A Behind the Scenes Account of Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability (Hart, 2020)

This edited collection was developed during a British Academy Postdoctoral Fellowship project dedicated to ‘Obstetric Violence and the Law’. Obstetric violence is gender-based violence that occurs in healthcare settings. It forms part of a continuum of violations that occur in the context of structural gender inequality and broader social discrimination against women and birthing people. Obstetric violence describes personal and structural violence and abuse by healthcare professionals and through the organisational make-up of obstetrics and maternity care. Obvious forms of obstetric violence include physical abuse (e.g., slapping, physically restraining women or performing procedures without pain relief medication), while ‘hidden’ forms of such violence include normalised discriminatory practices towards people from different social and racial groups and coercive practices that slowly chip away at women’s autonomy and freedom to make care-related decisions during pregnancy and childbirth.

During my research into different manifestations of obstetric violence, unauthorised and forced vaginal examinations during labour emerged as a reoccurring theme. While there are no official statistics, the mounting reports suggest that these examinations are the norm in some birthing contexts and that they continue to occur even though they cause significant trauma and distress to women. Informal communication with civil society organisations in the United Kingdom confirmed this was a real concern. Unauthorised and forced examinations leave women feeling violated and abused and some equate their experience to sexual violation or rape. These are disturbing findings and it is particularly concerning that there is little to no commentary that investigates these experiences from a legal perspective.

My preliminary findings were typically met with two responses from colleagues in law: shock that women are treated this way during labour and childbirth and that women should complain or initiate litigation against the relevant Trust. This revealed two important gaps. First, those of us in law appear to be unaware of some of the serious violations that women and birthing people experience during facility-based childbirth. Second, there is an underlying assumption that there exist adequate complaint mechanisms capable of providing redress to women who have been subjected to obstetric violence. This assumption appears to rest on the well-established medical law and ethical principle that healthcare professionals cannot touch their patients without their consent unless the patient lacks capacity. Where this happens, the patient will have access to different mechanisms for recourse, including the law. The fact that women continue to be subjected to unauthorised or forced vaginal examinations during labour highlights that this principle has limited effect in the context of maternity care and very few people, if any, are considering this issue from a legal perspective. It occurred to me that, in law, we have limited exposure to women’s lived experiences or to knowledge pools beyond our own field and that this presents a significant barrier to critically reflect on the adequacy of different laws relevant to these particular forms of violations. This edited collection aims to initiate the process of breaching field-specific silos and of bridging the gap between women’s lived experiences of unauthorised vaginal examinations and law.

Women’s Birthing Bodies and the Law emerged from a multi-disciplinary seminar at Exeter College, University of Oxford. With funding from the British Academy and the University of Oxford Faculty of Law’s Research Support Fund, Jonathan Herring and I developed a platform to bring together multiple stakeholders from different fields of expertise to consider the various dimensions of forced and unauthorised vaginal examinations. The seminar was unique because it started with a ‘Lived Experiences Panel’ and it offered to opportunity to expose and cross disciplinary lines. Four women shared their experiences of unauthorised or coerced vaginal examinations in the UK context and civil society organisations, Birthrights and AIMS, exposed concerning challenges in respect of official avenues of redress. We heard from healthcare professionals and academics from midwifery and obstetrics, and feminist philosophers who specialise in childbirth and obstetric violence. Legal academics used the platform to share their analysis of issues around implied consent and the adequacy of the law’s approach to consent during labour more generally, the suitability of the crime of battery, the applicability of the Sexual Offences Act, and broader considerations of human rights law and civil litigation issues.

Women’s Birthing Bodies and the Law is the first of its kind. It challenges the assumption that the law is properly equipped to address different manifestations of unauthorised touch, particularly in the context of women’s birthing bodies. It exposes issues about the legal status of women and women’s bodies in the law and unmasks concerning gaps in broader legal analysis relevant to care during labour and childbirth. We are faced with increased calls to action to tackle obstetric violence and this book offers and promotes much needed critical legal analysis and dialogue currently missing from the obstetric violence landscape.

Camilla Pickles, Assistant Professor in Biolaw, Durham Law School