ema Awarded Theses
2018/2019
Francesca Basso
In Pain Thou Shalt Bring
Forth Children?
For a Human Right to Pain Relief in
Childbirth
ema, The European Master’s Programme
in Human Rights and Democratisation
francesca basso
IN PAIN THOU SHALT BRING FORTH CHILDREN?
FOR A HUMAN RIGHT TO PAIN RELIEF IN CHILDBIRTH
francesca basso
FOREWORD
The European Master’s Degree in Human Rights and Democratisation
(EMA) is a one-year intensive programme launched in 1997 as a joint initiative
of universities in all EU Member States with support from the European
Commission. Based on an action- and policy-oriented approach to learning,
it combines legal, political, historical, anthropological and philosophical
perspectives on the study of human rights and democracy with targeted skills-
building activities. The aim from the outset was to prepare young professionals
to respond to the requirements and challenges of work in international
organisations, field operations, governmental and non-governmental bodies,
and academia. As a measure of its success, EMA has served as a model of
inspiration for the establishment of six other EU-sponsored regional master’s
programmes in the area of human rights and democratisation in different
parts of the world. These programmes cooperate closely in the framework of
the Global Campus of Human Rights, which is based in Venice, Italy.
Ninety students are admitted to the EMA programme each year. During
the first semester in Venice, students have the opportunity to meet and learn
from leading academics, experts and representatives of international and
non-governmental organisations. During the second semester, they relocate
to one of the 41 participating universities to follow additional courses in an
area of specialisation of their own choice and to conduct research under
the supervision of the resident EMA Director or other academic staff.
After successfully passing assessments and completing a master’s thesis,
students are awarded the European Master’s Degree in Human Rights and
Democratisation, which is jointly conferred by a group of EMA universities.
Each year the EMA Council of Directors selects five theses, which stand
out not only for their formal academic qualities but also for the originality of
topic, innovative character of methodology and approach, potential usefulness
in raising awareness about neglected issues, and capacity for contributing to
the promotion of the values underlying human rights and democracy.
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in pain thou shalt bring forth children?
The EMA Awarded Theses of the academic year 2018/2019 are:
• Ay, Emine, Remembering without Confronting. Memorialization as a
Reparation without Coming to Terms with the Past: Case study: Ulucanlar
Prison Museum. Supervisor: Gabor Olah, Masaryk University, Brno.
• Basso, Francesca, In Pain Thou Shalt Bring Forth Children? For a
Human Right to Pain Relief in Childbirth. Supervisor: Helena Pereira De
Melo, New University of Lisbon.
• Dewaele, Janne, The Use of Human Rights Law in Climate Change
Litigation. An Inquiry into the Human Rights Obligations of States in the
Context of Climate Change; and the Use of Human Rights Law in Urgenda
and other Climate Cases. Supervisor: Claire Vial, Université de Montpellier.
• Gómez del Valle Ruiz, Álvaro, “A Community of Shared Destiny”:
How China Is Reshaping Human Rights in Southeast Asia. Supervisor:
Karol Nowak, Lund University.
• Veit, Meredith, Blockchain and Journalism: The Intersection between
Blockchain-Based Technology and Freedom of the Press. Supervisor: Jónatas
Machado, University of Coimbra.
The selected theses demonstrate the richness and diversity of the
EMA programme and the outstanding quality of the work performed
by its students. On behalf of the Governing Bodies of EMA and of all
participating universities, we congratulate the authors.
Prof. Manfred NOWAK
Global Campus Secretary General
Prof. Thérèse MURPHY
EMA Chairperson
Dr Wiebke LAMER
EMA Programme Director
University of Lisbon.
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This publication includes the thesis In Pain Thou Shalt Bring Forth
Children? For a Human Right to Pain Relief in Childbirth by Francesca
Basso and supervised by Helena Pereira De Melo, New University of Lisbon.
biography
A former language teacher, Francesca Basso has a background in Languages
and in International Relations. She then specialised at the European Master’s
Programme in Human Rights and Democratisation. Her academic and
political interest focuses especially on gender issues and feminist studies.
abstract
In recent years, increasing attention has been dedicated to the quality of
childbirth conditions for women around the world, following the wave of
civil society movements that promoted the protection of human rights in
childbirth.
In this context, a crucial factor to be addressed is pain and its management:
this thesis stems from the observation that there is an absence of any human
right to pain relief in childbirth, even though studies show that many women
who complained about their pain were ignored, disbelieved or not taken
seriously, and that pain relief was denied to them, even when they explicitly
requested it. I decided to explore the reasons underlying the little attention
dedicated to this issue, both on the part of institutions and on the part of
medical staff. This thesis analyses the meanings and values attached to pain
in childbirth, which are deeply influenced by religious and cultural beliefs;
it then examines the present international human rights framework on pain
relief.
This analysis reveals that gender plays a fundamental role in making
women’s pain in childbirth undervalued and often unseen, and that, ultimately,
the denial of pain relief in childbirth can be regarded as a violation of human
rights and as a type of gender-based violence. Therefore, I support a human
right to pain relief in childbirth and hypothesise that obstetric violence is a
potentially effective device to confront the neglect of pain relief in childbirth
in medical facilities.
Keywords: pain, pregnancy, childbirth, gender, stereotypes, pain relief, human
rights, women’s rights, gender-based violence, obstetric violence
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in pain thou shalt bring forth children?
ACKWNOWLEDGEMENTS
The biggest, deepest thank you and all my love goes to my parents,
always present and supportive of my decisions, as instinctive as they
sometimes are. Grazie per i vostri sforzi, vi prometto che ne farò valere la
pena. Vi voglio bene.
I am grateful to Prof Dr Helena Pereira de Melo, for her guidance and
expertise in the tricky interdisciplinary territory of human rights.
Thank you to Prof Dr Teresa Pizarro Beleza, for always being available
and ready to help during my Portuguese stay.
Gracias a Paloma, hermana del alma. This thesis would probably not
exist without you and your fierce – and necessary – fights.
A big thank you to Lucía, for the home we’ve built together these
Portuguese months. The talks we’ve had and the life we’ve shared will
always stay with me.
Last, but surely not least, I am immensely grateful to Charles, with his
generosity and altruism, even in the frantic rush of the last week before
the deadline.
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TABLE OF ABBREVIATIONS
AIDS Acquired immune deficiency syndrome
CEDAW United Nations Convention on the Elimination of All
Forms of Discrimination Against Women
CESCR United Nations Committee on Economic, Social
and Cultural Rights
CIDT Cruel, inhuman and degrading treatment
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECPT European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment
GBV Gender-based violence
IASP International Association for the Study of Pain
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICI International Childbirth Initiative
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in pain thou shalt bring forth children?
IFFHRO International Federation of Health and Human
Rights Organisations (now known as IFFHRO
Medical Human Rights Network)
HIV Human Immunodeficiency Virus
NGO Non-governmental organisation
SR Special Rapporteur
UDHR Universal Declaration of Human Rights
UN United Nations
UN HRC United Nations Human Rights Council
UNVFVT United Nations Voluntary Fund for Victims of Torture
VIP Voluntary interruption of pregnancy
WHO World Health Organization
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TABLE OF CONTENTS
Foreword II
Biography IV
Abstract IV
Table of abbreviations VI
INTRODUCTION 1
1. PREGNANCY AND CHILDBIRTH, PAIN AND HUMAN RIGHTS 5
1.1 A public matter 5
1.2 The (ab)normality of pregnancy 6
1.3 From nature to culture: issues of pregnancy and pain 15
1.4 Different births, same pain? 22
1.5 Pregnancy, pain and women’s reproductive rights 29
1.6 Conclusion 34
2. PAIN RELIEF IN CHILDBIRTH: THE APPLICABLE
HUMAN RIGHTS FRAMEWORK 36
2.1 An international human right to pain relief? 37
2.2 The mother as patient: what relief from what pain? 46
2.3 How much pain are birthing women bound to bear? Human
rights instruments applicable to pain relief in childbirth 54
2.4 Conclusion 61
3.A PROSPECTIVE SCENARIO 62
3.1 The denial of pain relief in childbirth as a form
of gender-based violence 62
3.2 Obstetric violence: a potentially effective legal device 65
3.3 Conclusion 72
CONCLUSIONS 73
BIBLIOGRAPHY 76
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INTRODUCTION
‘This one is really stupid, she doesn’t get that this is what childbirth
feels like’
‘Didn’t you like to open your legs? Then now shut up’
‘Oh, here comes the one who was not able to endure natural
childbirth’
‘I asked for anesthesia and it was denied’1
‘The attendant refused when I needed to hold her while I was in pain
and said it wouldn’t change anything’2
‘This is what happens when you like men too much’3
These extracts are part of real-life stories told by women who gave
birth in medical facilities located in different countries (Chile, Croatia
and Ghana). The humiliation, belittling and infantilisation encountered
by these women, simply for voicing their pain during childbirth, is
appalling. This type of treatment, although – luckily – not endemic in
medical facilities, is more common than one might think – in fact, in
my country (Italy), 41% of women4 report experiencing humiliating
1 Vanessa Vargas Rojas, ‘“Dijo que si nos gustó abrirnos aguantáramos ahora”: Mujeres
narran la violencia obstétrica en primera persona’ (El Desconcierto, 30 January 2018) accessed 31 May 2019.
2 Lucia D’Ambruoso and others, ‘Please understand when I cry out in pain: Women’s
accounts of maternity services during labour and delivery in Ghana’ (2005) 5(140) BMC Public
Health 5.
accessed 31 May 2019.
3 Sian Norris, ‘When gynecologists gaslight women’ (Newsmavens, 20 November
2018)
accessed 31 May 2019.
4 Osservatorio sulla Violenza Ostetrica Italia (OVOItalia), ‘Violenza ostetrica in Italia: ora
abbiamo i dati autorevoli’ (2017)
accessed 31 May 2019.
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or vilifying mistreatments in the context of childbirth, be it before,
during or in the aftermath of it; 21%5 report experiencing some form
of violence. In the last 10-15 years, the quality of care during childbirth
has occupied increasing space in the public discourse, largely due to
the worldwide press and the activism of a network of organised civil
society movements in different countries,6 who have worked to raise
awareness and have advocated for the human rights of birthing women
to be respected. As a consequence of such activism and lobbying, some
states have even introduced new legal terms in order to protect women’s
rights in childbirth; however, the international community has done
little in this respect.
In this context, pain is part of what might cause childbirth to be
traumatising and demeaning, as the quotes above clearly show. The
issue of pain and its relief during childbirth, nonetheless, have been paid
relatively little attention to. While pain relief is often readily available
and provided, when it is requested and the medical staff deems it safe
to administer it, I have heard and read of too many women whose pain
in childbirth was ignored, or demeaned, or even situations in which
they were mocked or scolded for speaking up about it. While the
international human rights framework provides instruments to protect
birthing women from a wide array of mistreatments, the issue of pain is
harder to redress.
This thesis stems from the observation of this problem: there is a need
to regard childbirth as a moment where women’s rights are especially at
risk of being violated, and in this context, the presence of pain is crucial
and yet too often its relevance is neglected or minimised. More attention
must be given to the reasons why this is so – which, as I will discuss, are
to be found in gender as an oppressive societal order.
This thesis, therefore, aims at raising and examining the issue of pain
in childbirth: first, by unpacking the meanings of pain, especially when
it is experienced by women in the context of childbirth; secondly, by
articulating pain relief in childbirth as a human right, to be recognised
and granted through a solid legal foundation and through a shift in how
society conceives it. My hypothesis is that the current lack of attention
5 OVOItalia (n 4).
6 In the last ten years, non-governmental organisations (NGOs) to monitor the quality
of maternity care have been set up, among others, in Chile, Italy, Greece, Croatia, Argentina,
Spain and Brazil.
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in pain thou shalt bring forth children?
to pain in childbirth is due to how constructions and imagery of
maternity and femininity are embedded into political, legal and medical
institutions, thus contributing and perpetuating discrimination and
oppression.
The methodology I have used to carry out this analysis is necessarily
multi- (or better yet, inter-) disciplinary: ‘the unique position of childbirth
at the nexus between medical ambitions, gender-based discrimination
and social perception of motherhood and femininity demands that it
be approached with careful consideration for its multi-dimensional
aspect’.7 This approach guided the methodology of this entire work. I
have resorted to the lens of gender studies in order to examine issues
of bioethics, religion, sociology and law, in order to make visible the
patterns of oppression and power that underlie the social relations
happening in pregnancy and childbirth.
The first chapter explores what shaped the current status of pain in
childbirth in society, and why it is seen as irrelevant or otherwise often
ignored. I will go through social, cultural and religious contexts, which
together lay a foundation for medical habits and attitudes which are all
too often consolidated in healthcare facilities.
In the second chapter, I will go through the legal panorama in which
pain relief is located; I will summarise the human rights instruments
available and applicable to guarantee pain relief in general, and more
specifically, in childbirth. In this context it will appear clear that there is
a legal void on this subject.
The third chapter, therefore, will embark upon the discussion of a
hypothetical framework in which pain relief in childbirth can be defined
and addressed as a human right: first, I will show how the denial of
pain relief in childbirth constitutes a form of gender-based violence
(GBV); secondly, I will provide a definition of obstetric violence as
subsuming the notion of GBV and, as such, as a potentially effective
device to address the lack of legislation concerning pain in childbirth. I
will also stress the importance of education on human rights and gender
awareness: this is necessary to address the root of the problem and to
draw attention to the structural reasons why pain in childbirth is often
minimised and neglected.
7 Véronique Bergeron, ‘The Ethics of Cesarean Section on Maternal Request: a Feminist
Critique of the American College of Obstetricians and Gynecologists’ Position on Patient-
Choice Surgery’ (2007) 21(9) Bioethics 478.
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Little attention has been given to the cultural, social and political
implications that come into play when it comes to the women’s
reproductive sphere (pregnancy and childbirth). But it is exactly these
implications that enable us to explain why childbirth and pain are
‘managed’ as they are. This thesis aims at unveiling exactly this aspect,
with the objective of making it easier to foster a change which is not only
formal, but substantial, involving society at all levels.
Pain relief in childbirth should be regarded as a universal human
right, and although no legal framework – and consequently, case law –
has been developed so far in this respect, I will explore the ways in which
it could be implemented, while attempting at unveiling the structural
social, cultural and religious reasons which explain this situation.
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in pain thou shalt bring forth children?
1.
PREGNANCY AND CHILDBIRTH, PAIN AND HUMAN
RIGHTS
1.1 a public matter
‘As the mechanism by which society reproduces itself, pregnancy
is by no means a private matter, but is peculiarly susceptible to social
intervention and control.’8
To this day, the only way human beings can come to life is through
a human womb,9 which entails, in the great majority of cases, that the
person whose body the womb belongs to is a woman. Thus, pregnancy
and childbirth are what enables human life to be reproduced and, being
specific to female bodies, a significant event in a woman’s life.
These events have been trapped by the institutional net of society
for many reasons; they, we must remember, are not simply biological
events, but have always been meaningful rituals of passage, deeply social
experiences, and ultimately, a public matter, with endless significant
implications and ‘profound bodily and existential meaning’.10 This must
be kept in mind when it comes to analysing the norms and laws that
regulate pregnancy and childbirth and, in general, the reproduction of
human beings.
To be able to trace the relevance of the issue of pain in pregnancy and
childbirth within the realm of women’s rights, we first need to step back
and define these two bodily events, especially as far as modern Western
8 Clare Hanson, A Cultural History of Pregnancy. Pregnancy, Medicine and Culture, 1750–
2000 (Palgrave MacMillan 2004) 6.
9 Ectogenesis, ie the gestation of a human being outside a womb, is not yet technologically
viable, although research is allowing for more progress in this direction. This will entail, of
course, medical, legal and ethical challenges which go beyond the purpose of this thesis.
10 Anne Drapkin Lyerly, ‘Shame, Gender, Birth’ (2006) 21(1) Hypatia 101.
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society11 has conceived and understood them. This chapter aims at
elaborating definitions of pregnancy/childbirth and their relationship
with pain from different perspectives, to give an account of how complex
and multifaceted the discourse about it is: I will analyse the ontological
features of pregnancy, as well as frame it and its connection to pain from
a medical, religious, social and cultural point of view.
After this theoretical introduction of the subject matter, I will
illustrate four main situations in which pregnancy, pain and human
(reproductive) rights of women are crucially intertwined, as an example
of how the issue of pain and human rights influences profoundly
different contexts of pregnancy and, especially, childbirth: these are
a) natural childbirth, b) caesarean (also referred to as c-section), c)
surrogate motherhood and d) abortion. Such an excursus will allow
me to demonstrate how pain in the female body is a constant factor in
human reproduction, with different philosophical, social, cultural and
even political meanings, depending on the nature of the pregnancy and
of the delivery.
Finally, I will explore the link of pregnancy and childbirth to the
reproductive rights of women, trying to briefly describe the human rights
implications that these experiences involve – and how the discourses
and connotations attributed to pregnancy and childbirth influence their
treatment on the part of society, institutions and law. This will serve as a
foundation to discuss in depth, in chapter 2, the legal instruments that
international human rights law currently provides.
1.2 the (ab)normality of pregnancy
‘Constructing the natural is a political act, since within the notion of
the natural are assumptions about what power is and how to access it.’12
When investigating pain during pregnancy and childbirth, it is
interesting to shed light on the very nature of these phenomena first.
