Obstetrical violence: conspicuously absent from the Istanbul Convention

Temps de lecture : 11 minutes

Obstetrical violence: conspicuously absent from the Istanbul Convention

24.06.2020

Written by Lola Favre
Translated by Kaouther Bouhi

In 2011, the Council of Europe adopted a Convention on preventing and combating violence against women and domestic violence, better known as the Istanbul Convention. This text, which compels the signatory countries to assume a legal commitment, has the merit of being innovative and quite complete. However, it seems that obstetrical violence has been forgotten. If we are to believe the hashtag mentions #Payetonutérus on Twitter, the testimonies recorded by the Institute of Research and Actions for Women’s Health (IRASF) but also the figures in the report of the Haut Conseil à l’Egalité (High Council for Gender Equality), it seems clear that obstetrical violence is a reality that should be the subject of a struggle within the Istanbul Convention just like the other forms of violence.

Obstetrical violence: definition of a not so rare phenomenon

Obstetrics include the surveillance of the course of pregnancy as well as childbirth. On this journey, some women are subjected to violence, committed by the nursing staff they encounter, and this is the definition of obstetrical violence. According to a report from the Haut Conseil à l’Egalité (High Council for Gender Equality), obstetrical violence are “gestures, comments, practices and behaviors exercised or omitted by one or several health care givers on a patient during an obstetrical examination and that are part of the history of obstetrical medicine and the desire to control women’s body. These violences are perpetrated by health care givers from all fields, women and men, who do not necessarily have bad intentions^[1]Bousquet Danielle, Couraud Geneviève, Collet Margaux, Les actes sexistes durant le suivi gynécologique et obstétrical, Haut Conseil à l’Egalité, 26 June 2018 … Continue reading”.

Since 2015, the Institute of Research and Actions for Women’s Health (IRASF) catalogues the different forms that these violences may take thanks to the testimonies of women who have been subjected to them. According to this organization, it consists of violent acts per se, and not of acts that have been “wrongly understood” by the patient, practiced without consent and/or without any demonstrated medical utility and/or without analgesia. In concrete terms, this may include an episiotomy or a caesarean section performed without explanation nor the patient consent, a fundal pressure^[2]This practice consist in “the application of a pressure on the uterine fundus, with the specific intent to shorten the duration of childbirth”. Reference : French National Authority for Health : … Continue reading (which is discouraged by the French National Authority for Health since 2007), the suture of episiotomy without analgesia but also of the “husband stitch”, a practice that consists of stitching up a tighter episiotomy around the vagina to increase the man’s pleasure during penetration. More generally, the act of not taking into account the pain is a recurring element in the testimonies. Another form of violence is not considering sufficiently the embarrassment of the patient, provoked by, for example, questions or acts, or her intimacy and modesty by not bothering to knock before entering the room although she just gave birth and/or is naked.

Obstetrical violences are a reality and are way more frequent than it seems. We are not talking about a few isolated incidents. According to an investigation led by the French Directorate of Research, Studies, Evaluation and Statistics (DREES) conducted in France in 2006, regarding caesarean section practices, planned or unplanned, “one in 10 women considers the information provided insufficient and one in 20 considers it non-existent”. Furthermore, this same investigation revealed that 6% of women declare themselves as “not at all” or “rather not” satisfied by their prenatal care or their childbirth, which represents 50 000 women in 2016^[3]Collet Marc, Satisfaction des usagères des maternités à l’égard du suivi de grossesse et du déroulement de l’accouchement, DREES, September 2008 … Continue reading. Ultimately, in 2013, a study led by the CIANE (Collectif InterAssociatif autour de la Naissance), reports that 85% of women who have had an episiotomy declared that their consent has not been sought^[4]Episiotomie, Etat des lieux et vécu des femmes, CIANE, November 2013 https://ciane.net/wordpress/wp-content/uploads/2013/11/Enqu%C3%AAte-%C3%A9pisiotomie-Ciane-2013.pdf.

Serious consequences for women

Obstetrical violence, as with all forms of violence, leaves multiple after-effects to women who have been subjected to it. The IRASF identified several types^[5]IRASF’s website : https://www.irasf.org/actes/. In the first place, and these are the most obvious, the after-effects are physical. For example, the scar of the episiotomy around the perineum often causes strong pain and constraints such as the inability to wear pants or even to sit down.

From a psychic point of view now, some women feel guilty because they were not able to respond to a humiliating gesture or comment. This can sometimes be accompanied by or cause a loss of self-esteem. Worse, the IRASF also notices that some women suffer from a post-traumatic stress disorder caused by the violence of their childbirth, which can lead to severe depression and degrade the mother-child relationship. According to Mélanie Déchalotte^[6]Déchalotte Mélanie, Le livre noir de la gynécologie, First Editions, Paris, 2017, the obstetrical violence can even be experienced as a rape, with identical consequences: psychological shock and post-traumatic stress.

