seen and performed spinal anesthesia for c-sections many We chose to have our birth of our breech baby at times. I did not want to go through that surgery home. It was a deliberate choice, and we would unless it was truly necessary. And I didn’t want the make it again. cord to be clamped immediately after birth, or my baby to be taken away from me in the OR. I didn’t From 29 weeks, our child was in breech. I got the want my baby’s natural instinct to find it’s mom- feeling that this wouldn’t change. We tried moxa my’s nipple for drinking to be disrupted. I didn’t therapy, which didn’t work. At 36 weeks, we had a want all the medication that will be administered terrible attempt of turning our baby.We thought for a c-section. I knew that after a c-section, you that a gynecologist would look with ultrasound to can’t lift things for several weeks, which would be see if the conditions were favorable to make an very uncomfortable with two dogs in the house, attempt to turn our baby at 37 weeks. Instead, besides a newborn baby. And above all, for future without asking or even warning me, she stabbed pregnancies I would be stuck with the hospital! two fingers into my abdomen and roughly Besides all the reasons above, the most important attempted to turn my baby. I was in shock. It felt one, I didn’t feel SAFE in the hospital. I didn’t feel like an assault, an attack at the deepest core of my safe to tell them my birth wishes. Even if they “let” being and an attack on my baby. We decided me birth my baby vaginally, I would have had to against seeing her again. give birth on my back, in the stirrups, tied to the bed with monitors, in an environment where I did At 37 weeks, we had a check-up with a gynecolo- NOT feel safe and relaxed. In such an environ- gist who we had never met before. He made a very ment, I felt that a c-section would be inevitable, friendly and soft attempt of turning my baby, which because of the lack of relaxation. didn’t work. He asked whether I wanted a vaginal birth or a c-section. I said that I wanted to try on Our doula advised us to make an appointment my own. He gave me a list of conditions for a vag- with a midwife who had assisted breech births inal breech birth, and ended his speech with “but I before, and who probably could reassure us about have the last say in this delivery.” whether a physiological birth was possible. We made an appointment with her, and she laid all our We felt like we were put aside in our child’s birth. I options on the table. On the ride over, we were thought, “Hey, who’s giving birth here? I’m con- hoping she would support us in a choice for a nected to my baby. I feel what it wants, not you!” home birth. And indeed, at the end of our long conversation, she agreed that she would. We were At this point, we had already contacted a doula, thrilled. But because it was an important decision, because we could use all the help we could get. we all agreed to think it over for a couple of days. We made a birth wish with her, and during that Our birth wish of having a breech birth in a birthing conversation it became clear that I really, REALLY pool became possible. Our baby was 38 weeks at that moment.

76 HUMAN RIGHTS IN CHILDBIRTH I already started my preparation with an internet foot. During the next contractions, his first leg was search for protocols of breech births all over the out, and all the while he was moving his leg. That world, but I searched even more from that point was the strangest feeling I ever experienced. After on. I’ve watched dozens of movies of breech half an hour pushing, there was no more than one births, on all fours, in the water, standing, footling leg out. My midwife had checked if I was fully breeches. With our doula, we talked about every dilated, and gave me another four contractions aspect of the birth, what we wanted, what we this way, or else we would have tried another posi- didn’t want. What ifs. tion. At that point I thought, well then, I have to push along. The next contractions were enough to I also asked myself the question, “What if things birth the rest of our baby’s legs, abdomen and tho- went wrong?” Then I would be sad for losing my rax. He was now sitting on the bottom of the pool, baby, but it still would have been our choice. We with his hands folded, like he was praying. Our took responsibility for our decision. midwife felt his cord pulsating strongly. He was ‘jumping’ up and down the bottom of the pool. His At our last meeting (which we didn’t know at the jumping hurt me badly, and my contractions time) with the gynecologist at 39 weeks, we were stopped. According to the instructions of my mid- in his office for five minutes. “How are you feel- wives, I turned to sit, and they helped our baby’s ing?” “Fine.” “Let’s take your blood pressure.” head being born. “OK, let’s look at your baby with the ultrasound. Everything looks OK. If there are any problems, He (it was a boy) was born after more than hour of call us, and not anyone else.” We said good bye pushing. He was laid in my arms and I held him and walked towards the door. In parting, the gyne- close to me. He started to breathe after a few sec- cologist said, “At 40-41 weeks, you have to think onds, while I was stimulating him with a towel. Our about a c-section.” I responded, “Let’s postpone midwives observed us from the couch during the that as long as possible, shall we?” next hour,while we remained in the pool. Enjoying everything about our son. After an hour, I birthed We never mentioned that we were not go to the the placenta, and my husband tied the cord with a hospital for the birth of our baby. We wanted to lace and cut our son loose from his placenta. prepare ourselves for this birth, and not start an argument which probably would have cost a lot of It was an incredible journey, which took a lot of energy. Besides that, if things wouldn’t turn out the preparation and went like we wished. I was only right way, we needed the gynecologist and the examined for dilation once, I birthed my son in the hospital for backup, so we didn’t want to disrupt water, and the cord stopped pulsating naturally the relationship. before it was cut. I was supported in my belief in myself and the connection I had with my son. I was On a Sunday morning, after a very good night’s able to feel every turn he made inside me through- sleep, my water broke around 9.30am. I was 39.5 out his birth. weeks pregnant. After 45 minutes, I got light con- tractions; they would come and go until 16.30. Our To forward on the timeline, we made an appoint- midwife checked upon us two times, and things ment 6 weeks later with the gynecologist we saw were going fine. I got in the birthing pool at 16.30 last two times when I was pregnant. It felt very dis- hr, and regular contractions started. We called our appointing for us. Our midwife had sent the report doula and midwife to come over. I dilated in the of our delivery to that gynecologist, with a note next four hours. Again our midwife checked sev- that she very much would like to discuss our case eral times whether everything was going fine, with with him. Our goal for making an appointment was a handheld fetal heart monitor. At around 20.45, I to explain why we made the choices we did. He let got the urge to push. The transition came gradu- us tell our story, and then said that he was ally and I was excited to go into the next phase. A shocked, that he didn’t have words for what had second midwife, experienced in water births, happened. He found the midwife to have been irre- came to assist as well. sponsible for guiding a breech home birth. We tried to explain that we lost confidence when he Time didn’t exist for me, only what I felt, and the said that HE would have the last say in our deliv- incredible power released within me. I was squat- ery. He denied saying it. Between the lines, he ting, and held my balance with two handles on the actually called us liars, for he denied our most top of the pool. I felt something pop out. It was his important reason why we lost confidence in him.

PANEL 2: SAFETY, RISK, COSTS & BENEFITS: DECISION-MAKING IN CHILDBIRTH 77 This did not make it better. I felt shocked about it. Later on I heard through various channels that And it got worse. He NOW told us things he did not throughout the region, our case was being dis- tell us before. He said that he would go very far cussed without people knowing full details. That along in the birth wishes of women. That giving they spoke inaccurately about our case. It almost birth vertically was an option. My mouth fell open. felt like slander. Like our story was being distorted I felt like I was being lied to. This was a total differ- to create an example of how NOT to handle a ent story. He ended his speech by saying that he breech birth. was going to take steps against my midwife. At that point I broke. I started crying and responded I believed, and I still believe, that I took less risks that I was very sorry to hear that. He responded by having a natural breech birth at home in a birth- with “Well, little girl, you didn’t think you were ing pool, with midwives who are trained in assist- going to get away with this without any conse- ing natural births, and a doula to support me if I quences, did you?” needed it, than with a gynecologist who doesn’t know how tokeep his hands on his back when I was stunned. How could I explain my feelings of doing so is in the best interest of me and my baby. unsafety and being ill informed to him, someone My choice avoided the risk of somebody pulling on who thinks that breech babies can’t come into this my child to get it out, and creating complications world without a gynecologist’s hand? How could I along the way for me or my baby. reason with a doctor who believes that a midwife could not possibly be experienced enough to We made our choices with our son’s interest in our guide these situations? How could I ask a gyne- minds. Does that make us bad parents? I do not cologist to step outside of his comfort zone, to feel think so. I gave my son the best start to his life he unsafe with what he would be doing, because he could have ever wished for. And when I look at my is not used to observing and handling only when it son sleeping next to me on the couch while I’m is necessary? How could I make him see that I had writing this, I feel blessed that we had the opportu- less chance of complications with midwives who nity to make this choice! observe WITHOUT fear, who know when to handle when necessary, but also know when to let nature About Marieke de Haas - van do its work without disrupting it? Bommel

In conversation with our midwife, the gynecologist Name: Marieke van Bommel also said that, if he had known in advance that we Country: the Netherlands were having a home breech birth, he would have Age: 31 called the police and ambulance to take us to hos- Profession: resident anesthesiology pital to birth. I found this outrageous! Where would Marital state: married he get the right to do that? It is nowhere in the law Children: 1 son that I, with my breech baby, am obliged to give birth in the hospital!

78 HUMAN RIGHTS IN CHILDBIRTH / Panel 3: The Rights of the Baby

This panel will explore the most common objection Panelists are: that people make when a woman chooses for - Susan Bewley, Obstetrician-Gynecologist home birth or goes against an obstetrician’s from the UK advice: “But what about the rights of the baby?” - Farah Diaz-Tello, Civil/ Human Rights Lawyer Panelists will discuss the legal issues at play in any from the US discussion on the “rights” of an unborn child and - Barbara Harper, Nurse and Birth Activist from the legal status of the being-born under the ECHR the US and other international regimes. The panel will also - Michel Odent, Obstetrician from France address the underlying suggestion that mother - Roanna Rosewood, Mother from the US and unborn child are in conflict if the mother goes - Noam Zohar, Professor of Philosophy and Eth- against medical advice or gives birth outside the ics from Israel hospital, and that authority figures other than the - Anna Verwaal, Nurse and Doula from the Neth- mother are more reliable invested in the survival erlands and US and health of the baby than its parents. It will also discuss the possibility that an unborn baby has rights or interests that go beyond the right to sur- vival, and include the circumstances in which it is born.

PANEL 3: THE RIGHTS OF THE BABY 79 Letter to the Conference By Susan Bewley

I am a maternal-fetal medicine obstetrician and About Susan Bewley academic, with some training in law and ethics and main research interests of severe maternal Susan Bewley is consultant Obstetrician/ Maternal morbidity and domestic violence. Fetal Medicine, Honorary Senior Lecturer, King’s Health Partners NHS consultant & clinical aca- I am coming to this conference because I have demic since 1994 with wide-ranging research spent my whole professional life dealing with the interests but focused on severe maternal morbid- complex trade-offs that pregnancy brings to ity. RAE-returned NHS clinician. women and the children they bear – whether that pregnancy is wanted or unwanted, straightforward Senior clinical opinion and trainer in busy inner- or life-threatening, fulfilling or anxiety-filled, sup- city teaching hospital (having done fetal medicine ported or vilified, and whether the childbirth is scanning/ procedures, diabetic, SLE/APS & HIV natural or medically assisted, taking place at home antenatal clinics, labour ward, on call etc.). As or in hospital. Director of Obstetrics & Clinical Director for 10 years, I set up & participated in evaluation of inno- The issues at stake matter deeply as they relate to vative services (eg external cephalic version, identity, power, evidence, commercial interests, bereavement, perinatal mental health, routine health, wellbeing and women’s position in society. enquiry and referral for domestic violence). The development of evidence-based guidelines, multi- I hope that better understandings of the current disciplinary team working, midwifery-led care, and context and discourses about childbirth will lead an academic & reflective culture whilst merging to real, practical strategies for women. two maternity units led onto St Thomas’ becoming the highest scoring London maternity unit (Health- care Commission 2007).

80 HUMAN RIGHTS IN CHILDBIRTH Childbirth as a Human Right: The Voice of the Baby By Barbara Harper

The emerging science of obstetric medicine of the forced separation at birth which, from my research early twentieth century viewed the fetus as a ran- and study, all contributed to the creation of lifelong dom compilation of genetic materials, predeter- physical and psychological sequelae. mined at conception, from which the physiology and behavior of this new human being would His fear would not be diminished and a few days eventually be determined. This widely held belief after notifying his office that I had, indeed, experi- that the genetic disposition of the fetus was imper- enced a successful undisturbed home waterbirth, vious to all environmental influences, except for two investigators from the department of child those related to nutritional and physiological man- welfare came to my home to make sure I was a fit agement from the mother, has contributed to our mother. They were satisfied with my explanations current medical/ethical dogma and helped forge and the woman officer even asked me if I could our current institutionalized, “controlled” style of help her arrange for a waterbirth since she was a risk management based maternity care. These few months pregnant herself. beliefs and assumptions also accord the formation of laws and governmental regulations concerning In 1984, in California, and most other states in the health care and maternity care providers. US, home birth was viewed as a threat to the life of the baby and there were no statutory midwifery In Ternovszky vs. Hungary, the court opinion regulations at that time. It would be almost a stated, “In this welfare system practically every- decade before there were regulations governing thing is regulated; regulation is the default, and the practice of direct entry midwifery in the state of only what is regulated is considered safe and California. The European court in Ternovszky vs. acceptable.” This is recognized as true throughout Hungary has affirmed that, “Where regulation is the world in relation to maternity care. Medical the default, as in the medical context, lack of professionals are discouraged from participating enabling regulation may be detrimental to the exer- in home birth by the statutes governing their prac- cise of the right, and traditional non-interference tices. Thus, the choice of home birth as a safe will not be sufficient. This may be one of the many option is seen in almost every part of the world as unpleasant consequences of living in an overregu- an aberration from the accepted norm and is lated world. It is here that an affirmation of a liberty viewed as a risk. in positive law is warranted.” The State of Califor- nia did interfere with home birth as a choice My own decision to birth at home in 1984, was met because during the preceding decade and the with threats of punishment by the obstetrician I decade to follow the number of home births had had engaged for prenatal care. When I shared my increased. There were numerous investigations, plans for homebirth using an unregulated direct arrests, grand jury inquiries and cases prosecuted entry midwife, he became angry and stated that through the state attorney general’s office, mostly my needs for psychological and personal comfort for nurses who exceeded the statutes of the Nurse should not take precedence and endanger the life Practice Act by attending home births as ‘mid- of my baby. What I explained to this doctor was wives.’ that my decision for a home birth was more about protecting my baby from interference, fear, unnec- I was one of those nurses who began attending essary interventions, iatrogenic complications and home births, first as an apprentice, then as an

PANEL 3: THE RIGHTS OF THE BABY 81 independent midwife. In 1991, a baby, who was The baby is no longer just the passenger during born at home, died the day after birth from birth; he is actually the driver. The baby possesses unknown causes and I was investigated and reflexes which must be expressed during the birth charges were brought against me for practicing process, otherwise the retention of these reflexes midwifery without a license, medicine without a result in neurological deficits throughout childhood license, public endangerment and second degree and often into adulthood (Goddard 2005). He’s lis- manslaughter. All those charges were eventually tening, responding to his inner environment, and dropped by the country prosecutor. The state of preparing his neurological systems to deal with life California, however, pursued charges of practicing outside the womb. How a foetus adjusts to the outside the boundaries of the Nurse Practice Act. beginning of life is very dependent on the mother’s My decision to move out of state was influenced ability to relax effectively throughout her labour by my attorney who suggested that if I moved to a and work in concert with the baby, who is control- state where midwifery was either already regulated ling the process and effectively birthing himself. or not looked at in the same way, the state would The baby needs the maximum benefit from the file my case at the back of the filing cabinet and I hormones that help the baby transition from foetus would be free to pursue a degree in nurse mid- to newborn. This happens best in an undisturbed wifery. But, California decided to continue prose- environment. (Buckley 2009) The baby also cuting the case for another six years, even though attunes to everything that is going on in the envi- I had moved to the state of Oregon. The charges ronment, including around the mother. Dr. David were eventually dropped for various reasons, but I Chamberlain, a noted psychologist and author, witnessed firsthand the injustices and discrimina- states that adults in regression can tell you exactly tion that resulted from prosecution. The European what was being discussed and thought about in court agreed with what I experienced by stating, the delivery room (Chamberlain 1988). “Without such legal certainty there is fear and secrecy, and in the present context this may result The presence of fear in the birth room shunts in fatal consequences for mother and child.” growth mechanisms in the fetus. I observed and practiced in Russian hospitals in the early 1990s My determination to continue researching and where women were regularly abused, both ver- providing the public with information that there is a bally and physically, and separated from their new- connection between common birth practices and borns for extended periods of time, sometimes myriad physical, psychological, neurological and more than twenty-four hours. Cords were immedi- spiritual developments in both the mother and her ately cut, denying babies of the hormone rich pla- child only escalated. cental blood necessary for an easier transition. (Mercer 2001) Many babies required resuscitation ‘When parents realize that children are as prenatal from the massive doses of IV push Egatrate that influences make them, then only may we look for was liberally used in what was termed as, ‘chemi- Perfect Manhood and Womanhood.’ cal forceps.’ Is it any wonder that women like Anna Florence Dressler, MD 1902 Ternovszky would choose to birth at home, if con- ditions in hospitals there were similar to those of It may be difficult for some to understand that the the Soviet era? A supportive environment, such as baby is a conscious participant in his own birth. the one experienced by home birth mothers, Childbirth practices primarily focus on the process equates to love and creates a different kind of of labour from the mother’s perspective. The baby reaction in the newborn and the growth patterns is viewed as a separate physiological entity that that are neurologically encoded as a result. Women develops apart and shielded from the world around possess an innate knowledge of what is required him. Cultural beliefs which have developed from to achieve a peace-filled, ecstatic birth experi- this assumption make the baby a product that can ence. They express that ability to know when they only be protected and saved by the science of listen deeply and when we work with them to shed modern medicine and by institutionalizing birth. their fears and layers of cultural programming. This When birth is viewed from the neurological, physi- can be accomplished through movement, sound, ological and psychological developmental aspects connecting, and grounding, as in a daily medita- of the child who is being born, we alter our focus tive or physical practice. and begin to adjust our birthing practices.

82 HUMAN RIGHTS IN CHILDBIRTH The “nurture” aspects of fetal growth and the con- Cellular biologist Bruce Lipton agrees with this sequences of maternity care practices are just definition, stating that the thoughts, beliefs and now being examined and verified in the scientific attitudes that are communicated to the patient community. Many scientists are recognizing the greatly influence her ability to create wellness (Lip- influence of maternal attitudes and emotions on ton 2008). The science of quantum physics and the developmental expression of the fetus. Earlier epigenetics has disproven the previous ideology thoughts were that genes controlled the physio- that the growing foetus is dependent on a random logic and behavioral outcomes of the child, when genetic predestination. We now know that the foe- in fact, gene programs are controlled by environ- tus is profoundly influenced by maternal behav- mental signals. (Lipton 2008) The fetus has been iours and emotions, which impact the child’s phys- programmed neurologically with two survival bio- ical development, behavioural characteristics and logical imperatives: to be born and to attach to a even its level of intelligence. The medical world is breast. The nurturing that comes with going to the beginning to agree that there is an obvious link ‘right place’ immediately after birth programs the between most chronic adult diseases, such as newborn brain for connection, causing smoother cancer, heart disease and diabetes, and life expe- transition in every physiologic parameter, including riences in the foetal and perinatal period of the heart rate, respiration, digestion, temperature reg- child’s development (Dover 2009). We finally real- ulation, skin color, sleep patterns and breastfeed- ize that genetic switches that ultimately control our ing. (Ludington 2011) Interference with these life were first programmed during this primary imperatives can come in many forms during the developmental period. The health of that child birth process through the practices that have been forty or sixty years from birth began in the womb. accepted as standard practice, without the evi- dence to substantiate them. Mothers and babies are intimately and profoundly connected, not just physically and chemically, but The mother relays environmental information to spiritually. Mothers who listen intently to their the developing foetus. Her perceptions directly babies are guided by them, and know that their impact the selection of gene programmes that choice to birth in privacy, with intimacy, and out- may enhance the survival of her baby, and ulti- side of the cultural norm is for a higher reason. The mately that of the species. A mother can have a babies are calling out to us to recognize their con- negative impact on the survival of her child through nection to source, their innate programming, and a ‘misperception’ of her environment. For exam- their essence as spiritual beings seeking a physi- ple, a pregnant woman in an abusive or fear-filled cal experience. The decisions we make as we are environment will continuously relay distress sig- being born are the foundation or source for the nals, which shunt resources from growth-related beliefs we live by each and every day. The quality behaviours to protection-related behaviours, in of birth affects the quality of life, and thus impacts both herself and in her foetus (Lipton 1998). The and shapes the quality of our society. presence of oxytocin, endorphins and adrenalin aid the baby in preparing for both the physiological How we care for pregnant women, assist birthing requirements of extra uterine life, including breast- mothers and what we do immediately after birth feeding, and in the creation of ‘growth’ brain path- with mother/baby creates sequelae that influence ways during and after birth (Schore 2009). Fear is the core of our existence as human beings. Instead omnipresent in modern birth rooms throughout the of looking at a ‘right place’ or a ‘wrong place’ to world. Fear of outcome, fear of litigation, fear of care for women and their babies, we must look at not following the rules and regulations set by the a ‘cooperative best way,’ with complete honesty. institution. When women were surveyed, they do By co-creating a nurturing, loving environment not want to be in an environment that is unfriendly, with the mother and father, for the baby, the evolu- non-supportive or not accommodating. (Lemay tion of humankind takes a giant leap from survival 2011) into what Bruce Lipton, in his book, Spontaneous Evolution, calls ‘thrival’ (Lipton 2009). Once we The place of birth is not as important as the coop- embrace the truth, we are then responsible for erative effort and respectful attitude that is shown communicating that understanding with complete to mother/baby. In a recent lecture, paediatric psy- candour. chiatrist Daniel Siegel redefined the terms of clini- cian and patient to be more appropriately called teacher and student in collaboration.(Siegel 2011)

PANEL 3: THE RIGHTS OF THE BABY 83 Bibliography About Barbara Harper

Buckley S (2009). Gentle birth, gentle mothering: a Barbara Harper, a former obstetric and neonatal doctor’s guide to natural childbirth and gentle early nurse, is a midwife, doula, childbirth educator and parenting choices. Berkeley, CA: Celestial Arts. writer. An internationally recognized expert on water birth and childbirth reform, she teaches and Chamberlain DB (1988). Babies remember birth: consults within hospitals, universities and commu- and other extraordinary scientific discoveries nity groups worldwide. She is the author of Gentle about the mind and personality of your newborn. birth choices book and DVD and producer of Birth Los Angeles: JP Tarcher. into being: the Russian waterbirth experience. Her Dover GJ (2009). Barker hypothesis: how paedia- next book, Secrets of Successful Waterbirth: How tricians will diagnose and prevent common adult- to Help Women Get into Hot Water, will be ready in onset diseases. Transactions of the American 2012. Barbara has dedicated her life to helping Clinical Climatological Association 120: 199–207. heal the way we welcome babies into the world and to help parents and providers understand the Goddard S (2005). Well balanced child: movement benefits of warm water immersion during labour. and early learning. 2nd ed. Stroud: Hawthorn Press. The mother of three adult children (two youngest sons born at home in water), she lives in Ft. Lau- Kinnally EL et al (2010). Serotonin transporter derdale, Florida. Her websites are expression is predicated by early life stress and is www.waterbirth.org associated with disinhibited behavior in infant rhe- and sus macaques. Genes, Brain and Behavior 9(1): www.gentlebirthguardians.com. 45-52.

Lemay, G (2008) Birth Blog http://www.gloriale- may.com/blog/?p=98 accessed March 25, 2012.

Lipton BH (1998). Nature, nurture and the power of love. Journal of Prenatal and Perinatal Psychology and Health 13(1): 3-10.

Lipton BH (2008). Biology of belief: unleashing the power of consciousness, matter and miracles. Santa Monica, CA: Hay House.

Lipton BH, Bhaerman S (2009). Spontaneous evo- lution: our positive future (and a way to get there from here). Carlsbad, CA: Hay House.

Ludington-Hoe S (2011). Evidence-based review of physiologic effects of kangaroo care. Current Women’s Health Reviews 7(3): 243-253.

Mercer JS (2001). Current best evidence: a review of the literature on umbilical cord clamping. Jour- nal of Midwifery and Women’s Health 46(6): 402– 412.

Schore AN (2009). Relational trauma and the developing right brain. Annals of the New York Academy of Science 1159(April): 189-203.

Siegel, D, Buczynski, R (2011) The developing mind: a teleseminar session. The National Institute for the Clinical Application of Behavioral Medicine

84 HUMAN RIGHTS IN CHILDBIRTH The Rights of the Human Newborn Baby By Michel Odent

All human beings are “endowed with reason”. This tiation of breastfeeding has been delayed. In other assumption is the basis of the Universal Declara- words it has been routine for a long time to neu- tion of Human Rights, as clearly expressed in its tralise the ‘maternal protective instinct’. The nature very first article. Obviously the authors of the dec- of this universal mammalian instinct is easily laration had not considered - in the context of the understood when one imagines what would hap- middle of twentieth century - the particular situa- pen if one tried to pick up the newborn baby of a tion of the two main actors in the perinatal period, mother gorilla who had just given birth. when there is no room for rational means of expression. One cannot interpret literally the irra- It would take volumes to review all the invasive tional language of some women in hard labor, as perinatal beliefs and rituals that have been soon as the neocortical control has been elimi- reported in a great diversity of cultures. As early as nated: “Kill me…shoot me…let me die…do any- 1884 ‘Labor Among Primitive Peoples’ by George thing…my bowels are getting out…etc”. On the Engelmann provided an impressive catalogue of other hand, for obvious reasons, the baby cannot the one thousand and one ways of interfering with rationally express his or her point of view. the first contact between mother and newborn baby. It described beliefs and rituals occurring in However these two actors have rights. These hundreds of ethnic groups on all five continents.1 rights are related to their basic needs. These basic needs can be expressed in a rational way through The most universal and intriguing example of cul- scientific language. The point is that scientific tural interference is simply to promote the belief knowledge has been evolving at a high speed that colostrum is tainted or harmful to the baby, since the middle of the twentieth century. This has and that it is even a substance which needs to be been the case, in particular, of our understanding expressed and discarded.2 The negative attitude of the basic needs of newborn babies. towards colostrum implies that, immediately after the birth, a baby must not be in the arms of his or Before the historical scientific her own mother. This is related to a widespread discovery deep-rooted ritual, which is to rush to cut the umbilical cord.3 Several beliefs and rituals can be Focusing on the basic needs - and therefore the seen as part of the same interference, all of them rights - of newborn babies implies that we keep in reinforcing each other. mind one of the most important scientific discov- eries of the second half of the twentieth century, Man’s enormous potential for meddling in the which occurred after the Universal Declaration had newborn baby’s relationship with his or her mother been adopted. is universal. During the six months I spent as an “externe” (medical student with minor clinical Let us recall that we had to wait until the 1960s responsibilities) in the maternity unit of a Paris and 1970s to learn that a newborn baby needs his hospital, in 1953, the routine for the midwife was or her mother. For obvious reasons this is a real to immediately cut the cord and to give the baby to discovery since, for thousands of years, in all a help nurse. I never heard at that time of a woman human societies we know about, mothers and trying to establish a body-to-body contact with her newborn babies have been separated and the ini- newborn baby. The cultural conditioning was too

PANEL 3: THE RIGHTS OF THE BABY 85 strong. Everybody was deeply convinced that the the “blood brain barrier” and injected oxytocin newborn baby urgently needed care given by directly into the cerebral ventricles of intact virgin somebody else. At that time, while they were stay- rats.10 They found that half the animals developed ing in the maternity unit, newborn babies were in a the full spectrum of maternal behaviour in less nursery. Mothers were elsewhere. Nobody had than an hour after treatment. In this new experi- ever thought that they might be together. ment the rats that responded to oxytocin with maternal behaviour were in stages of oestrous Scientific advances cycle associated with rising, elevated, or recently elevated estrogens. Not only did this mean that This reminder of a universal deep-rooted cultural Pedersen and Prange were demonstrating the conditioning is a necessary step to evaluate the behavioural effects oxytocin, they were also sug- importance of the scientific advances that started gesting that these effects are dependent on the in the 1960s. A new generation of human studies hormonal context. Since that time hundreds of was inspired by what we learned about mammals studies have confirmed the powerful behavioural in general thanks to the founders of ethology. This effects of oxytocin. It is commonplace to summa- is how we became familiar with the concept of rize our current understanding of these effects by critical periods for mother-newborn attachment. In claiming that oxytocin is the main hormone of love. other words we understood that, among mammals in general, there is immediately after birth a crucial During the same phase of the history it was dem- short period of time that will never happen again. onstrated that mammals in general and women in The time was ripe to evaluate the effects of imme- particular control the pain of labour by releasing diate body-to-body contact between mother and morphine-like substances commonly called newborn baby, as an absolutely new intervention endorphins.11,12 We learned also that these endor- among humans. The names of Marshall Klaus and phins (beta-endorphins) stimulate the secretion of John Kennell, in the USA, are associated with such prolactin, the motherhood hormone and a key hor- studies4, that were also conducted in Sweden.5,6,.7 mone of lactation.13

It is in such a context that other researchers A sudden interest for the basic needs of the baby started to investigate the behavioural effects of in the perinatal period led to investigate also its maternal hormones that fluctuate in the perinatal own hormonal activity. It appeared that during the period. They first looked at oestrogens, progester- birth process the fetus is protecting itself by one, and prolactin. However, until recently, there releasing endorphins and noradrenalin and there- was a widespread lack of interest in the possible fore reaching a specific hormonal balance. behavioural effects of oxytocin. We can under- stand why. Researchers (and practitioners) knew Finally, thanks to advances in our understanding of that intravenous infusions failed to influence the behavioural effects of hormones, and taking maternal behaviour.8 Furthermore lesions of the account that maternal and fetal hormones are not posterior pituitary gland which prevented the yet eliminated during the hour following birth, it release of oxytocin into the blood stream did not became possible to interpret the concept of criti- block maternal behaviour.9 These negative results cal period for attachment. During the short phase were interpreted as conclusive evidence that oxy- between the birth of the baby and the delivery of tocin played no role in maternal behaviour and the placenta each hormone has a specific role to these beliefs remained almost unchallenged as play in the interaction between mother and new- long the prevailing view persisted that oxytocin born baby. Let us also mention that, according to was solely a peripheral hormone released into the Swedish studies, the mother has the capacity to bloodstream by the posterior pituitary gland. release, just after the birth of the baby, a peak of oxytocin that is still higher than for the delivery A new generation of studies was inspired by ana- itself.14 Since oxytocin release is highly dependent tomical evidence that oxytocin might be released on environmental factors, it is essential to mention directly into the brain and that there are brain that reaching this peak is possible on the condition receptors to oxytocin. This new anatomical data that the mother, after an unmedicated birth, is not inspired the historical experiment by Cort Peder- distracted at all while discovering her baby. It is sen and Arthur Prange, presented for the first time significant that it is just after the birth of a baby at the National Academy of Sciences, USA, in that a woman has the capacity to release the high- December 1979. Pedersen and Prange bypassed est possible peak of love hormone.