In fact, the presence of pain gains a different meaning when we analyse
how the whole process of conceiving and bearing a child is perceived.
11 The reason why I have selected Western conceptions is that it is in this context that
much of the scientific knowledge which has now arisen to a global level was first constructed.
12 Pamela E Klassen, ‘Sacred Maternities and Postbiomedical Bodies: Religion and Nature
in Contemporary Home Birth’ (2001) 26(3) Signs 775, 801.
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in pain thou shalt bring forth children?
For a mother, pain is one way or another a conditio sine qua non for the
beginning of a new human life – as Julia Kristeva puts it:
one does not bear children in pain, it’s pain that one bears: the child is
pain’s representative and once delivered moves in for good. Obviously,
you can close your eyes, stop up your ears, teach courses, run errands,
clean house, think about things, about ideas. But a mother is also marked
by pain, she succumbs to it. ‘And you, one day a sword will pass through
your soul.’13
To explore their link with pain, I am going to discuss whether and
how these events have historically been normalised – that is, how
they have been labelled and taken for granted as an integral part of a
woman’s reproductive life – and how the standards of normality and
abnormality have been interplaying with pregnancy, childbirth and
female reproductive and sexual behaviour during this socially relevant
moment of transition to a (potential) new life. Before continuing, we
need to keep in mind that the term ‘normal’ used when referring to
childbirth and pregnancy is a multifaceted one. Therefore, I will now
try and give a brief account of its slippery and complex implications.
The question here appears to be: ‘is pregnancy really normal?’,14 and
moreover, ‘when is it that pregnancy is (not) normal? What conditions
allows us to discern a normal pregnancy from an abnormal one?’ Firstly,
‘normal’ is opposed to ‘abnormal’ in that the normal status of a human
body, if men are the point of reference, is that of being non-pregnant.
Therefore, if a healthy male body is not pregnant, a female pregnant
body is clearly deviant from the male standards and pregnancy can be
read as an illness, something which has a course and for which the cure
is its resolution, be it through childbirth or through abortion.
Secondly, starting from a different assumption – that pregnancy is not
an illness but an event in female reproductive life – ‘normal’ could refer
to a pregnancy which is free from ‘abnormal’ traits or episodes, and that
therefore needs no intervention other than assistance in delivery and
requires no particular medical attention – what is defined as normal or
abnormal is, of course, the result of widely shared norms and standards
produced within a community of knowledge in a specific time and place.
13 Julia Kristeva and Arthur Goldhammer, ‘Stabat Mater’ (1985) 6(1/2) Poetics Today, The
Female Body in Western Culture: Semiotic Perspectives 133, 138.
14 Warren M Hern, ‘Is Pregnancy Really Normal?’ (1971) 3(1) Family Planning
Perspectives 5.
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Thirdly and conversely, from the definition of pregnancy as a ‘normal’
status for a woman we can infer that ‘not being pregnant’, and not bearing
children, would be the abnormal condition for a female body, created
exactly for the purpose of reproducing human life. This view stems
from a physiological/biological and essentialist assumption, according
to which the nature of the female body is inclined to bearing children
and to motherhood. This definition of pregnancy and childbirth has a
fundamental relation with the use of the word ‘normal’ as a synonym of
‘natural’, which in turn raises interesting questions, as we shall now see.
From this association, it appears that the natural state of a woman is that
of being a mother, and that pregnancy is a condition for a full, realised
femininity – notably, women who do not conceive have historically been
labelled as ‘barren’.15
On the other hand, this concept of ‘state of nature’ recalls the notion
of the Illuminist view of the ‘good savage’: in this framework, women/
mothers’ sexuality is subjugated to their main function in life, that is,
to bear their offspring and reproduce: in this perspective, it is easy
to frame these events as primal processes, almost ‘animalistic, so that
basic animal instincts are included in the childbirth process’16 and that
women are literally equated to wild animals, the ones who are able to
access the most primordial dimensions of life, but also the ones who are
relegated to that stage, as opposed to a more intellectual, rational one.
Literature is replete with these stereotypes, which come back now and
again in more or less explicit ways, even in the contemporary ideology
of the ‘natural birth’ advocacy, which we will discuss later. Suffice to say
that, according to the views of the 18th-19th century, the ‘pampered’
women living in cities and conducting a wealthy lifestyle were ‘spoilt’
and ‘barren’, while the ‘state of nature’ women bred many children and
were seen as being more fertile, closer to the natural function of women17
as if anything that took women away from nature also detached them
from what was seen as their natural function, namely childbearing and
15 Hanson (n 8) 10. Another view purported by Warren Hern is that, instead, ‘pregnancy
has traditionally been defined in Western culture as “normal”, and the desire to terminate the
pregnancy therefore, as, “pathological”’, stating that only childbirth would be the ‘abnormal’
phase, while pregnancy would be the ordinary, non-pathological stage.
16 Mirko Prosen and Marina Tavčar Krajnic, ‘Sociological Conceptualization of the
Medicalization of Pregnancy and Childbirth: The Implications in Slovenia’ (2013) 43(3) Revija
Za Sociologiju 251, 261.
17 Klassen (n 12) 782.
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in pain thou shalt bring forth children?
childrearing. Inasmuch as women are conceived as ‘lower’, instinctual
creatures, closer to the animal reign that to the humane, rational one, it
is interesting to point out that even the way they embody and externalise
the experience of pregnancy and pain is filtered through this underlying
assumption: as demonstrated by Esther Cohen in her analysis of the
perception of human pain in history, women have long been seen as
more inclined to be vociferous about their physical pain than men,18
as if their ‘animal side’ placed the display of their pain on a different
evaluation scale.
There is a tension between nature as women’s vocation for responding
to the call of biology, thus fulfilling societal expectations, and on the
other hand, nature as a potentially evil force governing the process
of human reproduction: nature has to be understood, dominated and
tamed, lest we are to face dangerous, potentially deadly consequences
both for the pregnant woman and for the foetus. While society often
holds onto the gender stereotypes discussed above, it also seems willing
to take control of the processes which derive from them: in modern
society, the means by which this control is enacted is technology within
the realm of the medicalisation of pregnancy and childbirth. As Mirko
Prosen and Marina Tavčar Krajnic remarked, modernity has internalised
the idea that nature can – and must – be overcome, or at least harnessed,
by technology.19 Tellingly, in the Western world the great majority of
births still happen in a hospitalised context where medical technology
monitors and leads the phases and pace of childbirth.
While we cling to the view of pregnancy as women’s highest, most
‘normal’ function, at the same time ‘Western medicine has begun
treating pregnancy as a specialized kind of illness requiring prenatal care,
obstetrical supervision and postpartum follow-up with positive results
which the patients themselves recognize and seek out’20. Interestingly
enough, the way patients feel about medicalisation changes from
culture to culture, once again intertwining pregnancy and childbirth
with what is conceived as natural or as deserving medical attention
in different cultures: since the 1960s, in the West, especially in the
United States of America (US) and in Europe, we have witnessed the
18 Esther Cohen, ‘The Animated Pain of the Body’ (2000) 105(1) The American Historical
Review 36, 38.
19 Prosen and Tavčar Krajnic (n 16) 252.
20 Hern (n 14) 6.
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self-described “movement for natural birth”, which strongly opposes
the medicalization of pregnancy and childbirth, in favour of “natural
childbirth”, whatever that term entails for its advocates; in the global
South, meanwhile, women tend to trust medical intervention and
surrender to the knowledge-power of the medical class more than their
Western counterparts.21
The widespread medicalisation of pregnancy and childbirth results
in a process through which ‘non-medical problems become defined
and treated as medical problems, usually in terms of illnesses and
disorders’;22 while discussing it, we should not forget that, just as the
standards defining normality and abnormality are socially constructed,
science and technology are part of a ‘particular cultural production and
representation’.23 Ann Oakley goes even further when she equates science
to an ideology,24 reminding us once again that norms and standards are
specific to a particular historical, social and cultural context and not
universal and ever-lasting. Considering this notion, medicalisation can
also be understood as a means of taking control of a process which
has traditionally inspired awe and fear, a way of institutionalising it and
making it less threatening and more predictable. In fact, reproductive
processes have been the core interest of organised human groups in
that society expands and grows through them, giving way to the widely
shared and internalised idea that ‘pregnancy and childbirth should be
supervised both medically and legally, that it has become unacceptable
for people to decide about these – now medical matters – themselves,
that de-medicalization of pregnancy and childbirth would in some way
be a threat to the social order’.25 This assumption has given way to and
consolidated the trope of the female body as something ‘construed as
uncontrollable, uncontained, unbounded, unruly, leaky and wayward’26
to be tamed through technology as a tool for social control. Technology
21 Candace Johnson, ‘The Political “Nature” of Pregnancy and Childbirth’ (2008) 41(4)
Canadian Journal of Political Science/Revue Canadienne de science politique 889, 893;
George A Skowronski, ‘Pain relief in childbirth: changing historical and feminist perspectives’
(2015) 43 (History supplement) Anaesthesia and Intensive Care 27.
22 Peter Conrad, ‘Medicalization and Social Control’ (1992) 18 Annual Review of
Sociology 209.
23 Ann Oakley, ‘A Case of Maternity: Paradigms of Women as Maternity Cases’ (1979) 4(4)
Signs - The Labor of Women: Work and Family 607, 608.
24 ibid.
25 Prosen and Tavčar Krajnic (n 16) 256.
26 ibid 255.
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takes over the process of childbirth and directs it, instead of the birthing
woman: Warren Hern points out that even in obstetric manuals, ‘the
subjective feelings and symptoms of the pregnant woman receive only
cursory attention in comparison with other, more technical details’.27
As has been mentioned, medicalisation is often seen as opposed to –
and conflicting with – ‘natural’ pregnancies and births: feminist scholars,
among which Barbara Katz Rothman,28 have called for a more ‘natural’
pregnancy and birth experience, which should allow women to feel
more empowered and less dependent of external knowledge and power
than in the medicalised context, while some29 argue that the problem is
not medicalisation per se, but rather, the power structure and between
genders in which pregnancy and childbirth are treated and in which
discourses on women’s reproductive processes are created. Birthing
women’s attitudes towards the topic have been ambivalent as well, with
some supporting the ‘natural childbirth’ discourse against what is seen
as a monopoly of institutions over physiological processes, and some
firmly believing in the medical establishment’s ability to manage their
pregnancies and births.30
It is not the amount of technology or medicalisation that is important,
but rather the discursive interpretation and conception of pregnancy,
childbirth and the pain linked to them, and how its meaning has been
dragged through centuries as part of a stereotype influencing ‘patterns
of socialization’31 – which, as I shall illustrate in the next chapters, is
mirrored in legal texts as well. Here, I follow Laura Purdy’s view in
claiming that the problem is not the act of medicalisation itself, but
how it relates to subjectivity, to agency, to autonomy: the underlying
‘current culture of medicine’.32 Relevantly, Oakley stated that such a
‘culture’ is necessary in society to ‘fit reproduction into the category
of human concerns in which doctors can exercise and enforce their
27 Hern (n 14) 7.
28 Barbara Katz Rothman, ‘The Social Construction of Birth’ (1977) 22(2) Journal of
Midwifery and Women’s Health 9, 13.
29 Drapkin Lyerly (n 10) 101.
30 Ellen S Lazarus, ‘What Do Women Want? Issues of Choice, Control, and Class in
Pregnancy and Childbirth’ (1994) 8(1) Medical Anthropology Quarterly, New Series 25.
31 Drapkin Lyerly (n 10) 101.
32 Laura Purdy, ‘Medicalization, Medical Necessity and Feminist Medicine’ (2001) 13(3)
Bioethics 249, 250.
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jurisdiction’.33 From here, the notion of the ‘illness of pregnancy’ 34 gains
deeper meaning and a wider relevance at a social, cultural and even
political level.
As a part of the assimilation of women’s reproductive life into the
realm of the medical and the pathological is the notion of pregnant
women as affected by illness, thus interpreting their behaviour as the
assumption of the ‘sick role’, a sociological concept which assumes that
a subject convinced to be ill will act as if he – or she, in this case – was
in need of extra care and attention, exactly as a sick person would. In
her research on the sick role among pregnant women, Myra Leifer notes
that, unsurprisingly, it is the emotional response to their status which
leads to ‘the view of female patients as deviants (…), an integral part
of the medical ideology in which women are defined as ill by virtue of
their reproductive functions, held responsible for what is disabling’.35
The dichotomy takes place between normality considered as ‘health’
or, in narrower terms, ‘sanity’ (especially mental, as we shall now see),
and disease: women’s bodies and minds have long been seen as victims
of their biology, especially in that their uterus undergoes monthly
changes which are more visible and politically significant36 than any
changes that the male body goes through – thus, attributing a ‘sick
role’ to pregnant women eases the relationship between pregnancy
and childbirth and psychological disease, thus ‘gendering mental
instability’.37 These associations bear dangers which might take shape
in the relationship between health professionals and pregnant or
birthing women by undermining the humane and dignified experience
of childbearing; Leifer rightfully observed that ‘the persistence of the
belief that pregnancy-related symptoms are of psychogenic origin has
resulted in their being treated inadequately or with derision by medical
personnel’.38
33 Oakley (n 23) 609.
34 Hanson (n 8) 60. Myra Leifer observed how the condition of being visibly pregnant
often causes women to be socially stigmatised, and even to be treated as ‘women are socially
stigmatized for being visibly pregnant and that reactions to pregnant women very closely
parallel those to the physically disabled’ (see Myra Leifer, ‘Pregnancy’ (1980) 5(4) Signs -
Women: Sex and Sexuality 754).
35 Leifer (n 34) 758.
36 Hanson (n 8) 37.
37 ibid. The correlation between women and psychological instability was endorsed by the
international scientific community for decades: tellingly, the very term ‘hysteria’ comes from
the Greek hysterion, meaning ‘uterus’.
38 Leifer (n 34) 757.
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in pain thou shalt bring forth children?
The issue of pain in pregnancy and childbirth becomes crucial in this
framework: as the experience of pain is inherently individual, when the
patient experiencing it is perceived as mentally or emotionally unstable,
her pain could easily be belittled or ignored as a token of this instability
or lack of endurance. This is unfortunately not uncommon in medical
hospitals around the world, leading to gross violations of women’s
rights in pregnancy and childbirth in what has come to be defined as
obstetric violence; institutions such as the Committee of the Convention
on the Elimination of Every form of Discrimination Against Women
(CEDAW) and the World Health Organization (WHO) are addressing
increased attention on this normalised but diffuse phenomenon, with
interesting developments.
These observations allow us to conclude that, while the medicalisation
of pregnancy does decrease the risk of maternal and foetal death, at
the same time it potentially places pregnant and birthing women in a
subordinate ‘sick role’, whether they have internalised it and recognised
it as theirs or not. Once again, we are faced with the ambivalence of
pregnancy and childbirth: pregnancy is treated and diagnosed as a
sickness, but pregnant women who act as if they were sick are regarded
as performing ‘a sick role’. ‘Pregnancy is regarded as “normal”, yet it is
treated in practice as a specialized form of illness. This may be regarded
as an example of cognitive dissonance’, observed Hern.39
In this view, the ‘ambivalent organic condition of pregnancy’40
becomes clearer: there is a thin line between normal and abnormal,
healthy and sick, sane and insane, powerful and vulnerable, rational
and irrational: historically, pregnancy and childbirth have been located
on the edge of these opposing realms, placing pregnant and birthing
women in a culturally malleable position where stereotyping and
mystification play a significant role. In fact, on one hand, childbearing
is perceived as the highest function that the female body can perform,
as an empowering event, something bringing authoritativeness, a new
awareness, even the condition for a ‘completed’ femininity; on the
other hand, a pregnant woman is ‘the victim of nature’, someone who,
under an incontrollable psychological and physical turmoil, changes
completely her ways and becomes overridden by emotions. The same
39 Hern (n 14) 45.
40 William R Rosengren, ‘Social Sources of Pregnancy as Illness or Normality’ (1961) 39(3)
Social Forces 260, 267.
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ambivalence has been noted by Deborah Rogers41 in other fields related
to female reproductive life: ‘bearing children and continuing a male line
are enshrined as women’s greatest achievement, even as exercising their
sexuality is punished by the pain of pregnancy and domination’. Here,
the dichotomy is between a virtuous behaviour, ie good motherhood,
and a vicious one, ie sexual intercourse: the mere fact of experiencing
female sexuality, even in the context of a monogamous relationship,
might lead a woman to pregnancy and, therefore, to the punishment of
pain, observes Rogers.
These categorisations are part of how society has constructed and
perpetuated gender roles: according to Oakley, ‘just how reproduction
has been socially constructed is of prime importance to any consideration
of women’s position. It may even be in motherhood that we can trace
the diagnosis and prognosis of female oppression’.42
Adrienne Rich43 supports this view by claiming that ‘patriarchy
could not have survived without motherhood and heterosexuality
in their institutionalized forms’: indeed, they have been used for
ensuring property passage and for legitimating social order, linking
‘the female(physical) economy and wider social structures’.44 Further,
pregnancy and childbirth have become social acts precisely because
‘society is threatened by the disorder of what is beyond its jurisdiction.
