https://www.who.int/reproductivehealth/topics/maternal_perinatal/statement-childbirth/en/

 By Evanthia Papageorgiou, LL.M. International Human Rights Law & Global Criminal Law, evanthiapapageorgiou hotmail.com  

Women in labour carry a series of reproductive and patients’ rights. Appertaining to this reproductive freedom, they have the right to choose the method of childbirth and the right to refuse any medical intervention.[1] Women who give birth in maternity facilities qualify as patients, as they are users of healthcare services.[2] As patients, they have the right to self-determination, after they are properly informed both about the possible risks and benefits of any proposed intervention (e.g. the Caesarean section) and their individual health condition. When the requirement of informed consent is not fulfilled, women experience violations of their self-determination, their psycho-physical integrity and their autonomy.[3] Consequently, childbearing women must freely decide about any operation and/or medical intervention proposed to them by the healthcare providers after they are accordingly informed.

 As part of the overall medicalisation of healthcare, the medicalisation of maternity health services has led to the dangerous belief that physiological birth is a process to be avoided, when possible.[4] Following this belief, more and more childbearing women globally undergo Caesarean section.[5] This trend carries a series of grave health risks not only for the mothers who undergo a not medically indicated Caesarean section[6] but also for their babies.[7] From a legal point of view, any intervention during childbirth should aim to achieve the ‘highest attainable standard’ of health for both the mother and the baby.[8] Nonetheless, healthcare providers, due to convenience reasons and higher profit aspirations, influence women to perform C-sections and other birth interventions to speed-up labour.[9]

 The World Health Organisation (WHO) warns of the health risks of elective C-sections for mothers and children and recommends their operation only for medical reasons.[10] As birth is a natural process, it should only be supported by healthcare when medically necessary with a strong role of the woman in the decision-making process.[11] After all, the increasing medicalisation of childbirth undermines the childbearing woman’s capacity and degrades her childbirth experience.[12] Furthermore, every woman has a different pace when it comes to childbirth and medical interventions should only be decided upon after taking these differences into account.[13]

 A human rights approach suggests that even when not medically indicated, every childbearing woman should be able to opt for a Caesarean section. However, the extreme rise of elective C-sections and other non-medically-indicated interventions raises questions about the patronising tactics of healthcare providers in influencing women’s consent.  Furthermore, the provision of elective Caesarean sections is possibly the only case where the patient is free to decide about a grave operation, even when medical indications are not present. This is despite proof that the psycho-physical damages of a non-medically indicated C-section are greater than the physical and mental pressure of a physiological birth.[14] Thus, the health risks of a C-section prove it should only be taken when the anticipated result exceeds that of a vaginal birth. For these reasons, elective C-sections raise serious concerns regarding the health-related rights of women.

 Currently, Greece has one of the highest C-section rates.[15] This common practice of unjustifiable C-sections constitutes a violation of the right to health and the health-related rights of childbearing women. It is also important to understand that C-sections performed without informed consent are part of a larger phenomenon: obstetric violence.[16] Although law’s reflection of this phenomenon is solely limited to Latin America, its range is global.[17] Greece is a country where women experience obstetric violence in many forms, e.g. through unnecessary or coerced slowing down or speeding up of labour, discrimination due to ethnic background as well as other forms of verbal and/or physical mistreatment.

 Under Greek law, the violation of patients’ rights (e.g. self-determination and informed consent) by healthcare providers can potentially lead to civil, criminal and disciplinary responsibility.[18] However, the burden of proof for insufficient/improper information is on the woman-patient, creating difficulties in claiming violations. For this reason, Greek jurisprudence lacks cases about unnecessary medical interventions.[19] Instead, the trend of defensive medicine[20] is reflected in a plethora of court decisions on medical errors and negligence. In regards to soft law, the current Greek clinical guidelines regarding labour induction, Caesarean sections and Vaginal Birth after Caesarean section (VBAC) are outdated and not considered by healthcare professionals.[21]

 Greece needs legislation for the reduction and monitoring of excessive C-section rates; the medical teams violating the rates and procedures envisaged by law should be held responsible. In terms of soft law approaches, the current outdated clinical guidelines must be continuously updated and monitored. Such updates shall follow the current medical standards[22] and conform with the specificities of the Greek healthcare system.[23] Further, as the midwife-led care model is linked to better childbirth experience and lower Caesarean section rates,[24] Greece’s health policy agenda should gradually promote midwifery and its vital role. Lastly, the forms, the causes and the degree of obstetric violence in Greece need to be thoroughly researched.[25] After this research, a state initiative for public information on obstetric violence needs to take place (e.g. a campaign). Another future step could potentially be a legal approach towards obstetric violence.

[1] Ronli Sifris, Reproductive Freedom, Torture and International Human Rights: Challenging the Masculinisation of Torture, Routledge, 2014, pp. 5-6.

[2]WHO, A Declaration of the Promotions of Rights of Patients in Europe, ICP/HLE 121, Copenhagen 28 June 1994, https://www.who.int/genomics/public/eu_declaration1994.pdf, accessed 29 April 2019, part 7.

[3] See further ‘Patients’ Rights’, in Brigit Toebes and Mette Hartlev, Aart Hendriks, Janne Rothmar Herrmann (eds.), Health and Human Rights in Europe, Cambridge: Intersentia, 2012.

[4]WHO, Childbirth: myths and medicalization, https://www.euro.who.int/__data/assets/pdf_file/0007/277738/Childbirth_myths-and-medicalization.pdf?ua=1, accessed 29 April 2019.