86 HUMAN RIGHTS IN CHILDBIRTH The hormonal perspective has played an impor- many species of mammals, such as bovines, the tant role in explaining in scientific language that a colostrum is sensu stricto vital. Among humans, newborn baby needs its mother and therefore in the main preoccupation must be phrased differ- challenging thousands of years of cultural condi- ently: which microbes will be the first to colonize tioning. It has inspired a new kind of clinical obser- the germ-free newborn’s body? A well-known vation. We learned that when there is a free undis- concept used by bacteriologists is a reason to give turbed and unguided interaction between mother a great importance to this question. “The race for and newborn baby, there is a high probability that the surface” means that the winners of the race to the baby will not be long at finding the breast: reach a germ free territory will likely be the rulers of human babies usually express the ‘rooting reflex’ the territory. This concept has had practical impli- (searching for the nipple) during the hour following cations. During epidemics in nurseries it was birth, at a time when the mother is still in a special found that the colonization of babies with virulent hormonal balance and has therefore the capacity staphylococci could be prevented by early volun- to behave in an instinctive ‘mammalian’ way. The tary contamination (nasal or umbilical) with a strain result of the complementary behaviour between of staphylococcus selected because of its very mother and newborn baby is an early initiation of low virulence and its great susceptibility to penicil- breastfeeding.15,16 For obvious reasons, nobody lin.18 knew, before the 1970s, that the human baby has It is clear today that to be born is to enter the world been programmed to find the breast during the of microbes and that, from a bacteriological point hour following birth. This is also the time when a of view, a newborn baby ideally needs to be sudden interest in the content of human colostrum urgently in contact with only one person – her developed. After thousands of years of negative mother. It is also clear that the human mammal connotations, human colostrum was officially had been programmed to enter the world via the recognised as a precious substance. bacteriologically rich perineal zone: this is a sort of guarantee that the newborn baby – particularly her Basic needs from a bacteriologic digestive tract and her skin - will be immediately perspective contaminated by a great variety of friendly germs carried by her mother. Today the bacteriological perspective is becoming the most effective one to inspire useful questions However, the general rule of an easy placental about the route of birth (perineal or abdominal) and transfer of antibodies, particularly intense from 38 the place of birth (familiar vs. unfamiliar environ- weeks onwards19, must be modulated. One must ments). take into account that there are four subclasses of IgG and that the transfer of the subclass 2 is not as From the early days of microbiology until the effective as the transfer of the other subclasses. 1970s, one of the roles of midwives and doctors 20,21 This is a way to interpret the apparently myste- involved in childbirth was to protect the newborn rious vulnerability of human babies – particularly babies against all microbes, including those from premature babies – to streptococci B transmitted maternal origin. It was usual to shave the mother by the mother. at the beginning of labor, to give her an enema, We’ll notice that for thousands of years all human and to put antiseptic solutions around the nipple. groups have dramatically interfered in the process of microbial colonization of the newborn’s body, A new step in the history of our understanding of since, as a general rule, mothers and newborn childbirth from a bacteriological perspective babies have been separated and the initiation of started with studies demonstrating that, compared breastfeeding has been delayed. with the placenta of other mammals, the human placenta is highly effective at transferring Immuno- Today, in the age of medicalization of childbirth, globulin G (IgG) to the fetus.17 While in our species there are new obvious powerful ways to interfere. the levels of IgG of a neonate born at term is at It is easy to convince anyone that babies born least 100% of the maternal levels, among bovines, vaginally and babies born by caesarean enter the for example, they can be below 10%. Clearly the world of microbes in radically different ways. Fur- main preoccupations are not the same among thermore the exposure of fetuses to antibiotics in humans as among other mammals. The newborn the perinatal period is common. Antibiotics are calf is immediately dependent on antibodies pro- used in frequent situations such as detection of vided by early colostrum. In other words, among streptococci B, premature rupture of the mem-

PANEL 3: THE RIGHTS OF THE BABY 87 branes, and also cesarean sections: some public Firmicutes).28 A new generation of studies of gut health organization, such as NICE (‘National Insti- flora can establish new links between obesity and tute for Clinical Excellence’) officially recommend diabetes type 2 since bacterial populations in the injecting antibiotics before starting a cesarean.22 In gut of diabetics differ from non-diabetics.29 all these situations the use of antibiotics is disput- able. In the current scientific context, there is a The most unexpected avenues for research related need for feasible studies in order to limit exposure to gut flora might be in the fields of behavior and of fetuses to antibiotics in the perinatal period. Let mental diseases. Data provided by animal experi- us just mention, for example, in vitro studies of the ments suggest that there is a critical period early in effects of allicin (the active component of garlic) on life when gut microorganisms affect the brain and B streptococci.23 change behavior in later life.30

Childbirth from a bacteriological perspective is We cannot dissociate the questions related to the becoming a hot topic at a time when an accumula- microbial colonization of the digestive tract to the tion of data suggests that the way the newborn’s questions related to the colonization of the mouth. body is colonized immediately after birth can have The Journal of Dental Research has published an medium term and long-term consequences. We authoritative study demonstrating that the mode can summarize our current knowledge by claiming of delivery (vaginal route compared with c-section) that, when established, the human gut flora cannot affects oral microbiota in infants, and therefore be easily modified, as if it was an aspect of the dental health later on in life.31 personality. While until now most studies focused on the colo- Among the medium term consequences, let us nization of the digestive tract, we must also realize mention the conclusion of studies comparing the that trillions of bacteria, fungi, viruses, archaea, activity of cells with immune action in the blood of and small arthropods colonize the skin surface, babies born either by vaginal route or by caesar- collectively comprising the skin microbiome. ean.24 The influence of the way the baby is born on Microbial skin colonization is expected to critically the immune response is still detectable at the age affect the development of the skin immune func- of six months.25 Let us mention also Finnish stud- tion …another vital avenue for research.32 ies that explored the faecal flora of 34 children born by the vaginal route and of 30 children born All these considerations about the early microbial by cesarean with antibiotic prophylaxis, at the age colonisation of the newborn’s body suggest ines- of 3 to 5, 10, 30, 60 and 180 days. The faecal colo- capable differences between births via the bacte- nization of infants born by caesarean was delayed. riologically rich perineal zone and births by caesar- The faecal flora was still disturbed at the age of six eans. They also lead us to contrast births in famil- months among the cesarean born children.26 iar and births in unfamiliar environments.

Recent studies in several fields of medicine have From needs to rights demonstrated the long-term consequences of the way the gut flora is established in the perinatal Today, it is possible to summarize in scientific lan- period, in relation to the mode and place of deliv- guage how the basic needs of newborn human ery. According to a Dutch study, vaginal home babies should be met: ideally, a newborn baby delivery, compared with vaginal hospital delivery, should be born via the bacteriologically rich peri- is associated with a decreased risk of eczema, neal zone, after an unmedicated delivery followed sensitization to food allergens, and asthma. Medi- by an immediate free interaction between mother ation analysis showed that the effects of mode and and baby compatible with early initiation of breast- place of delivery on atopic outcomes were medi- feeding. It is obvious that these basic needs can- ated by C difficile colonization.27 The results of a not be translated overnight in terms of rights, after breakthrough article in Nature identified the gut thousands of years of culturally controlled child- flora as a contributing factor to the pathophysiol- birth, and at a time when we have reached an ogy of obesity. Microbial populations in the gut are extreme situation. In the age of synthetic oxytocin different between obese and lean people: among (the use of synthetic oxytocin is by far the most mice and humans, obesity is associated with common medical intervention in childbirth) and changes in the relative abundance of the two dom- simplified techniques of cesareans, the number of inant bacterial divisions (the Bacteroidetes and the women, at a global level, who give birth to the

88 HUMAN RIGHTS IN CHILDBIRTH baby and to the placenta thanks to the release of a guide telling her how to breathe, how to push, etc. cocktail of love hormones is becoming insignifi- In the age of videos, photos, and television, one cant. cannot ignore that our current cultural conditioning is mostly determined by visual messages. Let us To get out of this situation, the first step would be mention the powerful effects of the recent epidem- to rediscover the basic needs of labouring women. ics of videos of so-called “natural childbirth”. Once more we must rely on the scientific approach, Almost always several people surround the labour- which has the power to challenge thousands of ing woman. Young generations familiar with these years of cultural conditioning. Since it has been pictures understand that the basic need of a possible, during the second half of the twentieth labouring woman is to be accompanied by several century, to rediscover the basic needs of newborn persons. The effects of these visual messages are babies, we assume that a rediscovery of the basic reinforced by the modern vocabulary: for example, needs of labouring women via the physiological to give birth women need a “coach” (bringing her perspective is not utopian during the twenty first expertise) and support persons (bringing their century. In fact the physiological perspective can energy). More than ever the message is that a already offer an understanding of the birth process woman has not the power to give birth by herself. that is in complete contradiction with our cultural conditioning. We must add that this cultural conditioning is now shared by the world of women and the world of From a physiological perspective, the birth pro- men as well. While traditionally childbirth was cess appears as an involuntary process under the “women’s business”, men are now almost always control of archaic brain structures. One cannot present at births, at a phase of history when most help an involuntary process, but there are situa- women cannot give birth to the baby and to the tions that can inhibit it. Modern physiology can placenta without medical assistance. A whole identify these situations (such as situations associ- generation of men is learning that a woman is not ated with a release of adrenaline and situations able to give birth. We have reached an extreme associated with neocortical stimulation). The birth degree in terms of conditioning. The current domi- process needs to be protected against inhibiting nant paradigm has its keywords: helping, guiding, factors. In this scientific context the keyword is controlling, managing (“labour management”), “protection”. The physiological perspective can coaching, supporting… the focus is always on the open the way to a new paradigm. role of other persons than the two obligatory actors. Inside this paradigm, we can include medi- This new paradigm must be contrasted with our cal circles and natural childbirth movements as current dominant conditioning. For thousands of well. Will twenty first century scientific disciplines years the basis of our cultural conditioning has be powerful enough to make a real paradigm shift been that a woman is not able to give birth without possible? some kind of cultural interferences. This is illus- trated by the roots of the words used in daily lan- There are other reasons why the basic needs of guage. For example obstetrics (from latin obstet- newborn babies cannot easily be translated in rix, the midwife) implies that a woman cannot give terms of rights at an individual level. We must keep birth without somebody staying in front of her in mind a difference between human beings and (“ob-stare”). Many rituals have made the active other mammals. When the birth process is dis- presence of an agent of the cultural milieu still turbed among non-human mammals (for example more necessary. For example, if there has been a via an epidural anaesthesia or any other interven- ritual genital mutilation, somebody must be there tion) the effects are spectacular and immediately to cut the hard perineal scar. The widespread ritual detectable at an individual level: the mother is not of rushing to cut the cord also implies the neces- interested in the babies.33 In this regard humans sary presence of an active person. are special. Millions of women all over the world have taken care of their baby after an epidural This deep-rooted cultural conditioning has been birth. We know why the behaviour of humans is reinforced recently by other factors than beliefs more complex and more difficult to interpret than and rituals. Some theories have been influential. the behaviour of other mammals, including pri- For example, the theories of Pavlov have been at mates. We understand why researchers need huge the root of many schools of natural childbirth pro- numbers to detect significant long-term effects of moting the idea that to give birth a woman needs a the modalities of birth (access to the primal health

PANEL 3: THE RIGHTS OF THE BABY 89 research database: www.primalhealthresearch. 7. Schaller J, Carlsson SG, Larsson K. Effects of com). It is because human beings have developed extended post-partum mother-child contact sophisticated ways to communicate. They speak. on the mother›s behavior during nursing. Infant They create cultures. Their behaviour is less Behavior and Development 1979 (2):319-324. directly influenced by their hormonal balance and 8. Rosenblatt JS. The development of maternal more directly by the cultural milieu. When a woman responsiveness in the rat. Am J Orthopsychia- knows that she is expecting a baby, she can antic- try 1969;39:36-56. ipate displaying some maternal behaviour while 9. Herrenkohl LR, Rosenberg PA. Effects of other mammals have to wait until the day when hypothalamic deafferentation late in gestation they are in a specific hormonal balance to be inter- on lactation and nursing behavior in the rat. ested in their babies. This does not mean that we Horm Behav 1974;5:33-41. cannot learn from non-human mammals. The 10. Pedersen CS, Prange J.R. Induction of mater- spectacular and immediate behavioural responses nal behavior in virgin rats after intracerebrov- of animals indicate the questions we should raise entricular administration of oxytocin. Pro. Natl. about ourselves: where human beings are con- Acad. Sci. USA 1979; 76: 6661-65. cerned, the questions must include terms such as 11. Csontos K, Rust M, Hollt V, et al. Elevated “civilisation” or “culture”. plasma beta-endorphin levels in pregnant women and their neonates. Life Sci.1979 ; 25 : The time has come to learn to express our objec- 835-44. tives in a positive way that would include the col- 12. Akil H, Watson SJ, Barchas JD, Li CH. Beta- lective dimension: in the current scientific context endorphin immunoreactivity in rat and human the objective should be that as many women as blood : Radioimmunoassay, comparative lev- possible on this planet can give birth to the baby els and physiological alterations. Life Sci. and to the placenta thanks to the release of a 1979 ; 24 : 1659-66. “cocktail of love hormones”. 13. Rivier C, Vale W, Ling N, Brown M, Guillemin R. In spite of these difficulties inherent to the nature Stimulation in vivo of the secretion of prolactin of Homo sapiens, it is realistic and even urgent to and growth hormone by beta-endorphin. introduce – one way or another - the concept of Endocrinology 1977 ; 100 : 238-41 “rights of the human newborn babies”. This should 14. Nissen E, Lilja G, Widström AM, Uvnäs- imply the right for pregnant women to keep several Moberg K. Elevation of oxytocin levels early options open regarding the birth environment. post partum in women. Acta Obstet Gynecol Scand. 1995 Aug;74(7):530-3 References 15. Odent M. The early expression of the rooting reflex. Proceedings of the 5th International 1. George J. Engelmann. Labor Among Primitive Congress of Psychosomatic Obstetrics and Peoples. J.H. Chambers & Co. St. Louis 1884 Gynaecology, Rome 1977. London: Academic 2. Odent M. Colostrum and civilization. In: Odent Press, 1977: 1117-19. M. The Nature of Birth and Breastfeeding. Ber- 16. Odent M. L’expression précoce du réflexe de gin & Garvey 1992. 2nd ed 2003 (Birth and fouissement. In : Les cahiers du nouveau-né Breastfeeding. Clairview). 1978 ; 1-2 : 169-185 3. Odent M. Neonatal tetanus. Lancet 17. G Virella, M A Silveira Nunes, and G Tama- 2008; 371:385-386 gnini. Placental transfer of human IgG sub- 4. Klaus MH, Kennell JH. Maternal-infant bond- classes. Clin Exp Immunol. 1972 March; 10(3): ing. 1976. CV Mosby. St Louis 475–478 5. De Chateau P, Wiberg B. Long-term effect on 18. Dubos R. Staphylococci and infection immu- mother-infant behavior of extra contact during nity. Am J Dis Child 1966; 105: 643-45. the first hour postpartum. I. First observations 19. Cederqvist LL, Ewool LC, Litwin SD. The effect at 36 hours. Acta Paediatrica Scand of fetal age, birth weight, and sex on cord 1977;66:137. blood immunoglobulin values. Am J Obstet 6. De Chateau P, Wiberg B. Long-term effect on Gynecol. 1978 Jul 1;131(5):520-5 mother-infant behavior of extra contact during 20. Garty BZ, Ludomirsky A, Danon Y, et al. Pla- the first hour postpartum. II. Follow-up at three cental transfer of immunoglobulin G sub- months. Acta Paediatrica Scand 1977;66:145. classes. Clin Diagn Lab Immunol. 1994 Nov;1(6):667-9.

90 HUMAN RIGHTS IN CHILDBIRTH 21. Hashira S, Okitsu-Negishi S, yoshino K Pla- ,32. Capone KA, Dowd SE, Stamatas GN, cental transfer of IgG subclasses in a Japa- Nikolovski J. Diversity of the human skin nese population. Pediatr Int. 2000 Aug; microbiome early in life. J Invest Dermatol 42(4):337-42. 2011 Oct;131(10):2026-32. doi: 10.1038/ 22. NICE’s updated guideline on caesarean sec- jid.2011.168. Epub 2011 Jun 23 tion is available at 33. Krehbiel D, Poindron P. Peridural anaesthesia www.nice.org.uk/guidance/CG132. disturbs maternal behaviour in primiparous 23. Cutler RR, Odent M, Hajj-Ahmad H, Maharjan and multiparous parturient ewes. Physiology S, Bennett NJ, Josling PD, Ball V, Hatton P, and behavior 1987; 40: 463-72. Dall’antonia M. In vitro activity of an aqueous allicin extract and a novel allicin topical gel for- About Michel Odent mulation against Lancefield group B strepto- cocci. J Antimicrob Chemother. 2009 Michel Odent has been in charge of the surgical Jan;63(1): 151-4. unit and the maternity unit at the Pithiviers (France) 24. Molloy EJ, O’Neill AJ, Grantham JJ, Sheridan- state hospital (1962-1985) and is the founder of Pereira M, Fitzpatrick JM, Webb DW, Watson the Primal Health Research Centre (London). He RW. Labor Promotes Neonatal Neutrophil Sur- introduced in the 1970s the concepts of home-like vival and Lipopolysaccharide Responsive- birthing rooms and birthing pools in maternity hos- ness. Pediatr Res 2004 May 5 pitals. He is the author of the first article in the 25. Gronlund MM, Nuutila J, Pelto L, Lilius EM, medical literature about the about the initiation of Isolauri E, Salminen S, Kero P, Lehtonen OP. lactation during the hour following birth, of the first Mode of delivery directs the phagocyte func- article about use of birthing pools (Lancet 1983), tions of infants for the first 6 months of life. and of the first article applying the ‘Gate Control Clin Exp Immunol 1999; 116(3): 521-6. Theory of Pain’ to obstetrics. He created the Pri- 26. Gronlund MM, Lehtonen OP, Eerola E, Kero P. mal Health Research database (www.primal- Fecal microflora in healthy infants born by dif- healthresearch.com) and the website www.wom- ferent methods of delivery: permanent becology.com . Author of 12 books published in 22 changes in intestinal flora after cesarean deliv- languages (including ‘the Scientification of Love’, ery. J Pediatr Gastroenterol Nutr 1999; 28(1): ‘the Caesarean’, ‘the Functions of the orgasms: 19-25. the Highways to Transcendence’, and ‘Childbirth 27. van Nimwegen FA, Penders J, Stobberingh in the age of plastics’). Co-author of five academic EE, et al. Mode and place of delivery, gastroin- books. testinal microbiota, and their influence on Author (or co-author) of 92 scientific articles. asthma and atopy. J Allergy Clin Immunol. 2011 Nov;128(5):948-55.e1-3. Epub 2011 Aug 27. 28. Turnbaugh PJ, Ley RE, Mahowald MA, et al. An obesity-associated gut microbiome with increased capacity for energy harvest. Nature 21 December, 2005; 444:1027-1031. 29. Larsen N, Vogensen FK, Van der Berg FWJ, et al. Gut microbiota in Human adults with type 2 diabetes differs from non-diabetic adults. PloS One February 5, 2010; 5(2): e9085. 30. Heijtz RD, WangS, Anuar F, et al. Normal gut microbiota modulates brain development and behavior. Proc Natl Acad Sci U S A. 2011 Feb 15;108(7):3047-52. Epub 2011 Jan 31. 31. Lif Holgerson P, Harnevik L, Hernell O, et al. Mode of birth delivery affects oral microbiota in infants. J Dent Res. 2011 Oct;90(10):1183- 8. Epub 2011 Aug 9.

PANEL 3: THE RIGHTS OF THE BABY 91 I Alone Have the Right to Speak for My Unborn Baby By Roanna Rosewood

I’ve been preparing for the responsibility to speak Eighteen hours later, stuck at eight centimeters, for my babies’ interests since long before anyone the doctor administered Pitocin. Two hours later else even envisioned them. While my brother play- she said that my baby was in danger and I needed battled and lined up his cars, I tended my own a cesarean. The doctor did not try reducing or “baby.” I brought her shopping and to the park. I stopping the Pitocin. She said that my baby made fancy tea parties for her and her friends - weighed almost 5 kilograms and my pelvis was too Bear and Lily the Lion. When my mother nursed small to give birth. She offered no opportunity to my newborn baby brother, I sat next to her and discuss alternatives or my wishes. I didn’t know nursed my doll, preparing for the day when the that if I were to simply refuse to stay on my back, if baby that I held in my arms would pulse sweet milk I had followed my own body’s demands to move, dreams and curl his toes around the touch of my that this alone might have improved what I would fingertips as I rocked him. Twenty some odd years later learn was only mild heart decelerations. I later, my belly was as round as the moon, and I believed that my baby’s life was in danger. I didn’t could barely contain my excitement. Parties, mov- know that if it had been a true emergency, the time ies, and restaurants all dulled in comparison to the from decision to incision would have been thirty thrill of sitting alone with my hands rubbing my minutes. “Hang on. They are going to help. I love belly. “I love you,” I told him. I repeated it again and you,” I repeated for one and a half agonizing hours, again, not out of doubt, but because I knew, even while they leisurely prepared for the cesarean. I then, that I would fail him. I would make mistakes. remember watching as they lifted him up over the “I love you” was the one thing that I could offer operating curtain. I caught a glimpse of his black unconditionally. No matter what hardships he hair. It was the moment I had anticipated my entire would face, I promised he would never doubt my life. I expected them to hand him to me. They love. didn’t. They carried him away. He wailed loud, uncontrollable screams, one on top of the other. I At birth, I surrendered myself to the hospital proto- wondered how he could breathe. cols because I believed it was in my son’s best interests. I was wrong. Without explaining their Every instinct in my body demanded that I get up purpose or what I would be charged, the doctor and go to him, that I sooth him with the same sim- ordered “routine” testing. The nurse hooked me up ple words he had heard me repeat since his per- to an Electronic Fetal Monitor. “It hurts. I need to fect ears had formed inside of me. I couldn’t. I was move,” I told her.“It’s required,” She replied. She tied down. My womb was sitting outside of my did not explain that the “requirement” was her per- body. There was vomit dripping down my cheek. I sonal preference instead of written hospital policy. lay helplessly and listened to him scream, repeat- She did not tell me that submitting to this machine ing “I love you” as if he could hear me. My son was increased my risk for a cesarean, or that the Amer- healthy; his Apgar score at birth was 9. There was ican College of Nurse-Midwives prefers Doppler no reason for our separation. His distress was monitoring. The nurse had the power to alleviate emotional, not physical. The doctors considered my pain by removing the tight band around my their routine more important than his comfort and belly and allowing me freedom of movement. She well-being. My son’s first experience of this world chose not to. was at the hands of strangers, who disregarded the one simple demand that he made. While he

92 HUMAN RIGHTS IN CHILDBIRTH screamed for me, they took his footprints, cleaned me with respect and eased my fears. It was not the him, and measured him. Why must a baby be violent or degrading experience that I had been measured immediately at birth? How much can he bracing for. When my son was born, she placed grow in an hour? I found out later that the cesarean him directly on my bare chest and tented both of itself was unnecessary. My son weighed 3.5 kilo- us with a blanket to provide soft light for his eyes. grams, not “almost 5 kilograms.” My pelvis wasn’t We spent ten blissful minutes together. This time, too small to birth a baby. (I know because I went my baby did not scream. Mine were the first eyes on to give birth naturally.) The cesarean cost fif- that he saw. This time, my son was greeted into teen-thousand dollars. I had to give up maternity this world with the words “I love you.” leave and return to work so that I could make the payments. I experienced Post Traumatic Stress The next morning, she gently told me about the Disorder. For four years, random sharp pains in the surgery itself. She explained how, inside of me, incision site would stop me in my tracks. Nerve she found more adhesions than she had ever damage severed feeling to my belly. Where I used seen. They were from the first cesarean and were to rub and caress it with love, now it is cold and sticking my uterus to everything around it, holding numb to the touch. it in place and preventing me from giving birth. I had tried so hard that I had pulled a “window” in The hospital that performed my unnecessary my womb. As I cried, she held me and told me that cesarean was so bloated with self-righteous power having a cesarean did not make me less of a that they didn’t even bother to ask if I was satisfied mother or less of a woman. The hospitals that per- with their services. They treated my son and I like formed my cesareans were just fifteen miles from products, instead of paying customers. I’ve come each other. The physical processes that they per- to terms with the physical and financial abuse I formed were identical but the experiences were received at their hands. Dreams of being tied down profoundly different. Where the first doctor left me and cut open no longer haunt my nights. The thing traumatized, the second understood that her fin- that still wets my eyes today, twelve years later, is gertips had touched the depths of my body, that the memory of failing my son. The sound of him my womb was sacred. Just as a baby can be con- screaming his first and simplest request to the ceived through making love, sex, or rape, so too world will forever echo through my body. A million can a baby be born. Pregnant a third time, I went times, I’ve tried to make it up to him; I’ve told him back to the second doctor. “I want to give birth “I love you.” But there is no way to heal my son’s naturally,” I told her. “There are new rules and introduction to the world. His first breath, his first restrictions,” she replied, and a hint of sorrow sight, and his first touch were filled with fear, pain, touched her voice. “The hospital hasn’t technically and disregard. With research, I came to under- banned VBAC (vaginal birth after cesarean), but stand that my unnecessary cesarean was not essentially it is impossible.” “I won’t fight you this unique, that for-profit hospitals perform more time.” I promised. “I know that I will probably need cesareans than non-profit hospitals, and that a cesarean. I only want the opportunity to try.” “I America’s cesarean rate is more than double what wish I could give it to you,” she replied. Her train- the World Health Organization advises. ing and opinion were irrelevant. People who would never look into my eyes or see my baby’s entrance In labor a second time, I knew better than to trust to the world were “tying her hands,” just as she in the doctors. This time (again at 8cm) when the would tie mine to the operating table. Their busi- doctor said that I needed a cesarean, I assumed ness decisions overruled both her medical exper- she was lying and I fought back: “No. I need tise and my constitutional right to bodily integrity. another doctor.” When the second doctor told me that I needed a cesarean I said “No. I need another What should I do? Even as I asked this question, I hospital.” No other hospital would take me. was aware that my ability to ask it put me in the Though it shames me to admit it, death felt more privileged few. Because midwifery isn’t covered by welcoming than a cesarean. I would have done most insurance plans and is illegal in many states, anything to keep their scalpels and gloved hands other women have no choice but to turn their out of the depths of my body - anything but risk births over to an industry that charges twice as my son’s life. I “consented” to the cesarean. This much for maternity care1 than any other country, time, in spite of my belligerence, they were kind.

The doctor explained what she was doing, asked 1 Deadly Delivery: The Maternal Health Care Crisis In The questions and waited for my answers. She treated USA, Amnesty International

PANEL 3: THE RIGHTS OF THE BABY 93 while yielding a higher percentage of maternal gracefully bring their babies into the world. I visu- deaths than forty-nine other countries1. alized giving birth like they did. I thought I would open like a flower and a baby would emerge. I was Who are they to deny us a basic bodily function? wrong about birth again. I wasn’t graceful; I flailed Women have been giving birth since long before around the birth tub. I wasn’t peaceful; I screamed. there was organized healthcare, insurance or gov- My mother said that I sounded like a rhinoceros. I ernment. These institutions would not exist if we wasn’t brave; I begged for drugs. The midwife did not bring life into the world. Is medical protocol brought ice chips. If I could have spoken, I would more important than a mother’s informed choice? have explained that ice chips aren’t drugs. Should those who question authority, who refuse vitamin K, immunizations and hospital births be I wasn’t strong enough. I couldn’t do it. I gave up. overruled by the system? I surrendered and when I did, the most incredible thing happened. If you’ve ever given birth on your In answering these questions, we must remember own terms, you will understand: I didn’t have to do that safety cannot be guaranteed. In the Nether- anything. Birth didn’t require that I be tough, com- lands, the Dutch Safety Board recently found that posed, or in control. It didn’t require that I breathe three times as many people die as the result of a certain way or push to someone else’s rhythm. medical errors than die in traffic accidents. If the Birth happened to me, in spite of me, and with Centers for Disease Control categorized death due complete disregard for my agenda. Where before to medical errors like death from diseases, medical there was pain, now there was pleasure. It was the errors would be America’s sixth highest cause of most exquisite pleasure I have ever felt. I wasn’t death.2 Unfortunately, no matter how diligent we myself anymore. I was part of god and god was are, some mothers and babies will die around me. It wasn’t a baby that was moving through my childbirth. If there is a mistake to be made, let it be body. It was the future: generations of children. made by the one who must live with the resulting Everything that they would experience - their entire disability or death for the rest of her life. Let it be lives, their joys and defeats and pleasures and glo- the one who will grieve and pray. Let it be the one ries, I experienced all of them. They were tangible. who has already proven her commitment to this They converged between my thighs in a shinning child by willingly putting her very life on the line in black ball of hair. I watched as she whooshed from choosing to give birth to him. Healthcare provid- my body. There in the water was a beautiful blue ers, insurance companies, governments, and and purple mer-baby. shareholders do not sacrifice for our babies. They make their living by serving us. Mothers are the I waited for someone to do something. Nobody ones who sacrifice for their babies. We nurse and did. The room was still. I realized that no one was comfort, we postpone our careers and spend our moving because she was my baby and first con- resources feeding, housing and educating our tact was mine by right. I reached for her; though no children. Each of us is here, right now, because a expert instructed me to, I instinctively did what woman opened up and bled for us, so that we may every single uninterrupted mother from the begin- experience life. I am not a religious person, but I ning of time has done, I held her to my left, to my know this: institutions had nothing to do with heart, to where the first sound that she would hear impregnating me. My baby was a gift from some- was the steady and familiar rhythm of her home. I thing bigger, stronger, and more important than did not smile or cry. There was no “I did it” moment. they are. The way that I choose to give birth is The midwives, my family, and my ripped vagina, between me and the powers that entrusted me did not exist. There was only my daughter. with this child. Separate, for the first time, from everything she had known, she screamed her displeasure, fully When I chose home birth for my third pregnancy, exploring the might of her newfound lungs. Time some called me a hero; others expressed con- folded and I did what I had longed to do since the tempt. I deserved neither. I was just trying to do moment that my first son was stolen from me. “I’m the best thing for me and my baby. I watched here. It’s ok. I’ve got you, I’m here. It’s ok. I’ve got homebirth videos and saw women peacefully and you, I’m here. It’s ok. I’ve got you. . .” This is all that I had to offer and it is everything that matters. The moment her eyes fond mine, she quieted. “I love 1 Trends in Maternal Mortality: 1990 to 2008, World Health Organization, UNICEF, and The World B you.” 2 http://www.justice.org/cps/rde/justice/hs.xsl/8677.htm

94 HUMAN RIGHTS IN CHILDBIRTH Women were created to give life and protect the About Roanne Rosewood interests of our children. We cannot separate from it. It is who we are. It’s in the breadth of our hips Roanna Rosewood is a fierce women’s rights and that widen on their own volition to cradle them. It’s birth advocate. Her upcoming book: Cut, Stapled in the curve of our breasts, heavy with milk to and Mended: A Do-It-Yourself Birth details her sooth them. Every month, our wombs ache in HBA2C journey. She lives with her three children, preparation to receive life because, as women, it is chickens, and cat in beautiful Ashland Oregon, our responsibility, honor, and choice to bring new USA. When she’s not writing, speaking, or coach- life into the world. We alone have earned the right ing, she can be found working shifts in her café, to speak for our unborn babies’ interests. traveling, knitting, gardening, or curled up with a wonderful book. She looks forward to connecting with you through her website: www.RoannaRose- wood.com.