The cultural need to socialize childbirth impinges on the free agency
of women who are constrained by definitions of womanhood that give
maternity an urgency they may not feel’.45
It is now clear that pregnancy and childbirth are phenomena of
collective interest, to which societies have attached meanings, values,
symbols and protocols of control; pain is involved in this collective
elaboration as well, as it constitutes an inevitable feature of these two
events. Significantly, Pamela Klassen takes Pierre Bourdieu’s notion of
habitus to describe the process in which ‘“society (is) written into the
body, into the biological individual” and works to structure actions and
41 Deborah D Rogers, ‘Rockabye Lady: Pregnancy as Punishment in Popular Culture’
(1992) 26(1) Journal of American Studies 81, 83.
42 Oakley (n 23) 608.
43 Adrienne Rich, Of Woman Born. Motherhood as experience and institution (WW Norton
& Company 1995) 43.
44 Hanson (n 8) 51.
45 Oakley (n 23) 608.
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in pain thou shalt bring forth children?
beliefs while making them appear natural’46 – one more time, the term
‘natural’ appears to indicate the normative, the commonly accepted.
Therefore, just as pregnancy and childbirth do, pain, too, has multiple
cultural connotations and values, and its very notion and definition is
socially determined. In the next sub-chapter, I will discuss how culture,
religion and morality interact with one another in the construction of
pain in pregnancy and, especially, childbirth.
1.3 from nature to culture: issues of pregnancy and pain
In this study of pain, we will focus on the event of childbirth, since
it is in this moment that it is strongest and most present, and where
most narratives and discourses on pain related to women’s reproductive
lives have focused. The fact that childbirth pain has always appeared so
ineluctable and inevitable has led cultures to try and find an explanation
for its presence and its acuteness: why is it that women are put under
such physical torture to give birth? Why do women go through such
hell,47 while men potentially have no contact whatsoever with the
experience of pregnancy and childbirth? These questions have put
the female body at the core of a wide, never-ending debate where all
components of a culture came into play, making it a contested site of
knowledge where narratives and norms have been written, unwritten
and rewritten to this day. Such narratives have fed and consolidated
cultural gender stereotypes – positive and negative ones. They can be
found at the roots of virtually every value or meaning attributed to pain
in pregnancy and childbirth: as Leifer has observed, ‘no other stage in a
woman’s life is as replete with cultural stereotypes as pregnancy. Indeed,
attitudes toward pregnancy have been one of the most prevalent sources
of discrimination against women’.48
The main and most common cultural stereotype is that of woman
as ‘the childbearer’, also purported by different religions as a woman’s
destiny, or the will of God.49 A woman’s body undergoes pregnancy
46 Klassen (n 12) 781.
47 Words of one of the interviewees in Lynn Callister’s study in Journal of Obstetric,
Gynecologic, and Neonatal Nursing (2004) on women’s perception of childbirth pain.
48 Leifer (n 34) 754.
49 Rebecca J Cook, ‘International Human Rights and Women’s Reproductive Health’
(1993) 24(2) Studies in Family Planning 73.
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and labour pains as the ‘precious deposit’50 of a child, being the only
sex able to literally bring life to earth. In this view, the whole burden of
perpetuating humanity rests upon women’s shoulders – or better yet,
upon their wombs; a woman’s value is assessed based on her becoming
a mother, implying that she will have to bear through the pains of
labour. The stereotypical motherhood role in Western societies is often
portrayed as morally and emotionally virtuous capable of great love and
sacrifice for the sake of her children and her family: the pains which her
physical body has to endure are part of the process through which she
will become this mythical figure, embodying a morally elevated function.
Women become entitled to be such only thanks to their reproductive
tasks – they earn their position in society through the endurance of the
burdens of pregnancy and pain.
At the same time, however, a mother is a woman, and as such – at least
in Western societies – she will have to adhere to aesthetical standards
which require her to keep the physical signs of motherhood invisible,
since they would make her less palatable to the eye:51 in this view, the
physical pains of childbirth could be interpreted as the beginning of a
painful process of decay, a threshold beyond which a woman’s body is
no longer deserving of attention or dignity. In the quicksand of ever-
changing social codes and norms, the stereotypes on women melt with
the ones on motherhood, originating complex networks of meaning
which I will try to disentangle.
In doing so, I cannot but resort to religion to make sense of the
discourses on pain in childbirth. Here, I refer mainly to Christianity
and to Judaism; while stereotypes sprung from religious texts, norms
and rituals might certainly be common in different religions around
the world, ‘we must not forget that the Western scientific and cultural
apparatus has been built with strong ties to Christianity, one where
women where not the subject, but rather the object of discourses and
prescriptions’.52 Christianity, in turn, stemmed from Judaism, which
also presents interesting elements of analysis when it comes to women’s
reproductive lives. Moreover, as Kristeva observed, Christianity offers
50 Hanson (n 8) 25.
51 Nora Doyle, ‘Writing the Body. The Work of the Body in Women’s Childbearing
Narratives’ in Maternal Bodies: Redefining Motherhood in Early America (University of North
Carolina Press 2018) 108.
52 Klassen (n 12) 775.
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in pain thou shalt bring forth children?
‘the most sophisticated symbolic construct in which femininity, to the
extent that it figures therein – and it does so constantly – is confined
within the limits of the Maternal’;53 this also helps shed light on the
origin of the cultural stereotypes discussed above – the ‘ideology of the
sacred motherhood’. Religion is also responsible for turning the sexual
aspect inherent to pregnancy and childbirth into a sin – this is crucial
if we consider that women are hit by stereotypical discourses, both as
females and as mothers.
At this point, it is worth stepping back briefly to be able to widen
our perspective. It has been mentioned that the ever-present causal
connection between childbirth and pain is its relation to sex. Not only
is sex central to the whole representation of female identity – so much
so that:
woman’s sex comes to be seen as more essential to her nature than man’s
sex is to his. We are more likely to see woman as ruled by the whims
of her reproductive system than man is by his; more subtly, if no less
dangerously, we are simply more likely to think of and be concerned with
reproductive issues when thinking of women than of men.54
Sexual activity is also the core of millennia of stereotypes, norms and
taboos, which put the woman’s sexual life at the centre of public scrutiny
– her body becomes ‘a social text in which sexuality is made visible’.55
In this light, pain happens inevitably as the necessary consequence of
a woman having sexual intercourse and, even worse, possibly enjoying
it: it appears as ‘a particularly appropriate punishment since the
“crime” or causality is unambiguous’.56 Again, we witness some degree
of ambivalence in that on one hand the human female must be punished
for not restraining her body from human passions, while on the other,
the same body has to experience sexuality in order to embody her
reproductive functions.57 To solve this tension, notes Kristeva, birth acts
as a mending act: a woman is only deserving of salvation to the extent to
which sexual intercourse leads to a new life being brought to light; the
child is born to ‘suture the wounds’58 of a previous sin.
53 Kristeva and Goldhammer (n 13) 134.
54 Margaret O Little, ‘Why a Feminist Approach to Bioethics?’ (1996) 6(1) Kennedy
Institute of Ethics Journal 1, 2.
55 Rogers (n 41) 83.
56 ibid.
57 Hanson (n 8) 57.
58 Kristeva and Goldhammer (n 13) 149.
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When associating childbirth pains with sin, one cannot but recall
the notorious ‘Eve’s curse’: the Old Testament has left a heavy mark
on how childbirth pain is regarded by society. Although the Bible’s
notorious verse ‘in pain thou shalt bear your children’ has been labelled
as controversial in the process of its translation,59 it is indisputable that
a whole religious and cultural tradition has been – and still is – borne
out of its most widely shared meaning, heavily influencing what the
Christian West has thought of pregnancy and childbirth. ‘I will make
most severe your pains in childbearing’, reads Genesis iii 16. What is
even more relevant is that the Hebrew word for ‘conception’ (later
interpreted more widely, as ‘childbearing’) is extremely close to the
words ‘pain’ and ‘anger’ (or, more precisely, ‘divine wrath’), allowing for
two different consequences of the original sin: the first one, ‘in pain you
shall bear children’, the second one ‘your urge shall be for your husband
and he shall rule over you’.60 These two conditions, that Christianity
understands as essential to women’s nature in that they derive from Eve’s
sin, have weighed upon millennia of pregnancies and births, permeating
Western culture on many levels.
The silver lining of Eve’s epiphany after breaking the law of God is
her contact with ‘the bittersweet fruit of the knowledge of good and
evil’:61 thanks to this newly acquired awareness, through childbirth’s
pains Eve and her daughters become active participants to the process
of creation, thus emulating God’s role in creation. In a visionary essay on
motherhood and its embodiment, Kristeva has defined on female pain
as ‘the masochistic foundation of society’, elevated to be ‘a structural
stabilizer – countering structural deviations – and, by assuring the place
of a mother in an order that surpasses human will, provides her a reward
of pleasure’62 – the pleasure of holding the power of creation in her
womb.
To attain this condition, though, women still have to come into
contact with the original sin, hence becoming impure: the discourse on
purity is also a constant presence around childbirth, and impurity related
to birth is widespread among the monotheistic religions. According
59 Tzvi Novick, ‘Pain and Production in Eden: Some Philological Reflections on Genesis
III 16’ (2008) 58(2) Vetus Testamentum 235, 237.
60 ibid 238.
61 Tammy Ditmore, ‘The Pains of Natural Childbirth: Eve’s Legacy to Her Daughters’
(2008) 16(2) Leaven 70.
62 Kristeva and Goldhammer (n 13) 150.
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in pain thou shalt bring forth children?
to the Jewish Torah, for example, the reason why women suffer and,
potentially, die in childbirth is that they have disrespected religious
norms on menstrual and postpartum purity rituals.63 The female body
can be as impure as sin and at the same time attain the purity of holiness,
and it does so through the very same act, that is, becoming pregnant and
giving birth.
Once again, pregnancy, childbirth, and even the value of pain present a
high degree of ambivalence, which makes it complex to fully understand
these phenomena; Rich gives a comprehensive account of this aspect
of ambivalence when she notes that the female body is both ‘impure,
corrupt, the site of discharges, bleeding, dangerous to masculinity, a
source of moral and physical contamination’, and ‘beneficent, sacred,
pure, asexual, nourishing’,64 fitting once again the stereotype of the
idealised, sacred, archetypal motherhood. The common association
between sex and impurity, sanctioned by pain as a result of a sin, has a
twofold consequence: on one hand, the rise of an interiorised sense of
guilt and/or shame due to the awareness of the sin; on the other, the
notion of pain as atonement, as purification of sexual guilt – analogous
to Kristeva’s aforementioned concept of birth as the suture of a wound.
In their study on the nature of pain from the middle ages to the 20th
century, Carolyn Corretti and Sukumar Desai note that, according to
scholars and theologists of the middle ages, pain was explained as the
divine punishment for moral transgressions such as sex.65 Remarkably,
since the middle ages, pain has been gendered: women’s experiences of
pain have been much more dealt with, both verbalised and normalised,
than men’s.66 Cohen carried out the same analysis: it is in this epoch,
especially with Augustine’s philosophy, that the notion of pain as a sign
of sin is first consolidated. Childbirth pains were the evident sign of a
sinful soul – in fact, ‘labor pains were punishment for Eve’s crime and
therefore ought to be patiently borne. The Virgin, free of all sin, did
not suffer any pains during the birth of Christ’.67 But this pain, though
63 Christopher R Hutson, ‘“Saved through Childbearing”: The Jewish Context of 1
Timothy 2:15’ (2014) 56(4) Novum Testamentum 392, 393.
64 Rich (n 43) 34.
65 Carolyn Corretti and Sukumar P Desai, ‘The Legacy of Eve’s Curse: Religion, Childbirth
Pain, and the Rise of Anesthesia in Europe: c. 1200-1800s’ (2018) 4 Journal of Anesthesia
History 182.
66 ibid 183.
67 Cohen (n 18) 45.
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originated from sin, was the price for redemption: it could reach a
praiseworthy value – much later, in a letter to his wife, Martin Luther
would write about childbirth pains ‘if you die you die happily, fulfilling
the tasks that God has conceived for you’.68 In this view, women’s
suffering was not only natural and unavoidable, but became something
to wish for, associating all women to the myth of the Christian Mater
Dolorosa whose cries ‘were for the glory of God Father’ and whose
‘pain, like love, is embedded in the ideology of motherhood’.69
Pain was then the means to raise to a Christ-like status, elevating
women’s souls – the downside of this vision was that a woman who did
not suffer, or was not ready or willing to do so, did not really experience
mother love. This paradigm fed the conviction that a ‘good birth’ is a
painful one, otherwise, it might mean that the mother ‘did not want
the child bad enough’,70 leading birth to be a moment of potential
self-consciousness, insecurity and self-questioning childbirth pain and
its management come with the burden of centuries long stereotypes:
‘women (…) bring to the birthing room (…) a complex experience
of subordination, and an elaborate repertoire of stereotyped gestures
appropriate to their station’.71 The experience of pain on the part of
women, however, is not necessarily perceived as something humiliating,
disempowering or belittling: some authors72 have observed how some
women see a link between pain endurance and their own physical and
psychological strength, or even a fundamental condition for a dignified,
empowering birth – ‘birth junkies’, as Katherine Beckett defines women
who advocate for this view on the experience of childbirth pain, are
‘indicative of a kind of machisma (sic), a belief that birth is an extreme
sport’.73 In her review on women’s perspective on childbirth pain, Karin
Martin found that pain was seen, more often than not, as a ‘war pin’
which some women see as a necessary rite of passage and feel that
without it they could be ‘less good mothers’, as if pain was the proof of
68 Corretti and Desai (n 65) 185.
69 Rich (n 43) 168.
70 Susan Bordo, ‘Are Mothers Persons? Reproductive Rights and the Politics of Subjectivity’
in Unbearable Weight. Feminism, Western Culture, and the Body (University of California Press
1984) 86.
71 Drapkin Lyerly (n 10) 115.
72 Bordo (n 70); Klassen (n 12); Karin A Martin, ‘Giving Birth Like a Girl’ (2003)17(1)
Gender and Society 54; Katherine Beckett, ‘Choosing Cesarean. Feminism and the politics of
childbirth in the United States’ (2005) 6(3) Feminist Theory 251, 257; Drapkin Lyerly (n 10).
73 Beckett (n 72) 260.
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in pain thou shalt bring forth children?
the capacity to surrender the self for another life that is coming to light.
In this view, selflessness is part of an ‘internalized sense of gender’74
which sets the standard of how pain should be dealt with by birthing
women, largely without their awareness.
In this framework, it is interesting to give a brief overview of the
perception on pain relief by birthing women themselves. Anaesthesia
during birth was first practiced in 1847, in a time when a ‘secularization
of pain’75 was finally taking place: this implies that pain shifted from
being conceived as religious necessity to appearing as a ‘societal burden,
destructive and pointless’;76 since then, various methods have been
implemented, but the constant debate has been the interplay between
pain relief and women’s experience of agency (or, on the contrary,
passivity) during labour.
Starting from the assumption that labour pain is a significant part of a
woman’s power of enacting her feminine identity, pain relief constitutes
an ‘oppressive liberation’, putting women in a passive condition where
they cannot be real subjects of their own childbirth. From another
perspective, however, such ‘passivity’ might be exactly what birthing
women wish for, as was the case in the ‘twilight sleep’ advocates in the
early 20th century.77 Pain relief is also regarded differently depending
on cultures, just as the display and the expression of pain. Studies78
have shown that in Western cultures, championed by the US, pain is
74 Martin (n 72) 54.
75 Corretti and Desai (n 65) 183.
76 ibid 184.
77 Victoria Vivilaki and Evangelia Antoniou, ‘Pain relief and retaining control during
childbirth. a sacrifice of the feminine identity?’ (2009) 3(1) Health Science Journal accessed 25 March 2019. Twilight sleep was a method of delivery
employed in the early 20th century in the United States of America and in Europe, which
consisted of using a mixture of morphine and scopolamine so as to lead the woman into an
unconscious state, where nonetheless her body was responsive to uterine contractions, thus
allowing for a painless delivery. Its use was interrupted in the 1960s, after its dangerous side
effects were discovered. Women’s movements supported its use and so did obstetricians,
who defended it since it gave ‘absolute control over your patient at all stages of the game
(...) You are “boss”’ (J Walzer Leavitt, ‘Birthing and Anesthesia: The Debate over Twilight
Sleep’ (1980) 6(1) Signs, Women: Sex and Sexuality, Part 2 147, 160). Clearly, anaesthesia in
childbirth lays on a thin line between progressive liberation and subjection in disguise (Rich
(n 43) 171). It is interesting how even the passivity provoked by the altered status induced by
anesthesia was linked to a religious/moral sphere, in that passivity in suffering was meritorious,
recalling of the Virgin Mary or Christ (Rich (n 43) 128).
78 See for example Lynn C Callister, ‘Cultural influences on pain perception and behaviors’
(2003) 15(3) Home Health Care Management and Practice 207; Nastaran Beigi and others,
‘Women’s experience of pain during childbirth’ (2010) 15(2) Iran J Nurs Midwifery Res 77.
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considered as something pathological, and therefore extremely negative, to
be avoided as much as possible; consequently, its display – and its medical
relief – are widely accepted, while in Eastern societies, such as Korea, pain
is perceived as an element inherent to childbirth and a deeply intimate
experience, which one wishes to be able to endure with no external help
and to keep for herself, lest she will dishonour her family.79 In any event,
the mere possibility of detaching the experience of excruciating pain from
the experience of giving birth was decisive in reshaping women’s and
society’s views on childbirth and childbearing in general;80 pain has always
characterised the deeply physical experiences of pregnancy and childbirth,
but the secularisation and medicalisation of the link between them deeply
changed social and cultural perceptions.