Moreover, these violences have also consequences on the future medical care of the victim. Indeed, the violences can imperil the trust that existed between the patient and the health care givers, leading these women to renounce to a gynecological and/or obstetrical monitoring. In the face of the lack of alternatives to give birth outside of hospitals, some even give up having other children. The spouses can also be traumatized by this event as they may felt as if they were witnessing, helplessly, the assault of their partner.

The reality of such physical and psychological after-effects is, for the most part, ignored by the medical staff, which induces a late or non-existent care. The complete lack of empathy towards these women and the non-recognition of the reality of these violences reveal a lack of consideration. This also means that these violences and their consequences still remain a very taboo subject. Indeed, it is common to expect from a woman that just gave birth to her child to feel completely fulfilled. Consequently, it is difficult to imagine that she could be traumatized by the arrival of the child, especially if the latter is in good health. In addition, it may appear indelicate to give details about the childbirth, the number of injections, of fingers and objects inserted into the vagina, in other words everything that the body had to undergone to give birth. Finally, this trauma is often treated as the so-called baby blues, effects of hormones, which drives ignorance if not to say indifference of the relatives or the medical staff.

What protection does French law offer?

In France, in theory, a law protects women against obstetri
cal violence. It is the Article 11 of the Act of 4 March 2002, also called the Kouchner Law, which imposes the consent of the patient for any medical act committed by a caregiver. This law states that “no medical procedure or treatment can be done without the free and enlightened consent of the patient and this consent can be removed at any time (Law No 2002-303 of 4 March 2002 on patients’ rights and the quality of the health system, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000227015&categorieLien=id)”. Nonetheless, “when the patient is not in a state to express his or her wishes, no procedure or investigation can be conducted, except in emergencies, without prior consulting with the person of trust or the family, or, in their absence, a relative^[7]Law No 2002-303 of 4 March 2002 on patients’ rights and the quality of the health system, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000227015&categorieLien=id”. It is this emergency or impossibility exception to give consent that leads to obstetrical violence. The urgent or even vital nature of the situation sometimes justifies violent acts that women experience because their consent did not need to be required. The complexity of the issue lies in the fact that during labor, there is not one but two lives at stake. Yet, it may unfortunately happen that for the well-being of one, the pain of the other is minimized. Additionally, in an urgent situation it is not uncommon that the nursing staff do not take the time to explain to the mother what will be done to her or to ask her opinion if it impinges on the few minutes to save the life of the baby. Although the fetus does not have yet a legal existence. However, it is important to keep in mind that it is not the uterus alone, as a reproductive organ, that is solicited during childbirth, but a woman, whose whole body suffers and can keep lasting after-effects, both physical and psychological, from the violent acts it was subjected to. Also, it may seem regrettable that in French law no text specifically mentions these cases and protects from obstetrical violence. The Kouchner Law applies to all medical procedure but do not take into account the specificities of certain situations or certain acts such as the ones practiced during childbirth. To acknowledge obstetrical violence as gender-based violence would probably be a first step towards such support.

Where does it stand in the Istanbul Convention?

In 2011, the Committee of Ministers of the Council of Europe adopted the Convention on preventing and combating violence against women and domestic violence. At first glance, one might think that this Convention protects against obstetrical violence, since Article 1 mentions the need to “protect women against all forms of violence^[8]Council of Europe Convention on preventing and combating violence against women and domestic violence, Council of Europe, 2011  … Continue reading”. In addition, Article 3 of the Convention defines violence against women, specifying that it is “a human rights violation and a form of discrimination against women, and identifies all gender-based violence which causes, or likely to cause, physical, sexual, psychological or economic harm or suffering to women^[9]Idem.”, thus obstetrical violence fits perfectly this definition. However, by analyzing this text more precisely, it appears that obstetrical violence is conspicuously absent from it. Indeed, not once is this form of violence mentioned, and it does not seem to be because the drafters of the text wanted to remain general. As proof, Articles 32 and 42 enumerate all forms of violence (forced marriages, harassment, forced sterilization), except obstetrical violence.

Other texts surrounding the Istanbul Convention invite us to draw the same conclusions. In its first report regarding France, the GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence) took stock on the protection of violence by the law^[10]GREVIO, Baseline Evaluation Report France, Council of Europe, 19 November 2019 https://www.coe.int/en/web/istanbul-convention/-/grevio-publishes-its-firs-baseline-report-on-france. Once again, we can see that no lines has been dedicated to obstetrical violence, we learn nothing from the figures nor on the protection against these violences in France. They are not even mentioned as a recommendation. On the Council of Europe’s website, you will find a Q&A on the text of the Convention, in which obstetrical violence are not mentioned, not even as an example. For example, we can read “violences that can only be experienced by women (i.e. abortion, sexual mutilations)^[11]Council of Europe, The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention): Questions and answers, … Continue reading”, and see that once again obstetrical violence are forgotten, yet they are only experienced by women. Surely, we can easily imagine that, in this precise case, they have not been mentioned because the scope was not to make a full list of violences that can only be experienced by women. However, the fact that obstetrical violence are never mentioned neither in the Convention nor in the reports, but also in the reading grids of the text let us think that they have been overlooked, that they are conspicuously absent from the Convention on preventing and combating violence against women and domestic violence.

