As the fight to end violence against women and girls has progressed, new terms have begun to gain recognition. Obstetric Violence (OV) as a concept began to gain traction in the late 1990s, pioneered largely by Indigenous women in Latin America speaking out against the pathologisation of the birthing process in their respective countries, and the forced/coerced procedures many endured. OV is an umbrella term for gender based violence in relation to birthing people’s reproductive systems and maternity care. There are debates around what constitutes OV and whether the term is adequate in encompassing all of the issues it covers; some feel that the term "Reproductive Violence" has more nuance, and some feel that the use of the word "violence" is counterproductive in tackling the issue, however, for the purpose of this essay we will use OV as it is the preferred term within the circles that are challenging it.
This essay is divided into four sections, the first two will explore the development of OV over the last two decades, both conceptually and legally. The latter half of the essay will focus on what role the Inter-American Court and Commission of Human Rights has played in developing the concept further legally, followed by a case study of how they apply it in their judgments.
Section 1: The Development of Obstetric Violence as a Concept
There are a multitude of definitions of OV, curated by organisations, scholars, and the like. As OV encompasses a large number of abuses that go beyond the limitations of this paper, we are using the World Health Organization’s (WHO) definition of OV as it is the clearest, most concise, and most comprehensive definition: Obstetric violence is the
outright physical abuse, profound humiliation and verbal abuse, coercive or unconsented medical procedures (including sterilization), lack of confidentiality, failure to get fully informed consent, refusal to give pain medication, gross violations of privacy, refusal of admission to health facilities, neglecting women during childbirth to suffer life-threatening, avoidable complications, and detention of women and their newborns in facilities after childbirth due to an inability to pay.
It is important to clarify that OV is not a phenomenon limited to developing countries, nor is it new. One scholar eloquently traced the origins of the use of the term OV, with its earliest recorded use being in 1827 regarding the unnecessary use of forceps in delivery. In fact many of the issues covered under the term OV—such as forced sterilisation—started in developed countries and were exported to developing countries through colonisation. The USA comes under a lot of fire for this, as Buck v. Bell (1927) led to the forced sterilisation of around 70,000 women who were deemed "unfit" to have children, largely due to having disabilities, being poor, or for their race. The 20th century saw dozens of nations, including Sweden, Denmark, and the Czech Republic, adopt radical laws founded in Eugenics. The Czech Republic forcibly sterilised dozens of Rroma women up until 2001, demonstrating that this is still very much a modern issue.
Similar to Europe, Latin America went through turbulent times in the 20th century. Practices of forced sterilisation took place across the region, with the most notable case being Peru; under the presidency of Fujimori forced and coerced sterilisation was rampant as an estimated 350,000 Indigenous women and 25,000 men were sterilised from 1990-2000. The first international human rights reports on OV all seem to stem from what took place in Peru, initiating a worldwide conversation on how we define gender based violence.
The act of sterilisation is, of course, not a human rights abuse in and of itself; circumstances matter. In South Africa, recent reports of forced and coerced sterilisation of women with HIV/AIDS came out, with at least 48 confirmed cases. Several concerning issues came up with the report; some of the women were asked to consent in the midst of labour and were told they had to consent otherwise they would be refused treatment for their labour. Other women reported not knowing what sterilisation was or what it meant until after the fact. Some women were told if they did not do it, they would die. The case of South Africa highlights the way in which medical professionals failed to get informed consent from the women affected, which is where the human rights abuse lies.
Beyond sterilisation, OV also encompasses issues such as unnecessary medical practices and interventions that are not backed by evidence based practice. These can be anything from episiotomies (cutting of the area between the vagina and anus), symphysiotomies (largening the pelvis through the cutting of the cartilage of the pelvic joint), and unnecessary caesarean sections. Ireland is said to have used symphysiotomies on approximately 1,500 women and girls, which led to the Office of the United Nations High Commissioner for Human Rights (OHCHR) recommending that Ireland prosecute all who performed this procedure and give compensation to those affected.
Due to the private nature of childbirth, it is understandable why OV can be considered as an invisible violence against women—it has historically been inflicted upon the most vulnerable and marginalised members of society who are unlikely or unable to speak up, and it is often hard to prove. There is no comprehensive data collection system to track OV across countries as there is still not a worldwide acknowledgement of its existence. Perinatal mortality statistics and caesarean section rates are one way of getting an idea on the situation of OV of a country, but many factors contribute to these numbers and so they are only useful to some degree.
Section 2: The Legal Development of Obstetric Violence Internationally
The foundation of addressing obstetric violence in international human rights law is still very much underdeveloped compared to other human rights issues. The first international treaty that vaguely touches on access to adequate maternity care as a human right would be the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article 12 of CEDAW establishes the right to adequate health services for women, especially around family planning, maternity, and postpartum services. It is interesting to note that this provision is reiterated in article 14(b) but with a focus on rural women. This shows that there was already a recognition of marginalised women receiving differential treatment. Article 16(e) of the convention says that women are free to choose the number of children they have—which indirectly refers to the issue of sterilisation without informed consent. CEDAW’s initial provisions are somewhat vague, not mentioning OV specifically, but that is also understandable considering it was not yet a well known concept. Through this, CEDAW created the foundation for many of the treaties, legislation, and organisations that were created with a focus on women’s health. The treaty also legitimised family planning and consent at a time when it was still a big debate worldwide.