1.4 different births, same pain?
After an excursus on the nature of pain in pregnancy and childbirth
and its position within society, we can now embark upon the discussion
on how different types of birth are influenced and characterised by pain in
diverse and yet similar ways, with interesting common grounds.
The first situation I will examine is what has commonly been known as
‘natural’ childbirth, ie vaginal childbirth81 as opposed to caesarean section.
It is useful to consider these two births together or, better yet, in contrast
with one another, in that a woman’s choice (or obligation to) one over the
other carries relevant implications for the meaning attributed to childbirth
pain, both for birthing women and for society. During natural childbirth
– hereinafter ‘vaginal delivery’ – the woman is awake, more or less actively
engaging in labour: in this case, unlike in C-sections and abortions, it is
not only her body, but also her mind which are taking an active part in the
process, and not only dealing with its preparation or its aftermath.
This means that the whole array of notions and ideas learnt by the
woman through her socialisation, experiences and education come
79 Nastaran Beigi and others (n 78) 80.
80 Doyle (n 51) 206.
81 The term ‘natural childbirth’ can assume different meanings: it can refer, in its narrowest
conception, to the lack of any medical intervention whatsoever, or, on the other extreme of the
spectrum, to any medical manoeuvre insofar as the birth takes place through the vaginal canal.
These two notions of ‘natural’ include a whole array of in-between situations. For the purposes
of this chapter, I will use ‘natural childbirth’ with its widest implication.
22
in pain thou shalt bring forth children?
together to shape and make meaning of labour pain. As Victoria Vivilaki
and Evangelia Antoniou point out, ‘during labour the woman is dealing
not only with the contractions, but also with the myths that the culture
has created for her’.82 Nancy Lowe83 and Lynn Callister84 also stress this
point, stating that culture and social schemes are influential not only in
the perception, but also in the expression of labour pain. The origins
of the moral burden of pain in pregnancy and childbirth into which all
women are socialised has been widely discussed in the previous section of
this chapter: therefore, I will focus not on the meanings of this pain, but
rather on its influence on women’s perceived experience based on these
meanings.
Pain is, in general, a deeply subjective experience with no universal
description; pain in labour is just as subjective and every woman might
voice it or face it in a different way, but as Corretti and Desai point out, it
is not a universal given: in fact, it ‘can be viewed as a construction shaped
largely by societal institutions, beliefs, values, and standards’.85 Indeed, as
has been mentioned before, some cultures allow or even endorse its vocal
expression, while others might consider it as inappropriate for something
which is simply a given and cannot be avoided or mitigated by expressing
it.86 Interestingly, women seem to agree on the fact that the intensity
of pain is made more tolerable by the awareness that it is going to be a
‘productive pain’:87 the birth of a child seemingly helps birthing women
put into perspective their pain and endure it with no medical relief even
when it reaches excruciating levels, ‘for a greater good’.
At the same time, though, labour pain is often interpreted as something
without which a woman loses the right to her femininity and identity as a
good mother, which raises doubts about the narrative of pain relief-free
narrative by defining this type of delivery as pervaded by the ‘oppressive
monopoly of pain’.88 Kelly Madden and others89 solve the dichotomy
82 Vivilaki and Antoniou (n 77).
83 Nancy K Lowe, ‘The nature of labor pain’ (2002) 186(5) The American Journal of
Gynecology and Obstetrics 16.
84 Lynn C Callister, ‘Making meaning: Women’s birth narratives’ (2004) 33(4) Journal of
Obstetrics, Gynecology, and Neonatal Nursing 508.
85 Corretti and Desai (n 65).
86 Callister (n 84).
87 Vivilaki and Antoniou (n 77).
88 ibid.
89 Kelly L Madden and others, ‘Pain relief for childbirth: The preferences of pregnant
women, midwives and obstetricians’ (2013) 26 Women and Birth 33.
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between the ‘with-or-without-pain-relief’ labour by shifting the medical
staff’s and the women’s attention away from the ‘pain relief paradigm’ and
towards the ‘working with pain paradigm’, which suggests that women
should be in a position where they are able to ‘labor through’ their pain
without feeling helpless and obliged to accept medical relief, but without
feeling powerless and humiliated if they do decide to resort to it.
Moreover, pain should not always be equated to suffering, as they
might overlap but do not identify with each other: while pain is something
physical and, at least to a certain extent, unavoidable, suffering is rooted
in the whole experience of childbirth and depends both on the physical
sensations and on the emotional/psychological status of the birthing
woman. Lowe90 observed that, if the woman knows the origin of her pain
and is aware and confident of the resources at her disposal in order to
cope with the pain and overcome it, suffering is not necessarily coupled
with this pain, which in turn comes to be ‘a healthy sign’ of a successful
childbirth.
Coping with pain seems to be the biggest challenge in vaginal delivery:
not only from a physical point of view, but also – and more importantly
because this is the only dimension that can be consciously influenced –
from a psychological point of view: pain has been proven to be perceived as
stronger and harder to overcome when a woman is in a state of loneliness,
anxiety, worry, or has low self-worth.91 While pain is always present as
part of the childbirth process, excruciating pain can be mitigated or
managed in different ways and should be the focus of both medical staff
and birthing women who challenge themselves to endure pain in the name
of the greater good.
In the case of caesarean section, the active engagement of the woman is
removed; pain is still present, but it happens as a consequence of the event,
and for this precise reason it takes up new and different meanings than in
‘natural’ childbirth. To make sense of the relationship between C-section
and pain, we need to distinguish situations in which women deliberately
choose it from the ones in which women are forced to undergo such
treatment, be it for medical reasons or because of routine or medical
habits – a C-section might not only be recommended, but also practiced by
90 Lowe (n 83) 22.
91 Rebecca H Allen and Rameet Singh, ‘Society and Family Planning Clinical Guidelines
Pain Control in Abortion part 1 – Local Anesthesia and Minimal Sedation’ (2018) 97
Contraception 471.
24
in pain thou shalt bring forth children?
default in many clinics and hospitals, such as Brazil, to the point where it is
widely recognised as the ‘normal’ way of giving birth. It has been pointed
out92 that this tendency might be of concern, in that it represents one of the
results of an acritical medicalisation of pregnancy and childbirth, where
technology literally takes over the process and becomes the subject of it,
leaving a marginal role to the birthing woman and depriving her from the
agency she would otherwise be able to enact.
In this case, pain is the logical result of a surgery, and literature shows
less connections with discourses on moral, religion, sex, sin and guilt than
in the case of vaginal deliveries. However, if it is elective, ie it is the woman
who chooses caesarean over ‘natural’ childbirth, the meaning of pain
acquires a different relevance. When famous Spice Girl Victoria Adams
chose to give birth to her first child through a C-section, she was promptly
labelled by the press as ‘too posh to push’, a phrase which gained success
and is nowadays widely used as an idiom to refer to a woman who decides
not to undergo labour and the pain linked to it by opting for a C-section.
This phrase makes clear how deeply society has assimilated the idea that
pain has to be a feature of childbirth, and how the unwillingness to endure
it remains a sign of bad motherhood – Candace Johnson has remarked
how a woman who chooses a C-section is perceived as only trying to ‘skip
the hardship by choosing the easy way out, when instead, as a woman, her
task is to go through suffering, and as a mother, her duty is to deliver the
baby to the world through natural childbirth’.93
To be sure, the quantity of pain between labour and C-sections can
depend on a variety of factors, which makes the decision of giving birth
through C-section to avoid labour pain somewhat ill-founded. The choice
of avoiding natural childbirth in order to avoid the excruciating pain
associated to it can surely be empowering, and possibilities of alleviating
pain should always be made available; however, even what looks like a
free choice can actually be the result of internalised schemes of inferiority
and powerlessness by pregnant women, thus revealing the ‘pattern of
domination living beneath the veneer of autonomy’.94 Such patterns can
become more or less visible in pregnancy and childbirth, but the way pain
92 Claudia Malacrida and Tiffany Boulton, ‘Women’s Perception of Childbirth Choices:
Competing Discourses of Motherhood, Sexuality, and Selflessness’ (2012) 26(5) Gender and
Society 748.
93 Johnson (n 20) 908.
94 Bergeron (n 7) 479.
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is perceived and treated – both by birthing subjects and by medical staff
– makes them more explicit. Pain can be a weapon of oppression, and the
techniques to relieve it, the monopoly of the procedures to control it, or
the knowledge about its origins and its dynamics are all tools embedded in
a wider discourse and belonging to a certain type of knowledge and power
relationship.
The mistreatment of pain, or the lack of attention to it, can represent
human rights violations, like the aforementioned phenomenon of obstetric
violence. This analysis allows us to affirm that pain, both in vaginal delivery
and in C-section, is framed in a wider context of meanings and symbols:
these two types of birth are representative of two opposing attitudes
towards what is regarded as ‘proper’, ‘safer’ or ‘more dignified’. However,
it must be emphasised that ‘both extremes are socially constructed as both
empowering and oppressive’.95
The connotations of childbirth pain have to be interpreted within a
wider framework, where childbirth does not belong only to birthing
women,96 and where decisions over its management do not depend
exclusively on their sheer will. Another blatant example of this is the case
of surrogate motherhood, where a woman gets pregnant and delivers a
child that, by contract, she will not parent. Pregnancy and childbirth are
commodified and assessed in terms of economic value; a deeply bodily,
subjective experience is the object of a legally regulated transaction in
which motherhood and parenthood become detached from one another. It
is interesting that the term ‘surrogate mother’ refers to the person bearing
the child and not to the actual surrogate mother, that is, the adoptive
parent who will eventually mother him or her. In this case, pregnancy and
childbirth are but physiological events with virtually nothing to do with
parenthood: ‘labour’ acquired a twofold meaning, one of which indicates
the supply of a service beyond a payment.
In a lawsuit about a surrogate mother changing her mind about giving
her baby to the parents by contract, Judge Richard N Parslow stated ‘I
see no problem with someone getting paid for her pain and suffering (...)
They [gestational mothers] are not selling a baby; they are selling pain and
suffering’,97 with the strikingly evident equation of pregnancy and labour
95 Jonhson (n 20) 908.
96 Bergeron (n 7) 481.
97 Mary L Shanley, ‘“Surrogate Mothering” and Women’s Freedom: A Critique of
Contracts for Human Reproduction’ (1993) 18(3) Signs 618, 625.
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in pain thou shalt bring forth children?
pain to any other paid labour – which is, ultimately, the rationale behind the
whole concept of surrogate motherhood. While some claim that ‘contract
pregnancy is thus a way to make the assumption of parental responsibilities
more gender neutral: it can “soften and offset gender imbalances that
presently permeate the arena of procreation and parenting”’,98 I argue
that surrogate motherhood does anything but flatten gender imbalances;
rather, it stresses them, by underlining the specificity of the female body’s
experience as a site of commodified labour (in both senses). Resorting to it
simply means transferring the burden to another body – that of a woman,
to be sure – who will undertake the effort for someone else.99
The fact that the surrogate mother is ‘freely’ choosing to be one does
not change this underlying condition of existence of motherhood, which
is a deeply gendered matter. In this case, childbirth pain becomes an
integral part of a paid work: the gestational mother, who physically bears
the burden of pregnancy and labour, receives a reward for deploying a
function beyond her control and which she performs with no interruption
for months. Pain in surrogacy loses some of the connotations discussed
in the previous paragraph: gestation and childbirth are functional to
someone who engaged in an economic transaction, and childbirth is not
the product of a woman’s sexual activity, much less an accidental by-
product of it (like in some of the cases of abortion). This deep difference in
the origin of pregnancy, which is meant to lead to a ‘final product’ foreseen
by a contract, changes the whole interpretation of both pregnancy and
childbirth, and the pain related to them.
Among the four types of birth analysed here, the last is an atypical
one: in fact, the reason why it has been considered here is that this
study of pain focuses not only on childbirth pain itself, but rather on its
meanings, connotations and significance in relation to pregnancy, with
all of the implications discussed in the first section of this chapter. When
mentioning abortion, here I am referring to voluntary interruptions of
pregnancy (VIP), ie medical/surgical abortions, and not to miscarriages –
this is to avoid making the scope of this research too wide to be adequately
98 Shanley (n 97) 620.
99 The issue of surrogate motherhood, with its connections to pain, on one hand, and to
power dynamics related to gender, and often class and ethnicity on the other, brings about the
theme of dignity – which, as I will discuss in the next chapter, is at the very roots of human
rights, as per the Universal Declaration of Human Rights. To what extent the dignity of a
‘surrogate mother’ is violated is indeed debatable and makes the issue of surrogacy even more
controversial.
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dealt with. The discourse on pain in abortion must of course be linked
to the issue of preventing a potential life from developing: being such a
delicate and potentially traumatic moment in a woman’s life, the stress
is often on how harmful aborting is for women, thus linking pain to the
very choice of having an abortion performed. The rationale tends to be
that women who choose to abort have taken the substantial responsibility
of carrying a new life and have not been mature enough to bringing it
forward – in this perspective, the female body is a vessel for new lives,
whose human rights are made less valuable than the ones of the foetus.
Moreover, this rationale is blind to the fact that pregnant female bodies
embody pregnancy, being united with the foetus, and yet not the same
being.100 To ignore this means interpreting the pain related to abortion as
something which is well deserved for someone who deliberately decides to
perform a killing by getting pregnant only to later regret it: this exclusively
female behaviour will involve serious consequences, among which are
physical and psychological pain.
Various studies have demonstrated how, even in the case of abortion,
the assistance and proximity of health professionals are crucial to the
experience of pain: Rebecca Allen and Rameet Singh101 have observed
how ‘anxiety, depression and a woman’s anticipation of the pain are strong
predictors of the pain she perceives during surgical abortion’, suggesting
that the presence and comfort of medical staff can, therefore, be helpful
in decreasing perceived pain during and after the surgical abortion
procedure. The same study has also found that ‘pre-abortion counseling
can reduce pain by decreasing fearfulness and anxiety’.102 However, the
necessary routine counselling and psychiatric consultation prescribed in
many countries to legally have a VIP could lead to significant delays to the
procedure, and ‘the ritual of bureaucratic procedure and delay (…) may
be more painful, anxiety-provoking and threatening to her mental - as well
as physical - health than the abortion’.103
100 Shanley (n 97) 625.
101 Allen and Singh (n 91) 472.
102 ibid.
103 Shanley goes on to say that ‘Since routine psychiatric consultation is widely recognized,
even within the profession, as having practically no medical function in the determination
of indications for therapeutic abortion, it must be seen as a legitimizing ritual demanded by
society in which the woman acknowledges unsanctioned behavior or thinking and expresses
contrition in exchange for both expiation of ‘guilt’ and safe treatment of her circumstantially
self-defined illness of pregnancy’: again, female sexual and reproductive health is embedded
into moral discourses which are deeply gendered. Shanley (n 97) 625.
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Pain due to voluntary abortion is not linked to birth, which makes it a
‘non-productive pain’, meaning that women experience it without a baby
as the final reward justifying it; the pain is also associated with the guilt
of having interrupted the development of a new life, which comes from
religion and ‘morality’. Again, it seems impossible to interpret pain in
pregnancy and childbirth in neutral ways, as it would be understood in
any other surgical or medical event: it comes written on the female body
text, on which words have left their mark for centuries.
1.5 pregnancy, pain and women’s reproductive rights
The last section of this chapter gives a brief account of the relationship
between pain, pregnancy, childbirth and human rights of women –
especially reproductive rights. I start my analysis based on the assumption
which underlies the whole chapter, that is, that law does not happen in
a sterile vacuum, but is the product of a contamination of social forces
and must be so understood, just like the meaning of pregnancy, childbirth
and pain. In this light, gender plays a paramount role in explaining the
position of women’s legal status in many domestic jurisdictions – ‘women’s
legal status often reflects an instrumentalist interpretation of her being’,
observed Margaret Little.104
I am convinced that the analysis in the next chapter cannot but be a
feminist one. Only in holding that women’s rights are human rights can we
shape a fair and dignified legal framework for pregnancy, childbirth and
the pain management during them. I argue that treating pregnancy and
childbirth as neutral medical events like any other, without considering
that, with few exceptions, traditionally it is female bodies who have been
at the centre of these phenomena, leads us to missing the main point of
protecting women as subjects of human rights. In her review of women’s
access to reproductive rights, Rebecca Cook has argued that ‘the universal
risk factor is that of being female’:105 in line with this observation, I
consider de-gendering pregnancy as both unfair and dangerous to all
women and for the protection of women’s rights. In fact, when laws ignore
the gender issue, they might perpetuate or create discrimination instead of
guaranteeing its elimination. As Rachel Pine rightfully remarked:
104 Little (n 54) 3.
105 Cook (n 49) 72.
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At times it seems that the law’s ignorance of its actual impact is one of the
most severe threats to basic civil liberties. When justice is blind to the fruits
of scientific and social research, and to the demonstrable effects of a statute
in operation, rules of law are divorced from the empirical world;106
an empirical world where gender – together with race and class –
determines an individual’s conditions and, among other rights, access to
health.