[5] NCBI, Ana Pilar Betrán a.o., The Increasing Trend in Caesarean Section Rates: Global, Regional and National Estimates: 1990-2014, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4743929/, accessed 29 April 2019. 

[6] Caesarean sections or C-sections; Both terms are used interchangeably.

[7]WHO, WHO Statement on caesarean section rates, https://www.who.int/reproductivehealth/publications/maternal_perinatal_health/cs-statement/en/, accessed 29 April 2019; Op. cit. Childbirth: myths and medicalization.

[8] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976, 993 UNTS 3), article 12 paragraph 1.

[9] See e.g. The Wire, Shweta Marathe and Renuka Mukadam, Profiteering Hospitals Are Driving Alarming Rise in C-Section Deliveries in India; C-sections were developed to deal with life threatening medical conditions during delivery, but is being practiced irrationally for profit and convenience, https://thewire.in/health/c-sections-health-women-pregnancy, accessed 29 April 2019; See also Liiri Oja and Alicia Ely Yamin, “Woman” in the European Human Rights System: How is the reproductive rights jurisprudence of the European Court of Human Rights constructing narratives of women’s citizenship?, Columbia Journal of Gender & Law, 32.1, pp. 62-95, p. 79: ‘In no area of medicine are the recipients of interventions so often not the actual beneficiaries of that care, much less active agents in the design of the kind of care they wish to receive.’

[10] Elective Caesarean sections are those performed without medical reasons, as a sole result of the woman’s choice, after information by the healthcare providers. The problematics around the concept of elective C-sections arise in cases where although the woman is properly and sufficiently informed about the pros and cons of a C-sections, she decides to undergo the surgery.

[11] WHO, WHO recommendations: Intrapartum care for a positive childbirth experience, https://www.who.int/reproductivehealth/publications/intrapartum-care-guidelines/en/, accessed 29 April 2019, p. 1, 12, 168.

[12] Ibid, p. 1.

[13] Ibid, pp. 45, 51, 116-119.

[14] Live Science, Cari Nierenberg, Vaginal Birth vs. C-section: Pros & Cons, https://www.livescience.com/45681-vaginal-birth-vs-c-section.html, accessed 7 May 2019.

[15] WHO: Greece far exceeds normal rate of C-section births; The number is almost double the EU average, https://neoskosmos.com/en/41005/who-greece-far-exceeds-normal-rate-of-c-section-births/, accessed 29 April 2019;  iefimerida, ‘First place’ for Greece in Caesarean sections – Quadruple percentage in comparison to the global average (title translated by the author), http://www.iefimerida.gr/news/324731/protia-tis-elladas-stis-kaisarikes-tetraplasio-pososto-apo-ton-pagkosmio-meso-oro, accessed 29 April 2019.

[16] The WHO refers to obstetric violence using the definition of Venezuela’s Organic Law, which reads as follows: ‘[…] the appropriation of a woman’s body and reproductive processes by health personnel, in the form of dehumanizing treatment, abusive medicalization and pathologization of natural processes, involving a woman’s loss of autonomy and of the capacity to freely make her own decisions about her body and her sexuality, which has negative consequences for a woman’s quality of life’. See further WHO, Prevention and elimination of disrespect and abuse during childbirth, https://www.who.int/reproductivehealth/topics/maternal_perinatal/statement-childbirth-govnts-support/en/, accessed 29 April 2019.

[17] Elisabeth Kukura, Obstetric Violence, The Georgetown Law Journal, Vol. 106, pp. 721-801, p. 763.

[18] Greek law provisions on medical conduct include civil and criminal law as well as medical ethics.

[19] Alexandra Papachristou, Civil medical responsibility in unjustifiable Caesarean section and induced labour in general (title and name translated by the author), Sakkoulas Publications, June 2018, pp.171-182.

[20] Defensive medicine refers to the practice of recommending a diagnostic test, a treatment or a medical intervention which does not constitute the best option for the patient, but serves the purpose of protecting the healthcare provider against litigation. This practice poses health risks to patients and raises the healthcare costs. See further NCBI, M Sonal Sekhar and N Vyas, Defensive Medicine: A Bane to Healthcare, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3728884/, accessed 9 May 2019.

[21]Hellenic Obstetrical and Gynaecological Society, Guidelines no. 9, 12 & 25, http://hsog.gr/?page_id=2678, accessed 29 April 2019, p.1.

[22] For instance, VBAC is not yet a commonly used medical practice in Greece.

[23] The current medical standards set in soft law Guidelines suggest that childbearing women should have sufficient psychological support in order to overcome the stress related to giving physiological birth, while such provision is not feasible under the current health system in Greece.

[24] See i.e. NCBI, Yanjun Zhao a.o., Modest Rise in Caesarean Section from 2000-2010: The Dutch Experience, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4871460/, accessed 9 May 2019; University of Minnesota, School of Public Health, Laura Attanasio and Katy Kozhimannil, Midwifery and rates of obstetric procedure utilization at New York State hospitals, Policy Brief, September 2017, http://www.sph.umn.edu/sphrb/wp-content/uploads/docs/attanasio-kozhimannil-brief.pdf, accessed 9 May 2019. 

[25] The WHO notes that ‘[…] there is currently no international consensus on how disrespect and abuse should be scientifically defined and measured.’, WHO Statement on The prevention and elimination of disrespect and abuse during facility-based childbirth, https://www.who.int/reproductivehealth/topics/maternal_perinatal/statement-childbirth/en/, accessed 29 April 2019.