CEDAW later released a general recommendation clarifying what women’s health services should ideally be available among all states parties in keeping in line with article 12 of the Convention. Paragraph 22 reads:
Acceptable services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives. States parties should not permit forms of coercion, such as non-consensual sterilization.
By making this recommendation, CEDAW added clarity to the issue of women’s health rights and created a legal avenue for those affected by OV to pursue when their rights are violated. Whilst the recommendation is not legally binding per se, as the convention itself, it functions as a way for the CEDAW Committee to clarify its views on how it understands and expects compliance with the convention. In some ways, this is more effective than introducing a new, binding protocol, as it does not require states to ratify or separately consent to the recommendation in order for it to be taken into consideration. The first case that touched on OV in CEDAW was Ms. AS v. Hungary 2004, which condemned Hungary on the coerced sterilisation of a Rroma woman. There have since been other cases, most notably Alyne da Silva Pimentel v. Brazil 2008 and SFM v. Spain 2020. In the latter case, the decision used the term obstetric violence, demonstrating increased understanding of OV as a legitimate issue in the realm of international human rights law.
Older treaties such as the European Convention on Human Rights (ECHR) do have provisions that provide legal redress to women who are victims to OV, however it has been an uphill battle for some. Whilst the Council of Europe (COE) has recently recognised many of the abuses that disabled and Rroma women historically suffered with their maternity care within Europe, this has not been reflected in its judgments. For example, in VC v. SLOVAKIA 2011, where the Rroma applicant was coerced into a tubal ligation and reported suffering differential treatment through the segregation of labour wards and bathrooms for Rroma and non-Rroma women, the ECtHR failed to recognise the coerced sterilisation and hospital treament as discrimination. Failing to recognise an article 14 violation of the ECHR shows a fundamental misunderstanding of OV and why it happens, and shows an unwillingness to create a legal precedent on shady practices that are condemned by other entities. It is backwards and insufficient in creating protections for victims of OV. This was repeated again in judgments NB v. SLOVAKIA 2012 and IG AND OTHERS v. SLOVAKIA 2013.
The Istanbul Convention makes no mention of OV, and health is only mentioned in article 20(2) in relation to victims of domestic violence. As a treaty aimed at combatting violence against women it is severely lacking in providing any legal basis by which women may challenge violence from those in charge of their care.
Several Latin American countries have tried to confront their pasts and implement laws directly prohibiting OV, providing legal avenues for victims to access justice. Venezuela was the first nation to do so in 2007, followed by Argentina in 2009, Panama and Bolivia in 2013, and Mexico in 2014. Providing domestic laws to combat OV has allowed for justice to be faster and more accessible, in contrast with going through international courts.
Section 3: The Inter-American Court of Human Rights and Obstetric Violence
In 1994, a Convention on the Prevention, Punishment, and Eradication of Violence against Women, also known as the Convention of Belém do Pará, set out to change the way in which women were treated across member states. It has similarities to CEDAW in that it is very broad, leaving room for interpretation by both states and the courts. Freedom from violence in healthcare facilities is openly condemned in article 2(b) of the convention. It is interesting to note that the Organization of American States (OAS) has a real understanding that Indigenous women are most affected by OV. The full text of the Convention of Belém do Pará is available in 18 Indigenous languages, showing that OAS is actively trying to break down barriers to information, and make it as accessible as possible to communities who may not speak the official languages of the commission.
In 1998 the Inter-American Commission of Human Rights (IACHR) published a human rights report condemning reports of forced sterilisation in Mexico, and in 2000 it published another report regarding the same practice in Peru. This was ahead of its time as many other human rights bodies and states were failing to speak about the human rights abuses taking place in relation to women’s reproductive health.
The IACHR was the first international human rights body to hear and rectify a case relating to OV. The first case, María Mamérita Mestanza Chávez v. Perú 2003, where an Indigenous woman was coerced into a tubal ligation and died from the procedure, resulted in a "friendly settlement" whereby Peru recognised its failure to keep to its responsibilities under the various treaties to which it is party. Peru committed to paying reparations for the violation and investigating those who partook in the forced sterilisation programs. The settlement was less than perfect, especially considering that afterwards Peru decided to stop investigating human rights abuses that took place under Fujimori showing that it was not as effective as hoped; however the case still had an international impact as the settlement shed light on the issue of OV.