An intersectional perspective is necessary to grasp the patterns of power
and domination hiding behind women’s right violations in pregnancy and
childbirth: as observed by Rajat Khosla and others, ‘the enhanced risk of
human rights abuses in the context of reproductive health care, based on
sex and/or gender and such intersecting factors is well documented, and is
often referred to as intersectional or multiple discrimination’.107
Societal need of control comes with the need to regulate, categorise and
define, usually by applying orthodox heteronormativity, in this case to the
conduct of the female body. Non-white or lower-class female bodies, who
do not usually fit into such heteronormativity, are even more vulnerable
to this discrimination: they are ‘useful at best, disruptive at worst’,108 in
that they disrupt the ‘womanly notions of sentimental motherhood’109
which fits the stereotypes discussed in the previous chapter. Aware of
the complex network of meanings, symbols and tropes which hang upon
pregnancy and childbirth, Klassen observed that ‘the materiality of birth
(…) is absorbed and refracted through constructions – for instance, those
of gender, race, religion, class, and sexuality’:110 such materiality includes
the unwritten norms that govern how birth takes place, and even more
relevantly, the written ones, that is, law. When we use intersectionality as
a prism to interpret human rights, we are in fact implying a ‘very different
way to read gender, race, and class (…). That is, not as individual attributes
but as structuring relations of power within facility-based practice’,111 as
Erdman puts it.
106 Rachael N Pine, ‘Benten v Kessler: The RU 486 import case’ (1992) 20 Law, Medicine
and Health Care 238, 242.
107 Rajat Khosla and others, ‘International Human Rights and the Mistreatment of Women
During Childbirth’ (2016) 18(2) Health and Human Rights Journal 131, 134.
108 Doyle (n 51) 205.
109 ibid.
110 Klassen (n 12) 783.
111 Joanna N Erdman, ‘Commentary: Bioethics, Human Rights, and Childbirth’ (2015)
17(1) Health and Human Rights.
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in pain thou shalt bring forth children?
The mere fact of being a female represents an obstacle in the full
enjoyment of the right to health: women’s reproductive health has
traditionally been at the margins of society’s concern, because the threats
carried by pregnancy and childbirth were considered as an inevitable stage
of a woman’s life, in which the stakes are high and so are the risks, but in
which women deserve specific attention as carriers of foetuses rather than
holders of rights. Cook claims that the foundational reason why this is the
case is that:
women’s reproductive health raises sensitive issues for many legal traditions
because the subject is related to sexuality and morality. If women could
enjoy sexual relations while preventing pregnancy and avoiding sexually
transmitted diseases, then, many believed, sexual morality and family
security would be in jeopardy. Such traditional morality is reflected in laws
that attempt to control women’s behavior by limiting or denying women’s
access to reproductive health services.112
Apart from the ever-present interest in controlling and regulating
women’s sexual and reproductive behaviour for the sake of order and the
smooth functioning of social groups, another relevant issue in determining
women’s degree of access to reproductive and sexual health is subjectivity.113
Indeed, women tend to be seen as a function of their reproductive task
and not as human beings and as rights holders. Legal institutions often
embody this assumption by subjugating pregnant and birthing women to
norms which do not take into account the centrality of their human rights;
the core subject, the main rights holder is all too often not the woman, but
rather the foetus – or even the woman’s partner. As Susan Bordo wrote, a
pregnant woman seen as performing the function of a vessel to carry the
foetus into the world:
is supposed to efface her own subjectivity, if need be. When she refuses
to do so, that subjectivity comes to be construed as excessive, wicked.
(The cultural archetype of the cold, selfish mother – the evil goddesses,
queens, and stepmothers of myth and fairy tale clearly lurks in the
imaginations of many of the judges issuing court orders for obstetrical
intervention.).114
112 Cook (n 49) 73.
113 Kristeva and Goldhammer (n 13); Shanley (n 97); Drapkin Lyerly (n 10).
114 Bordo (n 70) 79.
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What is negated is, once again, the woman’s full subjectivity. Mary
Shanley adopts an extremely interesting view by positing the existence
of what she calls a ‘dyadic relationship’115 of the woman with the
foetus she bears, but also with the partner, the state, the law or the
adoptive parents to be (in case of surrogated motherhood). Such dyadic
relationship always puts the female body in relation with another subject,
which usually enters this relationship from a hegemonic position where
the woman’s rights are constantly negotiated and contested in favour of
another complementary rights holder. During pregnancy and childbirth,
women’s subjectivity becomes even more problematic not only due to
the presence of a foetus (whose rights as a person are often debated),
but also because the woman is not in control of what is happening to
her body, thus embodying both the subject and the object of pregnancy
and childbirth.
Situations in which this became clearly visible can be found in many
cases brought to the attention of human rights courts. A blatant example
is the case of Tysiąc v Poland,116 before the European Court of Human
Rights (ECtHR), in which a woman’s bodily and psychological health –
and, consequently, her quality of life – were considered by the state and
by domestic law to be of less importance than the successful termination
of her pregnancy. The ECtHR found Poland to be in breach of article
8 of the European Convention on Human Rights (ECHR)117, the right
to private life. Another example concerning the ECHR is the case of
AK v Latvia,118 in which the applicant was denied antenatal screening
tests which would have permitted her to decide whether to have a baby
or proceed with a voluntary interruption of pregnancy due to the risk
of genetic diseases. In AK v Latvia, the ECtHR also found a violation
of article 8 of the ECHR. Similar cases are found within other regional
human rights systems, for instance, the Inter-American Court of Human
Rights.119
115 Shanley (n 97) 629.
116 Tysiąc v Poland (2007) ECHR no. 5410/03, ECHR 2007-I.
117 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR) art 8
118 AK v Latvia (2014) ECHR no. 33011/08.
119 It is not the aim of this thesis to embark upon a case law analysis, which would
nonetheless be enriching in supporting this chapter’s argument that women’s reproductive
rights are all too often overlooked, I argue, due precisely to their being women.
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Ultimately, the basic women’s rights which should be the foundational
ones – the right to non-discrimination and to reproductive self-
determination, to begin with – are easily ignored or overlooked, and do
not seem so basic after considering the socio-cultural factors that lead to
their violation. In many cases, women are prevented from enjoying full
sexual and reproductive health as a result of violations of the principle
of non-discrimination based on sex, and of many other fundamental
human rights, such as the right to education and information (and hence
the right to participate in decision-making about their own bodies), and
of course, the right to health.
Among the several instruments dealing with and protecting
women’s health, the CEDAW is particularly relevant in its article 12
on women’s health – further fostered in the CEDAW Committee’s
General Recommendation 24. What is most innovative about the
CEDAW, however, is (1) the importance given to the gender perspective
in the formulation of the notion of ‘non-discrimination’: the Preamble
significantly states that ‘the role of women in procreation should not
be a basis for discrimination’, and (2) the acknowledgement of gender
stereotypes as a contribution to discrimination and inequality. Article
5(a) obliges state parties to:
modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary
and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and
women.120
It thus targets all attitudes and treatments which place women in a
stereotyped social role or function. Moreover, the CEDAW is the first
human rights treaty dealing directly with women’s reproductive rights
and at the same time addressing ‘culture and tradition as influential
forces shaping gender roles and family relations’.121 Other instruments
address women’s health in a more general, all-encompassing way –
among these are the non-binding Universal Declaration of Human
Rights (UDHR), the United Nations (UN) International Covenant on
120 UN GA, ‘Convention on the Elimination of All Forms of Discrimination Against
Women’ (1979) 1249 UNTS 13 art 5(a).
121 UN, ‘Gender Equality’
accessed 25 June 2019.
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Economic, Social and Cultural Rights (ICESCR), the UN Convention
on the Rights of the Child and many regional instruments. I will further
discuss these instruments in the next chapter. Here, I merely aimed at
exploring how women’s reproductive rights are related to the issue of
pain in pregnancy and childbirth, and how law as a product of society
comes with strings attached – strings which have been extensively
discussed in this chapter.
International human rights law has had a significant role in promoting
a new conception of women’s reproductive rights as human rights and
in encouraging the reform of domestic legislations. Although various
studies discussed in this chapter address pain management and regard
pain relief as a human right, pain (and more specifically, pain related
to pregnancy and childbirth) is hardly mentioned in human rights
instruments, as if law did not envision freedom from pain as something a
woman can rightfully wish for – or, more likely, as if law rationalised pain
as something so embedded in the process of pregnancy and childbirth
that it is hard for legal norms to regulate its reduction or elimination.
Indeed, the issue of childbirth pain does have consequences targeting
aspects of life protected by international human rights, as chapter 2 will
illustrate.
1.6 conclusion
This chapter has illustrated the ways in which pregnancy and
childbirth manifest a deeply gendered phenomenon, carrying deep
social, political and cultural consequences: if men were to give birth,
surely the whole society, and the rituals of pregnancy and childbirth
would be arranged in a totally different way. In this framework, the
value given to pain and suffering in pregnancy and childbirth also has
a lot to do with gender, just as the notion of normality, parenting roles
and good childbirth do. I am aware that this ‘genderedness’ brings
about problems: by interpreting pregnancy and childbirth through the
gender lens, we run the risk of falling prey to essentialist interpretations
that validate stereotypes and subordination more than they liberate
the pregnant or birthing women; however, as problematic as it can be,
gender is deeply embedded in these bodily events, even more so when
one considers how socially and publicly relevant they are.
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To conclude, when embarking upon a discussion of women’s rights
in pregnancy and childbirth, it is fundamentally important to recognise
that they are not merely private matters, and that the pain and the
physical burdens involved are not simply individual, but rather become
part of the territory of negotiation between different knowledges and
powers. The female body is a ‘contested space’ or ‘borderland’, where
‘the coding of experiences in this space is inherently political, which is to
say that it is both constitutive and demonstrative of power dynamics’.122
In this borderland, compliance and resistance are on a pendulum, in a
constant negotiation. Such negotiation, I argue, should eventually lead
to pregnancy and childbirth being brought back to where they belong:
in the physical and psychological realms of the personal life of women –
the very agents of these phenomena.
As long as subjectivity is not at the centre of cultural, political and
legal discourse on pregnancy and childbirth (and on the pain related to
them), we will be de-humanising them. But it should be remembered
that, as Bergeron argued, ‘de-humanizing the fundamental experience
of childbirth (…) is merely displacing sexism’.123 In other words, if
childbirth is analysed without taking into account the identity of the
person giving birth, including her gender, a relevant component will
be missed of the very meaning – social, political, cultural, legal – of
childbirth and pregnancy.
122 Johnson (n 20) 905.
123 Bergeron (n 7) 487.
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2.
PAIN RELIEF IN CHILDBIRTH: THE APPLICABLE HUMAN
RIGHTS FRAMEWORK
This chapter embarks upon the discussion on the human rights
framework on pain relief in childbirth. Indeed, the international
instruments – including declarations and reports with no legally binding
value – on this issue are few and can generally be placed in the context
of the wider notion of dignified maternity care – of which pain relief is
but one aspect, often minor and generally ignored, compared to other
dimensions such as informed consent or overall birthing conditions,
such as hospitalised as opposed to home delivery.
To disentangle the intricate relationship between human rights, the
experience of pain (and its relief) and childbirth, I will first discuss the
right to pain relief from a more general standpoint, which will reveal
how complex the issue is – even when childbirth is not the focus.
As it stands, pain relief can be framed within the wider angle of the
right to health, which includes the right not to suffer and, ultimately,
is related to the right to be free from cruel, inhumane and degrading
treatment, ie torture. In this light, I will review the international
instruments and guidelines that the main human rights institutions such
as the UN, and regional mechanisms, have issued on the topic, as well
as the existing non-binding declarations and guidelines, such as those
issued by the WHO.
After discussing the right of patients to be free from pain and
suffering – and its translations in legal terms – I will problematise the
identity of mothers as patients, which is ambiguous and difficult to grasp
in its entirety. To what extent a woman giving birth is a patient, and thus
entitled to the same protection as that guaranteed by legal instruments
protecting patients’ rights, is arguable; consequently, whether we regard
birthing (or pregnant) women as patients makes a lot of difference in
the amount of legal protection they must be given by law.
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in pain thou shalt bring forth children?
From this awareness stems the need to further discuss the right to
pain relief in a more specific situation, that is, childbirth. I will explore
the legal dimension of pain relief distinguishing two different cases: the
pain that is inherent in non-medicalised childbirth, and the pain which
is caused by medical procedures. The discussion will be related to the
previous chapter, in terms of how much pain we, as birthing women or
as medical staff, are legally entitled to avoid, and how these norms are
rooted in gendered cultural and societal norms about pregnancy and
childbirth.
In this perspective, I will give an overview of the legal instruments
available concerning the specific case of pain relief in childbirth: their
scarce number and the lack of a focus on women’s subjectivity in the
framework of pain relief will support the argument that law mirrors
an overarching power structure in which gender occupies but an
insignificant space.
2.1 an international human right to pain relief?
In the last decades, medicine has dedicated increasing attention to
the problem of pain and its relief; nevertheless, it has been observed
that pain control is, on a general level, ‘neglected by governments’
attention’,124 that ‘the relief of acute pain in medical settings remains
more rhetoric than reality’,125 and that ‘insufficient pain management is
a significant public health concern’.126 Pain control has been addressed
by national and international institutions through various actions
and declarations,127 but, as Scott Fishman observed, to this day ‘pain
medicine is an orphan within major medicine, fragmented by competing
disciplines that would adopt it and unable to gain the recognition
necessary to affect systemic change’.128
124 Farnad Imani and Saeid Safari, ‘“Pain relief is an essential human right”: we should be
concerned about it’ (2011) 1(2) Anesthesiology and Pain Medicine 55.
125 Frank Brennan, Daniel B Carr and Michael Cousins, ‘Pain Management: A Fundamental
Human Right’ (2007) 105(1) Pain Medicine 205.
126 Michel Daher, ‘Pain Relief is a Human Right’(2010) 11 Asian Pacific Journal of Cancer
Prevention - MECC Supplement 97.
127 ibid.
128 Scott Fishman, ‘Recognizing Pain Management as a Human Right: A First Step’ (2008)
105(1) Pain Medicine 8, 9.
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From a bioethics perspective, pain relief should be granted by virtue of
two basic principles: beneficence (acting for the patient’s good) and non-
maleficence (acting without harming the patient’s health);129 however, from
a strictly legal point of view, to this date no such right as the ‘right to pain
relief’ has been postulated by any international human rights instrument.
Reference to pain is made in several WHO guidelines and non-binding
instruments – as this chapter will show – but no comprehensive legal
regulation can be found; the way pain is dealt with by human rights law
is peculiar and complex. Before exploring the legal panorama on pain
relief, I will argue that it is important as a human rights issue and also
acknowledge the difficulties in implementing it as a ‘human right’.
There are several reasons why pain relief ought to be considered, from
a medical, political and legal standpoint: first and foremost, it has become
clear in the scientific community130 that pain is not only a consequence or
a symptom, but can indeed become a disease per se; moreover, under- or
mistreated acute pain can become chronic pain, which has consequences
on a physical, social and psychological level,131 entailing a relevant cost,
not only for the individual, but for society and the state.132 Studies133 have
underlined the negative consequences of non- or mistreated pain: pain
becomes a multifaceted problem which requires an interdisciplinary
approach.
Pain management and pain treatment, however, have always been
problematic on many grounds: in line with the hypothesis laid down in
chapter 1, Frank Brennan and others have claimed that the inadequate
treatment of pain is often rooted in myths and beliefs which pervade
society and the medical field: the ‘reasons for deficiencies in pain
management include cultural, societal, religious, and political attitudes,
including acceptance of torture’,134 even in industrialised countries.135
129 Marko Jukic and Livia Puljak, ‘Legal and Ethical Aspects of Pain Management’ (2018)
47(1) Acta Medica Academica 18, 21.
130 Michael Cousins, ‘Relief of acute pain: a basic human right?’ (2000) 172(3) Medical
Journal of Anaesthesia 3; Daher (n 126) 98.
131 Vincent Boama, ‘Overcoming Barriers to Pain Relief in Labor through Education’
(2011) 114 International Journal of Gynecology and Obstetrics 207.
132 Diederik Lohman, Rebecca Schleifer and Joseph J Amon, ‘Access to pain treatment as
a human right’ (2010) 8(8) BMC Medicine 1; Daher (n 126); Imani and Safari (n 124); Jukic
and Puljak (n 129).
133 Marie EC Gispen, ‘Poor Access to Pain Treatment: Advancing a Human Right to Pain
Relief’, Report to the International Federation of Health and Human Rights Organisations
(IFHHRO) (2012) 16.
134 Brennan, Carr and Cousins (n 125) 208.
135 Lohman, Schleifer and Amon (n 132) 4.
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in pain thou shalt bring forth children?
While different authors136 have posited the existence of pain
management as a human right, it has been stressed that, as Marko Jukic
and Livia Puljak warned,137 if we are to treat pain relief as a human
right, some issues might emerge which require legislators and advocates
to be particularly careful about how such a right is formulated and
implemented. An international legal regulation on pain relief could
indeed entail unintended consequences, caused by the ‘State getting
in the way’ of matters which might not be best regulated by public
entities.138
Besides, healthcare staff might be put under institutional pressure by
the potential repercussions for the type of pain treatment they choose
(not) to administer to their patients.139 If the human right to pain relief
is misinterpreted as a right to ‘total analgesia, this will easily lead to
frustration among patients and their caretakers and potentially to
litigation’,140 as argued by Jukic and Puljak. On the same note, Brennan
warned that a right to pain relief and palliative care ‘can never mean
an absolute right that suffering will never occur’:141 therefore, when
advocating for a right to pain relief within the framework of the right to
health, we should carefully examine the cases in which such a right can
reasonably be claimed, and the limitations it inevitably presents.