A report from the Parliamentary Assembly of the Council of Europe written by Madame Blondin (France, group of the Party of European Socialists) on obstetrical violence confirms this reality. Indeed, she reports that “the Istanbul Convention specifically condemns forced sterilizations, in Article 39, but generally, it does not address the issue of gynecological and obstetrical violence^[12]Blondin Maryvonne, Violences obstétricales et gynécologiques, Assemblée Parlementaire du Conseil de l’Europe, 16 September 2019 … Continue reading”.

The fact that the Istanbul Convention does not mention the acts that can be performed in case of emergencies (an episiotomy or a caesarean section for example) can be understood as according to the law, these acts are justified by the urgent nature of the situation, the caregiver has therefore nothing to worry about when it comes to the law, it is the case in France as seen before. Nevertheless, the fact that the Convention did not specifically mention and prohibit practices such as the “husband stitch”, that have no medical utility and that are never realized within the scope to save one of the two lives, is much more striking. We can therefore clearly see here the important error and the terrible omission of the Istanbul Convention.

Overall, if more and more instruments emerge in the world to fight against violence against women, almost none deals specifically with obstetrical violence.

A problematic omission

The absence of obstetrical violence in the Istanbul Convention indicates that these violences
are still minimized, made invisible and are not seen as real violences. The fact that important international legal texts of a binding nature do not mention them, does not encourage societies to open their eyes to these violences or to change the national law towards a consideration and a fight against the latter. To explicitly mention them and to define them in texts such as the Istanbul Convention would allow them to be recognized and be more subject to legal actions by victims. Nowadays, in France, the non-profit organizations that accompany the victims of these violences bear witness to the extreme difficulty for these women to engage in legal procedures both in the justice system and with health system organizations. It would also encourage awareness and training of health professionals to ensure that these violences are no longer considered normal and justified acts of the birth procedure.

Conclusion: obstetrical violence, a complex issue

A big part of the problem of obstetrical violence is in fact created by the existing French law. The patient has the right to say no, to refuse an act and to be kept informed of everything she is going to go through. However, the law of 4 March 2002 does not require consent in case of emergencies or of the trusted person of the mother is absent, the medical staff can afford to act as it pleases. Therefore, obstetrical violence are placed in contexts of great complexity. If the newborn is in fetal distress and/or needs to be out because of an emergency, healthcare workers conceive that they need to take measures for it to be born in good health without any long-term effects. Nonetheless, we need to recall that it is not the uterus alone, as a reproductive organ, that is solicited during childbirth, but a woman who might be suffering, or disagreeing.  It is necessary to think of the woman as a whole and not to just the part of her body that is solicited for delivery. During childbirth, there is not only one human being, but two that we need to take care of, and in a society with advanced medical techniques and knowledge like ours it is no longer tolerable that the mother has to go through such violences to give birth to her child, even in an urgent situation. Some testimonies report that parturient women have experienced some practices without any anesthesia, yet it is difficult to understand how it is possible to renounce to anesthesia even in the context of an emergency. Management of childbirth by medical staff is not a medical procedure like any other, firstly because the patient is not here because she is sick or wounded. The fact that only women can experience all of this is a good reason to ensure that there are specific laws to provide a framework for childbirth. The issue of the violences that can come with childbirth is very complex and therefore there needs to be pecific laws to provide a framework for it.

But what is happening outside the Council of Europe?

Right now, Latin America seems to be the region of the world in which obstetrical violence is considered the most. In November 2000, the International Congress on the Humanization of Childbirth and Birth took place in Brazil. This event has led to the creation of the Latin American and Caribbean Network for the Humanization of Birth, an alliance of collectives from twenty or so countries. Two countries have even registered in their national law obstetrical violence as a form of violence against women: Venezuela and Argentina, examples to follow…

Bibliography

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Blondin Maryvonne, Violences obstétricales et gynécologiques, Assemblée Parlementaire du Conseil de l’Europe, 16 September 2019  http://www.senat.fr/fileadmin/Fichiers/Images/commission/affaires_europeennes/APCE/ODJ_2019/Avis_rapports/2019_10_Rapport_Mme_Blondin_Violences_obstetricales_et_gynecologiques.pdf

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Pour citer cette publication : Lola Favre, “Les violences obstétricales : grandes absentes de la Convention d’Istanbul”, 24.06.2020, Institut du Genre en géopolitique.