by Rachelle Chadwick
Reproductive and obstetric harms have not typically been included as areas of concern in critical and/or feminist criminology or zemiology studies. However, since the 2000s, obstetric violence (healthcare related abuse during pregnancy and birthing) has been recognized as a legal wrong and form of violence against women in several Latin and Central American countries (e.g. Venezuela, Argentina, Bolivia, Mexico, Panama). Efforts are also underway across a range of diverse global contexts (e.g. United States, South Africa, Australia, Spain) to name and strategise against this form of gendered harm and abuse. While legal attention has only recently turned to the issue of obstetric violence, feminist sociologists and anthropologists have long been engaged in trying to draw attention to the violations (of autonomy, dignity, personhood) that often occur during childbirth. As a young PhD student in South Africa, I was drawn to doing research in this area after reading British sociologist, Ann Oakley’s (1980) ‘Women Confined: Towards a Sociology of Childbirth’, in which she explores the pervasive distress that many women experience during and after birth. This prompted me to conduct research in South Africa exploring birth experiences across a range of race and class divides. My doctoral work on South African birth narratives was conducted before ‘obstetric violence’ was coherently named as a global concern and form of gender violence.
In the last ten years or so there has been an outpouring of research, activist mobilisation, and feminist writing on obstetric violence. As a result, international bodies such as the World Health Organization (WHO) and the United Nations (UN) have issued statements and reports on the issue. For example, in 2014, the WHO identified mistreatment during birth as a cause for transnational concern and in 2019, the UN released its report on a human-rights approach to obstetric violence. In various parts of Africa, efforts are also underway to tackle the problem.
Recently I was invited by ISLA (The Initiative for Strategic Litigation in Africa) to an expert advisory that was convened in Johannesburg, South Africa to assist in developing a litigation strategy to address and counter obstetric violence in Africa. ISLA is a pan-African feminist organisation working to further women’s socio-economic and human rights via feminist jurisprudence and strategic litigation efforts on the African continent. The obstetric violence expert advisory was a historic event and is an exciting development in the fight for birth justice on the continent. The advisory aimed to develop both concrete legal strategies and a repository of information for those seeking to litigate on the issue. Held over two days (7-8 March 2024) it included seven sessions facilitated and led by various academic experts and legal practitioners. These included: ‘Defining Obstetric Violence’ (facilitated by Prof. Rashida Manjoo), ‘Obstetric Violence as Violence against Women or Sexual and Reproductive Health Rights’ (facilitated by me), ‘Obstetric Violence as Medical Negligence’ (facilitated by Dr Ruth Nekura), ‘Litigating Obstetric Violence: a Multifaceted Framework’ (facilitated by Kerigo Odada), ‘Obstetric Violence: UN Global and Comparative Normative Standards’ (facilitated by Dr Camilla Pickles), ‘Litigating Obstetric Violence: the ISLA Experience’ (facilitated by Carolene Kituku) and ‘Litigating Obstetric Violence: Proposals for a Strategy’ (facilitated by Dr Ruth Nekura).
Rich discussions took place concerning how best to define obstetric violence in the African context (i.e. considering the differences between its manifestation in Africa and Latin America) and in relation to the best frameworks to use in furthering litigation strategies on the issue. Participants considered the strengths, limitations, and potential overlaps between violence against women frameworks, sexual and reproductive health rights, medical negligence, and respectful maternity care. It was agreed that central issues to be clarified included the nature of the harm of obstetric violence (often rendered invisible in legal courts and in the law) and the specific goals of litigation (e.g. criminalisation, compensation, remedy, system accountability and/or structural change). Both soft law mechanisms and various human rights instruments and protocols were discussed and analysed in relation to their potential as tools for obstetric violence litigation. It was concluded that there is considerable scope for strategic litigation efforts drawing on the rich frameworks already provided by African human rights instruments such as the Maputo protocol (Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa).
ISLA is committed to taking the issue of obstetric violence forward as a key area of strategic feminist litigation in the interests of furthering women’s rights on the African continent. Personally, it was a joy and a privilege to participate in this important dialogue and to have the opportunity to think about how the research and writing I have been engaged in, can be practically retooled to further legal, policy, and practical transformations in the world. It was a welcome reminder that this is the kind of theory that I am interested in — i.e. theory that is concretely linked to the social and political world and that can be used as tools for practical and strategic struggle.