PANEL 3: THE RIGHTS OF THE BABY 95 Home Birth, Human Rights and Official Bias: Israel, Hungary and the ECHR By Noam Zohar

In one sense, Hungarian law – as challenged in the rooms are often curtailed.1 It might be said that Ternovszky case – is friendlier to birthing women Israeli primary law permits home birth by omission, than Israeli law, since the former explicitly recog- as both the Physicians Act and the Midwives Act nizes that birth “outside an institution” can be per- speak to a license to attend childbirth without missible. Still, the ECHR, in its 6-1 decision, gave specifying a particular location. It should be much weight to the fact that the same Act requires emphasized, however, that although the Midwives determination of rules for allowing such births and Act requires a course of training to be specified by conditions that would disallow them. The court secondary legislation, the government has made thus concluded – rightly, I think – that the lack of no provision for direct entry midwifery, and thus the secondary legislation needed to furnish these the only officially recognized midwives are nurses determinations produces uncertainty which, in who have specialized in midwifery-obstetrics2 in effect, deters professionals from attending home hospital delivery rooms. births, and thereby illicitly restricts women’s free- dom to give birth as they choose. Most of Israel’s secondary legislation relating to health services is promulgated by circulars issued This might be taken to imply that once such sec- by the director-general of the Ministry of Health. In ondary legislation is put in place, yielding sufficient 2008, such a circular was issued, placing certain legal certainty, the rights of birthing women will be restrictions on home births. In late 2011, Israeli properly secured. But this ignores potential prob- media reported that a revised, even more restric- lems with the character and specific content of the tive circular was being prepared; and it seemed conditions imposed on professionals attending that the experts consulted in its preparation were home births. As the reader shall see from the hospital-based obstetricians. I contacted the Israeli context, reflected below, such conditions senior official responsible for drafting the circular, might be arbitrary, discriminatory and in fact dan- Dr. Hezi Levi, expressing concern over ethical gerous. If the secondary legislation relating to flaws in the draft, and urging him to consult home- home births is based on bogus assumptions birth midwives and physicians. In response, he regarding relative safety and incorporates unpro- resisted the suggestion for consultation, but did fessional stipulations about appropriate practices, send me the text (the filename name was “home then the attainment of certainty will not herald births – final version December 2011”) and invite freedom but will rather further oppression of my comments. women.

Israeli primary law makes no explicit mention of home birth. The Patient’s Rights Law (1996, sec- 1 This even involves a discriminatory law, entitling each tion 13a) determines that “No medical care shall birthing woman to a Birth Grant provided that she gives birth in a hospital – with the explicit purpose of be given unless and until the patient has given his discouraging home births. See O. Morgenstern-Leissner, informed consent to it”; yet there is a strong social “Hospital Birth, Military Service and the Ties that Bind imperative to give birth solely in a hospital – and in them: The Case of Israel”, Nashim 12 (2006), 203-241 reality, women’s choices within hospital delivery (but note that the annual number of home births, although still small, has nearly tripled in recent years from the 200-300 she quotes). 2 Unfortunately, the Hebrew word for both is the same.

96 HUMAN RIGHTS IN CHILDBIRTH The proposed circular reluctantly recognizes receive, from whom, and where. The same derives, women’s right to give birth at home, but seeks to of course, also from the Basic Law: Human Dignity introduce rather severe restrictions upon the exer- and Freedom. cise of this right, through curtailing the permission for professionals – whether midwives or physi- In light of all this, the opening sentence is discor- cians – to attend such births. Thus it serves as an dant and vexing, as it declares: “Generally speak- example of the kind of inappropriate content with ing, preference should be given to performing which we can be faced when legal uncertainty births in delivery rooms in recognized, licensed gives way to biased certainty. What follows is my hospitals”. The fact that this declaration refers to English translation of the letter that I sent to Dr. an earlier circular of the Ministry [of Health, issued Levi, dated 26.12.2011, in which I tried to spell out Nov. 2000] does not suffice to remove the ethical the severe ethical flaws of the proposed restric- cloud hovering over it. To the best of my knowl- tions. Where the nature of the problematic provi- edge, it is well-founded to say that with regard to sions under criticism is not readily evident from my the safety and wellbeing of the birthing woman, a comments, I added clarifications [mainly in brack- home birth (attended by competent professionals) ets]. is safer and generally preferable to a hospital birth. As for the safety of the newborn, it is clear that in * * * * * both settings, risk of serious harm is minus- cule. Still, there is debate about the relative risk. At the outset I should emphasize that my determi- According to up-to-date and reliable publications, nations here are based on prevalent professional in births that are not high-risk, newborn safety is ethics and social morality. Even where I refer to the equal in home births as compared to hospital laws of the State of Israel, this is intended not as a births. According to other publications, there is a legal opinion (I am not a lawyer) but as seeking to small differential in favor of hospital births. Even rely on the spirit of the law as a guiding norm in the according to these publications (some of which country. Even if it is possible to obtain a legal opin- are dubious in regard to scientific reliability), the ion declaring something as not formally in violation magnitude of the additional risk (as well as the of the letter of the law, that in itself does not pre- total absolute risk) in home births is far smaller clude the same thing being ethically unacceptable than that commonly accepted by patients (and by and also opposed to the spirit of the law – i.e., to parents as natural guardians for their children) in the basic values it embodies. refusing particular treatments or in choosing how, where and by whom to be treated, in a variety of A. On its first page, the (draft) circular affirms that medical contexts. there is no prohibition upon a woman giving birth at her home; and that the Midwives Act and Physi- Thus your declaration seems to constitute illicit cians Act permit a licensed midwife or physician to discrimination – perhaps on account of gender – provide her with professional service therein (I which belittles the judgment of the birthing woman should add that in my view this is not restricted to in comparison to that of other patients, and arbi- the woman’s home but rather can take place in any trarily impairs her freedom. other appropriate location). It must be emphasized that these permissions do not constitute any spe- B. Since the safety of home birth depends on cial or irregular dispensation. In a democratic attendance by competent professionals, a wom- regime, the basic premise is that a woman is an’s right to choose such a birth requires that there authorized to choose where and how she shall go be no restraint upon receiving appropriate service through one of the most meaningful experiences and care. Arbitrary restrictions regarding who is of her life, and how to begin her bonding with the permitted to attend home births are illicit, both child she shall lovingly rear. If we should accept because they impair the woman’s freedom and the (controversial) premise that a woman in normal because they impair the occupational freedom2 of labor is a “patient”1, then under the Patient’s midwives or physicians to attend births. [Note: I Rights Law she may choose what treatment to use the term “attend” rather than your “perform”, since it is not the midwife or physician but rather the woman who “performs” the birth!]. In light of 1 In Hebrew, this is the same word as “sick”; thus the designation is problematic from a perspective that regards normal childbirth as a healthy activity rather 2 The Israeli code includes a basic law protecting than an “illness”. occupational freedom.

PANEL 3: THE RIGHTS OF THE BABY 97 this, Chapter 1 of the draft circular contains sig- home births almost to the point of precluding them nificant ethical flaws: entirely – evidently as an application of the illicit fundamental approach formulated at the outset. Section (a), in both its parts, is needlessly restric- These include, inter alia, sections 2.1.3, [requiring tive in comparison to existing law. The Midwives normal “biophysical profile” of the fetus to be veri- Act requires appropriate training, but not training fied (implicitly, by US) at least 48 hours prior to as a registered nurse, and certainly not three birth], 2.1.5 [requiring a letter from the woman’s years’ experience working in hospital delivery GP certifying that she is “physically and mentally rooms. Since the practice and model of care in healthy”], and 2.2.3 [requiring that it be possible to home births worldwide are substantively different arrive at a hospital delivery room within 30 minutes from those prevalent in delivery rooms, one may of the decision to transfer]. It is extremely hard to doubt whether such experience contributes to believe that those formulating these sections were quality of care or to safety in home births; indeed it relying on facts or on any objective evidence. Like- might even be harmful. In any event, such a restric- wise in Chapter 3, which is dedicated to counter- tion should not be established without support, indications; e.g. section 3.4.2 which lists [as a under the best standards of evidence-based care. counter-indication precluding home birth] “preg- Likewise the section’s second part, which in con- nancy-induced diabetes”, without any regard to trast to the Physicians Act requires specialization the severity of the diabetic condition nor to in both obstetrics and gynecology – without any whether or not it is under balance. evidence that such a (double!) specialization con- tributes to competence in home birth, and without Especially disturbing is the paternalism of section requiring (as in the first part, regarding midwives) 2.1.5, requiring certification of the woman’s “phys- any experience in home births. It is clearly evident ical and mental health”. A birthing woman, like any that this section was composed under consulta- person, is presumptively competent, and her deci- tion with persons who attend births with the model sion to give birth at home is completely morally of care prevalent in delivery rooms, and without valid as the act of a human being, without any consultation with those who attend home births need for such certification. If she knows of any rel- (more on this below). evant physical problem, she will surely report this to her caregiver; there is no need for “permission” Section (d) is similarly problematic. The require- from her GP. Needless to say, you did not see fit to ment of carrying professional/ third party insur- require such a letter as a condition for allowing giv- ance contributes nothing to quality of care or to ing birth in hospital delivery rooms, even though safety. Moreover, as long as the state does not act that too involves some risks (and as stated above, to guarantee availability of such insurance, the with regard to the woman’s health, seemingly actual effect of this requirement is to curtail the greater overall risk than in a home birth). Consis- option of home births, which as noted impairs tency would demand such a requirement, which in women’s basic rights and also the occupational turn would create an absurd situation, wherein freedom of midwives. every choice regarding location of birthing would depend on a letter from the GP; in its absence, the C. Chapter 2 is dedicated to the requisite condi- woman would be barred from giving birth any- tions for performing home births. Being no expert where. in midwifery or obstetrics, I of course lack compe- tence to comment on most of these requirements; D. Having consulted with experts, it seems to me still, having some familiarity with professional lit- that chapters 4-5 [guidelines for managing the erature and with standards of practice worldwide, care of the woman and of the newborn, and guide- some of these requirements appear to me unrea- lines for transfer to a hospital] likewise contain sonable. After consulting with competent authori- items that are arbitrary and even dangerous, as ties, I can state that many of the proposed require- they reflect the practice and model of care obtain- ments appear arbitrary and irrelevant to the ing in delivery rooms and not those appropriate to, responsible practices and model of care accepted and accepted in, home births. Also, what is the both in Israel and abroad with regard to home professional basis for the demand [4.10] to direct births – practices whose safety has been estab- the woman that she ought to come with her new- lished abroad through broad-scope studies. More- born to a delivery room “for examination and reg- over, some of these requirements seem to have istration” within 24 hours after the birth [– above the aim of restricting the possibility of performing

98 HUMAN RIGHTS IN CHILDBIRTH and beyond the postpartum care and next-day A woman choosing to give birth at home – who for visit by her caregiver]? the sake of her wellbeing, the wellbeing of her child, and the bond between them, seeks to avoid E. Appendix A [consent form for home birth] con- the complications, risks and harms involved in tains dubious and one-sided formulations, espe- hospital delivery rooms – is entitled to encourage- cially in comparison to the language of the consent ment and support by the Ministry of Health, or at form that a woman is required to sign (insofar as the very least to respect and consideration, rather this is indeed done) upon arrival at a delivery room. than the hostile attitude represented in this docu- For example, among the “risks” of home birth, the ment, which restricts her agency and violates her proposed form includes the statement “It has been rights as an autonomous person. explained to me that non-continuous monitoring of [fetal] pulse might cause” etc. The implicit assump- The first step toward redressing this injustice is to tion contrasts this to “continuous” monitoring, as put on hold the process of confirming the pro- performed in delivery rooms by a device attached posed draft, which as it stands will (or so there are to the woman’s body, conceived here as risk-free. grounds for concern) produce more harm than By the same token, however, a woman choosing benefit. The fact that this draft of a circular was to give birth in a delivery room should be required prepared through an inappropriate and unethical to sign a statement that “It has been explained to procedure underlies a large portion of the flaws me that being attached to a fixed monitor might enumerated above. If there is need for a revised result in false alarms of a drop in fetal pulse during circular regarding home births, it should be pre- contractions, and thus lead to an unnecessary pared under consultation chiefly with midwives interventions including a Cesarean section, which and physicians who practice home births (and per- might cause my death or elevated risk in subse- haps also with representatives of women who quent births; and also that my remaining in the seek and promote home births), and through com- unnatural position required for such monitoring parison with the practices in this field accepted in might hinder my progression in labor and thus well-ordered states abroad, relying on objective result in serious obstetrical complications” etc. facts and studies.

F. Above and beyond the above detailed concerns, About Noam Zohar it is evident – and so have I ascertained – that this circular was prepared under consultation solely Noam Zohar earned his BA and Master degrees at with medical experts who attend births in hospital the Hebrew University in Jewish Thought, and his delivery rooms, without consultation with the lead- PhD there in Philosophy in 1991. He is Associate ing professionals who have expertise and compe- Professor and Director of the Graduate Program in tence in home births. This in itself constitutes a Bioethics in the Department of Philosophy at Bar breach of basic professional ethics, under which it Ilan University in Israel. He teaches Rabbinics, Phi- is wrong to determine guidelines for one profes- losophy of Halakhah (=Jewish Law), and Moral sion on the basis of the approach and expertise of and Political Philosophy, with an emphasis on another profession. Moreover, in this instance we Applied Ethics. He has served on various commit- are dealing also with a conflict of interests, both tees and national commissions, advising on issues institutional and financial, since the income from of ethics in healthcare; and has recently been low-risk births is important to hospitals, which appointed to the National Bioethics Council. He is stand to gain from restrictions that impair the pro- also active in promoting gender equality in the fessional opportunities of midwives attending Israeli legal system, particularly in the context of home births. family law as impacted by state-mandated reli- gious courts. These restrictions could perhaps be justified were they based upon studies and facts, and thus liable Professor Zohar has been a visiting Member at the to increase the safety of birthing for women and Institute for Advanced Study in Princeton, and a newborns. There are, however, grounds for sus- Fellow at Harvard University’s Center for Ethics, pecting that the opposite is true: defining param- and at its Center for Jewish Studies. He is author eters and guidelines under consultation with the of numerous articles in the above-mentioned wrong experts, while disregarding those with the fields. His books include Alternatives in Jewish relevant expertise, is likely to harm the health and Bioethics (SUNY Press 1997), Quality of Life in safety of both women and newborns. Jewish Bioethics (editor, Lexington Books 2006),

PANEL 3: THE RIGHTS OF THE BABY 99 and The Jewish Political Tradition (co-editor, with Michael Walzer and others - Yale University Press; Volume 1: Authority, 2000, Volume 2: Membership 2003, Volumes 3-4 forthcoming).

100 HUMAN RIGHTS IN CHILDBIRTH From Womb to World, the Journey that Shapes our Life By Anna Verwaal

Even though research has shown that the earliest and the egg, actually are influencing the selection imprints of our conception, prenatal and birth of genes at the germ cell stage before they are experience have long term effects on our adult released for fertilization. This genomic imprinting lives, most people go through life without realizing starts prior to ovulation with regard to the egg, how these early verbal, emotional and physical which until then has been in an arrested state of imprints affect loved ones, the work situation, and development. It gets activated when it begins its day-to-day life. The fact that most of the discover- final stages of maturation, and it is during this time ies in epigenetic research, pre- and perinatal psy- that an imprint is laid down on which genes are chology and health have only been made in the going to be selected. What this means is that a last few decades explains why it is not yet main- mother’s perception of her environment, even sev- stream knowledge that the first nine months in the eral weeks before the moment of conception, is womb shape the rest of our life. what decides which genes will be switched on or That these evidence-based findings have not been off and determines the biology of her child. Nurture added to the medical, obstetrical and nursing text- (environment) versus nature (genes). So in books yet means most that of the people who take essence, it is the mother’s womb environment care of women and babies during pregnancy and (nurture), determined by her experiences of her labor are not reading about this either. outer environment, which determines how fetal development (nature) is shaped. Remember, not only did doctors previously con- sider the fetus the “perfect parasite,” sealed away An unborn baby ‘marinates’ in amniotic fluid fla- in the womb, protected from all pollutants and poi- vored with his or her mother’s emotions, whether sons by the ever vigilant placenta, it wasn’t even she is anxious, angry, joyful, sick, or feeling the that long ago that we were told that newborn effects of drugs or alcohol. What happens during babies felt no pain. Let alone remember what hap- the time in the womb is exactly what the fetus pened to them before taking their first breath. responds and reacts to. This helps him or her What we know now is that the placenta is not the adapt, getting ready for how life will be in the par- barrier we once believed it was, and that whatever ticular environment it will be born into. the mother is feeling, physically, chemically and emotionally, the baby is experiencing the same. In a supportive, nourishing environment, a mother would develop an embryo that has a more devel- What contributed to this change in our belief sys- oped brain. The frontal cortex will be larger in com- tem is the radical new understanding scientists parison to the hindbrain. A threatening environ- have after more than 20 years of studying an excit- ment full of aggression, violence and fear will result ing and provocative field called fetal origins. Dr. in a baby whose hindbrain will be more developed. Bruce Lipton, a well-known American cellular and In order to promote protection, the fetus will shut developmental biologist, discovered it is not just down the visceral functions, which is not good for the set of genes our parents give us at the time of healthy fetal development and growth. Hence the conception that decides our genetic imprint, but often low birth weight or small for gestational age even how our mother perceived her environment baby that is born out of an extremely stressed and up to two months prior to the actual moment of unsupported or substance abusing mom. When conception. Both parents, developing the sperm her baby arrives in the world, its gene activation

PANEL 3: THE RIGHTS OF THE BABY 101 and subsequent response to the stressful exis- What does not come to us through conscious- tence in the womb primed it well for a what it is ness comes to us as fate. already has become familiar; a life full of aggres- sion, violence and stress. This baby is going to How do specific modes of birth, birth technolo- need a well-developed mechanism to be able to gies, and interventions influence the newborn? fight or flee. Research shows that a child’s intelli- What clinicians working in the field of pre and peri- gence can be shortchanged by 50%, based on natal psychology have found are relationships to conditions before they even took their first breath. how someone is born and a predisposition, a kind Imagine the global human potential if each child of psychic sensitivity similar to an allergic sensitiv- came through a wanted, caring and supportive ity in a person, which depending on subsequent womb. events, may be diminished and never emerge as a problem, or become exacerbated and adversely Like Leonardo da Vinci said many years ago; “A affect one’s personality. Researchers today are child grows daily more when it is in the body of its looking at birth memories from two perspectives: mother than when it is outside the body, and this experiences relived by adults through hypnosis teaches us.” and regressive therapies, and scientific studies of the activities of the fetus and newborn child. One can begin to see how important it is to know how the journey from womb to world shapes our They have discovered in more detail how physical life. Not just because it can be most liberating to and emotional problems are connected to birth. discover that the imprint we have lived with never Both pain and its response are engraved into the really belonged to us but was more an uninten- nervous system. They become unified, so that tional inheritance handed down by our parents. under later stress the original response pattern, But more importantly, because consciousness can consisting of the same quality of emotion and the override both nurture and nature. same defense mechanisms, is automatically trig- Getting insights into our personal and clients’ pre gered. A difficult birth accompanied by high levels and perinatal existence can help us overcome of intervention and high level of maternal anxiety conception imprints and birth related trauma. most often results in birth trauma. If a mother Awareness about the genetic choices that were experienced birth trauma during her own birth she unintentionally made by unaware parents on is more likely to experience complications, and the behalf of their future children may even serve as a pattern is repeated. warning about which physical ailments may be lurking around the corner, and help us to prevent During my work as a maternal-child health nurse in these genetically predisposed health issues from all areas of childbirth, I experienced firsthand how manifesting. well meaning but misinformed healthcare practi- tioners inflicted trauma. For many of these years I Whether we were desired, unwanted, a ‘good’ or a was one of them. I remember from my early days ‘bad’ surprise, the wrong sex, a twin, induced, in very busy labor and delivery unit in Los Angeles born prematurely or by emergency cesarean, the how impressed I was with all the high-tech devices realization on a personal level of how the circum- so frequently overused ‘to come to the rescue’ of stances around the time of our own conception, a healthy low risk woman going through a normal gestation and birth influenced us can drastically birth. change our held beliefs and improve the quality of our life. It gives us not only the possibility to free After some years of drugging moms during labor ourselves from inherited patterns and fears, but and routinely taking their babies away for observa- also to prevent this from influencing the lives of tion immediately after birth, I became a member of others. Understanding this as health professionals the Association of Pre and Perinatal Psychology and caregivers will create the opportunity to share and Health, which turned my ‘professional behav- these insights with our clients. It will also lead to ior’ in the delivery room completely around. I real- more understanding, compassion and patience, ized that most of us clinical healthcare providers which will deepen relationships with loved ones, assisting women and babies in childbirth were not family and clients. It enables those who work with aware how the routine obstetrical and medical pregnant and birthing women to facilitate a more procedures we performed opposed the normal conscious birth experience for a mother, her part- physiology of childbirth and left lasting effects on ner and child. the population we served.

102 HUMAN RIGHTS IN CHILDBIRTH No wonder that after decades of harm done in the I shared with him that I had no doubt that his self- name of modern-day-obstetrics, this new field of described ‘annoying inability’ to express himself pre- and perinatal therapists and psychologists (other than ‘screaming’ his lyrics into a micro- emerged to assist the large number of people try- phone when he was on stage) was also related to ing to come to terms with pregnancy and birth what had actually happened to him. The frequent related issues and trauma. These days, seeing a voice and throat issues he suffered as the band’s therapist has become more mainstream, certainly lead singer were most likely due to the long-term here in the US. Luckily, it has become widely intubation he required after his premature birth. accepted to be in therapy for issues having to do Standing next to the incubator it was his son, with the earliest memories from our childhood. barely one hour old, who showed him that you However, since it is easier to ‘build’ a child than to really do not have a voice when you have a tube ‘fix’ an adult, shouldn’t the information that can down your throat. A powerful realization like this prevent more trauma from being inflicted on those can come in an instant. yet to be born become mainstream as well? Shortly after this birth, I watched another father’s I once read somewhere, “What does not come to reaction. This particular dad went into a complete us through consciousness comes to us as fate.” It panic the minute the midwife explained that his describes beautifully how experiences held in the wife was ready to push his baby out. What I saw subconscious mind and cellular memory of the through my viewfinder was cellular memory in body is revealed through the situations and experi- motion. Two people together in a birthing tub filled ences we attract in our lives. Conception, preg- with warm water, sharing the same event but hav- nancy and childbirth are typical times when a per- ing a completely different experience. She, becom- son’s core blueprint can be activated. On a soul ing more fierce with each contraction. He, sitting level, it is the perfect opportunity to reveal what behind her, going into more and more distress. needs to come to the surface in order for the belief Even bursting into tears and fearfully whispering system or cellular imprint of the traumatic experi- with a voice I could barely hear, “We are going to ence to be transformed. die.”

Until this happens, this cellular or limbic imprinting A week later, I went to their house to bring the pho- can cause energetic blockages and fears that not tos. Sitting around an old wooden table in a bright only can obstruct fertility and affect pregnancy, but yellow kitchen, I watched them look at the pictures also influence the actual experience of giving birth. and carefully asked if he knew what had happened It can even lead to complications, difficult birth to him during his own birth. His mom, happy visit- experiences and obstetrical emergencies. ing her first grandchild, was making a pot of tea. She stopped what she was doing, turned around I witnessed this so often while helping couples and said, “I can tell you what happened. We never prepare for the arrival of their baby or during their told him, but the forceps damaged my cervix, and birth that it made me change the way I worked. I almost bled to death.” When I asked what they knew about what hap- pened to them prenatally, I was amazed how few In an ideal world, we would be taught how stress of my clients actually knew the story of their own and fear influence the developing fetus long before conception imprint, gestational circumstances conception, because that’s when preparing to and birth. Most of them had never even consid- become a parent should start. This will create a ered finding out more about what had thus far shift in consciousness resulting in more conscious been the most important journey of their lives. conceptions and children who were given an opti- mal start in life. In an ideal world, health-care pro- I worked with an adopted rock star when he sud- viders too would explore how their own unresolved denly realized that his own abandonment issues pre and perinatal imprints can influence the birth- originated when he was removed from his mother ing process of the population they serve. immediately after birth. The pain about his forced separation became clear when he witnessed his When we all focus on preventing and healing pre- own son being rushed to the neonatal intensive and perinatal issues, personally and profession- care unit the moment he was born. The man had to ally, by acknowledging the spiritual, emotional and leave his wife behind in an empty room, with psychological components much earlier in the stretched out arms longing to hold their son. Later, childbearing process, the outcome will be less

PANEL 3: THE RIGHTS OF THE BABY 103 traumatic births, healthier and happier mothers, About Anna Verwaal babies and families, and a more conscious, caring, and connected world. Anna Verwaal, RN, CLE, born and educated in the Netherlands is a Maternal-Child Health Nurse, Bibliography Conscious Conception & Birth Consultant, Doula Instructor, UCLA Certified Lactation Educator, - Bergh, B van den. (1990) The influence of Birth Photographer and long-term member of maternal emotions during pregnancy on fetal APPPAH, the Association of Pre- and Perinatal and neonatal behaviour. Pre-, and Perinatal Psychology and Health. Psychology, 5: 119-130 - Chamberlain, David, PhD (1993) How pre and Her main focus is on creating the optimum primal perinatal psychology can transform the world. period and helping clients understand and heal International Journal of Prenatal and Perinatal from their conception, pregnancy and birth related Studies 5: 413-424. imprints and trauma. She currently travels interna- - Lipton, Bruce, PhD, The Biology of Belief, tionally to lecture and teach workshops about con- Unleashing the powers of Consciousness and scious conception, the cellular memory of the birth Beliefs experience, the physiological & hormonal blueprint - Lipton, Bruce, PhD, The wisdom of your cells. for birth & bonding and the deeply psychological, -Janus, Ludwig, MD (2001) Echoes from the emotional and spiritual aspects of giving birth. Her Womb, the Enduring Effects of the Prenatal experience is based on working for more than 25 Experience. years in various cultures and countries as a regis- - Linder, Rupert, MD, Overcoming Somatic and tered nurse, birth consultant and doula alongside Psychological Difficulties: New Experiences perinatologists, obstetricians as well as (indige- from an Integrated Linkage of Obstetrics and nous) midwives attending hospital, birth-center Psychotherapy JOPPPAH, Journal of Pre and and homebirths. Anna lives in Santa Fe, New Mex- Perinatal Psychology and Health 24(4) 199- ico and also works on a book about birth to be 252 (2010) published by Taschen. - Michael, Gabriel (1992) Voices from the Womb, Adults relive their Pre-birth Experiences. For more information please visit - Noble, Elizabeth, (1993) Primal Connections, www.fromwombtoworld.com. How experiences from conception to birth influence our emotions, behavior, and health. - Verny, Thomas, MD, (1981) The Secret Life of The Unborn Child - Weinhold, Janae B, PhD & Weinhold Barry K, PhD, The Impact of Developmental trauma on Human Development JOPPPAH, Journal of Pre and Perinatal Psychology and Health, 25(1) 1-64 (2010)

104 HUMAN RIGHTS IN CHILDBIRTH / Panel 4: Collaboration, Competition, Money and Monopoly

This panel will discuss the professions involved in Panelists are: birth care, and how the relationships between - Barbara Hewson, Human Rights Attorney from these professions form the frame in which “choice” the UK in childbirth is meaningful or not. How do obstet- - Amali Lokugamage, Obstetrician-Gynecolo- rics and midwifery conceive of authority in child- gist from the UK birth? What kind of collaboration between these - Debra Pascali-Bonero, Doula and Filmmaker professions would be necessary to support the from the US choices described in Ternovszky? How have the - Becky Reed, Midwife from the UK historical relationships between medicine and - Elke Heckel, Independent Midwife from the UK midwifery shaped the reality of women’s choices - Marlies Eggermont, Midwife and Lawyer from in childbirth, and continue to do so? What role Belgium does the state play in shaping or reinforcing power dynamics in obstetric care?

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 105 No Place Like Home By Barbara Hewson

On 28 February 2011, the EU Council of Ministers This would seem a difficult argument. The Con- adopted a Directive on the Application of Patients’ vention does not guarantee a right to healthcare, Rights in Cross-Border Healthcare. Amongst other as such, still less to particular forms of healthcare. guarantees, it provides that cross-border medical Yet last December, a Hungarian woman won a tourists shall receive treatment in accordance with case before the European Court of Human Rights, Union legislation on safety standards. But it will because she was denied the option of a lawful make a big difference to the way private midwifery home birth service: Ternovszky v Hungary (App. care is provided in the United Kingdom and Ire- No. 67545/09). Hungarian law provided that a land. Article 4.2(d) requires member states to health professional who carried out activities ensure that systems of professional liability insur- within his or her qualifications without a licence, or ance are in place for treatment provided on their carried out such activities in a manner which is not territory. States have 30 months in which to imple- in compliance with the law or the licence, was ment the Directive. punishable with a fine.