If we consider these issues of legal and institutional nature together
with pain assessment and the meanings attached to it (extensively
discussed in chapter 1), the context in which the human right to
pain relief finds its rationale is highly problematic. All in all, Michael
Cousins has concluded, ‘the adoption of a general view that relief of
acute, severe pain is a basic human right, is limited only by our ability
to provide it safely in the circumstances of individual patients’.142 The
number of obstacles in the way of a formal recognition of a human right
to pain relief will most likely prevent its emergence as a right in and for
itself; according to Brennan, Carr, and Cousins, ‘for the international
136 Brennan, Carr and Cousins (n 125); Lohman, Schleifer and Amon (n 132); Jukic and
Puljak (n 129).
137 Jukic and Puljak (n 129) 23.
138 ibid 22.
139 Fishman (n 128).
140 Jukic and Puljak (n 127) 26.
141 Frank Brennan, ‘Palliative Care as an International Human Right’ (2007) 33(5) Special
article, Journal of Pain and Symptom Management 494.
142 Michael Cousins, ‘Relief from acute pain: a basic human right?’ (2000) 172(3) Medical
Journal of Anaesthesia 4.
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francesca basso
community to consider a Convention on Pain would require both
significant advocacy and a paradigm shift in the attitudes of many
nations in their public policies related to pain control’,143 which does
not seem probable any time soon.
Nevertheless, pain relief has found its way through other positive
rights: although the international human rights framework lacks an
explicit formulation for the right to pain relief, there can be other ways
to enforce it. To be sure, we need to find the root for this justiciability
in other long-standing rights, namely, the right to health and the right
to be free from cruel, inhumane and degrading treatment, recognised in
different instruments at the international, regional and domestic level.
The very foundation of a prospective right to pain relief is the principle
of human dignity, enshrined in the Preamble of the UDHR, together
with its article 25 establishing the right to an adequate standard of
living, to which Andrea Solnes Miltenburg and others add three other
corollary principles as the foundations of all human rights: these are
autonomy, equality and safety – in their view, they are clearly violated in
case of failure to provide pain relief to an individual who is suffering.144
Moreover, the right to pain relief can be read as included in the
right to health, as first formulated in the Preamble of the 1947 WHO’s
Constitution, which describes health as ‘a state of complete physical,
mental and social well-being and not merely the absence of disease or
infirmity’145 and sanctions that ‘the enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human
being without distinction of race, religion, political belief, economic
or social condition’.146 The notion of health as a comprehensive state
of well-being, and the stress on the ‘highest attainable’ amount of it,
allow us to trace a connection between the experience of pain and the
lack of a general healthy status and to conceive health as a wider notion
than the one foreseen by the ‘biomedical model’;147 thus, as mentioned
above, pain can be seen as a disease per se, and not only as a symptom
or a negligible consequence of what is considered as the ‘real’ health
problem.
143 Brennan, Carr and Cousins (n 125) 209.
144 Andrea Solnes Miltenburg and others, ‘Maternity care and Human Rights: what do
women think?’ (2016) 16(1) BMC international health and human rights 2.
145 Constitution of the WHO, Basic Documents, Forty-fifth edition, Supplement, October 2006.
146 ibid.
147 Brennan, Carr and Cousins (n 125) 205.
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in pain thou shalt bring forth children?
Since the WHO Constitution, several instruments have recognised
the right to health, namely, within the UN, the 1966 ICESCR with its
article 12, on which, in 2000, the Committee on Economic, Social, and
Cultural Rights (CESCR) issued General Comment No 14, which states
that:
The right to health (…) contains the following interrelated and essential
elements (…) availability (…) accessibility (…) has four overlapping
dimensions (…) non- discrimination (…) physical accessibility (…)
affordability (…) information accessibility (…) acceptability (…) quality
(…)148
The right to health is also included by other international human
rights treaties aimed at protecting the rights of specific categories, such
as the International Convention on the Elimination of All Forms of
Racial Discrimination (1965)149, the Convention on the Elimination of
All Forms of Discrimination against Women (1979)150, the Convention
on the Rights of the Child (1989)151, the Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families
(1990)152 and the Convention on the Rights of Persons with Disabilities
(2006)153. These instruments recall the right to health as formulated in
the ICESCR; the International Federation of Health and Human Rights
Organisations (IFFHRO) was also inspired by it when it stated that
the right to pain relief must be guaranteed, as it ‘stems from the key
essential elements of the right to health as outlined by the CESCR’.154
Moreover, as mentioned previously, ‘it is increasingly argued that
the human right to pain relief is reinforced by the prohibition of cruel,
inhuman, and degrading treatment’ 155 (hereinafter CIDT). The right to
148 UN CESCR, General Comment 14 on the Right to Health (2000) E/C.12/2000/4.
149 UN GA ‘International Convention on the Elimination of All Forms of Racial
Discrimination’ (1965) 669 UNTS 195 art
150 UN GA (n 120) art 12.
151 UN GA, ‘Convention on the Rights of the Child’ (1989) 1577 UNTS 3 art 24.
152 UN GA, ‘International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families’ (1990) A/RES/45/158 art 28.
153 UN GA, ‘Convention on the Rights of Persons with Disabilities: resolution / adopted
by the General Assembly (2007) A/RES/61/106 art 25.
154 Gispen (n 133) 36.
155 ibid. See also Jerome W Yates and Rebecca Kirch, ‘Regulatory Barriers for Adequate
Pain Control’ (2010) 11 Asian Pacific Journal of Cancer Prevention - MECC Supplement 17.
In this article, the authors affirmed that ‘To withhold, impede access to, or delay treatment for
severe pain can be considered a form of passive torture that warrants appropriate corrective
attention’.
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be free from torture is posited in the UDHR’s article 5 and enshrined
in many international and regional human rights instruments, among
which, primarily, the International Covenant on Civil and Political
Rights (ICCPR) with its article 7, the UN Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, and,
in the framework of the Council of Europe, the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (ECPT).
Such a right is part of customary international law and is even
interpreted by some as having acquired a jus cogens status156: on this
line, Adrian Van Es added that ‘the jus cogens character of the right to
be free from torture and/or cruel or inhuman and degrading treatment
gives the struggle for the right to access to adequate pain treatment
urgency and high profile’.157
Referring to CIDT and to torture in the context of the denial of
pain relief is not unproblematic. For example, Van Es pointed out a
problematic side of recognising pain relief as a human right derived
from the prohibition of cruel, inhuman or degrading treatment and
torture: using what he refers to as ‘the torture language’ might in fact
imply a ‘stigma that results from applying the label of “torture” to acts
involving medical professionals’, which could ‘be counterproductive
if applied carelessly’.158 Moreover, the extent to which a state should
be considered responsible for private actors, such as medical staff in
private healthcare facilities, is unclear. However, it can be argued
that state authorities should comply with their positive obligation of
preventing acts of CIDT and torture within their jurisdiction, should
they be reasonably aware of such acts, as in the case of private medical
facilities159 – ie states should apply due diligence when overseeing the
operate of private entities within their territory.
There are many factors coming into play when defining an act – or
the omission of it, in our case – as CIDT, which may even result in
156 Gispen (n 133) 42.
157 Adrian Van Es, ‘Prevention of Torture and Cruel or Inhuman and Degrading Treatment
in Healthcare’ in S Klotz and others, Healthcare as a Human Rights Issue. Normative Profile,
Conflicts and Implementation (Transcript Verlag 2017).
158 ibid 281.
159 Centre for Reproductive Rights, ‘Briefing paper. Reproductive rights violations as
torture and cruel, inhuman, or degrading treatment or punishment: a critical human rights
analysis’ (2010) 11.
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in pain thou shalt bring forth children?
torture depending on the degree of vulnerability160 and powerlessness161
of the victim. In the case of the denial of pain relief, the person suffering
is most likely in a position of vulnerability, which might be increased
by other factors such as age, gender and status. Relevantly, two Special
Rapporteurs on Torture, Manfred Nowak and Juan Méndez, have each
argued, respectively, that ‘the de facto denial of access to pain relief, if it
causes severe pain and suffering, constitutes cruel, inhuman or degrading
treatment or punishment’162 and that ‘intentionally or negligently inflict
severe pain or suffering for no legitimate medical purpose. Medical care
that causes severe suffering for no justifiable reason can be considered
cruel, inhuman or degrading treatment or punishment’.163
Other non-binding instruments have also addressed pain relief,
but this has been done from a medical and public health point of view
and hardly any instruments do so from a human rights perspective.
The World Medical Organization, in its Montevideo Declaration on
Disaster Preparedness and Medical Response of 2011, has posited that
‘(…) access to pain treatment for all people without discrimination’164
is essential, emphasising that ‘(…) physicians and other health care
professionals have an ethical duty to offer proper clinical assessments
to patients with pain and to offer appropriate treatment’ and that
‘(…) governments should provide the necessary resources for the
development and implementation of a national pain treatment plan,
including a responsive monitoring mechanism and process for receiving
complaints when pain is inadequately treated’.165 The International
Association for the Study of Pain (IASP), one of the most authoritative
international entities working on pain and for pain control and relief,
has issued the 2010 Montreal Declaration, which builds upon the
human rights treaties previously mentioned and recognises:
160 UNVFVT, ‘Interpretation of torture in the light of the practice and jurisprudence
of international bodies’ (2011) 2 accessed 06 July 2019.
161 UN Commission on Human Rights, ‘Civil and Political Rights, Including The Questions
of Torture And Detention Torture and other cruel, inhuman or degrading treatment Report of
the Special Rapporteur on the question of torture, Manfred Nowak’ (2006) E/CN.4/2006/6.
162 UN HRC, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Manfred Nowak’ (2009) A/HRC/10/44 13.
163 UN HRC, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Méndez’ (2013) A/HRC/22/53 9.
164 World Medical Organization Declaration on Disaster Preparedness and Medical
Response (Montevideo, 2011).
165 ibid.
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the intrinsic dignity of all persons and that withholding of pain treatment
is profoundly wrong, leading to unnecessary suffering which is harmful;
(…) the following human rights must be recognized throughout
the world: Article 1. The right of all people to have access to pain
management without discrimination; Article 2. The right of people in
pain to acknowledgment of their pain and to be informed about how it
can be assessed and managed; Article 3. The right of all people with pain
to have access to appropriate assessment and treatment of the pain by
adequately trained health care professionals.166
One of the branches of law related to pain relief – and frequently
the subject of a lot of government attention, due to its political and
economic importance – is the regulation of opioid analgesics. In 1961,
the Single Convention on Narcotic Drugs was adopted within the
framework of the UN, stating that narcotic drugs are fundamental for
pain relief and thus must be provided by governments as needed.167
Although this field is beyond the scope of this thesis, it is relevant to
note that a wide part of the legal and medical literature dealing with
pain relief equates access to pain relief with access to opioids; while
it is true that the latter undoubtedly constitutes a problem,168 access
to pain relief can be denied, on social and/or moral grounds, even in
cases where the necessary drugs are available. Accordingly, the main
perceived problem is the war on opioids, which ultimately concerns the
circulation and providing of medicaments – but circumstances in which
mistreated pain and restricted access to pain relief happen in spite of
the availability and readiness of pain relief are far from being extensively
explored.
Within Europe, some binding and non-binding instruments can be
found which protect the rights of patients, including the right not to
suffer: the Declaration on the promotion of patients’ rights in Europe
(1994), adopted under the auspices of the European branch of the WHO;
the Ljubljana Charter on Reforming Health Care (1996, also prompted
by the WHO) and the Convention on Human Rights and Biomedicine,
adopted in 1997 within the Council of Europe’s framework. In addition,
166 International Association for the Study of Pain (IASP), ‘Declaration of Montréal.
Declaration that Access to Pain Management Is a Fundamental Human Right’ (2010) accessed 28 March 2019.
167 Lohman, Schleifer and Amon (n 132) 2.
168 According to Lohman, Schleifer and Amon (ibid) 1, as much as 80% of the world
population does not have adequate access to pain treatment.
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in pain thou shalt bring forth children?
the European Charter of Patients’ Rights (the C, was conceived and
drafted by a non-governmental organisation (NGO) based in Italy, the
Active Citizenship Network. Article 1 of the charter establishes the
‘Right to Avoid Unnecessary Suffering and Pain’,169 according to which:
Each individual has the right to avoid as much suffering and pain as
possible, in each phase of his or her illness. The health services must
commit themselves to taking all measures useful to this end, like providing
palliative treatments and simplifying patients’ access to them.170
Moreover, article 12 of the charter establishes that ‘every individual
has the right to diagnostic or therapeutic programmes tailored as much
as possible to his or her personal needs’,171 including the need of pain
relief, and article 13 states that every patient has the right to complain
‘whenever he or she has suffered a harm and the right to receive a
response or other feedback’.172
While the legal argument for a human right to pain relief can be made
starting from the existing right to health, it must be pointed out that, so far,
no such right has been explicitly formulated in the international human
rights framework. In making the case for a human right to palliative
care – to some extent comparable to the right to pain relief and to its
application in childbirth – Brennan noted that it is problematic to specify
the exact content of the obligations which states ought to observe.173
However, he argues, the recent developments and connections between
health and human rights, and the statements and declarations issued in
the last few decades, suggest that an intergovernmental consensus on
the topic of pain relief and management is emerging.174
This brief review served to illustrate the complexity of guaranteeing
a human right to pain relief; on one hand, because of the ambivalent
implications of a legal recognition of it; on the other, due to the
difficulties of its practical implementation, as well as to the persistence
of myths and beliefs which stand in the ways of its realisation. However,
169 Active Citizenship Network, ‘European Charter of Patients’ Rights’ (2002) art 1
accessed 12 April 2019.
170 ibid.
171 ibid art 12.
172 ibid art 13.
173 Brennan (n 141) 495.
174 ibid 496.
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the justiciability of this right can be attained through the more general
rights to health and from the prohibition of torture and cruel, inhuman,
and degrading treatment. An application of such a right would allow for
a shift from pain relief as a good practice to pain relief as an imperative.175
As problematic as it may be, Michel Daher points out, ‘pain relief is
a public health issue of such critical importance as to constitute an
international imperative and fundamental human right’;176 Brennan,
Carr and Cousins similarly argued that the ‘unreasonable failure to treat
pain is viewed worldwide as poor medicine, unethical practice, and an
abrogation of a fundamental human right’.177
In the case of childbirth and pregnancy, more beliefs and myths
are involved, and the dimension of gender enters into play: in fact, as
Diederik Lohman and others noted in the case of HIV patients, ‘pain
treatment is also related to gender, as HIV-infected women with pain
are twice as likely to be under-treated as their male counterpart’.178
Thus, womanhood and pregnancy add layers of complexity to what is
an already extremely complex matter. Pain management is currently
being addressed across both medicine and law: in the previous chapter
I have argued why gender studies is also a valuable contribution as to
the reasons why pain control is so problematic, especially in the event
of childbirth.
2.2 the mother as patient: what relief from what pain?
During the 2004 Global Day Against Pain, held by the IASP in
Geneva, it was stated that ‘patients have a right to pain management’.179
Are birthing women also patients? Our next step is to explore the
complexities of locating birthing mothers within this category.
In the previous chapter, the complicated definition of pregnancy and
childbirth between the realm of health and sickness has been discussed;
in virtue of this, the very same problem presents itself when it comes to
placing the pregnant/birthing woman within, or out of, the definition
175 Daher (n 126) 99.
176 ibid 97.
177 Brennan, Carr and Cousins (n 125) 209.
178 Lohman, Schleifer and Amon (n 132) 1.
179 International Association for the Study of Pain, Global Day Against Pain 2004, Geneva
accessed 12 April 2019.
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in pain thou shalt bring forth children?
of patient. The word ‘patient’ has its roots in the Latin verb ‘patior’,
meaning ‘to suffer’:180 therefore, a patient would be any individual who
is suffering and hence is to receive medical treatment to alleviate her or
his suffering: starting from this assumption, a woman giving birth with
the assistance of medical personnel definitely falls into the scope of this
definition, especially given the vulnerable condition that the suffering
caused by labour places her in.181
However, a person seeking medical treatment usually does so due to
the emergence of a disease or some form of sickness, which is not the
case for birthing women – unless, of course, birth results in medical
complications. As the International Childbirth Initiative (ICI) has
stressed, ‘Pregnancy, labour and birth are healthy and life-changing
physiologic processes for most women and their families’:182 what brings
a woman to resort to medical assistance is a physiological process;
yet, such process puts her in the condition of literally being a patient,
particularly in the event of a birth taking place in medical facilities,
which once again exposes the ambivalent status of a woman at a crucial
moment of her reproductive life. Birthing women are an exception
causing the detachment of two dimensions – pain and sickness –
which not only normally overlap, but are also linked by a cause-effect
relationship. Usually, the person who suffers has an illness, and pain is
one of the symptoms of something not functioning correctly in the body.
A woman giving birth, nevertheless, experiences pain precisely as a sign
that the process is occurring according to physiology – although she
may even experience pain as the consequence of a problematic birth (or
of medical interventions performed during it).
Therefore, during childbirth (and sometimes, in its aftermath, in case
of abortion or a C-section), the woman gives birth in a borderland, at
the frontier between sickness and full health, at the border of patient-
ness and healthiness. This has interesting legal implications – are
birthing women entitled to enjoy and exercise patients’ rights? Are
they a specific category to be protected and legally framed in another
way? Although legally speaking birthing women can be considered as
180 Brennan, Carr and Cousins (n 125) 208.
181 Khosla and others (n 107).
182 The International Childbirth Initiative (ICI), ‘12 Steps to Safe and Respectful
Mother Baby-Family Maternity Care’ (2018) 6 accessed 20 April 2019 (emphasis added).
