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1 October 2013
Barbara Hewson finds the UK is out of step with Europe when it comes to guaranteeing women's rights in childbirth. Barbara Hewson is a barrister at 12 Gray's Inn Square.
A Resolution of the European Parliament passed on 8 July 1988 calls on the European Commission to draw up a charter on the rights of women in childbirth. The resolution suggests a consensus on the rights and standards of care to which pregnant women and women in labour are entitled. It expresses concern at the increase in the number of Caesarean sections in the EU.
It contains principles such as: that maternity should be entered into on the basis of free will; that personal, psychological and cultural factors play a major part in childbirth; that women should receive appropriate care during pregnancy and childbirth and be given adequate and comprehensive information to enable them to take their own decisions; and that no surgical operation should be performed in the case of hospital confinements except in cases of absolute need.
The proposed charter would enable a pregnant woman to obtain a medical card allowing her to choose the country, district and institution in which she receives care, and to decide all aspects of the birth. Those rights would be reproduced on this card and guaranteed.
It further calls on the commission to protect women by making seizure or other implementing measures with regard to property, furniture or personal possessions unenforcable from eight weeks before to eight weeks after the birth.
This resolution is not, however, mentioned in the House of Commons Health Committee's Report on the Maternity Services (1992), the Department of Health's response Changing Childbirth (1993), or the Maternity Charter (1994). The UK has a soaring Caesarean rate (now 16 per cent), which costs the NHS a fortune, and is seen by some as a serious public health problem. The fact that UK family courts are forcing women to undergo Caesarean sections suggests that the UK has forgotten the principles in the resolution.
On 30 June the Department of Health issued new guidance on consent to Caesareans, following a Court of Appeal judgment in a forced Caesarean case (Re MB, 26 March). This guidance was not preceded by any consultation, and is no charter of rights for pregnant patients. It omits to explain that in law a foetus has no rights and cannot be used as a pretext for coercing pregnant patients. It is silent about the growing use of force to impose Caesareans. It fails to mention that no family judge has upheld a pregnant woman's autonomy so as to deny a foetus the best possible chance, and that family courts are hostile to pregnant women's autonomy.
Instead the guidance says that doctors should take pregnant women to court, when competence is in issue. Those "in charge" are directed to identify a potential problem as early as possible. This will expose pregnant women to intrusive scrutiny with a view to identifying potential defendants in hostile litigation. In my view this amounts to an unlawful instruction to NHS trusts to discriminate against pregnant women as a class, by subjecting them to less favourable treatment on grounds of sex, contrary to sections 1, 29 and 39 of the Sex Discrimination Act 1975. Worryingly, the guidance also says that the Official Solicitor should be notified of all applications and act as amicus curiae. It is unlawful for NHS trusts to leak confidential patient details to strangers. And involving the Official Solicitor, who has repeatedly argued against pregnant women's autonomy and is perceived as being sympathetic to foetal rights, is a controversial move.
These guidelines are likely to undermine pregnant women's confidence in the maternity services. The Department of Health is supposed to promote and protect pregnant women's autonomy, not undermine it.