It is a little-known fact that independent midwives The European Court found a violation of Ms Ter- in the U.K. and Ireland currently practise whilst novszky’s rights under Article 8, because Hungar- uninsured, because they cannot access PII. The ian law was unclear about whether healthcare pro- effect of Article 4.2(d) will have one of two possible fessionals could legally attend home births. It consequences: either the U.K. and Ireland will found that Hungarian law was prone to arbitrari- ensure that, in future, these providers are some- ness, when it should be accessible and foresee- how included in existing PII schemes e.g. for those able, to enable people to regulate their conduct. In in the public sector; or their midwifery regulators the context of home birth, whilst a State has a will have to make it a condition of registration that wide margin of appreciation in how it chooses to midwives are insured, thereby expelling the unin- regulate in this sphere, it had to strike a proper bal- sured from the profession. Article 45 Nursing and ance between societal interests and a woman’s Midwifery Order 2001 makes it a criminal offence Article 8 rights. “In the context of home birth, for an unregistered practitioner to attend a birth, regarded as a matter of personal choice of the save in an emergency. mother, this implies that the mother is entitled to a legal and institutional environment that enables The rhetoric of choice permeates maternity care her choice, except where other rights render nec- nowadays. Many women value the continuity of essary the restriction thereof. For the Court, the care which an independent midwife offers. By con- right to choice in matters of child delivery includes trast, whilst some NHS Trusts provide a home birth the legal certainty that the choice is lawful and not service, they ration it by screening out women subject to sanctions, directly or indirectly [¶24].” deemed high risk. Yet some women choose to give birth at home against advice. Can women argue Hungary has now passed a law which, according that that they have a human right to a home birth to news reports, will permit home births provided under Article 8 of the European Convention on that birth attendants have a prescribed level of Human Rights (the right to respect for private and experience, and that women “declare in advance family life)? that if the leading birth assistant or the pediatrician finds that hospitalization is necessary, they will

106 HUMAN RIGHTS IN CHILDBIRTH accept it without opposition.” This sounds like a About Barbara Hewson kind of binding advance directive. It is unclear where it leaves a pregnant patient’s right to change Barbara is regularly ranked as a Leading Junior by her mind, or to refuse advice. One wonders what the Legal 500 in the fields of Public & Administra- the sanctions for opposition might be, if any. tive Law, Human Rights & Civil Liberties, and Pro- fessional Discipline and Regulatory Law. Her prac- Proponents of home birth and of women’s choice tice includes Mental Capacity and Court of Protec- will argue that Ternovszky favours enabling wom- tion work, Judicial Review, Inquests, Healthcare en’s choice. But there is a possible sting in the tail: Law, Professional Discipline and Employment the Court’s observation that choice may be Law. restricted “where other rights render necessary the restriction thereof.” Whose rights might these be? Her advocacy experience covers a wide range of To date, the Court has declined to decide whether courts and tribunals, both in the United Kingdom unborn babies are “others” protected by Article and abroad, including the ECJ, European Court of 8.2: see the Grand Chamber ruling in A, B & v Ire- Human Rights, and the Supreme Court of the land (App. No. 25579/05) last December. Possibly, Republic of Ireland. She acts for local authorities, the Court in Ternovszky had in mind the wider corporations, service-providers, non-profit organi- interests of patients generally. It seems unlikely zations and individuals. She also acts as media- that women in the United Kingdom could invoke tion advocate. this ruling to argue that they should continue to receive services from uninsured midwives, con- Chambers UK (2012) describes her as a notable trary to EU law. Equally, the ruling appears pre- practitioner in Court of Protection work: a ‘tough mised upon a reasonable woman making reason- opponent’ who is ‘always on the ball.’ The Legal able choices, rather than one persisting in a home 500 (2011) also ranks her as ‘highly diplomatic’ birth against professional advice. and praises her ‘effortless’ manner. The Legal 500 (2010) describes her as ‘easy to deal with, This article was first published on 5 April 2011, in approachable and decisive.’ the Solicitors Journal S.J. (2011) Vol.155 No.13 Page 17. She is a keen rider and a founder-member of Hard- wicke’s Equine Law Team.

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 107 In Pursuit of the Benefits of Physiological Birth By Amali Lokugamage

Introduction The benefits of physiological birth and the price of As a Consultant Obstetrician and Gynaecologist interventions from the UK, of 22 years experience, I had a suc- cessful home birth that I would call a life enhanc- Normal physiological birth is an important aspect ing experience for me and an optimum initiation of of public health and homebirths are true physio- physiological health for my baby. I wrote my book logical births. Normal labour and birth accelerate The Heart in the Womb: An Exploration of the maturity, leading to improved physiological func- Roots of Human Love and Social Cohesion,1 tions in the baby (endocrine, immune system, thy- because, prior to my pregnancy, I was never fully roid function, respiration, neurology, temperature able to understand why a woman would actively regulation) 6-14, more mother and baby bonding choose to give birth at home, outside of a hospital and higher breast-feeding rates, which in turn safety-net. But now I realise that from the begin- leads to better life-long emotional and physical ning of training, doctors are guided into a medical health in babies 15-24. Normal birth, in particular model of childbirth, with little exposure to the homebirth, affirms health, promotes empower- social model of birth, which constrains their appre- ment in mothers 1;25-28 and is a societal event which ciation of the benefits of physiological birth. has been linked to fostering positive emotional qualities in society via the birthing hormone oxyto- Doctors, traditionally, have been very fearful of cin 29. out-of-hospital birth, as clearly demonstrated in The oxytocin behavioural system is the opposite of the arguments cited in the Ternovsky v Hungary2 the “fight or flight” response to stress and fear. judgement. However, normal/physiological birth Professor Uvnäs-Moberg (oxytocin physiologist) contributes to improving public health and doctors asserts that the human oxytocic behavioural sys- are often not aware of the extent of this benefit. tem promotes positive emotions and that normal The recent Birthplace study3 shows that normal birth amplifies this system within us and promotes birth is more likely at home. Equally the very large higher habitual oxytocin secretion 30;31. This cor- Dutch cohort study of 529 688 women showed no roborates with the social neurobiological theory difference in perinatal mortality or morbidity that oxytocin encourages calmness, trust, gener- between home and hospital birth in low risk osity, compassion and social cohesion through the women.4 So women who are aware of the literature neurobiology of maternal and pair bonding, thus about the benefits of physiological birth seek also, conversely, providing insights into the origins home birth. Experience of complications, a lack of of human anxiety and violence 29. awareness of the evidence surrounding short and long term consequences of physiological/home- Babies whose mothers received epidurals and/or birth, compounded by failure to understand the systemic opioids during labour, as compared to concept of iatrogenesis, perpetuates fear of home- un-medicated babies, exhibit reduced breast- birth amongst doctors.5 seeking and breastfeeding behaviours, are less likely to breastfeed within 150 minutes of birth and cry more, whereas 90–100% of newborns not exposed to these medications exhibited all six measured breastfeeding behaviours 32. Epidurals

108 HUMAN RIGHTS IN CHILDBIRTH have also been associated with the persistence of of modern professional medicine and psychiatry, the occipito-posterior malposition of the fetus are culture-laden and freighted with particular which is linked with more interventions and opera- social interests. And so is our present understand- tive delivery 33. Medical interventions decrease the ing of healing.40” likelihood of establishing breastfeeding 17;18;34. The health risks to the child of not breastfeeding for at The medical and social models of birth are two dif- least six months include an elevated chance of ferent cultures. Conventionally, the medical view developing type 1 and type 2 diabetes; obesity; point is considered more important and Western recurrent ear infections; leukaemia; diarrhoea; and Society pays little regard to that derived from emo- hospitalisation for lower respiratory tract infec- tional intelligence. Medical training is a good tions. For mothers, failure to breastfeed is associ- example of a system of education that follows the ated with an increased incidence of premeno- “intellectual model of the mind”. I find Sir Kenneth pausal breast cancer, ovarian cancer, retained Robinson, educationalist, has ideas on education gestational weight gain, type 2 diabetes, myocar- and intellect which are useful in looking at how dial infarction, and the metabolic syndrome 20. doctors think.41;42 He says that the intellectual model of the mind is based on “reductive thinking Other perinatal interventions can also have lasting and a knowledge of the classics” and inherently impact on health. Babies exposed to antibiotics faulty, having the “consequence that many brilliant during birth are more likely to experience asthma people think that they are not”. The long years of in later life35 and it is thought that initial coloniza- training within this model of education lead to tion of the newborn intestine by normal bacteria deterioration in divergent thinking and creativity. has a pivotal effect on long-term health.36-38 Babies This educational model discriminates against the who experience cesarean section, failure to value placed on aesthetic experience, when the breastfeed, intrapartum antibiotics, or hospital senses are operating at their peak in the present birth were less likely to have early colonization with moment – when you feel fully alive! Mothers who beneficial bacteria than those who were, respec- have a homebirth often describe their process as a tively, born vaginally, breastfed, not given antibiot- peak experience in their lives. Equally Robinson ics, or born at home.39 The Group B streptococcus says that David Goleman’s ideas on “emotional intra-partum protocols that are followed presently intelligence”43 are possibly more important to the may prevent fatalities in a few babies at one time human experience, than knowledge from intellec- point but may create chronic auto-immune dis- tual intelligence. In fact, people whose entire real- ease for larger numbers of children in the future. ity is derived from academic intellectual intelli- gence can lead to states of “living entirely in their Disembodied knowledge of heads”. They can become disembodied from birth and inhibitors of the emotional or visceral intelligence, which are per- physiological birth process spectives voiced by birth activists. The difference in these conflicting interpretations of home birth Education ethos has also been described as the difference Although it seems that the medical model of child- between right-brained and left brained thinking. birth has exerted hegemonic control of the arena Scientist/Doctors are predominately left-brain of birth, in fact, one should remind oneself that all thinkers and mothers at the height of their intuitive models of health are culture bound, even those wisdom are right-brain thinkers.1 Parties from based on science. Medical anthropologist and these opposing viewpoints can sometimes never psychiatrist Arthur Kleinman points out that when find common ground - describing their views to looking at health and healing: each other can be as challenging as describing colours to a blind person. A chasm exists between “Healing efficacy is not a straightforward resultant, their cognitive worlds. However, the field of home but rather determined by evaluations which are birth human rights law does bridge the chasm in tied to the beliefs and values of different sectors of the context of personal autonomy. Interestingly in healthcare systems, and which therefore might be Ternovsky v Hungary,2 protection of the term “pri- (and often are) discrepant. Healing is viewed differ- vate life” (including aspects of an individual’s ently across cultures and in different sectors of physical and social identity, the right to personal healthcare. It is not the same thing for practitioner autonomy, personal development and to establish and patient. This is an argument to the effect that and develop relationships with other human all healthcare explanatory models, including those beings and the outside world) also closely

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 109 describes protection of the benefit of the endoge- When evaluating home birth safety, the largest nous oxytocin mechanism within the individual ‘place of birth’ studies do show that homebirth for and also society. low risk mothers seems to be equally safe for mothers as hospital birth, with less interventions Research and their attendant risks. The Birthplace Study3 shows that the neonatal complications are exceed- Divorcing the immediate versus long-term conse- ingly small and there is no difference if one looks at quences of the way we are born in epidemiological the mortality alone. If one looks at the absolute studies also estranges the medical versus social risks they are very small. Indeed, if one looks at the models of birth. A longitudinal perspective on the “take home baby rate” it is interesting to see that mode of childbirth and its impact on the family – for parents who decide on having a chorionic vil- and therefore society as a whole – is not usually lous biopsy or amniocentesis in early pregnancy, experienced by midwives or obstetricians because there can be a 2-4% risk of losing the pregnancy, they look after pregnancy in an episodic way rather whereas the risk of neonatal complications for pri- than having the opportunity to observe family life miparous women from hospital birth is of the order over a long period of time. Dr Luke Zander, a gen- of 0.0053% compared with 0.0093% for home eral practitioner who had been involved in 300 birth - yet there seems to be no public controversy homebirths and who continued to look after the about diagnostic tests in early pregnancy or accu- families and children for many years afterwards, sations of parents being selfish regarding safety of observed differences in women giving birth at their babies. There can also be a certain amount of home versus hospital in 2 cohort studies. 26-28;44 He epidemiological “spin” on research results when noticed that the memories were very strong, and deciding to present relative risks or risk differ- the accounts of the birth often sounded as if the ences, so women really need to judge for them- event had happened very recently. So it is not selves whether a ‘statistical difference’ amounts to something that slips into oblivion, and this needs what they perceive as a large or small risk. to be recognised. The memories of those women who had been allowed/encouraged to give birth at Fear, Litigation and the ‘blame home, i.e., in the place of their choice, irrespective game’ of whether or not they ultimately had to go into hospital, were universally positive, whereas those Obstetricians fear they may be implicated in a bad having a hospital birth almost always had some outcome, which could have been prevented by negative recollections, even if the overall response immediate access to emergency obstetric ser- was positive. A very interesting difference between vices. Hence this fans the fear of litigation and fear the two groups was that many of the women who of professional survival and impact on their family had a birth at home made very positive comments if their career is threatened. This thinking forms relating to how it had affected them as individuals, part of the ‘blame’ game and is worsened by any how it had strengthened their own sense of them- inability to separate personal and professional selves, which then led on to how they felt enhanced lives. Clinical negligence schemes for hospitals in their role as women, mothers and partners. This require increasingly larger amounts of concurrent was rarely mentioned by the “hospital group”, who documentation whilst caring for a woman in labour. instead felt positive about what had been done for This inevitably detracts from the time a midwife them by their midwives and doctors. has to give emotional support to a woman. One of So birthing is not just a biomedical event. It is a the most rigorously assessed interventions to psychobiological experience for mother and baby, improve the physiology of labour is the availability entangled with emotional growth, and is the step- of a carer able to give continuous emotional sup- ping stone for optimum physiological well being port.46 However the insurance companies through for mother and baby. It is not meaningfully defined lack of understanding of this humanistic interven- for many women in terms of “morbidity and mor- tion, do not realise their demands for documenta- tality outcomes”. Though, if a woman is high risk tion, might indeed be increasing the risks of labour these terms have more relevance to her. So far the for the patient, by reducing the time available to “healing” aspect of birth is not well captured in offer emotional support by the midwife, thereby epidemiological studies, except as in terms of thwarting the potential for physiological birth and “empowerment”, though powerful documentaries increasing the risk of requiring an intervention. like “Orgasmic Birth” show the stories of healing processes.45

110 HUMAN RIGHTS IN CHILDBIRTH Obstetricians are continually immersed in crisis where she would like to try giving birth. As a clini- medicine rather than physiology, which easily pro- cian, I would prefer it if obstetric labour wards motes an ethos of bodily frailty and post-traumatic could be more like birth centres and appear more stress disorder amongst the profession. A recent home-like, with continuous emotional support, meta-analysis reviewed existing data on the access to more non-pharmacological methods of impact of work-related critical incidents in hospi- pain relief, and discreet maternal and fetal moni- tal-based health care professionals. Work-related toring, so that even high risk women can optimise critical incidents may induce post-trau- their endogenous oxytocin physiology and thereby matic stress symptoms or even post-trau- increase their chances of normal birth within the matic stress disorder (PTSD), anxiety, and depres- hospital setting while also having easy access to sion, which may negatively affect health care prac- obstetric emergency facilities. However women titioners’ behaviours toward patients 47. who are high risk, who decide through their per- sonal evaluation of the risk, fear of obstetric iatro- Fear and Trust genesis or through their embodied wisdom that they wish to attempt home birth, should not be As discussed before, the oxytocin behavioural criminalised or vilified as this is an integral part of system is the opposite of the “fight or flight” their female autonomy and their human rights. The response to stress and fear. The human oxytocic Ternovsky versus Hungary ruling has been useful behavioural system promotes positive emotions as an international foundation stone for birth and normal birth amplifies this system within us human rights, to which other countries can com- and promotes higher habitual oxytocin secretion pare themselves, especially where there is extreme 30;31. Neuroeconomic research points to oxytocin medical antipathy to home birth. For instance, in helping humans to overcome their natural aversion February 2012, Western Australian Attorney Gen- to uncertainty with regard to the behavior of oth- eral Christian Porter rejected Australian Medical ers.48 Could it be that obstetricians who are con- Association (WA) President Dave Mountain’s calls tinuously immersed in fearful birth situations for proposed Western Australian fetal homicide become low habitual oxytocin secretors? Could it laws to be used to impose penalties on women be that this makes it more difficult for them to deal who homebirth and those who support them. 50;51 with uncertainty, hence a preference for medi- calised birth, which is perceived as offering more Conclusion control and certainty? Homebirth involves trusting a woman’s body to do its physiological best and The physiology of fear and trust are important fac- oxytocin is a mediator of trust. 49 Perhaps in the tors in the biosocial aspects of home birth. The future there may be ways to promote high habitual vast majority of Obstetricians may never be able to oxytocin secretion in obstetricians and perhaps surmount the programming effects of their training could this promote better embodied knowledge and experience of obstetric emergencies which and wisdom? produces a long-lasting scar on their emotions and physiology - which leads to them not being High Risk Pregnancies able to trust the birth process. Hopefully dissemi- nation of homebirth safety data with more studies There is quite reasonable evidence from prospec- interlinking the long term public health conse- tive cohort studies that homebirth for low risk quences of physiological birth may help them to pregnancies is relatively safe. However clearly for intellectually grasp the idea of the benefits of high risk pregnancies the risk of needing obstetric homebirth, despite the deficits in medical training emergency procedures increases and also and a cultural blindness to obstetric iatrogenic depends on the nature of the condition which cat- harm. Obstetrics is invaluable in high risk pregnan- egorises a woman to be high risk. However birth in cies and for obstetric emergencies, but there is a a hospital setting itself introduces iatrogenic hand- delicate balance between saving the lives of icaps to attaining normal birth, as medical man- women and babies and inadvertently harming the agement may result in interventions which place a pursuit of physiological birth, through the very woman on a conveyor belt towards some form of same mechanisms. instrumental/surgical delivery. Any surgical proce- dure has its own complication rate. So a woman after appropriate advice needs to evaluate the risks and should have the autonomy to decide

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PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 113 About Amali Lokugamage. maintain health by paying attention to lifestyle fac- tors such as diet, exercise, quality of rest. Her Dr Lokugamage works as a consultant obstetri- undergraduate medical qualifications are from St cian & gynaecologist/honorary senior lecturer at Andrews and Manchester Universities. An MSc the Whittington Hospital, London, UK, as well as epidemiology was obtained at the London School the Viveka health practice in St John’s Wood, Lon- of Hygiene and Tropical Medicine and an MD was don. Her main clinical interests lie in medical gyn- awarded from University College London. Clinical aecology and general obstetrics with expertise in training was undertaken at London teaching hos- normalising birth. The long term behavioural and pitals. She was awarded a Fellow of the Royal Col- emotional consequences of how we are born and lege and Obstetricians (FRCOG) in 2008. nurtured are of particular interest to her. She is a supporter of integrated medicine, and views She has a strong interest in medical education and patients as whole people with minds and spirits as has role in coordinating undergraduate education well as bodies and includes these dimensions into in women’s health for University College London diagnosis and treatment. Integrated medicine as well as an active role in postgraduate teaching.” involves patients and doctors working together to

114 HUMAN RIGHTS IN CHILDBIRTH Joint Letter to the Conference By Debra Pascali-Bonero

For the letter to the conference please see the joint nity-based doula programs. She also provides in- letter with Robbie Davis-Floyd on Panel 2. service trainings to nurses, midwives, residents and Grand Rounds to physicians at hospitals and About Debra Pascali-Bonero universities internationally. Debra served on the first Board of Directors of DONA International and Debra Pascali-Bonaro, B. Ed., CD (DONA), LCCE, currently serves on the Board of Directors of Child- Chair of the International MotherBaby Childbirth birth Connection. She co-authored Nurturing Organization (IMBCO) is an internationally Beginnings: Mother Love’s Guide to Postpartum renowned childbirth expert, a 28-year speaker in Home Care for Doulas and Outreach Workers and childbirth education, a Lamaze-certified veteran in received the Lamaze International Elizabeth Bing maternity care, and a DONA-approved doula Award in 2002. For her first documentary film, trainer. A graduate of McGill University, Debra trav- Orgasmic Birth, Debra videotaped births in New els the world giving doula trainings—she has Zealand, Mexico, the U.K., South America, and the seeded the doula movement in many countries— U.S. to help educate and inspire people to con- and working to ensure that women and their part- sider their options and the implications of the cir- ners understand their rights related to the circum- cumstances of birth for women’s and babies’ stances of giving birth. In the U.S. she teaches health and wellbeing. This documentary is being nursing, midwifery and medical students at Uni- shown around the world to great acclaim. She is versity of Pennsylvania, Columbia University and co-author of Orgasmic Birth: Your Guide to a Safe, New York University, has spoken about doula care Satisfying, and Pleasurable Birth Experience at the White House, and has been instrumental in (2010). the development of multiple hospital and commu-

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 115 A Midwife Under Investigation By Becky Reed

I am attending this conference as a midwife of 22 wifery at the hospital. The allegations against me years experience, and a midwife under investiga- were based on seven cases over a period of three tion by my regulatory body in the UK. I am moved and a half years. Out of these seven cases, I was and delighted by the opportunity to share this plat- the primary (lead) midwife for only two of them, form with so many others who are fighting against and only one of them was a home birth. oppression of women, babies and midwives. Two and a half years later, my case is still being My own case is frightening and fascinating at the investigated. Not surprisingly, given the apparent same time. My background as a midwife is in ‘con- seriousness of the charges, the NMC took my tinuity of carer’, initially working independently, but case seriously, and following an Interim Orders since 1994 as a midwife in the National Health Ser- Hearing I was given ‘conditions of practice’. This vice (NHS, where care is free at the point of deliv- consisted of 450 hours (the maximum allowed) of ery), looking after a caseload of women from all supervised practice in another hospital in London, walks of life in an inner-city suburb of London. where I was never allowed to be alone with a woman or baby, and my midwifery practice was In 1997 I was one of the midwives who set up The constantly monitored. There was also a sheaf of Albany Midwifery Practice, a unique group prac- written work during this time, including a daily tice whose ethos was of continuity of carer and diary, essays related to two of the cases, and choice of place of birth in a community setting. reflections on my failings as a midwife. This was Our all-risk caseload was generated by a group of completed satisfactorily in April 2011, and at the local GPs (family doctors), and included a social Interim Order Review Hearing it was ruled that my and ethnic mix of women. We negotiated a con- conditions of practice should be entirely revoked, tract with the local Hospital Trust, which meant and I was allowed to practise freely as a midwife that ‘our’ women could choose to birth either at again. home or in hospital; the contract also ensured indemnity cover for us as midwives, wherever the Except… the NMC decided to continue my inves- birth occurred. tigation. Almost one year later, I received a ‘bun- dle’ (of papers) from them, consisting of 543 pages The Albany Practice ran for twelve and a half of evidence, and containing five A4 pages of alle- years, producing happy mothers and impressive gations against me. These allegations, or ‘draft statistics. Over the first ten years our perinatal charges’, relate to specific events at specific mortality rate was less than half that of the local times, on dates going back to July 2006. I pointed borough, alongside a home birth rate, in an all-risk out to the NMC that I could not respond to the population, of almost 45%. allegations without access to the case notes, which (with the exception of one set of notes) they At the end of 2009, following a claimed ‘cluster’ of refused to disclose to me. For this and for many poor outcomes, the Practice was closed down other procedural failings over the last two and a with no consultation. As the most experienced half years, I have responded to them with a midwife in the Practice, I was singled out as a dan- detailed challenge to their process. I have sent a gerous practitioner, and referred to the Nursing copy of my response to the NMC’s own regulator, and Midwifery Council (NMC) by the Head of Mid- the Council for Healthcare Regulatory Excellence.

116 HUMAN RIGHTS IN CHILDBIRTH And I am currently (May 2012) awaiting the next wifery Practice, South East London, England. She move. has been a midwife for over twenty two years, devoting her energy to implementing a model of For myself, I have lost my beloved Albany Prac- care that has inspired midwives both in the UK and tice, and my livelihood as a caseloading NHS mid- around the world. Continuity of carer is her pas- wife. The women of Peckham, South London, sion, as well as keeping birth normal, home birth have lost a unique and wonderful midwifery ser- and water birth. Becky has contributed regularly to vice. But I have also gained from this experience. I ‘The Practising Midwife’ journal (UK), and co- have gained a new perspective on the wider authored a chapter on the Albany model of care in issues. And I have gained an amazing group of ‘Birth Models that Work’ (Davis-Floyd et al, 2009). new friends and colleagues, many of whom are Since the termination of the Albany Midwifery present at this conference. Practice contract at the end of 2009 following alle- gations of dangerous practice, Becky has commit- Of course those who care about women’s rights in ted herself to campaigning to clear the name of birth are excited about the Ternovszky ruling, and this model of midwifery care. She is also person- may its ripples spread far and wide. But I have to ally under investigation by the UK midwifery regu- admit to feeling humble in the face of the other latory body, and is currently fighting for justice for Hungarian story, and I would like to dedicate my herself as well. Last year Becky became the Mid- contribution at this conference to Agnes Gereb. wife Consultant to the PMET (Professional Mid- wives Education and Training) programme in About Becky Reed Hyderabad, South India. Becky has four grown-up children and three grandchildren, who were all Becky Reed BA (Hons), RM worked until 2009 as born at home in a pool, with their Grandma as their an individual caseload midwife in the Albany Mid- midwife.

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 117 Letter to the Conference By Elke Heckel

I have joined the panel late as I was in India earlier unusual for this to happen in an NHS setting due to this year volunteering in a Women’s Health Centre. time pressures, inflexible implementation of proto- As part of the trip I attended a Conference in Ban- cols and guidelines, a culture of risk-aversion and galore in January entitled: Safe and Supported mistrust and, most importantly, a lack of continuity Birth - a Human Right. When I found out about the of carer/s. Hague Conference my initial response was that I need to tell the conference organisers in India Often these women specifically want a homebirth; about it, hoping that they can send a representa- however others would ideally like us to give them tive. My second thought was that there was no the ‘low-tech’ care of a home birth within the hos- independent midwife from the UK on any of the pital, where higher-level emergency treatment is panels. As we are threatened by extinction in more readily available. Yet our lack of Professional October 2013 we need all the help and support Indemnity Insurance (PII) prevents us from taking this conference can give us. Whilst we are only on a clinical role in an NHS Hospital. We will try to small in number, the number of women using our be advocates for the women, but some decide service has seen a threefold increase in the last that hospital policies are too rigid and they will eight years (IM UK data). choose a homebirth. Independent midwives in the UK are at the moment still able and willing to sup- I am very pleased to have been invited on the port a woman’s choice for a vaginal birth of a panel of this conference that is bringing so many breech baby, twins or a vaginal birth after caesar- eminent people of the birthing world together in ean (VBAC), at home. one place. I truly believe that interested parties world-wide need to work together to enshrine While we acknowledge that all these can carry a women’s rights to self determination and access greater risk to the baby, the mother or both, we to safely supported birth and this needs to include give the woman and her partner the opportunity to homebirth. look at the available up-to-date evidence and encourage her to make choices that are right and Independent Midwives in the UK – safe for her. Women are physiologically equipped Opportunities and Challenges to carry and give birth to twins and breech babies. Some would argue that their chances to do so are Independent midwives in the UK have been in a enhanced when the physiology can unfold without unique position. We have been practising outside unnecessary interference and when the woman is the NHS (The National Health Service, the state- emotionally well supported. ‘Shroud-waving’ funded universal health-care service in the UK), achieves the opposite and often tells us more whilst fulfilling the requirements of our professional about the fear of the practitioner than the actual body the Nursing and Midwifery Council (NMC). risk to the woman. We pride ourselves in working directly with and for the women in our care. These are not necessarily During a physiological breech birth, for example, it low risk women. Sometimes women with numer- is seen as essential to keep the fear out of the ous risk factors come to us because they feel their birthing room. Anxiety may cause the woman to needs are not met by the NHS system. They want involuntarily clench her levitor ani muscles, a com- to make truly individualised choices. It is fairly mon stress response, and this can impair the

118 HUMAN RIGHTS IN CHILDBIRTH progress of the birth (Evans 2012). How realistic is Whilst this has made us potentially more vulnera- this in most NHS hospitals where the majority of ble to personal claims made against us, it has breech babies are now born by caesarean and the encouraged a very special working relationship remaining ones by breech extraction assisted by with our clients. They are made aware of this situ- obstetricians? Obstetricians in the UK are not the ation and its implications before they decide to experts in normal, physiological birth; they are the book with us. This also leads to a discussion about experts in dealing with complications and surgery. the inherent uncertainty of pregnancy and birth How can they therefore be the experts in physio- and that financial insurance does not protect them logical breech or twin birth, presentations which or us from a negative outcome. Throughout their some experienced midwives like Mary Cronk care we ensure that we build a relationship of would argue present a variation of the norm not an mutual trust and that clinical decisions are made in abnormality? partnership with the parents.