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patients,183 the ambivalent status of a process which is both physiological
and medicalised is at the root of the absence of a comprehensive
international legal framework of human rights of women in childbirth.
Childbirth is a natural event taking place in a cultured and, in the
majority of cases,184 medicalised context; the human rights approach we
are to adopt towards it depends on our conception of this event, whether
within or outside medical settings; within or outside the notion of patient.
According to the perspective one adopts, the parturient acquires positive
rights by being a patient or by virtue of simply being a human being and,
more precisely, a woman, entitled to the right to health (and to be free
from suffering and violence) during a particularly significant moment in
her reproductive life,185 as per the Office of the UN High Commissioner
for Human Rights Factsheet on the Right to Health:
considering health as a human right requires specific attention to different
individuals and groups of individuals in society, in particular those living
in vulnerable situations. Similarly, States should adopt positive measures
to ensure that specific individuals and groups are not discriminated
against. For instance, they should disaggregate their health laws and
policies and tailor them to those most in need of assistance rather than
passively allowing seemingly neutral laws and policies to benefit mainly
the majority group.186
It must be kept in mind that non-discrimination is an interestingly
complex issue when it comes to dealing with women’s rights in
pregnancy and childbirth: the absence of a comparable situation in
men’s reproductive life gives discrimination a different meaning, and
the concept of equality has to be interpreted in wider terms if one is to
operate it in this context.
On the other hand, if the birthing woman as a subject of human rights
is seen as, primarily, a patient, this will also have interesting implications:
183 See the two Reports (ICESCR and WHO), both mentioning women as patients: UN
HRC ‘Preventable maternal mortality and morbidity and human rights’ (2016) A/HRC/
RES/33/18; ‘WHO Recommendations: Intrapartum care for a positive childbirth experience’
(2018)
accessed 12/06/2019.
184 According to OVOItalia, in Italy 99% of women give birth in medical facilities.
185 Notably, this applies to vaginal childbirth, while in the case of C-sections the notion
of woman as patient is less problematic, in that the event of a surgery has a more immediate
connection with the ‘patient status’.
186 Office of the UN High Commissioner for Human Rights and WHO, ‘The Right to
Health. Factsheet No 31’ (2008) 11.
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the stereotypes and beliefs about pain which have been discussed in the
previous paragraph – namely, among others, ‘that pain is an inevitable
part of the human condition’; ‘that pain is necessary, natural and hence
beneficial, that pain is essential for diagnosis, that undertreated pain has
negligible economic consequences’; ‘that severe pain after surgery or
in association with cancer is unavoidable and that many patients with
chronic non-cancer pain are malingerers or have purely psychologic
problems’.187 These stereotypes led to the idea of ‘the good patient’ as one
who does not ‘complain and never challenge(s) health professionals’.188
Such a stereotype of ‘the good patient’ could easily interplay with, and
reinforce, the stereotype of birthing women as obedient, silent and
submissive, thus potentially hindering quality care and attention to pain
relief in childbirth. This shows how barriers to pain relief increase in the
case of childbirth. In fact, as Daher pointed out, ‘apart from regulations
and education of medical staff, (they) include patients’ attitudes; (…)
patients themselves may be reluctant to report pain or to take analgesic
medications, particularly morphine’.189
The majority of patients ‘feel that pain should be relieved, although
many also hold concerns about the harmful effects of pain management
techniques’;190 however, ‘patients actually expect to experience pain in
some medical situations or consider that pain management is not a priority
with respect to other components of care’.191 This may be especially
true for birthing women, who might interiorise societal attitudes and
expectations towards the experience of pain in general and towards
pain in childbirth at the same time: in a study on women’s expectations
towards pain relief in childbirth carried out in Nigeria, Chibuike Chigbu
and Tonia Onyeka found that that ‘79.2% of the interviewed women
wished to ask for pain relief in labor but less than half were aware of their
right to ask for it’;192 this ‘feeds and perpetuates paternalistic attitudes by
medical staff, and women end up suffering in silence’.193
187 Brennan, Carr and Cousins (n 125) 208.
188 ibid.
189 Daher (n 126) 98.
190 Amie Steel and others, ‘Managing the pain of labour: factors associated with the use of
labour pain management for pregnant Australian women’ (2015) 18 Health Expectations 1634.
191 Daher (n 126) 98.
192 Chibuike O Chigbu and Tonia Onyeka, ‘Denial of pain relief during labor to parturients
in southeast Nigeria’ (2011) 114(3) International Journal of Gynecology and Obstetrics 226, 228.
193 ibid.
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The negative beliefs that are present, in general, around the treatment
of pain, are even more powerful when childbirth pain is involved: not
only is there a significant lack of training and resources to treat labour
pain,194 but also the application of standards and guidelines on pain
relief is prevented by deep-rooted myths and traditions: in the words of
a midwife-nurse who was interviewed on how labour pain is normally
treated in her medical facility, women ‘will go through labour and
pain must be there so to deliver a baby, if there is no pain that means,
there can’t be a baby without pain’;195 another showed awareness of
the problem, but helplessness in solving it, explaining that, ‘I’ve not
practiced pain relief during labour because we assume that it should be
there, and we take it as a normal, of course it’s not normal but we take it
as if every woman should experience this’.196
The belief that pain is necessary in order to perform a correct diagnosis
of the progress of labour, or that pain relief can potentially be harmful
for the newborn, is still present. In the same study, a midwife states that:
there is a belief that this pain, we need to know how much pain this
patient is experiencing at least at the beginning of the labour to be able
to assess and evaluate the progress of labour; the other thing is pain relief
can cause harm to babies, they can sedate them, you’ll have an inactive
baby, you can’t use it.197
Moreover, the conviction that childbirth is a natural phenomenon
(which, in turn, would place women outside of the category of ‘patient’?)
might lead to the conclusion that labour pain is also natural, and that it
‘does not require both pharmacological treatment or management’,198
and anyway it ‘must be present and that nothing can be done to relieve
[it]’.199 As for opioids use, it has been found that it is common for
healthcare providers to limit its use to women who had a C-section
performed, on the grounds that women who had given birth vaginally
did not suffer sufficient pain to warrant the use of opioids.200
194 Mary McCauley and others, ‘“We know it’s labour pain, so we don’t do anything”:
healthcare provider’s knowledge and attitudes regarding the provision of pain relief during
labour and after childbirth’ (2018) 18(444) BMC Pregnancy and Childbirth 5.
195 ibid.
196 ibid 6.
197 ibid 5.
198 ibid.
199 ibid.
200 ibid 6.
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in pain thou shalt bring forth children?
Placing women in the ‘patient position’ entails complications which
have been pointed out, among others, by the International Childbirth
Initiative: as expected ‘good patients’, women would often be silenced
if they are ‘too loud’201 or even offered unwanted medical procedures in
order to be silenced, while their ‘performance’202 is often criticised. While
automatically considering birthing women as patients could imply more
rights protection for them, the other side of the coin might be a focus on
providing them with ‘a safe’ childbirth by providing all technology and
interventions possible. Midwives are becoming ‘medwives’,203 which
could push forward a high amount of medicalisation, with its positive
and negative consequences.204 One of the results of this view of the
birthing woman as patient is the triumph of what has been defined by
Robbie Davis-Floyd and others as the:
Western biomedical models of labor and birth ‘management’—a
traditional, not evidence-based, system that defines the doctor as the
expert, the midwives and nurses as his or her expert support team,
and the mother as an inexpert patient reliant on authoritative others
to generate the successful birth of the baby. This globally dominant
model ensures that its practitioners will generally be trained only in the
biomedical management of birth and untrained in how to support the
normal physiological and psychological process of birth.205
As such, ‘whilst women are treated kindly and attention is paid to
them in this hospital, there is very little respect for the birth process
and the physiological nature of this event’.206 Once again, the thin line
between physiological and medical is extremely problematic to define,
and so is the application of laws, regulations and guidelines regarding
pregnancy and childbirth and the pain relief which is often required
during them.
It is interesting to note that most literature – both medical and legal –
dealing generally with patient care and pain relief focuses on situations
requiring pain treatment which almost never include childbirth. A lot
of sources concern opioids and their regulation – especially in the case
201 Robbie Davis-Floyd and others, ‘The International MotherBaby Childbirth Initiative:
A Human Rights Approach to Optimal Maternity Care’ (2010) Midwifery Today 64.
202 ibid.
203 ibid.
204 See para 4 of this chapter, on obstetric violence.
205 Davis-Floyd and others (n 201) 13.
206 ibid.
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of chronic pain due to cancer, palliative care, HIV and AIDS or other
chronic syndromes, but acute pain, and more specifically, childbirth
pain, is not given as much attention.207 For example, in the article ‘Is
access to essential medicines as part of the fulfilment of the right to
health enforceable through the courts?’,208 the authors list a series of
situations and disease aspects: HIV/AIDS, cancer, neurological pain (eg
trauma, Down’s syndrome, epilepsy), surgery and ‘other’ (eg diabetes,
multiple sclerosis, lupus erythematosus), but childbirth is absent from
the list. This is often the case in articles on pain relief, which once again
shows how birthing women are a peculiar category of patients, and how
establishing the legal grounds on which they are entitled to pain relief
during childbirth is problematic.
One further element which complicates the position of birthing
women as subjects of the right to pain relief is the fact that the pain
experienced during childbirth is of a twofold origin: there is the ‘natural’,
physiological pain which is felt during vaginal childbirth, and there is
the pain which is caused by medical procedures, such as episiotomy or
fundal pressure (both not recommended by the WHO guidelines209),
as well as post-surgical pain in the case of C-sections.210 Some of these
interventions have been increasingly regarded by the WHO and
the CEDAW as unnecessary;211 the latter even called for ‘adequate
safeguards to ensure that medical procedures during childbirth are
subject to objective assessments of need, and are conducted with respect
for women’s autonomy and informed consent’.212
Starting from the assumption that ‘medical care that causes severe
suffering for no justifiable reason can be considered “cruel, inhuman
or degrading treatment or punishment”’,213 as well as the denial of
appropriate care,214 it could be argued that a human right to pain relief
207 Fishman (n 128); Gispen (n 133); Yates and Kirch (n 155); Van Es (n 157).
208 Hans Hogerzeil and others, ‘Is access to essential medicines as part of the fulfilment of
the right to health enforceable through the courts?’ (2006) 368 Lancet 305.
209 WHO Recommendations, ‘Intrapartum care for a positive childbirth experience’
(2018) 25
accessed 12 June 2019.
210 According to Gispen, ‘From a patient perspective, pain distinguishes in disease related
pain and treatment related pain’ (n 133) 12: notably, childbirth does not fall into either of these
categories, not even from a mother-patient’s point of view.
211 Khosla and others (n 107) 136.
212 ibid.
213 ibid.
214 ibid 134.
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in pain thou shalt bring forth children?
– and the freedom to refuse it – in childbirth can be identified both
in the event of ‘natural’ labour pain and in the event of pain due to
medical procedures or surgeries. However, defining the boundaries of
what decisions are to be left to patients (in this case, birthing women)
and how much marge de manoeuvre medical staff should have further
complicates an already intricate issue. Moreover, we are once again
confronted with the legal technicalities of equating the denial of pain
relief in childbirth to CIDT, or torture.
In fact, of the four elements necessary to define an act as torture (the
nature of the act, the intention of the perpetrator, the purpose of the act
and the involvement of public officials215) the element of the intention
of the perpetrator might be arguably missing from the framework,216
therefore preventing the act of pain relief denial from being defined as
torture, or CIDT – luckily, virtually no healthcare professional would
deny pain relief to a birthing woman with the intention of causing her
suffering.
Nevertheless, as UN Special Rapporteur (SR) Manfred Nowak
claimed, it can be argued that when the purpose of the act is clear, then
the intention can be implied.217 One of the purposes relevant for our
case is discrimination:218 such purpose, stated Nowak – and recalled
the following SR Méndez in his 2016 report219 – is always fulfilled if the
act can be shown to be gender-specific, as in the case of childbirth.220
Starting from this assumption, one could argue for the possibility of
regarding the denial of pain relief in childbirth as a form of CIDT, and
even torture – this view, however, has not been adopted by any human
rights tribunal as yet.
When it comes to regulating how much pain relief women giving
birth are entitled to receive, these controversial aspects, among many
others, must be taken into account. The approach we adopt to frame
human rights in childbirth – and more specifically, a right to pain relief
215 UNVFVT (n 160) 3.
216 As for the involvement of public officials, the conundrum can be solved, as already
discussed, by resorting to the states’ positive obligation of preventing human rights violations
from taking place in their jurisdiction.
217 UN HRC, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Manfred Nowak’ (2008) A/HRC/7/3 7.
218 UNVFVT (n 160) 4.
219 UN HRC, ‘Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E Méndez’ (2016) A/HRC/31/57 4.
220 UN HRC (n 217) 7.
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– depends on how we conceive women as rights bearers and the essence
of the event of childbirth. Khosla and others rightfully observed that,
in order for women’s rights in childbirth to be effectively recognised as
human rights:
the right to an effective remedy, among other rights, require the adoption
of clear legal and procedural frameworks to ensure the effective delivery
of and access to health services. While health system constraints, including
lack of resources or services, may create conditions for mistreatment in
facility-based childbirth, they cannot be used to justify these actions.221
This argument is of vital importance in that, as long as we lack a
comprehensive legal framework, it will be impossible to enforce any
right to pain relief; so far, the development of norms and regulations on
mistreatment of women during childbirth in medical facilities remains
at an early stage and only includes a narrow, discrete set of cases222 in
which pain relief is not the main focus. It is clear that ‘the range of
mistreatment that women may experience has not been adequately
addressed or analyzed under international human rights law’:223 such
a range of mistreatment could legitimately include the denial of pain
relief. Indeed, as I am going to discuss, this is exactly what several
NGOs dealing with women’s rights in childbirth are advocating for.
2.3 how much pain are birthing women bound to bear? human
rights instruments applicable to pain relief in childbirth
The pain women experience while undergoing labour is often described
as ‘the most excruciating event in their lifetime’;224 women assessing their
labour pain through the McGill Pain Questionnaire normally give it a
much higher score than the one usually attributed to chronic pain caused
by other medical conditions, including cancer.225 This alone should lead
us to recognise that, as Vincent Boama has stated, ‘it is (…) extremely
important that relief of labor pain is seen as a fundamental human rights
221 Khosla and others (n 107) 138.
222 ibid 131.
223 ibid.
224 Xian Wang and Fuzhou Wang, ‘Labor pain relief for parturients: We can do better’
(2014) 8(1) Saudi Journal of Anaesthesia 1.
225 Boama (n 131) 207.
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in pain thou shalt bring forth children?
issue that contributes to safe motherhood’226 – safe motherhood, that is, is
not fulfilled and wholly realised unless childbirth pain is seen ‘as a disease
entity’,227 given importance to, and relieved.
The problematic definition of birthing women as patients and the
gender component of the medical situation complicate the framework
in which we work, leading childbirth pain to be often overlooked and/
or mistreated, ‘for many reasons, cultural, social and religious, ignorance,
fear to speak up’.228 One of the arguments for the recognition of a right to
pain relief in childbirth is that its mis- or undertreatment can cause it to
turn into chronic pain. Furthermore, mistreatment of pain in childbirth
can lead to psychological negative consequences such as ‘anxiety,
apprehension, long-term emotional stress, post-partum depression, poor
maternal-neonatal bonding, and possibly post-traumatic disorder stress’.229
Moreover, there can be physical consequences both on the mothers and
their babies, ‘such as maternal hyperventilation, respiratory alkalosis
[and] increased cardiovascular load’.230 These negative developments are
especially common in low-income countries, due to ‘inadequate human
and financial resources for managing pain and because of the contribution
of war, poverty, political conflict, lack of political will, lack of clinical
leadership, and many other resource limitations’.231
The issues of pain in childbirth and its relief are perceived and
experienced both by birthing women and by health practitioners
involved in the process:232 the lack, or the low quality, of its treatment
does not depend on a sadistic and insensitive medical staff, but rather
on various factors233 – cultural,234 social, religious, political, financial,
legal or contingent – ie directly linked to the immediate circumstances
of childbirth, such as the difficulties around informed consent during
childbirth. Besides – in case we consider the birthing woman as a patient
226 Boama (n 131) 207..
227 ibid.
228 ibid.
229 ibid 208.
230 ibid.
231 ibid.
232 Elham Shakibazadeh and others, ‘Respectful care during childbirth in health facilities
globally: a qualitative evidence synthesis’ (2017) 125(8) BJOG 932, 937.
233 Brennan, Carr and Cousins (n 125) 208.
234 Pain relief in childbirth is often not prioritised: ‘barriers to pain relief for many medical
and surgical conditions in the Caribbean include societal perception that pain is unavoidable
and a necessary part of life; this perception influences patients and their family’s attitudes and
expectations’. See Boama (n 131) 208.
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– it has to be remembered that patients have no formal right to demand
medical treatment, in that ‘a medical professional need not, indeed
arguably may not, provide treatment that they believe to be harmful
to a patient’;235 the entrenched beliefs around pain treatment during
childbirth related to a potential harmfulness of (at least some) pain relief
methods are quite a powerful hindrance to effective pain treatment in
childbirth.
