By Cynthia Lourenço Tach, LLM Student at the University of Groningen, c.lourenco.tach@student.rug.nl

Over the last decades, a specific type of human rights violation has been emphasized around the globe, especially in the inter-American region, which violates women's sexual and reproductive rights in particular and is committed in both public and private healthcare facilities, such as hospitals and medical clinics. Known as ‘obstetric violence’ in Latin America, this offence, in broad terms, refers to bodily violations and coercive behaviour that many women suffer from healthcare professionals during pregnancy, childbirth and the postpartum period, as well as from lack of structural conditions within healthcare facilities.

From the moment when pregnancy and childbirth ceased to be a domestic phenomenon and began to occur in the medical context, the hospitalization and medicalization of childbirth became recurrent. With this, violent and abusive practices against pregnant women have risen and became most prominent in the late twentieth Century and beginning of this Century, but are still unknown to victims and invisible to society.[1] Similar to the situation of domestic violence in the 1960s, obstetric violence today is a current offence but still lacks a formal name.[2]

Faced with the great incidence of this type of physical, sexual and psychological mistreatments of women during pregnancy and postpartum, the concept of such abuse has resulted in the development of a domestic legal framework in Latin American countries addressing these violations at the individual responsibility’s level, which specifically places ‘obstetric violence’ at the nexus of violence against women, since it violates a range of women's rights.[3]

However, at international level, the existing research on obstetric violence is still limited. This does not, however, mean the problem is only attributed to isolated regional areas. Also, a lack of consensus is still present as to how the issue should be measured.[4] This reflects the extent to which the theme has been obscured from public awareness, complicating the task of defining the problem and identifying solutions.[5] In this regard, given the seriousness of the issue, the question may be asked: what has the Organization of American States (OAS) been doing under its principle of the promotion of human rights without any discrimination[6], to address such problem that has reached epidemic proportions around the region?

Since obstetric violence has yet to be recognized as an autonomous legal concept at international level, it has also not been granted specific protection in any international treaty so far. Thus,  it is necessary to rely on the broader framework of international human rights law to be addressed, such as the American Convention on Human Rights and the Belém do Pará Convention[7], to provide a basis for holding obstetric violence accountable in both State and individual level, and create a general core of protection. These rights are generally a mixture of first and second generation of rights. The most adopted by the Inter-American Commission and the Inter-American Court of Human Rights so far in its case-law are the right to personal integrity, personal freedom, private and family life, access to information, right to found a family, right to be free from cruel, inhuman and degrading treatment, and right to non-discrimination.[8] A gender perspective has also been used by the Inter-American System, characterizing the offence as an act of violence and discrimination against the women which affects her sexual and reproductive rights, within the scope of Article 7 of the Belém do Pará Convention.

Conversely, in the field of States report mechanism, very little has been debated about obstetric violence and only few recommendations have been issued from the OAS Mechanism of Protection in an attempt to raise awareness about it. In the first contact with the theme (2008), the Follow-up Mechanism to the Belém do Pará Convention (MESECVI) acknowledged that the ‘violation of sexual and reproductive rights’ is a form of gender-based violence, and pointed out that these rights can be grossly violated in legislation that does not recognize or protect them.[9] Only four years later, MESECVI adopted the term ‘obstetric violence’ to represent this phenomenon and recommended States Parties to adopt regulatory provisions to criminalize the acts, and implement measures that respect what constitutes a natural process of pregnancy, without arbitrary or excessive medicalization.[10] It was only in 2015 that MESECVI released a 'Declaration on Violence against Women, Girls and Adolescents and their Sexual and Reproductive Rights', in which it declared that ‘some forms of sexual violence against women are still insufficiently documents and punished throughout the region,’ hence calling upon States to adopt the measures already addressed in the previous recommendations.[11]

Lack of publicity and information is the major problem in regards to obstetric violence as it precludes public consciousness and visibility of this as a specific type of violence, with its own specific elements and purposes which differ from other common forms of mistreatment. Thus, the importance of creating a specific legal framework addressing obstetric violence is also emphasized by the necessity of recognizing it as a form of violence committed against women during a moment of vulnerability, based on gender, discrimination, and on the power dynamic between women and healthcare professionals.

