International Week for Respecting Childbirth is about recognising a woman’s right to a respectful birth and to make informed choices about her baby’s care.
We’re all entitled to be treated with dignity and respect as part of our healthcare – it’s part of our right to be free from inhuman and degrading treatment. But does this mean you have a right to choose how your child is born?
A human rights-centred approach
Birthrights, a charity which promotes a human rights focus on childbirth, say that one of the questions they’re asked the most, by both mothers and healthcare professionals, is whether women have the right to a caesarean, or c-section. While there’s no law setting out the specific type of maternity care to which women are entitled, the decisions that doctors and midwives make about the care provided must be lawful. That means decisions must follow the general principles of the law. Where care is provided by the NHS or any other public body, that includes human rights law. In particular, they must take into account the woman’s right to a private and family life, which is protected by Article 8 of the Human Rights Convention, and which covers childbirth.
Healthcare professionals also need to bear in mind their duty under Article 2 of the Human Rights Convention to protect life. That means that if there’s a threat to the life of mother or child, hospitals and individual clinicians are obliged to take steps to protect them. And if a decision is made not to perform a c-section where it’s clinically necessary, the hospital could face a claim for clinical negligence. However, even where there’s no clinical need to perform a caesarean, the hospital must give proper consideration to the woman’s choice.
The right to an informed choice
Women do have a right to make choices about the circumstances in which they give birth. This simple but powerful principle was established by the Human Rights Court in Ternovszky v Hungary (2010). The case made clear that the right to private and family life encompasses rights to physical and social identity, including, “the right of choosing the circumstances of becoming a parent.”
The Ternovszky case focused the right to give birth at home, but the principle applies to all choices that women make about childbirth. The right to choose is not an absolute right, though. It’s a ‘qualified right’, which means there can be limitations on it. However, any limitation must be properly justified. The decision-maker, whether a hospital or a doctor or midwife, must give proportionate reasons for their decision based on the mother’s individual circumstances. If the woman believes the wrong decision has been made, she may be able to bring a case challenging whether it was lawful.
A reasonable request
So, when is a request to have a caesarean likely to be granted? Birthrights say that a common scenario is a woman who requests a c-section after suffering a previous traumatic vaginal birth. In that instance, the healthcare professional managing her care would have to scrutinise the reasons for the request and any factors weighing against it, before reaching a decision.
If a woman were to challenge the decision in court, a judge would take into account the effects on the mother of the obstetrician refusing to do the operation alongside the obstetric risk as assessed by the doctor. They would have to look at the woman’s specific circumstances, including the nature of the care available. Research by the Royal College of Obstetricians and Gynaecologists has revealed significant variations between hospitals in the likelihood of, for example, having an emergency c-section after an induction. If a hospital’s rate of caesareans following induction was particularly high and a woman requested an elective c-section in order to avoid the high odds of an emergency c-section (or instrumental birth) following induction, a decision to refuse to perform the operation would be more difficult to argue.
The National Institute For Health and Clinical Excellence (NICE) have also set out guidelines on the procedures healthcare professionals should follow if a woman requests a c-section. These include discussing and exploring the reasons for the request, and offering mental health support where needed. While the NICE guidelines aren’t legally binding, any decision not to follow them has to be clearly justified.
So, while the right to a c-section might not be specifically protected by law, a woman can expect the right to make informed decisions about her care – unless a hospital has legitimate clinical reasons for refusing. It’s all part of improving women’s experience of childbirth by respecting their human rights – and allowing them to make their own choices.
Birthrights is the UK’s only organisation dedicated to improving women’s experience of pregnancy and childbirth by promoting respect for human rights. You can find out more about their work on their website.
This article is not legal advice and is not intended to advise comprehensively about your legal rights. If you have legal questions relating to child birth or any other matter we suggest that you consult a lawyer – details of how to find one are here.
Want to know more about healthcare and your human rights?
- Read our beautiful infographic on the right to be free from inhuman and degrading treatment
- Take a look at this day in the life of a human rights centred midwife
- See why human rights are essential to end of life care