An Example of Good Cooperation Until now our search to resolve our insurance situ- ation has been unsuccessful. It is also of concern In an ideal world I would be able to care for a that the last insurance premium available to inde- woman at home or in hospital and be able to liaise pendent midwives in the UK in 2002 was as high with a knowledgeable and sympathetic obstetri- as £20,000 per year, unaffordable for most inde- cian if a problem arises. I would like there to be pendent midwives. mutual respect for each other’s skills and knowl- edge, but also an honest acknowledgement of The EU Directive 2011/24/EU of the European Par- professional limitations. The mother needs to be liament and of the Council (9 March 2011), on the the centre point of our planning, communication application of patients’ rights in cross-border and care. healthcare, demands: “systems of professional liability insurance, or a guarantee or similar We did achieve this 10 years ago when we had an arrangement that is equivalent or essentially com- honorary contract in a London hospital. A 40 year parable as regards its purpose and which is appro- old primiparous woman had chosen to give birth to priate to the nature and the extent of the risk, are in her twins in the hospital under independent mid- place for treatment provided on its territory;” wifery care. She was hoping to give birth as natu- (Chapter II Article 4) rally as possible. This directive will be implemented in the UK in We liaised with a Consultant Obstetrician who October 2013, and if we have not found an insur- offered to be on call for her and us! The babies ance solution by then it will be the end of indepen- were born without any use of drugs at 40 weeks dent midwifery. gestation. The only obstetric involvement on the day were words of greetings and congratulations. The previous UK Government ordered an indepen- We heard later that his colleagues were appalled dent review of the requirement to have insurance by his willingness to agree to the woman’s birth or indemnity as a condition of registration as a plan. Had he not been there on the day and helped healthcare professional, also known as the Finlay us to protect the privacy of the woman, the experi- Scott Report (June 2010). It gave the following rec- ence and possibly the outcome would have been ommendation that applies to independent mid- very different. wives: “ In relation to groups for whom the market does not provide affordable insurance or indem- The Insurance Situation for nity, the four health departments should consider Independent Midwives in the UK whether it is necessary to enable the continued availability of the services provided by those Since 2002, independent midwives in the UK have groups; and, if so, the health departments should been unable to obtain PII due to the high payout seek to facilitate a solution.” (Recommendation 20) that could be required if negligence was proven in the case of a baby with long-term problems. At The response of the four UK Health Administra- less than 150 midwives, we are too small a group tions to this was: “We agree with this recommen- to raise the money that would be required for the dation and will take forward work on a case-by- premium. case basis where this is appropriate”

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 119 This has not provided us with the assurance that My Hope we were hoping for. I am coming to this conference in the hope of get- The NMC and the Royal College of Midwives ting a step closer to finding a solution for our (RCM) commissioned the Flaxman Report which plight. I hope to be able to link with midwives from was completed September 2011. It looks at many other European Countries where appropriate – aspects of independent midwifery care and analy- apparently the independent midwives in Belgium ses why it has been so difficult for us to find insur- have been able to source PII, though they only ance. The conclusion it draws is that if we continue make up 2% of the total number of midwives to work as self employed, independent practitio- there. I am also hoping to raise the profile of what ners we will be uninsurable. Independent mid- we as independent midwives in the UK represent wives in the UK have been working on different and the unique service we can offer to women. solutions that are acceptable to women and mid- With the demise of independent midwifery in the wives alike. We have drawn up best practice UK a whole raft of skills and experience will disap- guidelines. There has been some progress in mov- pear as well. I hope that we can all form closer ing closer towards contracting into the state sys- links to ensure that women will indeed continue to tem. This would make our care accessible to have a true choice and the excellent care they women who cannot pay for it. The restrictions deserve. placed on the scheme at the moment make it dif- ficult for some midwives and women to accept. References Others feel it is a step in the right direction and exclusion criteria will be changed once the project - EU Directive. Chapter II Article 4 (d) is rolled out. http://eur-lex.europa.eu/LexUriServ/LexUriS- erv.do?uri=OJ:L:2011:088:0045:0065:EN: Whatever solution or solutions we find, it will PDF ( change the way we can work. If we do not find a - Evans J (2012) Understanding physiological solution by October 2013 we will stand to lose our breech birth. Essentially Midirs February 2012 midwifery registrations. While we have the option Vol 3 (2) 17-21 to return to the NHS or some other employment - Finlay Scott Review, 140 – 144 and recom- situation that offers PII, pregnant women who mendation 20 http://www.dh.gov.uk/prod_ would have chosen an independent midwife might consum_dh/groups/dh_digitalassets/@dh/@ be unable to get the care that is acceptable to en/@ps/documents/digitalasset/dh_117457. them elsewhere. pdf - Flaxman Report There are now real concerns about women decid- http://www.nmc-uk.org/Documents/Mid- ing on ‘free-birthing’, not through choice but wifery-Reports/Feasibility-and-Insurability-of- because they feel this is the only option open to Independent-Midwifery-in-England_Septem- them if they are unable or unwilling to surrender to ber-2011.pdf the type of care that the system is willing or able to - Response of the four UK Health Administra- provide for them. tions http://www.dh.gov.uk/prod_consum_dh/ Pressing Questions groups/dh_digitalassets/@dh/@en/@ps/docu- ments/digitalasset/dh_122610.pdf Should a woman have the right to choose her mid- wife and pay for her - after all, she can employ a Further Background Information private obstetrician? Should the midwife have the right to practice her profession autonomously in a Our Practice Website self employed capacity? http://londonbirthpractice.co.uk/

Website for IM UK http://www.independentmidwives.org.uk/

120 HUMAN RIGHTS IN CHILDBIRTH About Elke Heckel The majority of women I have cared for have given birth in an out of hospital setting and more than It was during my pregnancy with my son in my 80% gave birth in water. Feeling safe, relaxed and mid-twenties that I first became interested in the supported aids the birthing process tremendously field of childbirth. Initially I trained as an antenatal and women are often amazed when they tap into teacher with the NCT and helped at a local Active their instinctive powers in labour and as mothers. Birth class. During this time I also co-founded a My expertise lies in facilitating this process; mak- homebirth support group in Hackney and tried to ing suggestions when necessary, helping with improve the maternity provision as a consumer breathing, and keeping the focus on the positive representative. Looking back at that time, it was power of the birthing process. while attending births of friends and women I got to know during classes, that the desire to train as I am bilingual in German/English and can help cli- a midwife was born. ents from German speaking countries to feel more relaxed in the British birthing culture. After training in two London teaching hospitals, I worked initially in Tower Hamlets providing care for In my free time I enjoy my garden, nature, reading women in the community and in hospital. It was and the company of my friends. the shortage of midwives and frustration with the lack of continuity in the NHS that made me choose an independent way of working.

During the years in independent practice I have found that labours that follow the textbook are nonexistent, every woman and baby write their very own story full of surprises and I have not ceased to be moved and amazed by this.

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 121 The Choice of Child Delivery is a European Human Right By Marlies Eggermont

As a midwife and a lawyer, I am fascinated by the case of medical inaccuracies and the possibility legal aspects of giving birth: the legal competence for the expectant mother to use certain patients’ of the midwife, but also the rights of the expectant rights. mother to choose for or to refuse certain medical interventions during her pregnancy and her labour. I concluded that the legislation surrounding home- Before the mother can make this choice, she birth in Belgium, Germany, The Netherlands, needs to be informed about the advantages or the France and the UK is in accordance with the disadvantages involving her decision. A homebirth respect of the right to private life. The Member used to be “normal,” but with medicalization in the States have not made any restrictions. Private second half of the previous century, delivery in a matters, such as the lack of insurance (Germany, hospital became the standard. The place of deliv- the UK and France) and the acceptance of risks for ery is still a matter of discussion in the legal and the parents (Belgium, the UK and France) could the medical area. endanger the “real free choice” of child delivery (except in The Netherlands). It is clear that insur- In that perspective, the judgment of 14 December ance matters cannot be the subject of governmen- 2010, in the case of Madam Ternovszky v. Hungary tal discussions. This is an issue between the insur- drew my attention. The European Court of Human ance companies and the associations of mid- Rights has considered that a State should provide wives. Propositions that can be made to govern- an adequate regulatory scheme concerning the ments are in the nature of a regulation on the cir- right to choose in matters of child delivery (at cumstances of homebirth (for example: distance home or in a hospital). In the context of homebirth, to hospital, specific education for the midwife), in regarded as a matter of personal choice of the order to reduce the risks or an augmentation of the mother, this implies that the mother is entitled to a honoraria for midwives, so that there is a better legal and institutional environment that enables balance between the honoraria and the responsi- her choice. bility.

I have written an article analyzing whether the reg- The congress concerning “Human Rights in Child- ulatory schemes in the European Member States birth” gives a platform to healthcare workers and Belgium, Germany, the Netherlands, France and legal advisors to debate on this topic, which is very the UK concerning the choice of child delivery are innovative. A judgement which stipulates that the in accordance with article 8 ECHR, the right to Member States should have a legal frame con- respect for the private life. 1 Do the Member States cerning the choice of childbirth is different to pro- provide the legal certainty to a mother that a mid- viding the parents a real choice in the way their wife can legally assist a homebirth? Or are restric- baby is born. At the congress, I look forward to tions made in the interest of the public health? To being informed about the practical possibilities investigate if there is an accordance, I compared that healthcare workers can use to make this the following topics: the legal basis to practice choice possible. A debate is necessary, consider- midwifery, the sanctioning mechanism (liability) in ing the new present challenges in obstetrical care.

1 Published in the European Journal of Health Law, 2012, 19, 1-13.

122 HUMAN RIGHTS IN CHILDBIRTH Biography Marlies Eggermont health law and civil liability in general. In 2007 she also completed the study of aggregate in law to In 2002 Marlies Eggermont completed her studies educate students. Since 2009 she is teaching the with a Bachelor of Midwifery at the Artevelde Uni- basic principles of (social) law in the Bachelor of versity College of Ghent. Although she loved work- Midwifery and Nursing at the Artevelde University ing as a midwife, she was also fascinated by health College of Ghent. Since 2010 she has been edu- law in all its perspectives. In 2006 she completed cating the students of the first and second year her study in law school at the University of Ghent. Bachelor of Law on the sources of law (practical The last 2,5 academic years she worked as a mid- exercises). This engagement to the University of wife at a hospital in Brussels. Having seen the pro- Ghent has led to the start of a Phd with the title: fessional activity of a midwife and having learned “The legal framework of the profession of the mid- the theoretical principles about (health) law, she wife in a historical perspective: a process of juridi- started her legal training as a lawyer, focusing on fication and demonopolization.

PANEL 4: COLLABORATION, COMPETITION, MONEY AND MONOPOLY 123 124 HUMAN RIGHTS IN CHILDBIRTH / Day 2: The Dutch Birth System

DAY 2: THE DUTCH BIRTH SYSTEM 125 Letter to the Conference By Raymond de Vries

Greetings fellow attendees and speakers, unnecessary intervention. In a recent blog for Atlantic magazine, Alice Dreger makes a convinc- The organizers of the conference have asked me ing argument that the “most scientific birth” – i.e., to say a few words about why I am coming, why the way of birth most likely to result in a healthy the issues of the conference matter, and what I mother and baby according to the best science – hope will occur at the conference. I consider each is the least medicalised birth (http://www.theatlan- of these questions in turn. tic.com/health/archive/2012/03/the-most-scien- tific-birth-is-often-the-least-technological- 1. Why am I coming to this meeting? birth/254420/). Unfortunately, this scientific evi- dence runs counter to cultural, societal, organiza- This meeting has great import for the women of tional, and legal trends, trends conspiring to make the world and for their families. Why? A few words it impossible for women to choose the most scien- of explanation: tific birth. Here lies the importance of this gather- ing for women in Europe and abroad. Because of its great success in the treatment of illness, scientific medicine has – in the modern It is especially fitting that this meeting take place in nations of our planet – come to dominate all the Netherlands. The Dutch have a special obliga- aspects of care given to human bodies, even when tion with regard to birth because, forreasons found it is not clear such care is needed. The unneces- in Dutch history and culture (De Vries, 2004, http:// sary medicalisation of ordinary life events – includ- www.temple.edu/tempress/titles/1735_reg.html), ing, among others, reproduction, athletic perfor- the Netherlands is the only country in the modern mance, emotions, and aging – has harmful conse- world that makes it easy for women to choose the quences both psychological and physical (Presi- most scientific birth. In all other modern nations, dent’s Council on Bioethics, 2003: http://bioethics. home births free from unneeded interventions are georgetown.edu/pcbe/reports/beyondtherapy/ either vanishingly rare (< 1 percent) or ordinarily index.html). Labor and childbirth are among the rare (< 3 percent). If and when countries are com- ordinary events of life that have been disturbed by pelled to offer the option of birth at home, they can medical management. The technologies of medi- look to the Netherlands to learn how this is done in cine are invaluable when pathology upsets preg- a careful and responsible way. nancy and birth, but the use of these technologies when mother and baby are healthy can cause The Dutch system deserves much credit for pre- injury. serving true choice for women when it comes to place of birth. In so doing the Netherlands models As we sociologists have shown,however, medicine a system where women can freely choose where, has a logic of its own: if medical intervention can and how, and with whom to “get” their baby – bring pathological labors to a healthy conclusion, unlike my country where a healthy woman who why not intervene in all births, just in case? After wishes to birth at home has to troll health food all, can there ever be “too much medical care”? stores, websites, and books on alternative health Well, yes. Several studies have shown that the to find a caregiver that is willing, able, competent, more medical the environment, the more likely a and (perhaps) licensed to offer such care. But per- healthy laboring woman will be subjected to haps more important is that the Netherlands offers

126 HUMAN RIGHTS IN CHILDBIRTH a cultural choice to women. In other countries the 2. Why do the issues of this conference matter? medical model of birth has captured the imagina- tion of pregnant women: women simply cannot The Dutch have developed a logical, safe, well- picture giving birth in the absence of the technolo- organized maternity care system that gives women gies of modern medicine. In terms used by soci- a true choice in birth care. But, at the moment, it is ologists, the technological model of birth owns the a system under threat, facing challenges from ‘cultural capital.’ And this makes sense: techno- without and within. logical birth fits better with the lives of most women. As women have moved from nature to The challenges from without are many. Social culture, from the irregular routines of home to the changes have altered the lives of women and the structured demands of the workplace, their lives lives of midwives, the backbone of the Dutch sys- have become more ‘disciplined,’ and thus they are tem. Home birth fit naturally into Dutch life when better served by technological birth. the majority of women did not work outside of the home. With an increase in the number of women in Nothing comes without a cost, however. While their childbearing and child-rearing years in paid technological birth has its advantages, it also has labor, home birth becomes another chore in an profound disadvantages. When used by healthy already too-busy life. Why not simply choose for women, technological birth: the hospital, where everything is prepared, some- – is, as noted above, associated with more one else is responsible for cleaning up, and there unneeded interventions – including surgical is no need to invite strangers into your home? births—and thus more complications, Young midwives find themselves in a similar posi- – can deprive women of the sense of empower- tion, making salaried work in a hospital a more ment that comes with being an active partici- attractive position than working in your practice pant in birth, where you are on call for home and hospital births – can increase fear and anxiety (recent neuroim- for long stretches of time. aging studies have shown that being sur- rounded by familiar and trusted loved ones – This latter change – midwives finding shift work as opposed to strangers – reduces the fear preferable to on-call hours in private practice – is associated with pain), part of a larger change in the maternity care pro- – subjects women to routines that may or may fessions. Not only are midwives less vocal sup- not be suited to her social/emotional/biologi- porters of home birth, but gynecologists in the cal needs (a fact that explains why home birth Netherlands have ceased to champion the Dutch unites those on the political right and left – system. There are now only a handful of obstetric both fear the sacrifice of personal needs and scientists willing to defend a practice most col- values to larger social organizations including leagues – at home and abroad – find an odd government and industry), anachronism. In the 1970s, ‘80s, and ‘90s some of – can result in less sense of connection to child the most respected professors of obstetrics were and family (the Dutch have long said the clini- defenders of midwifery and home birth. Today cal births do not fit with Dutch values about success in obstetric science is measured in terms family – gezin – and feelings of comfort and of grants, publications, and service on profes- security – gezelligheid). sional and national committees, turning the atten- tion of researchers away from the role of being In sum Dutch maternity care offers a model of responsible for a system of care and toward more how to structure a system that offers easy narrowly defined professional success. access to the most scientific (i.e., least medi- calised) birth and a different way to think New technologies also undermine support for about birth. It is also worth noting that the non-medicalised birth. The (false) promise of tech- Dutch system of birth care has great value for nology – a 100 percent guarantee of a problem- parts of the world that need to improve care at free birth – encourages even healthy women to birth but, because of lack of resources and submit to its demands for early and frequent infrastructure, are unable to use technology to screening, continuous monitoring of labor, and make those improvements. surgical birth. The increasing presence of technol- ogy in our lives – in the form of smart phones, tab- let computers, smart appliances, and the like – brings technology closer and reassures us that

DAY 2: THE DUTCH BIRTH SYSTEM 127 technology is our friend, something that makes our forth is far from rational and calm. Arguments are lives easier and more pleasant. The new cultural hurled like bombs, ad hominem attacks are rou- attitude, applied to childbirth, results in the implicit tine, and all reason is cast to the wind. and explicit assumption that the technological care provided by obstetricians can only be benefi- I hope that over the two days we are gathered we cial; it is thus virtually impossible to refer too many can work together to help women realize their women to obstetric care. Increasingly, Dutch options for birth without vilification, anger, or hos- women are, like their sisters elsewhere in the mod- tility. ern world, inclined to choose hospital birth as a way to err on the side of “safety.” But this choice About Raymond de Vries for technology and the hospital ignores the poten- tial undesirable side-effects of medicalisation of Raymond De Vries is Professor in the Center for birth. Bioethics and Social Sciences in Medicine and the Departments of Medical Education, Obstetrics The Dutch maternity care system also faces and Gynecology and Sociology at the University of challenges from within. Here I speak not only Michigan Medical School in Ann Arbor, Michigan. of the direct efforts by some to bring all births He is also Professor of Midwifery Science at Maas- into the hospital, but also of practices by mid- tricht University/CAPHRI School for Public Health wives that abet the criticisms of those who and Primary Care and the Academie Verloskunde oppose home birth. As I discovered in my Maastricht. He is a medical sociologist with broad study of midwives in the United States, the experience in the study of maternity care systems, regulation of midwifery will always be met with research on the ethics of research, methods of resistance from those who chafe under the qualitative and quantitative research, and the limits that come with legal recognition. When comparative study of health care systems. He is non-nurse midwifery was licensed in Arizona, widely known for his analyses of the organizational it brought with it limits on who could birth at and cultural influences on obstetrics and mid- home and what kinds of medications mid- wifery, work that shows how medical practice is wives could use. Before regulation, everything significantly shaped by non-clinical factors. In his was illegal and so it mattered not what kind of book, A Pleasing Birth: Midwifery and Maternity women midwives attended or what kind of Care in the Netherlands (Temple University Press, drugs and equipment they carried. After licen- 2005), he uses historical data and qualitative sure, midwives were forced to comply with the methods to examine the effect of social forces on rules, and not surprisingly, some resisted. The the way maternity care is delivered. He has also Dutch system faces this same kind of chal- broken new ground in research on the sociology of lenge: Dutch midwives who wish to help bioethics, exploring the way bioethics “gets done” women otherwise excluded from birthing at in clinics and research ethics committees. He has home by the recommendations of the Verlosk- studied ethical and policy issues in research ethics undeIndicatieLijst (VIL), feel compelled to go review, therapeutic misconception, and the value against the recommendations. This laudable of “deliberative democracy” for the creation of eth- desire to help can, however, be used as evi- ics policies. He is lead editor of The View from dence against home birth by those who wish Here: Bioethics and the Social Sciences (Black- tobring all births into the hospital. well, 2007), an anthology that explores the value of social science for the work of bioethics. He is co- 3. What I hope will occur at the conference editor of a handbook on the use of qualitative methods in health research (Qualitative Methods in I have long been involved in research about the Health Research, Sage, 2010) and has success- many ways of organizing birth care, and most dis- fully directed several collaborative projects includ- maying is the lack of calm, rational, and respectful ing a highly productive team of international schol- conversations between those on both sides of the ars focused on comparative study of maternity issue of (non)medicalised birth. The most recent care systems. This collaboration has produced example of this is found in the comments on the one edited collection, Birth by Design (Routledge, article by Dreger on the website of Atlantic maga- 2001) and several peer-reviewed publications. He zine (http://www.theatlantic.com/health/archive/ has lectured on the sociology of maternity care 2012/03/the-most-scientific-birth-is-often-the- and on the sociology of bioethics in North Amer- least-technological-birth/254420/). The back and ica, Europe, Japan, and Africa.

128 HUMAN RIGHTS IN CHILDBIRTH / Panel 5: Perinatal Mortality in the Netherlands: Facts, Myths, and Policy

Public discourse on the Dutch birth system has Panelists are amongst others: been powerfully shaped in recent years by con- - Mariel Croon, Journalist and Midiwfe from the cerns about Dutch perinatal mortality rates relative Netherlands to other European nations. This panel will clarify - Ank de Jonge, Midwife and Researcher from and discuss the scientific research on perinatal the Netherlands mortality and other safety/ outcome studies in the - Elselijn Kingma, Philosoper and bioethicist Netherlands. It will also assess the ways in which from the UK and the Netherlands Dutch media has reported on these issues, both - Hein Bruinse, Obstetrician-gynecologist from accurately and inaccurately, and how these the Netherlands reports, in turn, affect public perception and choice in the Netherlands. Finally, the panel will consider the connection between the science, the media, the public opinion, and the direction of the healthcare policy in the Dutch birth system.

PANEL 5: PERINATAL MORTALITY IN THE NETHERLANDS: FACTS, MYTHS, AND POLICY 129 The Surgeon versus the Ignorant Midwife By Mariel Croon

The professional organization of Dutch gynecolo- ery. Besides, there are not enough gynecologists gists, NVOG, (Nederlandse Vereniging voor Obst- to manage all births. No, they want to leave that etrie en Gynaecologie) has a “Proactive press work to midwives, but make them do it in the hos- policy (…), with putting the professional organiza- pital. This way they have the locus of control and tion in a positive light in the media as a goal. In collect the reimbursement. “Making the director’s 2012 a minimum of 10 articles will be published role of the gynecologist stronger in the organiza- (…) in widely-read public magazines,” says the tion of care,” it is called in the above-mentioned NVOG 2011-2015 Policy Plan. Another goal: “an policy plan. And further: “Within the DBC [the opinion piece, four times a year, in a national daily Dutch health services financing structure], there is paper.” no room for financing the disutility of 24/7 avail- ability, so this leads to loss of income for self In one of these ten articles (‘Woelig Baren’, VK 9 employed specialists.” May1) the journalist Barbara van Erp willingly became the tool in their hands. Without even ask- Hospitals, as well as gynecologist partnerships, ing one critical question about hospital births, she need more births to keep the pot boiling in these ridiculed midwives and, much worse, threw sand market-driven times. Finances are the sole incen- in pregnant women’s eyes. Why do gynecologists tive behind the call for centralization of maternity put so much value on such free publicity? To care. Small hospitals are closing their L&D wards, increase their market share. Because births are and patients in rural areas have to travel more business. With 3500 deliveries annually, a hospital miles for specialist birth care. Several mothers and can comfortably manage the ob/gyn shifts, and children already have paid for this with their lives. keep the operating rooms, pediatrics ward and the In the west of Germany and in Flanders (the north- anesthesia department running 24/7, and in this ern part of Belgium), our neighbors (praised for way cover an important portion of hospital costs. their low perinatal mortality) are not delivering in birth factories that serve 4.000 women a year, as a Not that the gynecologists are planning to conduct Dutch (female) professor of obstetrics recently all 180.000 Dutch deliveries a year themselves. advocated, but in small local hospitals, easy to They didn’t invest in 12 years of study to coach a access. The recent Dutch report, ‘Consequences woman through an uncomplicated labor and deliv- of concentration of perinatal care,’ also shows that small hospitals are doing well when it comes to perinatal mortality. Still, the expansion of maternity 1 On May 9, 2012, one of the three major Dutch newspapers, the Volkskrant, ran an article by Barbara wards is promoted demagogically as a panacea van Erp titled ‘Woelig Baren,” or “Turbulent Birth.” The for perinatal mortality. Volkskrant ran the article in a special section titled, “The End of Home Birth: We Are Allowed to Deliver in the It is all part of the medical expansion strategy, Hospital Again.” The van Erp article was preceded with a header that translates: “Home birth in the Netherlands smartly dressed up. Say ‘perinatal mortality’, point used to be the norm. They weren’t told that half of the to the midwife, and the witch hunt starts. There is women had to go to the hospital anyway. After alarming nothing new under the sun. The surgeon against baby mortality rates, midwives and gynecologists turned the filthy, ignorant, sodden midwife, as it has been the tide around.” The full article is available at: http:// www.knov.nl/docs/uploads/Volkskrant_artikel_einde_ for centuries. “Also surgeons started to see the van_het_thuisbeval-tijdperk.pdf market for birthing women,” writes Floor Bal in the

130 HUMAN RIGHTS IN CHILDBIRTH Historisch Tijdschrift (“Historical Magazine”) num- from The Hague for extra facilities and obstetrical ber 4 in 2010. “Anyone who wants to enter a new research will dry up. you could say that the end market, must differentiate himself from the compe- justifies the means – obstetrics still comes very tition. (…) The surgeons and the maternity masters cheap, compared to an expensive new titanium had the trump card for this. If mother or child died hip for an octogenarian, or chemotherapy, at the during birth, it was usually in the presence of a value of a new Porsche, that will only prolong life midwife. Her incompetence then could be blamed for a few weeks. But the lobby pushing for all-hos- for the death.” Even earlier, a midwife would be put pital, all-doctor care does so at the expense of first in the rack and tortured into ‘confessing’ that she line (midwifery) care for uncomplicated deliveries. had magically caused the baby’s death, after For the sake of convenience – and without justifi- which she would be burned as a witch. The pyres cation at that – the alleged high perinatal mortality these days are aflame in the media, the execution- is attributed to the home birth and midwives. ers are now uncritical journalists, but the struggle for power hasn’t changed for centuries. Abroad, where all deliveries have been medical- ized for generations, the tide is now beginning to What is the real scandal in Dutch obstetrics? It is, turn. Recent English research, published in the for example, the fact that a birthing woman with a authoritative British Medical Journal, shows that medical indication is often referred to a resident women who choose hospital care beforehand are who has far less experience than the referring mid- more at risk of complications and interventions, wife. without any benefits for the baby. British gynecol- ogists advise women to choose for themselves From reliable sources I recently heard about two where they want to deliver: at home, in a birthing cases, a breech delivery and a premature birth facility or in a hospital. But they also emphasize with a bad CTG (heart monitor reading), during that, once hospital births have become part of the which the gynecologist sat in the coffee chamber culture, it is hard to reintroduce home birth on a and let the resident mess around, with, as a con- large scale. It is to be hoped that Dutch women will sequence, the death of the babies. Both these not let the freedom of choice be taken from them. cases have occurred fairly recently at an academic It is to be hoped that health insurance companies (third line) hospital, where the mothers thought and the government will continue to generously they were “safe.” invest in the health, and healthy starts, of babies who will be around for the next eighty years. It is to Two-thirds of Dutch perinatal mortality is deter- be hoped that professionals no longer let their own mined by prematurity, cases that are exclusively interests prevail over that of the woman and her the responsibility of gynecologists. The gynecolo- baby. gists are still not willing to expose themselves and research these mortalities with anything of the About Mariel Croon vigor that they bring to stillbirths after 37 weeks, in some of which first line midwives are involved. Mariel Croon is a journalist and has her own com- pany, Midwifery Expertise Center. She did free- By the way: perinatal mortality has dropped since lance work for NRC Handelsblad and is author of 2001 in the Netherlands, and is approaching the several books. Her specialties are midwifery, Finish numbers, the lowest in Europe. But that is (womens-) healthcare and social economy. Web- something that the gynecologists don’t want to site: www.midwiferyexpertisecentre.com. have exposed, because then the money stream

PANEL 5: PERINATAL MORTALITY IN THE NETHERLANDS: FACTS, MYTHS, AND POLICY 131 Paradox of the Dutch Maternity Care System By Ank de Jonge

The Dutch maternity care system is unique in the some call for discouraging homebirth for primipa- Western world. Independent primary care mid- rous women and for involving obstetricians in care wives can provide all maternity care to women for all women, regardless of the presence of risk who do not need obstetric care, unless risks or factors or complications. complications arise, and homebirth is still com- mon. For many women, this system works well. In the media, the impression is often given that the Women are most satisfied if they give birth at debate centers around the interests of midwives home. In addition, women with a physiological versus obstetricians. Personally, I think most mid- pregnancy who are under supervision of a midwife wives and obstetricians ultimately have the same (in “midwife-led care”) at the start labour and interest: optimal quality of care for women and especially if they start at home are more likely to their families. There may be different points of have a spontaneous vaginal birth than those under view, but this does not need to be problematic. In supervision of an obstetrician (in “obstetrician-led a respectful debate different perspectives will care”) . enrich the discussions.

Unique as it may be, the system is characterised The biggest problem is not the contradictory opin- by an uneasy paradox. On the one hand, other ions we hear in the media, but rather the voices countries, such as Canada, the United Kingdom that we do not hear. Those who should be the and New zealand, take the Netherlands as an main persons in the debate are silent. Where are example for changing their maternity care sys- women in the discussions about what our mater- tems. In these countries too, midwives increas- nity care system should look like? In many coun- ingly work autonomously and the homebirth rate is tries, women play a pivotal role in maternity care rising. via strong consumer movements. In the Nether- lands, it appears to be very difficult to motivate On the other hand, the quality of care of the ‘Dutch’ women to join a consumer organisation. way of birth is increasingly put into question. In particular, there are doubts about the safety of the I am therefore very excited about this conference system because of the relatively high perinatal with a great variety of speakers and, I hope, atten- mortality rate compared to other European coun- dants. It is unique that clients, professionals, ethi- tries. Comparisons of perinatal mortality rates cists and many others discuss the future of mater- between countries should be made with caution nity care. The different viewpoints may generate because of differences in populations, registration broad discussions in which all of us have to step systems, definitions, completeness of data and out of our comfort zones. The idea of a breech quality of registration information. Nevertheless, delivery at home may be as abhorrent to one as a the poor ranking in the Netherlands generates a lot caesarean section at maternal request may be to of debate. another.

Concerns about the Dutch maternity care system In the Netherlands, debates have focused too give rise to new forms of care. For example, birth much on issues of risks, professional interests and centres are being built near labour wards where money. The conference provides a golden oppor- women can give birth in midwife-led care. Further, tunity to have discussions that are long overdue on

132 HUMAN RIGHTS IN CHILDBIRTH the role of ethics in childbirth and, most of all, on About Elselijn Kingma the true meaning of woman-centered care. Elselijn Kingma studied Clinical Medicine (MSc) About Ank de Jonge and Cognitive Psychology (MSc) at the University of Leiden (the Netherlands). In 2004 she left the Ank qualified as a midwife in East Anglia, U.K. in continent to read History and Philosophy of Sci- 1994. From 1995 to 1998 she worked as a midwife ence at the University of Cambridge (MPhil), and in Nigeria. She did a Master in Public Health in stayed on to do a PhD on the concepts of health Edinburgh from 1998-2000, while she worked as a and disease. In 2008/2009 Elselijn crossed the midwife in Edinburgh and Livingstone. Since 2000, Atlantic and spent a year as a postdoctoral she has been working as a primary care midwife in research fellow in the in the department of Bioeth- the Netherlands. She also worked at the Dutch ics, National Institutes of Health (USA). Elselijn Organisation of Midwives (KNOV) and at TNO joined the Philosophy department of King’s Col- Institute for Applied Research. She finished her lege early in 2010 to work on the ‘Concepts of PhD on birthing positions in 2008. Since 1 May Health and Disease’ research strand in the KCL 2009 she works as a senior researcher at VU Uni- Welcome Centre for the Humanities and Health. versity Medical Center. Her academic interests lie in Philosophy of Sci- ence and Philosophy of Mind, and her research Expertise focuses on Philosophy of Medicine, Philosophy of Dr. Ank de Jonge conducted research in several Biology and Philosophical Bioethics. areas of midwifery research with an emphasis on primary care midwifery. She gained experience in From the beginning of 2011 Elselijn has been several research methods such as meta- analysis, appointed ‘Extraordinary Professor in philosophy secondary analysis, retrospective and prospective and ethics of biotechnologies from a humanist cohort studies and qualitative interview and focus perspective’ at the Technical University of Eind- group studies. As the coordinator of the new Mid- hoven, the Netherlands. The appointment is for wifery Science Unit, she formulated organisation three years initially, and is sponsored by the of care and clinical effectiveness of midwifery care Humanist Trust ‘Socrates’. Elselijn will continue to interventions as priority research areas for the next be based at King’s but will be spending one week five years. in every five at Eindhoven.

