Obstetric Violence and its Recognition by the Inter-American Court of Human Rights

by | Feb 20, 2023

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About Liliana Ronconi

PhD in Law. Researcher at CONICET. Professor of Human Rights at the School of Law of the University of Buenos Aires. Author of the book Derecho a la educación e igualdad como no sometimiento, Universidad del Externado de Colombia, Bogotá, 2018.

Doctora en Derecho. Investigadora del CONICET. Profesora Adjunta (I) en la Facultad de Derecho (UBA). Autora del libro Derecho a la educación e igualdad como no sometimiento, Universidad del Externado de Colombia, Bogotá, 2018.

For some years the Inter-American Court of Human Rights (IACoHR) has been developing standards regarding sexual and reproductive rights. However, the court has proven reluctant to recognise obstetric violence as a concept in itself, having allowed several opportunities to pass, such as IV v Bolivia and Manuela v El Salvador. While obstetric violence made a brief appearance in judicial treatment of AO 29/22 it was not developed in depth. However, in Brítez Arce the issue of obstetric violence was more thoroughly developed. In a region marked by high rates of maternal deaths and reports of violence in health centers, this is an important advance.

Advisory Opinion No. 29 (2022) referred for the first time specifically to the concept of obstetric violence against pregnant women who are in conditions of detention during childbirth, postpartum and breastfeeding. The case applies the standards of the Belem do Pará Convention, addressing state obligations to prevent this type of violence in prison settings, to guarantee contact with health personnel and family members of women in labor (in a culturally acceptable manner), and to guarantee access to justice and adequate reporting channels. Yet because these standards only affect women in detention, they do not adequately cater to the majority of pregnant women.

More recently, in Brítez Arce v Argentina (2022) the Court seriously developed the concept of obstetric violence. Cristina Brítez Arce, who was nine months pregnant, arrived at hospital in 1992 with lumbar discomfort, fever, and fluid loss. An ultrasound was performed, which indicated a  dead fetus, for which she was admitted in order to induce labor. However, Cristina died in hospital a few hours later. According to the death certificate, the victim died due to non-traumatic cardiorespiratory arrest. However, it could be proven that it was due to the hospital’s negligent treatment and diagnosis.

On the basis of these facts, the Court held that states have the obligation to provide adequate, specialised, and differentiated health services during pregnancy and childbirth (within a reasonable period before and after childbirth), in order to guarantee the mother’s right to health and to maternal deaths [68]. Moreover, the state has an obligation to guarantee accessibility of health information, especially relating to reproductive and maternal health during all stages of pregnancy, and this must be evidence-based, issued without bias, and free of stereotypes and discrimination. In addition, a birth plan must be agreed in advance with the health facility that assists in the birth. The state must also guarantee the right to mother-child contact [73].

In sum, the Court held that obstetric violence is prohibited by numerous human rights instruments and constitutes a form of gender-based violence exercised by those in charge of health care of pregnant people, during access to services that take place during pregnancy, childbirth and postpartum [75]. It is typically – though not exclusively – illustrated by dehumanising, disrespectful, abusive or negligent treatment of pregnant women; the refusal of treatment or of complete information about the woman’s state of health and suitable treatments; forced or coerced medical interventions; and the tendency to pathologise natural reproductive processes. Such manifestations in the context of health care during pregnancy, childbirth and postpartum have the potential to endanger women’s lives, and unequivocally breach the state’s human rights obligations [81]. The IACoHR’s ruling in Brítez Arce v Argentina is therefore a welcome step forward in the fight to secure women’s human right to live free of obstetric violence.

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