So far, OAS has been reluctant to acknowledge and remedy the problem with the seriousness the issue requires, thereby contributing to allowing obstetric violence to remain invisible and ignored by its Member States. Thus, it is expected that the organs of the Organization change their position to a more proactive one, especially with regard to States report and judicial mechanisms. A possible solution would be the elaboration of a new instrument such as an additional protocol to promote the prevention, punishment and eradication of obstetric violence within the OAS protection system. The adoption of a legal definition and specific framework are not only a matter of formality or nomenclature, but the recognition of a particular type of violence that demands specific attention and measures to be addressed. The lack of its usage allows obstetric violence to remain invisible, despite high incidence rates throughout America.

[1] Zanardo GLP and others, ‘Obstetrical Violence in Brazil: A Narrative Review’ (2017) Psicologia & Sociedade 29: el55043 http://www.scielo.br/pdf/psoc/v29/1807-0310-psoc-29-e155043.pdf  accessed 05 April 2019, p. 2.

[2] Daniela Bucci and Kamila Koch, 'Os Novos Parâmetros da Corte Interamericana de Direitos Humanos Sobre Violência Obstétrica e os Potenciais Impactos para a Proteção das Mulheres no Brasil' (2017) Direito Internacional em Expansão vol. 10 313-331.

[3] Williams CR and others, 'Obstetric Violence: a Latin American Legal Response to Mistreatment During Childbirth' (2018) BJOG 125:1208–1211 https://obgyn.onlinelibrary.wiley.com/doi/pdf/10.1111/1471-0528.15270#accessDenialLayout accessed 14 December 2018, p. 1208.

[4] WHO 'The Prevention and Elimination of Disrespect and Abuse during Facility-Based Childbirth’ (2015) WHO/RHR/14.23 (WHO Statement).

[5] Elizabeth Kukura, 'Obstetric Violence' (2018) 106 Geo. L.J. 721 https://georgetownlawjournal.org/articles/261/obstetric-violence/pdf accessed 14 December 2018, p. 758.

[6] Charter of the Organization of American States (adopted 30 April 1948, entered into force 13 December 1951) (1948) 119 UNTS 3 (OAS Charter), Article 5(j).

[7] Organization of American States (MESECVI) 'Declaration on Violence Against Women, Girls and Adolescents and their Sexual and Reproductive Rights' (19 July 2014) OEA/Ser.L/II.7.10 , p. 1.

[8] Inter-American Court on Human Rights Case I.V. vs. Bolivia (30 November 2016) Series C Nº 329, para. 270.

[9] Organization of American States (MESECVI) 'Hemispheric Report on the Implementation of the Belém do Pará Convention' (adopted at the Second Conference of States Parties, held in Caracas, Venezuela, July 9-10, 2008) (OAS First Hemispheric Report) p. 21.

[10] Experts from MESECVI recommended that States Parties 'include provisions that not only make obstetric violence a punishable offense, but also elaborate on the elements of what constitutes a natural process before, during and after birth, without excessive reliance on medication and in which women and adolescent girls are appropriately informed and enjoy the necessary guarantees to ensure their free and voluntary consent to the procedures associated with their sexual health. It also recommended that an intercultural perspective is adopted that enables indigenous peoples to avail themselves of health services and that is respectful of their customs and cultural norms.' Organization of American States (MESECVI) 'Second Hemispheric Report on the Implementation of the Belém do Pará Convention' (April 2012) OEA/Ser.L/II.6.10 (OAS Second Hemispheric Report) p. 39.

[11] Organization of American States (MESECVI) 'Declaration on Violence Against Women, Girls and Adolescents and their Sexual and Reproductive Rights' (19 July 2014) OEA/Ser.L/II.7.10.