She was the first author of the world’s largest study into the safety of home births; this paper had a huge impact nationally and internationally. In 2010 she received a VENI career grant for her research proposal ‘Building a model for quality of care during labour for low-risk women; the impor- tance of care provider and care setting’. The pro- posed study fits in perfectly well with this VENI project.

PANEL 5: PERINATAL MORTALITY IN THE NETHERLANDS: FACTS, MYTHS, AND POLICY 133 134 HUMAN RIGHTS IN CHILDBIRTH / Panel 6: Cases on the Edge: “Illegal” Home Births in the Netherlands

This panel will discuss the controversies concern- Panelists are amongst others: ing the boundaries of “choice” in the Dutch birth - Wilma Duijst, Forensic Doctor and Criminal system. In particular, the panel will look at the Law Researcher from the Netherlands choice for home birth in cases of breech babies or - Arie Franx, Professor of Obstetrics and Gyne- twins, and the choice for caesarean section with- cology from the Netherlands out a medical need. The panel will discuss particu- - Robert Kottenhagen, Professor of Law and lar cases in which the mothers and midwives have Ethics from the Netherlands faced negative legal consequences for choosing - Joke Meulmeester, Chairperson of the VVAK home birth, and discuss the legal status of the Ver- from the Netherlands loskundige Indicatie List, which defines when - Rebekka Visser, Midwife from the Netherlands pregnant women are transferred from midwifery to - Monique Severijns, Mother from the Nether- medical care in the Netherlands. It will also unpack lands the legal and ethical rights and responsibilities of healthcare professionals with regard to refusing to support certain choices or deliver certain kinds of care.

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 135 Future Mothers or Incubators? By Wilma Duijst

In the last decades, child abuse and child neglect there is a risk of damage for the child. When H. have become a major issue in the Netherlands. asks what the risk is, the gynaecologist tells H. to The need to protect children from violence caused accept the advice and not ask questions anymore. by their parents is broadly felt in society. Inevitably, Because the gynaecologist cannot explain to H. the question of protection of the unborn child what kind of problems can be expected, she emerged and led to discussion. The outcome of decides that the child will be born at home. The this discussion is unanimous: the unborn child gynaecologist warns the child protection services, deserves protection from severe violence and and on the day the baby is to be born, police cars damage caused by the mother. Several measures are in front of H.’s house to take her to hospital can be taken to protect the child, especially when against her will. A midwife, who is prepared to the mother has a mental disease or is addicted to assist H. at giving birth, explains H. that there are drugs or alcohol. Child protection services protect some complications. Without further hesitation, H. the unborn child, and when the mother’s addiction agrees that her baby will be born in the hospital. causes extreme danger for the unborn child, the mother can be forced to attend a mental hospital. H. is not an alcoholic, she is not addicted to drugs, she is not mentally ill ,and she has proven to be a It is clear that the right of the mother is weighted good mother. Apparently this is not enough to be against the rights of the child. The woman’s right able to decide about her own body and the health to decide about her own life and body is put aside, of her unborn child. Or should I say that the com- to be able to protect the child from severe danger munication and explanation of the gynaecologist that will surely emerge. Not acting is not an option, is not enough to make a decision? Because of a because the child will end up severely handi- lack of facts, H. uses her mental capacity, and capped, or even dead. The communis opinio is decides that there is no proof of danger for her that the ‘free will’ of the future mother is deluded child. Taking into consideration that the births of by mental problems, drugs or alcohol, so she can- her three children were relatively easy, she makes not make the right decisions and society is making her decision. But apparently she is not allowed to the decisions for her. The problems are never sim- make this decision. What is the legal basis of the ple, and several complicated legal twists and way that the gynaecologist, the police and the moves have to be made in order to solve these midwife handled this case? problems, but in the end everyone involved knows the decision that is taken is right. There are several points of view on this subject.2 First, the perspective from the human rights con- But what about H.? H.1 is an academic, in her mid thirties, and a mother of three healthy children. She is expecting her 4th child. Her pregnancy is checked by a gynaecologist, because the baby is 2 R.J.P. Kottenhagen, Juridische mogelijkheden ter in breech position. The gynaecologist tells H. that voorkoming of beperking van geboorteschade als the childbirth has to take place in hospital, because gevolg van het handelen van de moeder, Letsel&schade 2009, nr. 4, p. 5-17. R.J.P. Kottenhagen, De betekenis van het EVRM voor het ongeboren kind en kwesties 1 The story was a but different than described in order to rond de zwangerschapnaar Nederlands recht: een prevent recognition. inventarisatie.

136 HUMAN RIGHTS IN CHILDBIRTH vention.1 The European Court of Human Rights Taking someone into custody is only possible (ECtHR) decided in 2004, in Vo v. France, that it when there is a suspicion that a crime has been would be neither desirable nor possible to decide committed. Although there is no law on this matter, whether the life of an unborn child is protected by in the Netherlands, persons with great mental the human rights convention.2 The Child Rights problems are being taken to a police station in Convention protects the rights of children before order to have a psychiatrist judge whether forced birth. The ECHR decided in 2010 that article 8 of mental health care has to be given. Forced mental the European human right convention implicates health care is possible under the circumstances that women have the right to have their children to that a person has an mental illness and causes a be born at home.3 Being able to make this decision danger to others or to himself. According to law an is part of the right to self-determination. unborn child is not a person and cannot be regarded as ‘other’ in the meaning of the law. In In Dutch medical law, the right to self-determina- jurisprudence, forced mental health care has been tion is of great importance. A patient has the right imposed by judges on pregnant women when the to decide about his own medical treatment. With- health of the unborn child was in great danger. out informed consent, no medical care can be Forced somatic health care is not possible in the given. Informed consent can only be present if the Netherland, unless a person is in prison. patient is properly and accurately informed, the patient has understood the information, and has Besides regarding the rights of women and unborn made a decision based on this information. A children, the positions of gynaecologists and mid- pregnant woman can make decisions about the wives have to be regarded. For all health care pro- unborn child. A pregnant woman can decide to fessionals, acting professional includes giving have an abortion until 24 weeks of pregnancy. accurate and adequate information to a patient. After 24 weeks, a pregnancy cannot be ended Professionalism in obstetrics includes giving med- legally.4 Antenatal medical care can only be given ical and obstetric care (even) when a woman to a child with the informed consent of the preg- decides to ignore a medical advice. Professional- nant woman. In the Netherlands, women can ism in obstetrics includes guarding the safety of a choose to give birth to children at home. The child and making decisions on behalf of the child, Dutch obstetric protocol (VIL) determines the indi- when the mother’s behaviour damages the child.6 cations for a hospital indication for child birth.5 The protocol is meant to be a guideline for profession- Back to H. She is an adult, and has a right to self- als, not for women. determination. She can decide where she is going to give birth to her children. The Dutch obstetric The unborn has no formal status in the Nether- protocol states that breech position is an indica- lands, but it is accepted that the rights of the tion for giving birth in the hospital. Still, H. has to unborn enlarge with maturing and approaching give informed consent for hospitalisation. She is birth. The unborn can be seen as born as often as not informed properly, and so she cannot give this is important for him (art. 1: 2 Civil code). After consent, even if she wanted. She has no mental 24 weeks, the life of the child is highly protected by illness, so she no forced mental health care can be law (art. 82a and art. 289 Penal code). Child pro- inflicted. She is not imprisoned, so no forced med- tection measures are not meant to be used for ical treatment can be given. She has not commit- unborn children, but by applying art. 1:2 of the ted a crime, so there is no legal right for the police Civil Code, judges have used child protection to take her into custody. And her children? Are measures for unborn children. they in danger? The gynaecologist never stated that they were. Probably there is scientific evi- dence that giving birth at home to a child in breech position bears a risk, but that does not mean that H.’s baby is at risk. To take child protection mea- 1 A.C. Hendriks and E.C.C. van Oss, Wie is de baas over sures, there should be a sign of maltreatment and de baarmoeder?, Mensenrechtelijke aspecten van de bescherming aan ongeborenen, FJR 2010, p. 180-186. danger of damage. But what is the damage when 2 Vo v. France, ECHR 8 juli 2004, NJ 2006, 52. the child birth is closely monitored by a midwife, 3 Ternovsky v. Hungary, ECHR 14 december 2010, and H. is prepared to go to the hospital when given 67545/09. this advice by the midwife? And what if H. is hos- 4 Accept when the child will be born with a severe handicap. 5 Verloskundige indicatielijst NVOG. 6 Meldcode kindermishandeling.

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 137 pitalized? As long as H. gives no informed con- sent, medical treatment is not possible.

Just imagine being in labour, and police cars standing before your house. H.’s story is a story beyond imagination. Her story inspired me to attend this conference. Maybe none of this would have happened if the gynaecologist had acted professionally and had informed his patient prop- erly in the first place. Maybe none of this would have happened if the gynaecologist would have regarded H. as a person responsible for her deeds, and not as an incubator for a child.

138 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Robert Kottenhagen

“The Legal Status of a Pregnant Woman and the legal, ethical etc. point of view. It concerns not Fetus in Cases the Woman Wants a Home Birth only the rights of pregnant women, but also the and the Midwife and/or Gynecologist Want Her to possible rights of the unborn. go to Hospital” This holding of the ECHR focuses on the rights of A short analysis of cases of the European Court the pregnant woman only. of Human Rights and the state of the law in The But in high risk pregnancies the question does Netherlands arise as to the legal status of the unborn. In this article I first will discuss case law of the ECHR on An international conference on human rights in the legal status of the unborn (§ 2). Then I will childbirth is of utmost importance for all countries, focus on Dutch law in this context (§ 3) and I will because all over the world there is a considerable finish with a conclusion: in most cases in The divergence of views on the protection of unborn Netherlands concerning the choice for home birth, lives. there is not a mother – fetus conflict at all, but a mother – doctor conflict (§ 4). It is my sincere hope and expectation that this Conference will contribute to further international The legal status of the being- development and agreement on the topic of born under the ECHR – a short Human Rights in Childbirth. This can only be done introduction when specialists of all relevant sciences and arts are willing to cooperate. This Conference is an Article 2 of the European Convention on Human important first step to achieve that aim. Rights on the Right to life reads: 1. Everyone’s right to life shall be protected by I was asked to say something on the rights of the law. No one shall be deprived of his life inten- unborn in the light of the European Court of Human tionally save in the execution of a sentence of Rights decision in Ternovsky v Hungary and the a court following his conviction of a crime for state of the law in The Netherlands. What follows which this penalty is provided by law. is a short introduction to these developments and, 2. Deprivation of life shall not be regarded as for the sake of discussion, my own view. inflicted in contravention of this article when it results from the use of force which is no more Introduction than absolutely necessary: a. in defense of any person from unlawful As we will see, the European Court of Human violence; Rights (ECHR) does not want to decide in these b. in order to effect a lawful arrest or to pre- matters because in the member states there is a vent the escape of a person lawfully considerable divergence of views on the protec- detained; tion of unborn lives. The case of Ternovzsky v. c. in action lawfully taken for the purpose of Hungary of this Court - holding that women have a quelling a riot or insurrection. right to choose the circumstances and the location in which they will give birth - gives rise to some very important questions both from a medical,

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 139 From this Article 2 questions may arise such as: And article 1:247 DCc (numbers 1 to 3) – extent of - is the fetus covered by this article (is he also parental authority – states: within the reach of ‘everyone’)? 1. Parental authority comprises the duty and - is the unborn child a legal person for the pur- right of the parent to care for and raise his poses of the Article 2: a right to life? minor child. 2. The words ‘care for and raise’ in the previous And Article 8 on the Right to respect for private paragraph include caring and taking responsi- and family life reads: bility for the mental and physical welfare and safety of the child and promoting the develop- 1. Everyone has the right to respect for his pri- ment of his personality. The parents may not vate and family life, his home and his corre- use mental or physical violence or apply any spondence. other degrading treatment when they care for and raise their child. 2. There shall be no interference by a public 3. Parental authority includes the duty of the par- authority with the exercise of this right except ent to develop the bond of his child with the such as is in accordance with the law and is other parent. necessary in a democratic society in the inter- ests of national security, public safety or the What is the meaning of these articles as to the economic well-being of the country, for the legal status of the unborn and in a mother – fetus prevention of disorder or crime, for the protec- conflict? Dorscheidt explains article 2 in this con- tion of health or morals, or for the protection of text as follows: the rights and freedoms of others. ‘The application of the provision requires a legal The maternal right to respect for their private life fact, thus providing a claim to the unborn child (Article 8) encompasses the right to physical integ- when born alive. Whether or not the child is viable rity and this leads to the question - if the protection at the moment of this particular fact, is irrelevant. of the fetus is covered by Article 2 and there are Important is that notation took place. conflicting rights between mother and child - From the moment of notation Article 1:2 CC can whose rights will prevail? be invoked on behalf of the unborn child. Although the interest mentioned in the provision has long The ECHR states that it is neither desirable, nor been considered to relate only to property law even possible as matters stand, to answer in the interests — such as most inheritance law issues abstract the question whether the unborn child is a — it cannot be excluded that this interest can also person for the purposes of Article 2 of the Conven- be involved in cases where the unborn child’s tion. It is all in the margin of appreciation of the physical integrity is at stake.’1 individual member states. But now an important question arises: if this inter- I would say – if the Court is consequent - it is also est can also be involved in cases where the unborn within the margin of appreciation of the member child’s physical integrity is at stake what does this states as to the interpretation of ‘others’ in article mean in the context of the Abortion Act 1981? 8. This means that member states indeed can real- According to Dutch law abortion is possible until ize legislation on which public authorities can the 24th week of gestational age. And according to intervene in the rights of the mother for the protec- the Dutch Supreme Court it is the mother who tion of the fetus. As we will see there is such legis- makes the decision to abort even if the father does lation in The Netherlands. not agree on this.

The legal status of the unborn in Dutch law – a short introduction

1 J.H.H.M Dorscheidt, Developments in Legal and Medical Article 1.2 of the Dutch Civil code (DCc) - legal Practice Regarding the Unborn Child and the Need to capacity of an unborn child - runs as follows: Expand Prenatal Legal Protection, European Journal of A child of which a woman is pregnant, is Health Law 17 (2010) p. 433-454 on p. 436-437. See regarded to have been born already as often also J.H.H.M. Dorscheidt, The unborn child and the UN Convention on Children’s Rights: the Dutch perspective as its interests require so. If it is born lifeless, it as a guideline, 7 The International Journal of Children’s is deemed to have never existed. Rights 1999, p. 303-347.

140 HUMAN RIGHTS IN CHILDBIRTH But if she wants to keep her child, then – in my the unborn. If the woman refuses to go there by opinion - she has to act and behave according to free will the police could intervene and take her to the above mentioned article 1:247 DCc. Based on the hospital. this article in conjunction with article 1:2 DCc the unborn certainly has legal rights for protection. Juvenile protection In recent Dutch case law the unborn indeed is pro- tected in this way when his physical integrity is at As Dorscheidt states: stake. This is possible in several ways as I will dis- cuss now. ‘In juvenile protection case-law Dutch courts have also shown an increased willingness to recognize The Psychiatric Hospitals Compulsory Admissions an unborn child’s interest in legal protection before Act 1992 (Wet Bopz) birth. A break-through in that matter was a deci- sion by the District Court Utrecht in 2004. In a case of a pregnant woman with a serious men- In this case the District Court ruled on a request by tal disorder and who caused harm to herself and the Child Protection Board to issue a temporary her unborn child (she was a drug addict, drug family supervision order against a mother who was dealer, she prostituted herself and she refused any pregnant of her fifth child. The other four children medical treatment) the district court of Amsterdam were all subjected to custodial placement as a ordered the woman’s compulsory admission under result of the mother’s mental incapacity to raise this Act. The protection of the unborn was based and take care of her children. In response to the on article 1.2 DCc. After this first case several Child Protection Board’s request the District Court more recent courts ordered in the same way. invoked Article 1:2 CC and stated that the moth- er’s life style and the interest of the unborn child But not always, because in the context of this Act require that the temporary family supervision order the court has to answer two questions. There must is issued before the child is born. In addition, the be harm to ‘another’, but is the unborn ‘another’ in Court ruled that immediately after birth the child the context of this Act? We know now that accord- would be consigned to the same foster family ing to case law the answer is affirmative, but there which already took care of the other four children.’1 is discussion on the moment from when on the unborn will be protected. Most courts held there is After this first decision many others followed. progressive protection from the 24th week. But in doctrine this point of view is heavily criticized, Medical treatment refused on religious arguments because a lot of harm can rise in the first trimester A few years ago a moslima refused medical help in of the pregnancy (for instance fetal alcohol syn- a hospital when she was in labor because the drome). A second question is on the precise gynecologist was a man. And for pregnant Jeho- meaning of a mental disorder in this context: is a vah’s Witnesses there is a very high risk in cases drug or alcohol addiction a mental disorder in the where they refuse a blood transfusion when this is context of this Act? There was conflicting case law needed for her own safety or that of the unborn. In on this point. both cases the refusal is based on religion.

To resolve these problems – among others - and to In these cases again one may ask the question end this discussion, a new act - the Compulsory whose rights take precedence: those of the Mental Healthcare Act – is under construction. As woman based on her right to physical integrity, to the protection of the unborn there are two absence of informed consent and freedom of reli- important developments: gion or the above discussed rights of the unborn.

- with ‘another’ also the unborn is meant within The Royal Dutch Medical Association published a the scope of this Act in the sense of a legal guideline in response to the case of the moslima: a subject in every phase of the pregnancy, that doctor can act against the will of the mother to is to say: from notation on; prevent severe damage or death of the unborn. He - and addiction is also understood as a mental has to act according to his professional standards disorder. and within the limits of the law (p. 7).

In these situations compulsory admission or even compulsory treatment will be possible to protect 1 Dorscheidt op. cit. 2010, p. 445.

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 141 According to the Ministry of Health, Welfare and But – on the other hand - is this really so? I think Sport, a doctor can force a woman against her will there is a plain but important underlying question [to accept treatment?] in such cases, with the help that needs to be answered beforehand: why don’t of the Child Protection Board. these mothers want to go to hospital when a doc- tor tells them it is better to go there both for herself As for the situation of pregnant Jehovah’s Wit- and the fetus? I am convinced that every woman nesses: there is no Dutch case law on this matter. – normally speaking – wants only the best for her However, the Dutch Supreme Court decided sev- child. If it is really necessary to go to hospital for eral times that freedom of religion is limited when it the sake of her child, I think she will. In my opinion will lead to harm to another: then it could be a tort. the real problem is – at least in The Netherlands – that these women don’t always trust the medical Some conclusions profession and the circumstances in hospitals are not always – to put it mildly - very friendly for According to Dutch law, legal protection of the mother and child. unborn from physical harm or death even against the will of the mother is possible. In a nutshell: in many cases (there are always But if this is the state of the law – which as such exceptions) there is not a mother – fetus con- can be discussed of cou rse – it is not for lawyers flict at all, but a mother – doctor conflict. If the to make decisions in this context but for gynecolo- relationship between patient and doctor could gists and midwifes - they have to formulate crite- be improved in such cases, the legal fight ria: what exactly is a high risk birth and under what would probably be over. circumstances should a forced delivery in a hospi- tal to protect the fetus be allowed? Are breech What about the possible exceptions? There are babies or the delivery of twins such high risks for situations – at least in my opinion – where the fetus the fetus that acting against the will of the mother must be protected because – as explained above not to go to hospital is allowed? – it has its own rights. This could be the case if every specialist from an objective point of view is But even when we agree on these objective crite- convinced the fetus would die during birth or there ria, new questions will arise. For instance, if a is a very high risk for complications, but the com- mother must go to a hospital to deliver because of petent mother still refuses to go to hospital or any a high risk of damage to the unborn or even death, medical at all for her own reasons; in these cases by what means can we force her to go there, if she the fetus can be protected according to Dutch law. insists on a home birth – with the help of the police, by court-order? And if she stays at home and the About Robert Kottenhagen fetus is hurt or even handicapped because of the home birth and lack of a medical surrounding as in Robert J.P. Kottenhagen, PhD LLM, is associate a hospital, can he sue his mother in tort? And if he professor of law at the Faculty of Law and the dies in these same circumstances, is this a crimi- institute of Health Policy & Management, Erasmus nal offence? Or do we have to conclude from an University Rotterdam. ethical point of view that notwithstanding the legal and medical possibilities it is the pregnant woman My main areas of research are: who has to make this choice herself? Questions like these and more are waiting for an answer. - liability for medical malpractice; - legal aspects of birth and birth trauma; - liability for nervous shock.

142 HUMAN RIGHTS IN CHILDBIRTH Birth: A Human Rights Issue? By Rebekka Visser

Well… the developments of the last few decades woman holds her newborn son, she thanks God certainly make it one! that he is a boy - not having to endure what she The mere fact that it can be seen as a human rights just had. issue—e.g., that there supposedly exists conflict- ing interests between the mother and her unborn To harm or humiliate women for a ‘good cause’ child—is one of the more painful signs that we (i.e. the supposed well-being of the baby); and in have come to a point in which we: the meanwhile accidentally damaging them, is reprehensible. And one may ask, “Accidentally?” 1. Fail to acknowledge our misunderstanding of Or is there more at stake, a power issue, a way we conditions for safe childbirth; look at women and their rights? 2. Reveal the way we neglect to observe what women really need in childbirth; Why are so many things done to birthing women 3. Reveal the way we, as a society, look at that we would define as “violence” if it were not women. happening during birth? As with the examples above, and numerous other situations, all are done As for the first point, our misunderstanding of con- daily to birthing mothers. Mothers who are not ditions for safe childbirth, I will be very brief. The asked for consent. Mothers who are forced into paradox is: we hope that by observing (and inter- things that they expressly state that they do not vening in) the process of birth we are able to want. Mothers, who are humiliated, harassed, left reduce complications. But the observing/interven- exposed, left alone in noisy rooms, prodded, tion, in itself, changes the process of childbirth poked, sternly spoken to, coached, told to push, fundamentally. There is great need for action here, told not to push, etc etc.1 because now we have women and their children compromised by the interventions that were Is it not true that these days, when women com- invented to save them. plain about what happened to them during the birth, they usually don’t get much further than that Points 2 and 3, neglecting women’s childbirth someone would comment on ‘the way the woman needs & societal views of women are best illus- ‘experienced’ what happened’, and hence imme- trated by two real life examples. Example one: A diately doubting the reality of the women’s experi- midwife cuts an episiotomy to reduce a supposed ence? Or at least dismissing it, as not as important risk for the baby. The mother shouts ‘No!’ At which the midwife looks at her sternly and says, ‘Do you want your baby to die?’ This is damage on a phys- ical level, but very probably also on a mental level 1 Many books are written about this subject. Some - a ‘full stop’ is suppressed. And what’s more, it examples: ‘Birth Crisis’ by Sheila Kitzinger (Routledge 2006); ‘Birth as an American Rite of Passage’ by Robbie has been made very clear that by saying ‘stop’, the Davis-Floyd (California Press 1992, 2003); ‘Pushed’ by woman is a bad mother. Example two: A birthing Jennifer Block (Da Capo Press 2007); ‘Born in the USA’ woman is transferred to hospital because of failure by Marsden Wagner (California Press 2006). None have to progress. She is on her hands and knees on the been published in the Netherlands or are even translated in Dutch, but this does not mean at all that what is bed when a doctor enters the room. ‘Well, well’, he described in these books is not also happening here. It says, ‘found a new posture?’ Much later, when the only came a bit later.

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 143 as the knowledge of the practitioner, who made And thinking further - even if it were true that the the intervention, necessary to ‘save the child?’ suffering of birthing mothers in our culture increased the ultimate number of live, healthy Two tools often used to say that the mother and babies, something I sincerely doubt, would that be child may possibly have opposite interests in worth it in terms of general health? childbirth are the concepts: What about basic human rights? 1. That a good mother sacrifices herself and Are they not at the foundation of our whole soci- 2. That the child in her womb cannot speak for ety? itself and therefore needs an ‘advocate’. If we take away the responsibility from the mother It is assumed that the woman herself cannot at childbirth, this seems like an option for short- understand and oversee the possible risks the term solutions, but is a real disaster for long-term baby faces. The woman is thus made into a ‘non- effects for our society. To talk about the need to person’. protect the rights of the unborn child is misleading. As if women do not do that themselves. Does a situation exist where using the responsibil- ity a woman feels towards her child, by blackmail- It distracts from the fact that current birth prac- ing a woman in her motherhood, is justified? That tices have much to do with power, with money, is what we do, when we say: trust your caregiver, with fear and control. Moreover, current practices she is the one with the knowledge - you cannot have nothing to do with nurturing, with respect, oversee this yourself..This is the harm we do, even trust or honoring of women. There is no consider- if it is accidental, even if it is a side effect of other- ation given to the environment that women need to wise good intentions. Even then, how can it be give birth. justified? Women themselves are the best advocates for In the years that I have been working as a midwife, their babies’ interests. Period. It is perfectly clear. I have seen the two sides of childbirth. I have seen When mothers are not given the opportunity to how it empowers a woman in an incredible way, have their own authority over their childbirth, the probably the most empowering experience she most basic human rights of both mother and child will ever have. Where she learns how brave she is, are violated, and this needs to stop. how strong, how respected. It prepares her for the heavy task of mothering. Strong women can be strong mothers. We can facilitate that if we actively support women, when However, I have also heard, seen and felt the dev- we respect their own strength and wisdom. astating, lifelong damage a woman suffers from childbirth if authority is taken away from her. And that is a long term result for babies; who, in turn, can become strong people. Because for the It disempowers her. mother, things do not end at childbirth, it’s only the It burdens her. beginning. It makes her feel guilty and inadequate. It colors the bonding with her baby. About Rebekka Visser It colors all the other births she will have. It colors her life. Midwife, working in rural part of the Netherlands (Usquert, Groningen). Now is this what she needs as a new mother? Is it not reasonable to think that all these points are She works since 2004 and because of her encoun- actually really inappropriate for a woman who has ters with women’s experiences in childbirth she just become a mother, and has to take care of that developed many activities as an activist for wom- baby, so cautiously saved? How does this disem- en’s rights in childbirth. powering treatment women suffer affect their ‘being able to mother’ in a confident way? What In her opinion, many problems that occur between does this mean for the baby? pregnant women and their caregivers have a root in communication and/or the lack of it. To her this topic is heavily undervalued in discussions about

144 HUMAN RIGHTS IN CHILDBIRTH safety, in favour of the importance of guidelines She writes a blog about her experiences and opin- and protocols. Where she can she speaks about ions on www.vroedvrouwenradicaal-rebekka. this, to raise awareness for it. Besides that she is blogspot.com an active member of the KNOV, and involved in various other projects about the organization of Rebekka is a mother of three children (22, 21 and maternity care in her own region. 14 years old).