The IACHR has made a commitment to highlighting the issue of OV, in the last two decades it has published a number of thematic reports regarding violence against women, all of which talk about the importance of access to adequate maternity care. A 2010 report mostly focuses on perinatal mortality rates, but concedes that the data shows that much of the disparity in perinatal mortality rates is related to discriminatory practices towards groups that are more vulnerable or marginalised (para. 11). The IACHR wrote about the discrimination that takes place in healthcare facilities towards Indigenous women and the complete lack of emergency obstetric facilities where there is a large Indigenous community. For example, in Guatemala, where the Indigenous population of the country is 42%, perinatal mortality rates are three times higher for Indigenous women than they are with non-Indigenous women, and less than 50% of Indigenous women get prenatal care (para. 14). This widespread discrimination across healthcare services in Latin America concerns the IACHR as it sees high perinatal mortality rates as a human rights issue. The Commission sets out a number of recommendations for member states to combat this issue.
Section 4: The case of Manuela v. El Salvador
Over the last two decades there have been a number of cases brought to the Inter-American Court of Human Rights (IACtHR) that are related to OV, but the latest case shows an alternative to the myriad of forced sterilisation cases, implying a shift in the way violence against women is perceived by the court as it implements the concept of OV into international human rights law. Manuela v. El Salvador 2021 involves the case of a pregnant Indigenous woman rushed to hospital after experiencing abdominal pain and bleeding. The laws surrounding abortion in El Salvador are particularly severe, and as the treating physician assumed she had aborted her child, they refused to treat her before reporting her to the state prosecutor, leading to a 3.5 hour wait for medical intervention. This was despite the fact that she had signs of severe postpartum preeclampsia and a retained placenta, which is considered an obstetric emergency due to the risk of death or long-term health issues if left untreated. Manuela was reportedly handcuffed to her hospital bed as she received medical care. Neither Manuela nor her parents could read or write, and she was told to sign a document whilst in the hospital, which she refused to do, but her parents were pressured into signing a statement they could not read stating that she had aborted, which was later used against her in court. She was found guilty of aggravated homicide and sentenced to 30 years in prison, but died in prison two years later.
In addition to the treaties within which the court operates, the judgement stated that El Salvador violated CEDAW and the Convention of Belém do Pará. The court stipulated that the use of handcuffs on women during and after birth is a violation of their rights. It also stated that the use of handcuffs on an ill or otherwise weak person is disproportionate (para. 199). As she had recently given birth and was very unwell, the court concluded that the use of handcuffs amounted to inhuman and degrading treatment. The court also examined the three instances in which Manuela’s personal health data was shared without her permission and found that there was a failure to respect her privacy, noting that in the case of obstetric emergencies, fear of data being shared and being criminalised would prevent women from seeking medical attention which in turn constitutes a violation of their right to health.
One section of the judgement is of particular interest—the court’s analysis of the discrimination that took place (see section B.6). It stipulated that the laws requiring staff to report possible abortions to the state disproportionally criminalises women, and that the requirement that only public hospitals comply with this means that those with the resources to attend private clinics do not suffer the same treatment. As Manuela was poor, Indigenous, illiterate, and from a rural area, the court found that she suffered from intersectional disadvantages and that El Salvador violated Manuela’s right to health without discrimination.
It is somewhat surprising to see a judgement with such a nuanced and progressive view of OV, recognising the multiple disadvantages that Manuela suffered. The concurring opinion of Judge Pérez Manrique is particularly enlightening, as he writes of the importance of taking an intersectional approach when it comes to examining human rights abuses. This shows that the concept of OV as a human rights violation has developed enough within the IACtHR to be recognised within international human rights law, and the IACtHR has the necessary understanding of the ways in which it can take place to help further eradicate it.
Conclusion
OV is undoubtedly internationally recognised as a human rights issue in need of addressing, however despite efforts from those combating it, there is still some ambiguity regarding what constitutes OV. There is general agreement that forced and coerced sterilisation, which is the most provable and arguably one of the most severe forms of OV, constitutes obstetric violence. Other forms of OV are harder to prove, as there is no official definition of the term obstetric violence, and so those who are victim to it do not enjoy much recourse to justice on the basis that their human rights have been violated. International and domestic legislation and human rights reports will only go so far, given the stark lack of governmental action in reducing OV, demonstrating that it is still not regarded as a priority. This, coupled with the lack of clarity on the term, means that OV is still undergoing a key development phase as it gains legal status internationally. The IACtHR and CEDAW have played a pivotal role in developing the concept legally. Additionally, the IACHR was ahead of its time by being one of the first international human rights bodies to hear an OV case and advocate for OV justice, which has led to further legal developments within the field. Yet, in order for OV to be recognised on a wider scale with the same nuance as it is within the IACHR and IACtHR there needs to be a global system for reporting cases and effective recognition and commitment from individual states to protect birthing people from it.
Daisy is a BA International Law with Spanish student at Birkbeck, UoL. She has a special interest in medical law, indigenous rights, human rights, and sexual and reproductive justice. She is writing her law dissertation on forced sterilisation.