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 145 Letter to the Conference By Monique Severijns

My name is Monique Severijns, I am 38 years old dependence. My partner told me afterwards he and I live together with my partner, Kenneth, and never saw me this angry before. my two sons, Tijn who is 3,5 years old and Abe, who is 1 year old. We live in Amsterdam. We are So in half an hour, I was prepared for the OR and I healthy, happy and sharing a lot of fun. had a caesarean. When I was taken to the operat- ing room and before someone gave me the epidu- During my first pregnancy, I was positive about ral, I had to work through my contractions again, giving birth. I was convinced that I was able to do which came back heavily. I had so much pain, I what millions of women do on a daily basis. I was can not even remember properly how intense that overdue for 2 weeks, when one night the baby pain was. I was shocked and tired, thinking this began to move heavily, so my water broke. After was the end of my life. The epidural felt as if I was almost 4 days of having broken water, I still had no being finished off. I was hanging on a shoulder contractions. In the meanwhile, the baby was from someone of the medical staff while another checked and everything was fine. person gave me the epidural. I was drooling, look- ing to my right foot, thinking that I wore my most On a Monday, first thing in the morning, I was horrible socks of all and that was the exact point induced, so the contractions did come. After 17 that I had the thought, this is the moment I am hours of contractions, I was dilated to 5 centime- going to die. With my horrible socks on. I felt like a ters. I had fought as a lioness. I was fighting an doll, numb, and I was helpless in a matter of min- armchair during the day. I was working through my utes. It was freezing cold in the operating room; I contractions standing up all those hours. Pain kill- was shivering, shaking in a way I was almost ers were offered to me when I had 12 hours of con- ashamed of. I apologized to the person who was tractions, to get some rest. Pain killing did not standing at the height of my head. I told her, “I am occur to me until someone told me I might take it so sorry, I can not get myself under control”...... because of my exhaustion. I was totally (how in my mind I was in a position to apologize??) exhausted-- not to forget the four days of broken in my mind I could move my body, but in reality I water had taken its toll, also mentally because my could not. I asked her if she knew I was going to contractions did not come naturally. I said yes, die. She smiled and told me I was not. I tried to fine, give me some. I got a morphine pump so I work out all the monitors around me to see myself could arrange the dose myself, which was fine if there was a flat line coming. with me for a little while. At only 5 cm, they were obviously not going to get me to deliver. I heard I really was thinking I would never see my child to someone saying that Tijn, my baby, wasn’t doing grow up. It was a genuine fear of dying. I was also too well and there was something going on with angry of myself. Angry that I could not handle this, his heartbeat, so I lost it. I remember, after seeing that I was not the one who did this herself. I also many people assisting, after many times being told myself during the operation: surrender, touched to see how far I was, I heard myself shout- Monique, surrender. In Dutch, there is one word for ing, “Get the baby out!” Suddenly I got scared, both surrender and vomiting (I said: overgeven, which I did not feel a second before that moment Monique, overgeven..) so the people around me that I heard things were not going OK. I was still a thought I needed to vomit, and a vomit bowl was lioness all over, and I was so furious about my pushed under my head. I was able to laugh a bit

146 HUMAN RIGHTS IN CHILDBIRTH and tell that I was meaning that I tried to surrender. Then I was very lucky to meet Doctor Sicco Scher- Then this horrible rumble and pulling in my body, it jon, gynecologist at the Lucas Andreas hospital In felt as if they were ripping my heart out, and I did Amsterdam. He listened to my story, and I could vomit. I was terrified. tell him about my fears and doubts, and the thoughts I was playing with. What was very impor- So Tijn came. So many emotions came around tant to me: he did not judge. He only listened. Then and I remember when I came back home, I literally he gave me some choices I could consider about almost did not move for six weeks. I was on the my delivery, which we would work out together up sofa with my baby all that time. Him sleeping in my until giving birth, letting every possibility open. arms, and I was only looking at him, taking care for his needs and playing the happy mother, but I was I also was in contact with Joyce Pula, who I had still terrified. It took a very long time to get in known then for almost ten years already and motion again, and to pick my life up, to recover whose yoga classes I was in. We talked a lot about mentally. Longer then I would admit, as I look my situation. It was great for me that she, also, just back. I was glad we made it out alive, so I did not lovingly listened to my doubts about my upcoming complain about my delivery. I did not speak about delivery. She pointed me into the direction of me it, actually. the gentle caesarean. She gave me an internet link so I could read some- Then, 19 months later, I got pregnant again, and thing about the existence of it. It was an English my first feeling was joy, and of course there was website. I printed it all out and handed it to the this fear. I immediately got into this focus that I assistant of my gynecologist. She found the infor- wanted to do the best I could, to arrange every- mation quite interesting, and after the appointment thing positive around me. I wanted to do every- that day, I saw her walk away with my documents. thing in my power to give myself a good time, this time around. I made a major project out of it. I tried Sicco Scherjon and I did not speak a lot about my to talk to any mother I could cling on to; I found out delivery during about twelve weeks. He checked about addresses, people, possibilities and sup- me during our appointments and we chatted. He is port. I tried to dig deep into myself. So it got me a wonderful cheerful man who loves humans, so thinking. I tried to work out how I would try to give our appointments were always just nice and he birth this time. Naturally? A caesarean? It was a made me feel good. When the delivery came hell of a job, thinking and trying to feel what was nearer, it became clear to me that I would choose right for me. Choosing a caesarean felt as failing, a caesarean. He had no verdict about that, all the not trusting my body to do its job…..but my intu- way he kept listening to my own development and ition led the way. I had to listen to that. thoughts. Of course, in our conversations, he would tell me things that made me think again, but There was a midwife who I felt alright with, for the he never pushed or tried to make me think his way. first period of my pregnancy. Then, when I told her He just supported whatever I would choose. When about my doubts and my thoughts about a caesar- I talked to him once or twice, about the possibility ean, she told me firmly: “Choosing a caesarean is of this new thing, the gentle caesarean, he was a a choice out of fear; do you realise that?” It made bit reluctant at first. He told me his way of ‘gentle’ me furious. Yes, it was also a choice because of was his own technique of operating. He explained fear, but my fear was very present, so why should to me what he meant by that. I understood, and I I ignore that? The thought of another caesarean did not go on about it. I was very aware of the fact also scared the hell out of me. I felt I was not in the that with my suggestion of the gentle caesarean, I right place anymore, so I decided I wanted to see was finding myself in a field I had nothing to do a gynecologist. with: the way people work. There I had no influ- ence. I could only speak out about my curiosity I had no fear when I gave birth the first time. I pre- and preferences, and after that I would let it go. So sumed my body would take over and do its job, I did. It really felt I had no interference there. Medi- which it didn’t. So why would I trust my body now? cal staff seems unattainable at that point, if they It was a painful feeling, not trusting my body, and I want it or not. Medical staff is willing to help and- doubted my choices over and over. Should I really hopefully- listen to their clients, but in the end they choose a caesarean? go their own way technically because it is their job. As a not-medical person, you have to go with that.

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 147 Then I must say, a gentle caesarean is not all about it, he recognised the name of a London gynaecol- technique, then. It is about a few risks (danger of ogist he had been running with, who did the ‘same infection by taking the operation sheet away for thing’ in London (he meant the gentle caesarean). example) but this gentle caesarean is mostly about He did not remember how the documents came giving the parents a feeling that they can fully wit- into my dossier. I lay flat, ready to be operated; I ness the birth of their child. That’s the key. was listening to this all and I told him over the operation sheet: I gave you those documents! He So, then the day of my delivery came. I finally had laughed, and joked around about giving lectures to made my mind up about the caesarean. Sicco other gynaecologists, that 300 of them already had Scherjon had told me that would operate on me, taken notice of the gentle caeasarean in the Neth- and then just an hour before my delivery, I heard he erlands because of me. Other medical staff were was not operating that day. I was sad about it but, joking (about my surname Severijns) “We can call this was a hospital, things just go like this, I it a souvereign caeasarean”, and they went on thought. Just before I was brought to the operating about me becoming famous. The joking, of course, room, Sicco came around the corner, smiling, and stopped and they got to work. he told me he had swapped with his colleague. I was relieved and I remember that I cried because So, there and then it felt everything came together. of my relief. It was magic seeing my son being born. He came out of my body and I was struck by the beauty that When the delivery almost was there, Sicco came I was given from the people around me at that back into the operating room and asked the atten- moment. My head was held up by someone so I tion of everyone present in the room. He said: could see Abe coming out of me and I just kept on “People, today we are going to do things a bit dif- saying how beautiful it was. It was a present, and ferently. We are going to work slowly and when we a little miracle that everything came together. take the baby out, we will take the operation sheet down and let him take his first gasp of air while still It was a healing experience for me, and I thank all in the womb, and the mother and father can see those wonderful people I was able to meet and the birth of their child.” who listened to my story and who helped me along the way during my pregnancy. They just listened I was thunderstruck. What did he just….?? So he so I was able to make my choices. That was all would….??? He began chatting that he found that was needed. documents in my dossier ,and when he had read

148 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Joke Meulmeester

In my work as a medical doctor (vertrouwensarts it is at home with the midwife, or in the hospital inzake kindermishandeling) at the Advice and with either midwife or obstetrician. In very few reporting Centre for Child Abuse (AMK), the main cases, the issue that has been reported is the emphasis is on supporting parents to create a safe place of birth, when a pregnant woman and a pro- and healthy environment in which children can fessional have a difference of opinion. Most grow and develop to their potential. The parents I reported cases around birth are the outcome of a come across before or soon after childbirth are multi-problem situation, with either serious medi- usually in quite difficult circumstances, due to all cal and social problems, as stated before. kind of reasons, like substance abuse, serious mental problems, inadequate housing, or domes- So I shall participate in the panel and look forward tic violence. Some women recognise the problems to hear the controversial birth choices and give my and want the best for their children. Other women contribution from our professional perspective. are not able to understand what is necessary to nurture and raise a child. In our work we are the About Joke Meulmeester advocate of the child, with the conviction that a child is preferably raised and cared for by its own Joanna (“Joke”) Meulmeester was trained as med- parents. Within this dilemma we discuss with par- ical doctor. After 5 years working in India, she did ents all possibilities of support, preferably within a Master of Public Health at the Johns Hopkins the family or family network, and invite them to University (USA). In the Netherlands, she spe- cooperate for the benefit of the child. In excep- cialised in Preventive Medicine and Epidemiology. tional cases when the safety of the child cannot be She obtained a PhD at the University of Amster- guaranteed, we have to take our responsibility and dam (1988) on a study of the nutritional status of have the young child cared for by others. This step Turkish and Moroccan children in The Nether- requires the involvement of Council of Child Pro- lands. She also worked as a senior researcher at tection (Raad voor de Kinderbescherming) and a TNO. verdict of the juvenile court. Since 2004 Joke has worked as a confidential In our work the individual rights of a parent can be doctor at an Advice and Reporting Centre for Child frustrated to safeguard the rights of a child. Deal- Abuse. She is member of the Board of Association ing with these legal issues is at the base of our of Confidential Doctors Child Abuse (Vereniging work. We like to prevent a debate on rights by ask- Vertrouwensartsen inzake Kindermishandeling). ing parents to focus on and act in the interest and wellbeing of the child. Most mothers or to-be- mothers want to do their utmost for the wellbeing of the child, and co-operate with us.

I was asked as a representative of our association of confidential doctors (VVAK) to participate in the discussion on Controversial Birth Choice in The Netherlands (Panel 6). Our association has only one opinion about birth: it should be safe, whether

PANEL 6: CASES ON THE EDGE: “ILLEGAL” HOME BIRTHS IN THE NETHERLANDS 149 150 HUMAN RIGHTS IN CHILDBIRTH / Panel 7: Money and the Professions

Panel 7 will discuss the role of finances, and espe- Panellist amongst others is: cially health insurance policies, in shaping trends - Jos Becker Hoff, CEO KNOV from the Nether- in Dutch obstetric practice. Many professionals in lands the obstetric system remark that financial pres- - Marian van Huis, Treasurer ICM from the sures will put an end to the “traditions” of Dutch Nether­lands Midwifery in a matter of years. This panel could - Mary zwart, Midwife from Portugal and the explain ways in which financial practices have Netherlands already affected significance changes in the Dutch - Rachel Verweij, Mother from the Netherlands system.

Similarly, this panel could investigate the extent to which the financial models underlying Dutch child- birth effectuate a spirit of competition or collabo- ration between doctors and midwives.

PANEL 7: MONEY AND THE PROFESSIONS 151 Home Birth Through The Ages By Marian van Huis

At a remarkable point in the history of Dutch Mid- wifery care, “Bynkershoek” is organizing a confer- In ancient times, it was thought that bearing chil- ence about Human Rights in Childbirth. dren was a mystery, to which only women had the key. Goddesses like Isis and Diana ensured suc- The Dutch obstetrical care system hasfor many cessful childbirth. Around 78 to 117 AD, men also years been well known for the possibility for became interested in obstetrics: Hippocrates women to choose between a birth at home or in wrote about obstetrics, and there were male mid- the hospital, attended by her primary-care mid- wifery practices. In the writings of Soranos, obstet- wife. rics was a female affair. In one of his textbooks, he did write the rules midwives must comply to: “they The Dutch system of Healthcare has a strict divide can read and write, they have a keen mind and between primary care and secondary care. Sec- good memory, long and slender fingers and the ondary care is only for patients referred by a pri- nails cut short.” mary care giver. So no one can go to a specialist or hospital without a referral. That makes the system For a long time, women were assisted at home by efficient: the right care at the right place, and women, who were educated in the profession cheap compared to other countries, as specialists through tradition and experience.1 and hospitals are expensive. The first known midwife in the Netherlands was As we used to say: “Hospitals are for sick people, Catherine Gertrude Schrader (1656-1746). She not for healthy people”. was located in Friesland and married to a master surgeon; they had 6 children themselves. After she But now we are at a cross-road in our system, due was widowed, she continued the shop of her sur- to all kind of circumstances which will be dis- geon husband. At that time, she also started a cussed. midwife practice. She practiced until her 88th year.

Since time immemorial, women gave birth assisted She performed more than 3000 home births, which by other women, and at home. A birth supervised she reported shortly and succinctly in her report by a midwife was mentioned in the Bible: Exodus “Memory-book of Women. Diary of deliveries in 1, verses 1 to 22 is about the Hebrew midwives, Dokkum, 1693-1745.” Sifra and Pua. They ignored the commandment of Pharaoh to kill all Jewish male babies. They At that time, midwives were well regarded, and refused this under the pretext that the women had were part of the Guild of Surgeons. already given birth before they arrived. Schrader’s notes are a unique document of great importance for the knowledge of obstetrics and How and where women do give birth has to do midwifery in earlier times. They provide informa- with the position of women, progress in society, tion about the way of giving birth, about (the fre- and medical science. quency of) false pregnancies and premature births,

1 Damstra-Wijmenga, In smart zult gij uw kinderen baren, p. 154

152 HUMAN RIGHTS IN CHILDBIRTH but also on the social status of the midwife, about now give medicines and started to perform prena- the costs of a delivery, ways of employment, med- tal care.3 ical responsibilities, working conditions, mortality rates, and even about the crafts then existing in Another measure that promoted home birth was Dokkum.1 the adoption, after years of preparation, of the Healthcare Insurance Law in 1942, during the Ger- In the Netherlands, the expectation of having one’s man occupation. That law gave the midwives a child at home was able to stand for a long time, monopoly on ‘normal’ childbirth. The Healthcare much longer than in neighboring countries. Hen- Insurance Law recommended only midwives drik van Deventer (1651-1724), a well-known pro- should be paid by the Insurance. If a couple fessor in obstetrics, valued the knowledge of the wanted the assistance of a GP during childbirth, midwifery profession: “normal deliveries at home they had to pay for him/her themselves. In 1998 with the midwife, and complications to the the restriction on competition and the legal gynecologist.”2 arrangement in favor of midwives stopped. But from then on, the number of GPs caring for preg- The training of midwives was at a very high level. nant women and attending childbirth at home Already in the 17th century, there was a university dropped massively.4 of midwifery in Groningen, and one in Amsterdam since 1861. In the late 50’s, the hospital was opened to outpa- tient childbirth care by GPs: they could use the In the Medical Act of 1865, the responsibility of the delivery rooms with their clients. For midwives and midwife was given a legal basis. The Act con- their clients, this was not allowed. They were only firmed that the midwife could provide assistance allowed to assist home births. The midwives, well “in normal childbirth”. organized in their trade unions, extinguished this “injustice” around 1970. The pregnant women In the early nineteen-twenties, the first discussions could then choose between a home birth and an started in the Netherlands about the place of child- elective (not for a medical reason) hospital birth. birth and the position of the midwife. The back- Professor Kloosterman once called this develop- ground was: status and money. The Central Health ment the biggest mistake for the promotion of Council played an important role in this discus- home birth. The percentage of outpatient birth sion. Because this council consisted of represen- increased from 11 to 15% in the nineties, and tatives from various professions with equal legal stayed about stable since then. Since that time, discussion rights, it did not lead to consensus. the percentage of home births declined to around Midwives maintained their position, also because 23% in 2010. of public confidence and the support of renowned professors: Professor De Snoo reported in a letter The Obstetrical Manual List or “VIL” (list of indica- to a colleague that in a ‘normal’ childbirth he would tions when to refer for secondary care or indication recommend a midwife instead of a doctor. for consultation) was launched and updated every few years. More and more it was based on the risk Around 1910 to 1920, competition between the perception model.5 But until the early 21st century, Midwife and the General Practitioner (huisarts) midwives were supported by the healthcare insur- started. With the consent of the Council, which ers and politicians: good care at a good (cheap) was aware of the professional interests involved price. and was in nobody’s favor, the competences and training of midwives was extended and they could When the first European figures were published on perinatal mortality (PERISTAT 2008), the report showed figures for the Netherlands that were not

3 Hilary Marland, ‘Questions of Competence: The Midwife Debate in the Netherlands in the Early Twentieth 1 Catharina Schrader, Memoryboeck van de vrouwens. Century’, Medical History39:3 (1995)-p. 324-37 Het notitieboek van een Friese vroedvrouw 1693-1745 4 Einde primaat verloskundige, Zorgverzekeraars (ed. M.J. van Lieburg). Rodopi, Amsterdam 1984 Magazine, maart 1996, p. 21-23. 2 H.L. Houtzager en F.B. Lammes, Obstetrics and 5 VERLOSKUNDIG VADEMECUM; eindrapport van de gynaecology in the Low Countries: a historical Commissie Verloskunde van het College voor perspective (Zeist 1997). zorgverzekeringen. febr 2003

PANEL 7: MONEY AND THE PROFESSIONS 153 as good as had previously been thought, and dis- Research has shown for years now that continu- cussion erupted.1Were the numbers a reflection on ous support in labor (don’t leave the woman in home birth? Is home birth safe or not? Although labor alone), gives the best results: quicker and research shows home birth is safe, and the Peri- safer birth without intervention. The vision of a stat figures never demonstrated that the results strict divide between primary care and secondary had to do with home birth, (indeed on the con- care, between physiology and pathology, with a trary2), the discussion between the healthcare pro- large portion of births being home births under the viders (gynecologists and midwives), as reported care of independent midwives, has a life-time by the media, looked as if the numbers were a advantage for a mother, her child and the family, product of homebirth, when in fact the underlying because of proper bonding and fewer unneces- debate was about status and money. In a culture sary, dangerous interventions.4 Unfortunately, this where sensation is more popular than nuance, this aspect is not heard in the current debate anymore. story had an avid audience. Women who want to give birth at home, are made But also, in the Netherlands, during the last anxious by hearing unjustified conclusions from decade, belief in market-forces developed.3 And studies “showing” that homebirth could be unsafe. with the introduction of a market-driven economy Women are made afraid of home birth and the care in Heath Care, the obstetric picture is changing of midwives, led to believe they are taking risks if rapidly. Inextricably, the changing of funding for they choose for these— and nobody wants to take hospitals (more focused on profit) and specialists any risks for her newborn and herself. There is no makes it very lucrative to tap new customer groups research showing this to be so; on the contrary: to expand their income. Pregnant women from pri- home birth after proper risk selection is shown to mary care are a lucrative group. be safe, and women are shown more satisfied with the birth. In the meantime, the 24-hour option of analgesia by epidural catheter became available, and women The discussion in society and the media in the have been given the choice to deliver with or with- Netherlands today is focusing only on the content out pain relief. This can only take place in hospi- and the quality of primary care. However, in fact, tals. As woman do have a choice, an option the underlying reasons driving this debate are all to snapped up by women who are anxious and/or do with control and finances, introduced by the wishing for painless birth. The fact that there are new market-driven health-care system. This is a more risks of complications from unnecessary bad thing. interventions (more inductions, cesareans, compli- cations of the epidural, fever of the baby) may Meanwhile, very recent figures from our own Peri- develop, is severely underexposed. natal Data Registration shows a decrease on peri- natal mortality over the past 10 years by 40%! And in the group of clients between 37 and 42 weeks, where the midwife is involved, perinatal mortality is 1 PERISTAT, Indicators for monitoring and evaluating extremely low.5 perinatal health in Europe, Jennifer Zeitlin1, Katherine Wildman1, Gérard Bréart1, Sophie Alexander2,Henrique Barros3, Béatrice Blondel1, Simone Buitendijk4, Mika This publication also got headlines in the newspa- Gissler5, Alison Macfarlane6 and The PERISTAT pers, who hardly can believe these results. But can Scientific Advisory Committee7. Eur J Public Health the tide still can be turned, and the Netherlands (2003) 13 (suppl 1): 29-37. doi: 10.1093/eurpub/13. maintain its unique obstetric system? Hopefully, suppl_1.29 economic globalization will not damage the birth 2 Dutch perinatal mortality, Too early to question effectiveness of Dutch system. Ank de Jonge, senior system in the Netherlands, making it like the rest of midwife researcher1, Ben Willem Mol, professor of the world, where healthy women have to fight for obstetrics and gynaecology2, Birgit Y van der Goes, the right for a normal birth, or the right to birth midwife researcher2, Jan G Nijhuis, professor of wherever they feel safe, even at home. obstetrics3, Joris A van der Post, professor of obstetrics2, Simone E Buitendijk, professor of maternal and child health4BMJ2010;341:c7020(Published 7 4 Gerard Essedcs: Verloskundige zorg in Nederland; December 2010) voorsprong of achterstand? NedTijdschrGeneeskd. 3 A new Private Universal Dutch Health Insurance in the 1996;140:1280-2 Netherlands, in: André den Exter (ed.) Competitive 5 Dutch Perinatal Data Registration, Audit Commission: Social health Insurance; Year book 2004, Erasmus Perinatale sterfte onder voldragen kinderen is afgelopen University Press, ISBN 90-807487-9-X, 2005, p. 8-19. 10 jaar fors gedaald. 25 november 2011

154 HUMAN RIGHTS IN CHILDBIRTH Let’s hope that, in the future, we do not experience ensures new and on-going data registration and situations like in the Eastern part of Europe, where analysis from MNCH primary care, and hospital midwives are brought to criminal court for attend- care. This includes data from midwives, general ing homebirths in support of the wishes of women, practitioners, gynecologists, pediatricians and and situations like Ternovszky v. Hungary will not pathologists. Furthermore, I lead research at the occur. Women do have the human right to choose University of Amsterdam, the Academic Medical the circumstances in which they give birth, with Center, on a part time basis. Also I am the chair of whom and where, including a choice between a national political party in my region. Please see home and a hospital birth. attached CV for detailed information about my present and past work and experience. About Marian van Huis Experience Present activities: For seven years, up to 2005, I was President of For the last triennium I have been serving with the The Royal Dutch Midwifery Association.. At the International Confederation of Midwives as Execu- end of my presidency of KNOV, which started dur- tive Board Member and as Treasurer. In this posi- ing an extremely difficult period of time for mid- tion, together with the ICM staff, we are running wifery in The Netherlands because of a shortage of ICM’s daily business. midwives, who were underpaid; the number of midwives increased up to the required level, and ICM is the only global organization of Midwifery their income doubled. Associations worldwide. ICM is running programs to speed up midwifery care worldwide to benefit Until 2009 I was Chief Midwife at the Academic Mothers and Babies. It is a shame daily still 1000 Medical Centre, University of Amsterdam, depart- women are dying worldwide because of a lack of ment of Obstetrics and Gynecology and I was proper midwifery care. Well educated and regu- director of the MSc Midwifery program. For 4 lated midwives can make the difference. Accord- years, until September 2007, I was Vice-President ing to the recent State of the World Midwifery of the European Forum of National Nursing and report, there is a shortage of at least 350.000 mid- Midwifery Associations, EFNNMA. wives. ICM contributes by strengthening Midwives and Midwifery Associations. The pillars focused As EMA (European Midwifery Association) Board on are: Education, Regulation and Competences, Member I was responsible for the secretariat and and Association Building. for the bookkeeping, budget and annual accounts. These activities gave me a lot of experience on Together with partners ICM is active in 20 coun- national and international with human and financial tries in Asia-Pacific and Africa and Latin America. resources. See for more details ICM’s website: www.interna- tionalmidwives.org. Besides management skills with financial compe- tencies I am trained in education and research, Currently I am an editor of the Annual reports of with publications. See CV. the Dutch Perinatal Data registration, which

PANEL 7: MONEY AND THE PROFESSIONS 155 DUTCH WOMEN STILL WANT HOME BIRTH By Rachel Verwey

[The following letter was published in a major up giving birth in the hospital, women who do have Dutch newspaper, de Volkskrant, on May 18th , a homebirth show a greater degree of satisfaction. 2012, in response to a May 9th Volkskrant article by Barbara van Erp titled ‘Woelig Baren,” or “Tur- Why do only 23% of women end up birthing at bulent Birth.” The Volkskrant ran that article in a 3 home? For some, it is a deliberate choice: the page special section titled, “The End of Home- need for pain relief, or a preference for the hospi- birth: We Are Allowed to Deliver in the Hospital tal. But for the majority of the women, this is not Again.” The van Erp article was preceded by a the case. These women end up in the hospital header that translates: “Homebirth in the Nether- because the number of referrals has increased lands used to be the norm. Women weren’t told greatly in recent decades. Or because the hospital that half of them would have to go to hospital dur- in their own neighbourhood has closed and they ing the course of their first birth. After alarming would need to travel very far in case of emergency, baby mortality rates, midwives and gynaecologists making homebirth no longer a safe option. Or turned the tide around.” 1] because they are afraid, a fear that is fuelled by a constant stream of negative articles, such as the The discussion about home birth has flared up recent article of van Erp in de Volkskrant of May again, and opponents of homebirth are allowed a 9th. special voice in de Volkskrant. The mere existence of something backward like homebirth, in a highly Of course we need to evaluate Dutch birth care developed country like the Netherlands, is sup- continuously, as van Erp states. For example, she posedly the work of the “homebirth mafia,” the paints a good picture of the need to improve coop- midwives, who only think of their own financial eration between obstetricians and midwives. interests. It is unfortunate that the debate on the Because it seems, indeed, that (the lack of) coop- future of birth care is conducted in such a way, eration between these two are the weak spot in the because it is not the midwives who insist on home- Dutch system. Also, her description of the rate of births; it’s the parents who demand them. And disappearance of homebirth is accurate: extrapo- indeed, the stakes are high. lating the statistics shows that the end of the Dutch system will be reached within 10 to 15 There is a massive demand for homebirth. years. But it is ironic that articles such as Van Erp’s Research by TNO from 2008 shows that 70% of will ultimately make this a self-fulfilling prophecy. Dutch parents would prefer a homebirth. In our own survey among young parents, which has not It is odd: while so many women still want to give yet been published, we find a similar number: 67% birth at home, homebirth threatens to disappear. would like to give birth at home, if possible. What will it take to save homebirth? Another 10% thinks it important that the possibility exists in our country, even though they don’t want In the first place: we need research, and also: fair it for themselves. And although most women end information about that research – because that is all too often lacking. The UMC-research van Erp refers to raises important questions about our 1 The full article is available at: http://www.knov.nl/docs/uploads/Volkskrant_artikel_ midwifery system, but please note: the study does einde_van_het_thuisbeval-tijdperk.pdf nót investigate homebirth. A TNO-study from 2008

156 HUMAN RIGHTS IN CHILDBIRTH among more than half a million women shows that homebirth is as safe as hospital birth, and with less chance of interventions. Continued research is needed. Further research is needed on the ever- increasing referral rates. Not all the grounds for referral are “evidence based,” even though it is sometimes presented as such. Research is needed on the effects of the closure of hospitals in sparsely populated regions: this could cause an increase in the mortality rate in the future.

In the second place: we need critical consumers. Parents, be vigilant! Inform yourselves. Fear is a bad advisor. Barbara van Erp was very easily deceived by her midwife. When I was pregnant in the same year, I knew very well that there was a good chance that I would end up in the hospital. Be critical of your midwife or gynaecologist. Keep in mind that they also may have a (financial) inter- est in the advice that they give you. Ask questions about your transport to the hospital, and about the risks of interventions and the risks of not interven- ing. Above all, make your own deliberations. And sign our petition: www.hetOuderSchap.nl/petitie.

In the third place: we need more, much more attention for the needs of women and their part- ners. That includes the desire for pain relief and the preference for a hospital birth, but also the desire to stay at home and be safeguarded from unnecessary interventions. Women who want a homebirth are not romantic dreamers. Modern (brain) research shows, more and more, how important the role of hormones is in all processes after childbirth: the bonding with the baby, breast- feeding successfully, and ultimately perhaps even the self-confidence of mothers and the risk of postnatal depression. A positive birthing experi- ence contributes to the influx of hormones. Of course, such a positive birthing experience, with, for example, choosing your own birthing position and having undisturbed contact with the baby after giving birth, is also possible in the hospital. And of course homebirth does not guarantee a positive experience. But apparently women (and their partners) know exactly where their chances are best!

Rachel Verweij, Chairperson of the Dutch Parent- hood Association www.hetOuderSchap.nl)

PANEL 7: MONEY AND THE PROFESSIONS 157 158 HUMAN RIGHTS IN CHILDBIRTH / Panel 8: Ternovszky in Holland: Future of Choice

This concluding panel of the two-day conference Panellists are: will discuss the future of the Dutch obstetric sys- - Marjolein Faber, Student of Midwifery and tem. This panel will be 30 minutes longer than Medicine from the Netherlands most conference panels, and that time will be used - Fleur van Leeuwen, Assistant Professor of for audience participation and general discussion. Human Rights Law from the Netherlands and Is the robust choice that Ternovszky described as Turkey the human right of all birthing women a reality in - Gunilla Kleiverda, Gynaecologist and Presi- the Netherlands? What are the possible directions dent Women on Waves from the Netherlands that the Dutch system might move in? What deci- - Angela Verbeeten, Chairperson of the KNOV sion-making processes will shape that outcome? from the Netherlands How could these processes be optimized to - Jennifer Walker, Doula from the Netherlands ensure that the resulting system will best serve - Barbara Wijsen, Secretary General of the women and babies? This panel brings the confer- Commission for Perinatal Health from the ence full circle, from a consideration of the circum- Netherlands stances of the Ternovszky case and the abstract meaning of the human rights articulates, to a con- crete application of this holding in Dutch law and obstetric practice.

PANEL 8: TERNOVSZKY IN HOLLAND: FUTURE OF CHOICE 159 Taboos in Maternity Care Education: Intimacy, Love, Sexuality and Death By Marjolein R. Faber

Introduction according to established rules. There are informa- tive classes, with teachers teaching certain sub- Birth is the most intimate and life changing event jects, and practical classes,where students learn in a woman’s life, yet intimacy has no place in the technical skills for delivering babies and providing curriculum to become a doctor or a midwife, along certain medicines. The subjects that are being with love, sexuality and death. Taboos are silently taught are all mainstream medical skills, like man- ruling the scepter in the educational field, and as a ual external turning of breech, with little to no room result, limiting the range of skills that midwives for less known, evidence-based topics, like bring from education to practice. acupuncture,moxa therapy, waterbirth and other non-medicated pain relief. Asa midwifery student in the Netherlands,I would like to share my view, experiences and wishes on The students have little opportunity in the educa- the lack of intimacyencountered in our midwifery tional process for sharing, connecting or thinking education. creatively or intuitively. By letting students work and learn ‘alone’ (with no close, personal guid- Which direction are we heading? ance), we experience solitude and are less likely to encounter the full scope of midwifery. The art of At the moment, the midwifery academies in Hol- midwifery is put in the background, and the once land are very busy in making a big change in the vibrant and eager students become technical curriculum. They are trying to achieve the univer- specialists,rigidly following protocols with little sity level by becoming academic and establishing understanding of the breadth and subtlety of truly midwives’ competence in the practice of evi- client-centered midwifery care. dence-based care. The wide scope of midwifery care The bad-mouthing of midwifery care in the Nether- lands over the past few years has created a nega- To be a midwife, it is important to have a medical tive and defensive atmosphere in the midwifery education, but a midwife’s expertise does not stop sector. Working as a midwife has become more there. A midwife is a psychologist, social worker, difficult, since midwives find themselves needing sexologist, body worker, dietician, masseuse and to explain their profession to people who get the creative artist in one. These are all subjects that impression from newspaper articles that midwives deserve serious attention in the education to do not provide safety. In order to strengthen mid- become a midwife. wives and their profession, the academy has focused on the centrality of Evidence Based Mid- Intimacy is one of the four taboos related to mid- wifery, at the expense of “softer” paradigms. wifery that has no place in the educational pro- gram. Intimacy, love, sexuality and death are The current educational system at the midwifery important parts of life, are at stake in birth, and in academy is focused on case-based learning and particular are central to midwifery. But social clinical reasoning. Students are challenged to taboos surrounding these topics are reflected learn to cooperate while finding knowledge on inside the school, andso midwifery students lose their own, and to judge and correct each other

160 HUMAN RIGHTS IN CHILDBIRTH the opportunity to discuss, explore and learnabout integration of intimacy and caring in midwifery them in a safe and open environment. education would better equip Dutch midwives to help their clients through moments that are cur- At my academy last year, I organized a workshop rently causing them to transfer care. on the use of a rebozo (a long cloth used by tradi- tional birth attendants in other parts of the world) Combining the Best of Both to assist a woman in labor and turn a breech baby. Worlds As part of the workshop, students practiced wrap- ping and cradling each other with the rebozo. In a time when science reigns and is considered Afterward, many remarked that it was the first time the only source of legitimacy in healthcare, it is in their education that they had actually touched important to remember the humanity at the heart each other and experienced a certain level of of our work. Although scientific research is physical intimacy. How is it possible that students expanding to include more subtle aspects of well- can be trained to ‘guide a woman through child- being and the mind-body reality of childbirth, there birth’ and perform vaginal exams, without ever will always be topics difficult or even impossible to experiencing physical contact with even their fel- research. This fact shouldn’t lead us to neglect or low students? ignore facets of midwifery that we know to be of critical significance to our ability to deliver quality Students should receive professional training in care. the midwifery skills that help a woman through labor, and practice them on each other. From birth- An educational space for learning, sharing and ing postures and movements, to massage tech- exploring all the facets of midwifery is the founda- niques and pelvic presses, all of these could be tionalkey to real client-centered care. The recogni- practiced in the classroom or workshop setting. tion of this spectrum also creates the possibility of Midwifery students will experience how it is to be researching the less known, non-medical mid- touched and how to touch, which will, in turn, wifery skills, like non-medical pain relief for exam- teach them to create a safer environment, where ple. Dutch midwifery education can bridge science there is a place for intimacy and caring. Learning and sex, academia and intimacy, the evolution of to take care of ourselves and each other, in con- public health and the needs of a woman who nection and personal guidance, will make stronger, doesn’t think she can make it through another healthier and happier midwives in the future. contraction. In our effort to demonstrate how well we can use our heads, let us not forget how to use In addition, I believe that educating our future mid- our hearts and our hands. We need all three to pro- wives in the role of these taboo subjects in child- vide meaningful support to birthing women and birth will bring down the high percentage of trans- babies. Through the hands of Dutch midwives, fer rates at the heart of public criticism of Dutch physiological birth will be kept as a Dutch heri- midwifery and home birth.150% of home birth tance for the future and as a beacon for the rest of mothers are now transferred during labor and the world. delivery, and the most common reasons for trans- fer have become “needs pain relief” and “failure of About Marjolein Faber progress.” If home birth is losing ground, it is in large part due to this rate of referral. The esteemed Marjolein is a third year midwifery student at the former Dutch midwifery Professor Kloosterman Midwifery Academie in Amsterdam. Prior to this once noted that there is no such thing as failure to course she has studied medicine at the Erasmus progress, only an impatient midwife. But could it University in Rotterdam. She quit halfway after an be that many midwives are simply unequipped internship with Dr. Solt in an Israeli hospital with the very skills needed to help a woman over inspired her to change her path towards guiding these particular childbirth hurdles, skills that women through childbirth, instead of delivering depend on warmth, compassion, connection, love their babies. Committed to empower students and intimacy? I suggest that the recognition and during their intensive course, she initiated the REDTENT events, inspiring lectures and workshop open to anyone who is interested in midwifery 1 For a recent example, see the Volkskrant’s May 9, 2012 related subjects. Hopefully the students and other article, “WoeligBaren,” available at http://www.knov.nl/ docs/uploads/Volkskrant_artikel_einde_van_het_ interested visitors will get a chance to learn and thuisbeval-tijdperk.pdf experience how to empower women through

PANEL 8: TERNOVSZKY IN HOLLAND: FUTURE OF CHOICE 161 pregnancy and childbirth by sharing multidimen- sional views with all parties involved.

Marjolein is involved in many extracurricular, inter- national activities and works part-time in a hospital in Amsterdam until she will graduate and start to work as a midwife next year.

162 HUMAN RIGHTS IN CHILDBIRTH Ternovszky v. Hungary: Discussions Around a Woman’s Right to Decide About Her Own Sexual and Reproductive Health By Gunilla Kleiverda

Introduction makes it impossible for many women in develop- ing countries to benefit from this right. To quote Ternovszky v Hungary can be summarized as fol- the former president of the FIGO, Mahmoud lows: The applicant complained about being Fathalla: “Women are not dying of diseases we denied the opportunity to give birth at home, argu- can’t treat. ... They are dying because societies ing that midwives or other health professionals have yet to make the decision that their lives are were effectively dissuaded by law from assisting worth saving.” her, because they risked being prosecuted. (There had recently been at least one such prosecution.) Fortunately, in Western Europe, nearly all women The Court found that the applicant was in effect have access to skilled birth attendants. Under not free to choose to give birth at home because of these circumstances, women’s needs can some- the permanent threat of prosecution faced by times conflict with the opinions of health care pro- health professionals and the absence of specific viders, with children’s rights or with legal issues. In and comprehensive legislation on the subject, in this paper I will discuss some of them briefly. violation of Article 8 right to respect for private and family life).1 A woman refuses necessary treatment This court case provides an interesting opportunity to reflect about situations where women’s wishes The most difficult experience for obstetric health and expectations conflict with the opinions of care providers is probably the Jehovah’s Witness, health care providers, and possibilities for women who is unwilling to receive life-saving blood trans- to receive health care congruent to their needs. fusions. To see a parturient woman die, respecting the ‘choice’ of the woman, does not mean it feels The (pregnant) woman’s right to decide over her like reproductive justice. The same situation own body is a basic human rights principle, which applies to the patient who is unwilling to be treated needs to be respected and supported. In order to for a malignancy, with unnecessary premature really be able to decide, women need access to death as a consequence. In the Netherlands, the unbiased information about sexual and reproduc- case of the actress Sylvia Millecam is well known. tive health. Moreover, available, accessible and Health care providers will feel their obligation to try affordable health care providers and facilities are a to save the life of the woman, but feel frustrated if prerequisite. the right of self-determination clearly damages the health and life of the woman. Before we discuss conflicting opinions about women’s rights to self-determination in more Difficult as well is the woman who is unwilling to detail, we have to realize that, worldwide, a lack of have an assisted vaginal delivery by a vacuum skilled birth attendants and lack of access to good extractor, because she has the incorrect idea that quality abortion, antenatal and perinatal care this treatment will harm her child. Ideally, this infor- mation is discussed and corrected during preg- nancy, but if the woman remains with her decision, 1 http://www.echr.coe.int/NR/rdonlyres/4B7D24F7-F9EF- 4749-B16B 68E650B95C5A/0/FICHES_droits_ the gynecologist may be forced to do an unneces- procréation_EN.pdf sary cesarean section (CS) or to deliver the child in

PANEL 8: TERNOVSZKY IN HOLLAND: FUTURE OF CHOICE 163 an unnecessarily bad condition. The challenge in a gynecologist is allowed to refuse a request for a this situation is to try to give the woman enough CS if there is no medical indication. confidence that no decision is made against her will, and to try to gain the confidence of the woman Personally, I’m glad not to practice in the UK, that the gynecologist will use this instrument only where I can be obliged to do an (in my opinion) in a situation where no other option is available, for unnecessary operation or to where I have to refer example acute asphyxia without time to do a CS. the woman for this ‘treatment’ to a colleague. Of course, I’m willing to do a CS as an exception in a More difficult is the woman who refuses a CS, with severe (sexually) traumatized woman or a woman the consequence that her child will die or be born who is extremely anxious about a vaginal birth, in an asphyxiated condition. As most women feel though I will experience, at the same time, frustra- extremely responsible for the health of their child, tion that my team of health care providers is unable this is a very exceptional situation, mostly related to provide enough trust for the woman to deliver to lack of information or incommunicable anxiety. vaginally in an acceptable manner. Sometimes a woman wants to deliver vaginally after two or more CS, considered by most gyne- Interesting is the difference on the two sides of the cologists a reason for a next CS. In such a situa- North Sea with regard to a breech delivery. The tion, clear information about increased risk of uter- RCOG clearly states that a CS is recommended ine rupture is necessary. for a breech delivery, while the Dutch guidelines state that we have to inform the woman about the In the Netherlands, it is the woman who decides. advantages and disadvantages of each option, This in contrast to the USA, where women have and that the woman has a clear part and say in the been ordered by court decisions to forced hospi- final decision. talization and forced CS. Even criminalization of women after (unnecessary) intra-uterine dying of In daily practice, I’m sometimes confronted with the child has occurred. This trend in the USA, women who experience this decision-making as where the unborn child seems to have the same or very difficult. On the one hand, they would like to more rights than the pregnant woman, is clearly deliver vaginally; on the other hand, they feel this related to the strong influence of the anti-abortion might be an irresponsible decision in case the (so called pro-life) movement. We should be child should be born in a bad condition. In my extremely anxious not to allow the same tenden- opinion, is it important that if we, as gynecologists, cies within Europe. believe that a breech delivery is safe, we clearly include this information in our counseling, provid- A woman requests unnecessary ing trust for women to deliver vaginally. Only in this treatment way we can prevent unnecessary CS for breech deliveries, in situations where good outcome after Within obstetric care, the frequent occurring vaginal birth is expected and we can support examples are the on-demand induction of labour women to trust they make a responsible decision or Cesarean Section without medical indication. to deliver vaginally.

The NICE Guidelines of 2011 state: for women Within gynecological care, examples of unneces- requesting a CS, if after discussion and offer of sary or harmful treatment are female circumcision, support (including mental health support for hymen reconstruction and labial cutting. women with anxiety about childbirth), a vaginal birth is still not an acceptable option, offer a Fortunately, practitioners in the western world, in planned CS. And: An obstetrician unwilling to per- close cooperation with NGOs combating Female form a CS should refer the woman to an obstetri- Genital Mutilation, have decided not perform any cian who will carry out the CS.1 form of female circumcision.

The Dutch guidelines offer the same instruction With regard to hymen reconstruction, clear guide- with regard to the exploration of the ideas of the lines do not exist. Personally, I feel a lot of reluc- woman, providing information and psychosocial tance, because I’m supporting a woman to take a support. However, the Dutch guideline states that traditional role of ‘virgin’ entering the marriage, knowing that her husband is not supposed to be a 1 http://publications.nice.org.uk/caesarean-section-cg132 virgin, and knowing as well that women with tradi-

164 HUMAN RIGHTS IN CHILDBIRTH tional views on sexuality are more prone to become But home births are decreasing very fast. More victims of marital violence. With my attitude of and more women opt for a hospital birth, as they principally refusing reconstruction, but in very want to use epidural or other anesthesia during exceptional case supporting, I try to help the labour. women who badly need such a cutting, and I try not to do it unnecessarily. Moreover, providing Opinions between HCP in the Netherlands about information and discussing alternatives is the the safety of home birth differ widely. While mid- major part of the solution in these situations. wives generally consider a home birth safe, many obstetricians do not agree. Labial reduction by surgical cutting is a new trend among western young women. Many physicians Discrepancy between the opinion of a woman and are performing these operations, as long as the HCP is possible as well in the Netherlands, in the woman or the insurance pays for the operation. situation that the woman wants to deliver at home They defend these operations as responding to and the guideline advises hospital delivery. In this women’s needs, without really exploring them. case, the woman has few ‘rights’, though she can try to find a health care provider who is willing to Of course, in all situation where a woman wants to make an exception. A clear notice in the medical have an operation, and the gynecologist has the record that informed consent is obtained and that opposite opinion, providing information about calculated risk of complications is discussed and advantages and disadvantages of an operation are accepted by the woman, can probably prevent first steps in finding a solution which is acceptable claims or legal procedures in case of unfortunate both for the woman and the doctor. Guidelines, as outcome, and may open possibilities to use guide- in case of FGM, help doctors to avoid performing lines in a more personal way, fitting to women’s mutilating operations and women from receiving needs and wishes. clearly harmful ‘treatments.’ Ternovszky v. Hungary does not seem to be helpful Whether or not an unnecessary CS is considered in these cases in my opinion, as Health Care Pro- to be harmful, and whether the woman has the viders tend to adhere to evidence based guide- right to refuse vaginal delivery, differs from country lines about the best care, not only because of legal to country. We may probably conclude that a reasons, but also because these guidelines gener- denial for a Cesarean Section is not a violation of a ally reflect the sentiments of the profession. woman’s right to decide over her own body. Interests of women and the fetus A woman requests treatment or child are conflicting that doesn’t conform to guidelines If a woman is not able to take care of a child after birth, because she is severely addicted to alcohol The obstetric system in the Netherlands allows or drugs, is living on the street or has no safe place women to deliver at home, when there is no medi- to raise the child, it is necessary to protect the cal contra-indication. A woman is considered newborn child. The mother is not able and not healthy if she has a singleton pregnancy, a normal allowed to take the full responsibility for her child. general and obstetric history, normal blood pres- After a court decision the child can be placed in a sure, clear amniotic flood, a baby in the vertex foster home. position, etc. In these cases, the first line midwife (or very seldom, the general practitioner) guides Nowadays, it becomes more and more routine to the pregnancy and birth. In case of increased risk screen the living circumstances and behavior of a of postpartum hemorrhage, the first line midwife pregnant woman. In case these are harmful for the guides the birth in the hospital. In all other situa- developing foetus or child, early intervention and tions, the health care providers (HCP) in the hospi- support can be offered to change harmful behav- tal are responsible for the care. ior. If the woman continues to show irresponsibil- ity, procedures can be started to have a court National guidelines provide clear information for women and first and second line HCP. Mrs. Ter- novszky would probably have been able to deliver at home, in case she had lived in the Netherlands.

PANEL 8: TERNOVSZKY IN HOLLAND: FUTURE OF CHOICE 165 decision already during pregnancy about place- ultrasound of the fetus, video material on the ment of the child outside the home after birth. development of the embryo, and being informed about non proven ‘medical risks’ of abortion such A very recent court decision in the Netherlands is as sterility, post-abortion syndrome, etc. alarming. The judge decided an involuntary admis- sion in a psychiatric clinic of a16 week pregnant In Hungary, abortion is still legal, but anti-abortion woman, severely addicted to cocaine. Before, forces are becoming stronger and stronger. Medi- such decisions were only made after 24 weeks, cal abortion is only available at extreme high costs, where we consider the fetus to be worthy of pro- and so in daily practice unaffordable. tection. Advancing the gestational age for such “protection” severely threatens the legality of sec- Women who don’t have access to safe and legal ond trimester abortion. At some point, the fetus abortion, need our support. Health care providers becomes a person, a person that gradually may and women’s right activists can easily refer women derive protection and some rights. If we accept to the websites of Women on Waves and Women that a fetus of 16 weeks has the legal right to be on Web, where women find information about how protected, legal abortion until 24 weeks can’t be they can do safe medical abortion themselves. 2 defended any longer. 1 Some concluding remarks Women’s needs are conflicting with legal possibilities Ternovszky v. Hungary is a good example of client power. It is a big shame that health care profes- Worldwide, about half of the abortions are unsafe, sionals, providing care fitting to women’s needs, due to illegality or lack of skilled service providers. are prosecuted and imprisoned. Although abortions done according to medical guidelines carry very low risk of complications, Empowering women to be responsible for their unsafe abortions contribute substantially to mater- own sexual and reproductive health is very impor- nal morbidity. Moreover, they are responsible for tant, though can only be promoted in situations 13% of the maternal mortality and worldwide. where societies decide that women are worth liv- Within Europe, Ireland, Poland and Malta are ing, and where basic and specialized good quality known for their restrictive abortion laws. The anti- obstetric health care is available, affordable and choice movement is present in many European accessible. countries, aiming at making abortion less acces- sible. Antenatal and perinatal care is a part of sexual and In the Netherlands, women are ‘allowed’ to decide reproductive health care, which also includes sex- about their own abortions, though only after five ual education, contraception, abortion care and obligatory waiting days and after obligatory coun- rights of youngsters and homosexuals. seling about other solutions for their unwanted pregnancy. Women don’t have full access to med- In order to protect women’s rights in a broader ical abortion, registered up to nine weeks, but pro- perspective, coalitions are necessary between all vided in abortion clinics only up to eight weeks. those individuals and organizations supporting Anti-choice organizations receive financial support women’s rights. Strategic cooperation may pre- of the Dutch Ministry of Health to provide anti- vent further influence of the anti-abortion and anti- abortion information at schools. movement. These movements reduce a woman into just a shell for the unborn child, without her Recently, anti-choice groups attempted to restrict own rights. access to abortion in Romania. They partnered with the leading Government party and came up Legal action, like Mrs. Ternovszky did with regard with a legal proposal for mandatory counseling to home birth, and like some Polish and Irish and 5-day waiting period for women before abor- women did with regard to safe abortion, are essen- tion on request. The draft law contains specific tial in this respect. Conferences like this one, with description of biased counseling that should many different professionals and powerful women include watching video/photo images of fetus, from different countries, may stimulate further

1 http://www.ntvg.nl/publicatie/wet-bopz-toegepast-bij- vroege-zwangerschap-van-verslaafde 2 www.womenonwaves.organdwww.womenonweb.org

166 HUMAN RIGHTS IN CHILDBIRTH cooperation between all those supporting wom- Since 2001 Gunilla is involved in the activities of en’s rights. Women on Waves and Women on Web. She sailed to Ireland, Poland, Portugal and Spain to support About Gunilla Kleiverda local groups active in legalizing abortion. She vis- ited Equador, Pakistan and Uganda to provide Gunilla Kleiverda (1955) registered as an Obstetri- women information about how they can perform cian and Gynaecologist in 1985. She is providing themselves safe illegal abortion. obstetric and gynaecologic care to a population with a lot of social problems in the city of Almere. In scientific and popular journals she publishes She is responsible for teaching and education of about several aspects of women’s health care, medical students and gynaecologists within the including women’s autonomy to decide about their department. own sexual and reproductive health. With regard to abortion, she invented the slogan: ‘de vrouw In 1989 she defended her thesis: Transition to par- beslist, de abortuspil bij de drogist’ (the woman enthood: Women’ s experiences of labour. Char- decides, the abortion pill free over the counter of acteristics associated to the choice for the loca- the farmacist). For the future, she hopes to involve tion of birth were studied and related to delivery midwives not only in the care for women with a outcomes. wanted pregnancy, but also in the care for women with an unwanted pregnancy. Within the Dutch Society of Obstetricians and Gynaecologists (NVOG) she was many years For her work Gunilla received several awards, responsible for patient education and edited a among others the Aletta Jacobsprijs of the Univer- book for health care providers about how to pro- sity of Groningen, the van Walree prijs of the Royal vide this education. Now she involved in activities Dutch Society of Medicine and the Clara Wichman of the NVOG to improve quality of care. penning, a human rights award of the ‘Liga voor de rechten van de mens’. Besides her regular work in hospital she has been involved in women’s health care activities for many years. In the eighties she had many contacts and was active in the movement tot promote home deliveries and prevent unnecessary medicalization of birth. In the nineties she was active in the sup- port of women who experience sexual violence in the war in former Yugoslavia.

PANEL 8: TERNOVSZKY IN HOLLAND: FUTURE OF CHOICE 167 Who is the Boss? By Angela Verbeeten

The pregnant or child bearing woman may make The lawyer wants to codify such issues in the law. decisions over her body autonomously. The mid- It has been tried in Court to limit the freedom of wife is also autonomous and has an independent mothers if it benefits the child. But without much referral capacity. We call that our gate keeper success. For the ethicist the issue is very interest- function. But how do I fill this function? If the gate ing. The ethicist says there are several conceptual keeper function means that I am standing at a frameworks in which the issue can be viewed. But door in between the first and second line care and that is useless if you have to make a fast decision. may decide autonomously who I send through the What I’ve learned in my years of experience as door and who I do not, it wouldn’t make me nor the midwife, is that you not only need to possess client happy. “It was nice having you under our obstretive knowledge and skills, but also need to care Ma’am, but behind this door you’re on your keep using your brain and need to communicate own. Bye. “ The past years we have sent a consid- well with your client. If you rely on the principle that erable amount of clients through that door. The you are both responsible for delivering a work of number of referrals is continuously increasing. art, then together you will get through it. Whether it Could there be a better way? is in line with the VIL or creatively along a side track. Of course you are boss of your own body How does my autonomy relate to the autonomy of Ma’am, but may I, as your advisor, also say some- the layman? What if the midwife and the woman thing? Shall we do it together? giving birth each want to go a different direction? Customer is king? Boss of own womb? A long It is good that we have laws that prescribe who is time ago I had a woman who really wanted to give in charge of what, and when that applies. But that birth at home. That was possible. Until it became is not the end of the story. It is much wiser if we clear at first touché that she had 7 cm. dilation and can stay out of discussions of ‘who is the boss’ by that the baby was in breech position. I wanted to using empathy and our rational mind, and take go to the hospital but the mother refused. A diffi- responsibility together. That doesn’t only count for cult situation. Luckily the problem solved itself the relationship between midwife and client but because the baby was born spontaneously before also between midwife and gynecologist. the ambulance that I called for had arrived. Profes- sional autonomy means the midwife may deviate About Angela Verbeeten from the professional guidelines if that is in the interest of the client. But what if your client wants Angela Verbeeten is the Chairperson of the KNOV to deviate but you don’t? What if you think from a (Royal Dutch Organization for Midwives) and a professional point of view that the mother’s wish midwife at the midwifery practice Cyclus. In the conflicts with the interest of the baby? Bringing up past she was vice-chairperson of the KNOV. She the VIL (Verloskundige Indicatie Lijst: medical has gotten her education at the midwifery school guidelines for gynecologists and midwives) does in Heerlen. not help. By insisting on your right on autonomy, the client will insist on her right of autonomy. There must be a better way?

168 HUMAN RIGHTS IN CHILDBIRTH Letter to the Conference By Jennifer Walker

When I was 26 years old, I moved from Canada to unbearable. As soon as the monitor came off, I the small, strange country of the Netherlands, 20 retreated to the shower again, and in the end I weeks pregnant with my first child. My notable stayed there until my son was crowning. I had a first memories of Holland were the mini sinks in the mantra that worked for me, “My mother will sur- toilets with only cold water, the mini fridges in the vive her breast cancer; I will get through this con- kitchens (in Canada these are called “bar fridges”) traction,” and indeed we both did. and the seemingly endless mini stairs that led me up to the apartment in Amsterdam where I planned When I became pregnant with my second child, I to give birth to my first child, and where eventually was more rooted in Amsterdam. I knew which pre- I did give birth to my second child two years later. natal yoga class would suit me, I had found Lillith It was there in my mini apartment (28 m2- or 301 Turk, Amsterdam’s Active Birth guru. I was confi- square feet) that my two-year old son and I took dent that the floor of my sinking apartment in apart the kitchen table as my labour began (I have Amsterdam could handle the weight of a birthing photos of him with a power drill!), to make room for pool and that I would birth my baby at home. The the birth pool. It was then, unbeknownst to me, midwives warned me that labour would be faster that a birth advocate was born, as my son passed this time around, so to call them straight away. I from my body to the water, to my hands. let them know that this time I wanted to enjoy the experience of my labour, and five hours had not I thought I would also have my first son at home. It left time for enjoyment, so I figured it would be a was a surprise when at 41+3 my waters broke, and little longer this time. My midwife came when I first I exceeded the 24 hour mark that my midwives called her, and after watching me for a while in the said “allowed” me to birth at home. Looking back, pool, she asked to examine me and perhaps break it was a gift for me to experience birthing in both a my waters. I felt her impatience; she thought it hospital and home setting. It was January 31st. In would be quicker. I told her I was going to pee. the paternal line of my son, a baby is born in Janu- After my pee a contraction was coming, and I told ary every 30 years: 1910, 1930, 1970 and I hoped her I was getting back in the pool, and if she felt it in 2000, but seeing that I had no contractions I had was important, she could ask me again after that. accepted we would break with tradition. I went I also suggested that if she was tired she could into the hospital for a check-up, planning just to sleep, and I would wake her when her help was return home again afterwards, I was confident my needed. She didn’t sleep. My baby boy was born labour would begin within the 72 hours allotted! after seven hours of glorious labour, having never While I was in the hospital, my labour began. I met the fingers of my midwife, for which I am eter- remember the hospital midwife saying, “By tomor- nally grateful. After he was born, the midwife did row you will have a baby,” and me saying, “He’s worry about his breathing, and called the hospital coming today; he has a tradition to uphold,” and I for a telephone consultation with the gynecologist, was right. Five hours from my first contraction my and told me we may have to go in I agreed, and son was born. In those 5 hours, with an uncompli- then I nestled my son skin to skin in bed with me cated birth, they strapped me to the monitors and breathed deeply. My instincts and trust were twice. I remember that labour was “doable” stronger than they had ever been. The midwife except for those two 20 minute stretches, laid out checked him again a few minutes later and in con- on my back in the bed, and I recall that time as sultation with the gynecologist decided we could

PANEL 8: TERNOVSZKY IN HOLLAND: FUTURE OF CHOICE 169 stay home and watch him closely ourselves. I impact a woman’s likelihood of having a cesarean knew he was fine, and I was reborn. or her satisfaction.”

In the years that followed, I organized a regular If we are to put the women at the centre of her playgroup for international parents, and I heard birthing experience, than an independent support time and again from pregnant mothers full of fear, person, who can bridge the 1st and 2nd line of care and later, their birth stories that saddened me. I and truly provide continuous support at home, didn’t meet many that felt the trust in birth that I during transfer and in hospital is essential knew. I hope that my contribution to the conference can In 2006, I was asked by a friend expecting her sec- lend my voice as a mother and doula, to help shine ond child to support her in birth, and be there for a clear light on the current experience of mothers her older son. At that time, there were no doulas in birthing in Holland. Many women experience the Amsterdam. Two weeks later, another friend joyful welcoming of their baby, surrounded by car- asked me the same question. Both of these births ing and empathetic care providers, both in home were powerful homebirths with siblings present, and hospital settings. Unfortunately others have and as I stood on the street after the second birth traumatic, sometimes bullying experiences both in in two weeks, I knew I had been given a sign. I pregnancy and birth. I am bearing witness and suddenly had a calling, and I had found my way supporting women to follow their road to birth. I home. What to do? The oxytocin was still coursing am seeing firsthand the changing face of birth in through me as I made a plan. I gave up my job as the Netherlands. director of development for an international the- atre organization, and I became a full time doula. About Jennifer Walker

The role of the doula in the Netherlands is still rela- Jennifer is a Canadian who relocated to Amster- tively young. I was among the first doulas when I dam 12 years ago, 20 weeks pregnant with her began in 2006, and I have seen the number of first child. Jennifer is one of the first doulas to doula, and the demand for our services grow begin working professionally in the Netherlands, exponentially in the last years. training with Childbirth International and with Debra Pascali-Bonaro in 2006. She has a thriving The place the doula has in the Dutch maternity doula practice in Amsterdam (www.birthsupport. system is perhaps still not clearly defined. The nl). Working as a doula the last six years she has research, though, is clear: A systematic review of bore witness to births in many settings and experi- the effects of continuous labor support was pub- enced the changing tides of birth in the Nether- lished in Issue 2, 2011 of the Cochrane Library: It lands. concluded that women who received continuous support were less likely to have analgesia; give Jennifer’s background as a theatre producer has birth with vacuum extraction or forceps; to have a also served her well in the birth community inviting cesarean; to report dissatisfaction or a negative many international birth experts to teach work- rating of their experience; and more likely to give shops in Amsterdam. In 2012 she created a new birth spontaneously. doula training program with midwife/acupunctur- ist/doula Jacky Bloemraad-de Boer: JJ doula In 2009, the Dutch Ministry of Health Steering training www.birthsupport.nl/jjdoulatraining. Commission for Pregnancy and Birth created a report with the intention to halve the number of preventable infant mortalities within five years. In this report, they stated “that the pregnant mother must not be left alone from the beginning of the labour”, suggesting that this can be achieved by using maternity home nurses and labour and deliv- ery nurses. While I wholeheartedly agree that con- tinuous support is key to better outcomes and mother satisfaction, the 2011 Cochrane review also stated “Support provided by a member of the hospital staff (such as a nurse) did not seem to

170 HUMAN RIGHTS IN CHILDBIRTH / Program

Day 1: Human Rights in Childbirth: International Day 2: Legal Issues in the Choice Between and European Perspectives Home and Hospital Birth in the Netherlands

8:00 – 9:00 8:00 – 9:00 Registration Registration

9:00 – 9:30 9:00 – 9:30 Welcome and Day 1 Keynote Speech: Ina May Welcome and Day 2 Keynote Speech: Raymond Gaskin de Vries

9:30 – 11:00 9:30 – 11:00 Panel 1: Ternovszky v. Hungary: Context and Con- Panel 5: Perinatal Mortality in the Netherlands: sequences of the ECHR Decision Facts, Myths, and Policy

11:00 – 11:30 11:00 – 11:30 Coffee Break Coffee Break

11:30 – 13:00 11:30 – 13:00 Panel 2: Safety, Risk, Costs and Benefits: Weigh- Panel 6: Cases on the Edge: Contraversial Birth ing Choices in Childbirth Choices in the Netherlands

13:00 – 14:00 13:00 – 14:00 Lunch break Lunch Break

14:00 – 15:30 14:00 – 15:00 Panel 3: The Rights of the Baby: The interests of Panel 7: Financial Pressures in the Dutch Obstetric the unborn child and the power to speak for those System interests. 15:00 – 15:40 15:30 – 16:00 Panel 8: Ternovszky in Holland: The Future of Coffee Break Choice in the Dutch Obstetric System (first half)

16:00 – 17:30 15:40 – 16:40 Panel 4: Collaboration, Competition, Money and Coffee Break Monopoly: The legal status of doctors, midwives, and hospitals in pregnancy and obstetric care. 16:40 – 17:20 Panel 8: Ternovszky in Holland: The Future of 17:30 Choice in the Dutch Obstetric System (second Reception half)

17:20 – 18:00 Closing Remarks

18:00 Reception

PROGRAM 171 172 HUMAN RIGHTS IN CHILDBIRTH