However, the number of options – pharmacological and non-
pharmacological – available for relieving pain during childbirth (and
after C-sections) should lead medical facilities to provide as many
analgesic methods as they can, according to the resources available and
the medicaments they can afford. Moreover, it is fundamental236 that
birthing women are given full information about the options available,
their consequences and contraindications, and that their informed
consent is clear before any pain treatment is administered. Given the
numerous obstacles standing in the way of the full realisation of a
right to pain relief in childbirth, it has been argued that ‘the denial of
labor analgesia is an infringement of women’s human and reproductive
right’,237 and consequently, the relief from labour pain should be
included in international binding standards so that these can ‘assist
health care practitioners and policy makers to define what constitutes
mistreatment during childbirth and to develop effective interventions
and policies to address this mistreatment in all its forms’.238
A human rights approach to women’s treatment in childbirth is
emerging239 as a mode of analysis and it has been used – and found
particularly effective – to eliminate maternal mortality and morbidity,240
but pain has not been the focus of legal instruments: neither is it
considered as a sign of morbidity, nor is there an explicit right to its
relief. However, if we consider that, according to the WHO, ‘A human
rights-based approach is about health and not isolated pathologies; it
is premised upon empowering women to claim their rights, and not
235 Jonathan Herring and Jesse Wall, ‘The nature and significance of the right to bodily
integrity’ (2017) 76(3) The Cambridge Law Journal 566, 567.
236 Boama (n 131) 208.
237 ibid.
238 Khosla and others (n 107) 138.
239 Erdman (n 111).
240 Daher (n 126) 97; Solnes Miltenburg and others (n 144) 1.
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in pain thou shalt bring forth children?
merely avoiding maternal death or morbidity’,241 pain relief in childbirth
can – just as pain relief in general – be considered as falling into the broader
framework of the right to the highest level of health attainable, and a legal
foundation for its existence can be found. The 2011 Respectful Maternity
Care Charter, issued by the White Ribbon Alliance, also posits dignity, the
right to health and the right to be free from cruel, inhumane and degrading
treatment (among others) as the fundamental basis of a dignified childbirth.242
In fact, while (avoidable) pain might not prevent a healthy baby from
being born, ignoring its impact can lead to traumatising births, both for
mothers and for newborns: as Khosla and others have claimed, ‘though
technically sound, care that is lacking in compassion, attentiveness,
and concern for women’s needs and perspectives leaves the patients
feeling disempowered, frightened, and alone’,243 which does prevent an
unnecessarily painful childbirth from being as empowering and as dignified
as possible for birthing women. Starting from this assumption, we can shift
the ultimate objective from the elimination of mortality and morbidity to
the focus on a respectful, patient (woman)-oriented care, pushing for:
a turn from the public health world of systems and resources in
preventing mortality to the intimate clinical setting of patient and
provider in ensuring respectful care (…), beyond ensuring facility
delivery to ensuring its quality of care, and moreover, to a conception
of quality beyond technical and clinical competence to respectful and
humane treatment.244
In 2000, the UN Committee for Economic and Social Rights issued
the aforementioned General Comment 14 suggesting the creation of
a common framework for the development of international human
rights standards in health which should include common human rights
standards concerning childbirth and pain relief. More specifically, a
landmark resolution on the issue of women’s rights in childbirth was
passed by the UN Human Rights Council, which defined ‘preventable
maternal mortality and morbidity as a pressing human-rights issue
that violates a woman’s rights to health, life, education, dignity and
241 UN High Commissioner for Human Rights. ‘Technical guidance on the application of
a human rights-based approach to the implementation of policies and programmes to reduce
preventable maternal morbidity and mortality’, (2012) A/HRC/21/22 2; WHO (n 202) 23.
242 White Ribbon Alliance, ‘Respectful Maternity Care. The Universal Rights of
Childbearing Mothers’ (2011) 1 accessed 20
April 2019.
243 Khosla and others (n 107) 137.
244 Erdman (n 111) 1.
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information’;245 the problem is how pain and its relief interplay with
morbidity, and to what extent their management is considered to fall into
the realm of human rights in childbirth.
However controversial, and although no self-standing human right to
pain relief yet exists – even less so in the specific event of childbirth – the
existence of such a right can be extrapolated from other existing rights. In
general, as stated by the 2018 WHO Intrapartum Care Guidelines, a right to
receive pain relief during childbirth – with all the available and appropriate
methods, both pharmacological and non-pharmacological and depending
on the woman’s preference246 – can be traced to the context of the right
to be ‘given timely, appropriate care’,247 and the right not to be ‘subjected
to mistreatment, such as physical, sexual or verbal abuse, discrimination,
neglect, detainment, extortion or denial of services’,248 which in turn finds
its rationale in the assumption that ‘every woman has the basic human right
to the highest attainable standard of health care without discrimination or
maltreatment’249 – in short, in the right to health.
Moreover, the WHO guidelines stress the importance of women’s
dignity during childbirth (‘health care staff treat all women with kindness,
compassion, courtesy, respect, understanding and honesty and preserve
their dignity’250), thus establishing a connection between the process of
making informed decisions to the values of both dignity and autonomy.251
This entails, with respect to pain relief, that ‘women are free to complain
without fear of repercussions’252 and ‘all women can make informed
choices about the services they receive, and the reasons for interventions or
outcomes are clearly explained’.253 The rationale is that ‘it is essential that
women feel involved in their treatment and care and can make informed
choices in order to improve their compliance and satisfaction with the
treatment’.254 The WHO guidelines, however, are not binding, which
significantly limits their effectiveness as a human rights instrument.
245 UN Human Rights Council, ‘Resolution 11/8. Preventable maternal mortality and
morbidity and human rights’ 2009.
246 WHO, ‘Standards for Improving Quality of Maternal and Newborn Care in Health
Facilities’ 48 accessed 12 June 2019 (emphasis added).
247 ibid 38.
248 WHO (n 246) 38.
249 ibid.
250 WHO (n 246) 48.
251 Khosla and others (n 107) 137.
252 WHO (n 246) 48.
253 ibid.
254 ibid 49.
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As for binding instruments, at the international level, no specific
foundation for the right to pain relief during childbirth can be found,
apart from the already mentioned right to health (contained in the
ICESCR and in different regional instruments, in some cases with a
focus on gender, such as in the African system) and the right to be free
from cruel, inhuman, or degrading treatment, or torture (also included
in regional treaties as well as the ICCPR, as previously discussed). The
CEDAW Committee prompted state parties to realise the right of women
‘to be fully informed, by properly trained personnel, of their options
in agreeing to treatment (…) including likely benefits and potential
adverse effects of proposed procedures and available alternatives’:255 it
underlines the importance of non-discrimination in health settings and
the importance of eliminating gender stereotyping in its article 5(a),256
but the fundamental role these play in the treatment of women during
childbirth and in how labour pain relief is regarded is still left unexplored.
Both the UN SR on Health and the SR on Torture have recognised
women’s reproductive rights as a focus of interest, especially within
medical settings:
the UN Special Rapporteur on Health recognised the doctor–patient
power dynamic, noting that states must protect the right to autonomy
over medical decisions as a counterweight to the imbalance of
power, experience and trust inherently present in the doctor- patient
relationship.257
This is even more imbalanced in cases where the patient is a woman;
the UN SR on Torture Méndez, on his part, included the mistreatment
of women during reproductive healthcare in his 2013 report on torture
and ill-treatment in health care settings. Nevertheless, even though the
report mentions both reproductive rights violations and the denial of
pain relief (in general) as contexts of interest for his mandate, it fails to
explore the interaction between pain and childbirth and the denial of
pain relief in that specific situation.258
255 UN CEDAW Committee, ‘General Recommendation No 24 on art 12 of the
Convention’ (1999).
256 United Nations General Assembly, Convention on the Elimination of All Forms of
Discrimination Against Women (1979) 1249 UNTS 13 art 5(a).
257 Clara O’Connell and Christina Zampas, ‘The human rights impact of gender
stereotyping in the context of reproductive health care’ (2018) 444(1) International Journal of
Gynecology and Obstetrics 116, 118.
258 UN HRC (n 162).
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Within the European framework, a foundation for a human right to
pain relief in childbirth could be found by inferencing from different
rights established by the ECHR (under the auspices of the Council of
Europe) and the European Charter of Fundamental Rights (within the
European Union) on various grounds: the right to, once again, health
and freedom from torture, the right to private and family life (chronic
pain can definitely prevent the enjoyment of such right); the right to
freedom of expression and to information (if we consider the right
to pain relief as linked to the right to receive information about her
health); the right to be free from violence; as well as the right to bodily
autonomy.259
As for international and national NGOs working on the issue of pain
relief in childbirth, various guidelines, declarations and reports have
been issued in the recent years: for example, Amnesty International260
has pointed out how even high-income countries have neglected the
provision of dignified, respectful maternal care. The International
Federation of Gynaecologists and Obstetrics has drawn public attention
to ‘specific stereotypes that can lead to conduct that contravenes both
ethical and human rights standards, namely that women are vulnerable
and incapable of reliable or consistent decision- making’261 and ‘that
they will be subordinate to men such as fathers, husbands, brothers,
co- employees and doctors’.262 The International Childbirth Initiative,
already mentioned several times, has issued a document in which
pain relief is seen as an aspect of a safe, dignified and respectful birth.
Finally, the White Ribbon Alliance, uniting NGOs working on the
issue of maternal care and human rights in childbirth, has strengthened
awareness and divulged information on the state of the problem of the
denial of care, including pain relief.263
Even if the instruments and guidelines these institutions have issued
are not legally binding, they do show an increasing interest on the part
of multiple stakeholders – both patients and health practitioners –
259 Herring and Wall (n 235) 577.
260 Amnesty International USA, ‘Deadly Delivery. The maternal health care crisis in the
United States of America’ (2011)
accessed 15 May 2019.
261 O’Connell and Zampas (n 257) 117.
262 ibid. A focus on gender stereotyping and its role in fostering gender-based violence will
be given in chapter 3.
263 White Ribbon Alliance (n 242) 1.
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towards improving overall birthing conditions at a global level. Pain
relief must be addressed and legally guaranteed if we are to advocate
for and protect the highest health standards possible during pregnancy
and childbirth.
2.4 conclusion
This chapter has shown how problematic it is to identify and define
the legal grounds for a human right to pain relief in childbirth. One of
the factors which complicate the issue is the fact that labour pain is an
acute pain which is (usually) not linked to any pathological condition,
although it is undeniably extremely severe; it comes with cultural and
social strings attached its meaning, and the same strings influence the
demand for its relief and the use of pain relief itself on the part of health
providers; moreover, pain is a deeply subjective experience which
is almost impossible to assess from the outside. The legal reasons –
including public regulations on the use of opioids, the lack of a specific,
self-standing right to pain relief, the issue of informed consent and the
definition of birthing women as patients – concur with cultural and
social factors and make it hard to find a comprehensive way to deal with
pain relief in childbirth.
Whereas some human rights instruments, both international and
regional, are applicable to situations concerning pain relief in childbirth,
the actual status of pain relief as a human right and its relationship with
the aforementioned rights is all but straightforward for the reasons
discussed so far; the institutions which have dealt the most extensively
with this legal gap have been, so far, international and national NGOs –
whose instruments are, of course, not binding.
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3.
A PROSPECTIVE SCENARIO
3.1 the denial of pain relief in childbirth as a form of gender-based
violence
One interesting way of handling this thorny issue is by considering
the lack of, or the mis-, treatment of pain in childbirth as a form of GBV.
To unpack the grounds of this argument and its implications, I am going
to step back first to define GBV and the shapes it can take according to
international and regional human rights instruments.
The CEDAW included GBV within the wider framework of
discrimination based on gender, with the Committee’s General
Recommendations 19 and 35.264 The former defines GBV as ‘violence
which is directed against a woman because she is a woman or that affects
women disproportionately’ and, as such, ‘is a violation of their human
rights’,265 which in turn is included by the concept of discrimination as
defined in article 1 of CEDAW: ‘Gender-based violence, which impairs
or nullifies the enjoyment by women of human rights and fundamental
freedoms under general international law or under human rights
conventions, is discrimination within the meaning of Article 1 of the
Convention’.266
In the European framework, the Council of Europe Convention
on preventing and combating violence against women and domestic
violence (Istanbul Convention, 2011) also states, inspired by the
264 The prohibition of gender-based violence against women has evolved into a principle
of customary international law thanks to these General Recommendations. See UN CEDAW,
‘General Recommendation No. 35 on gender-based violence
against women, updating general recommendation No. 19’ (2017), 2.
265 UN CEDAW, ‘General Recommendation No 19: Violence against women’ (1992).
266 ibid.
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CEDAW, that ‘“gender-based violence against women” shall mean
violence that is directed against a woman because she is a woman or
that affects women disproportionately’;267 similarly to the CEDAW,
according to the Istanbul Convention:
‘violence against women’ is understood as a violation of human rights
and a form of discrimination against women and shall mean all acts of
gender-based violence that result in, or are likely to result in, physical,
sexual, psychological or economic harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or in private life.268
Moreover, several human rights instruments269 have highlighted how
GBV, especially in the form of a violation of sexual and reproductive
rights, can, in certain circumstances, amount to torture. SR on Torture
Méndez stated in his 2016 Report that:
The purpose and intent elements of the definition of torture (A/
HRC/13/39/Add.5) are always fulfilled if an act is gender-specific or
perpetrated against persons on the basis of their sex, gender identity, real
or perceived sexual orientation or non-adherence to social norms around
gender and sexuality (A/HRC/7/3). Gender-based discrimination
includes violence directed against or disproportionately affecting women
(A/47/38). Prohibited conduct is often accepted by communities due to
entrenched discriminatory perceptions while victims’ marginalized status
tends to render them less able to seek accountability from perpetrators,
thereby fostering impunity.270
While the ill-treatment of birthing women – including the treatment
of the pain they are experiencing – does not imply that medical staff
are acting ‘with purpose and intent’ in order for women to suffer, the
fact that such ill-treatment is suffered by them uniquely draws attention
to the fact that not only is this phenomenon gender-specific (which is
quite obvious, given that men do not normally give birth), but also that
the way pain in childbirth is handled comes from women’s gender and
position in society. Medical staff who are responsible for denying pain
267 Council of Europe Convention on Preventing and Combating Violence Against Women
and Domestic Violence - Istanbul Convention (2011) ETS210, art 3(d).
268 ibid. (emphasis added)
269 Special Rapporteur on Torture, CEDAW (n 259), UN 1993 Declaration on Violence
Against Women.
270 UN HRC (n 219) 4.
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relief are of course not acting out of sadism, but out of wrong beliefs
or medical and education which does not regard pain relief as relevant,
much less as a human right of women in childbirth.
After discussing how violence against women, as one form of GBV,
constitutes a human rights violation and finds its legal roots in different
international human rights instruments, I will articulate how the denial
of pain relief in childbirth could be defined as a form of GBV. To do so,
however, we will have to go one step further: in fact, gender stereotypes
must be considered as playing a paramount role271 in women’s
reproductive lives, as I have discussed in the previous chapters. Starting
from the assumption that, in the wording of the Istanbul Convention’s
article 3, ‘“gender” shall mean the socially constructed roles, behaviors,
activities and attributes that a given society considers appropriate for
women and men’,272 it immediately appears evident that the expectations,
beliefs and traditional features attributed to pregnant and/or birthing
women (and extensively described in chapter 1 of this thesis) can be
linked to the notion of gender as articulated in the Istanbul Convention.
Such beliefs, prejudices and fixed gender roles attributed to men and
women, especially in the reproductive sphere, might be detrimental to
the full realisation of women’s human rights in childbirth: in fact, within
the regional Inter-American human rights system, the Convention
on the Prevention, Punishment and Eradication of Violence Against
Women (Convention of Belém do Pará, 1994) states that ‘stereotyping
of women in the reproductive arena should be interpreted as violence
against women’;273 in addition, the SR on Torture has highlighted how
‘gender stereotypes play a role in downplaying the pain and suffering
that certain practices inflict on women’.274 This statement does not refer
directly to childbirth: however, we can draw from it the conclusion that
how stereotyping the reproductive role of women has repercussions not
only in how birthing women are depicted, but also on how childbirth is
handled medically. This allows us to link the stereotyping which leads to
the mistreatment of childbirth pain with GBV, and to qualify the former
271 See also CEDAW GR 35 (n 266) 6.
272 Istanbul Convention (n 267).
273 Inter-American Convention on the Prevention, Punishment and Eradication of Violence
Against Women- Convention of Belém do Pará. See also O’Connell and Zampas (n 257) 120.
274 UN HRC (n 212) 4.
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in pain thou shalt bring forth children?
as one shape taken by the latter. Moreover, in the framework of the
African system, the African Commission on Human and Peoples’ Rights
suggests that efforts to eliminate gender stereotyping ‘be especially
made to address patriarchal attitudes, as well as the prejudices of health
care providers’,275 thereby stressing the connection between gender and
attitudes of legislators and medical staff towards women and the pain
they experience in the context of their reproductive life.
As for the term ‘violence’, the denial of pain relief during childbirth
can definitely be defined as such. According to the UN 1993 Declaration
on the Elimination of Violence Against Women, violence includes any act
causing harm and/or suffering, implying that neglect and abandonment
– including ignoring women’s complaints and needs – is a violent act,
whatever its motivation.
Thus, the denial of pain relief during childbirth is located at the
edge between physical violence (an act – or a lack thereof – which
causes physical suffering, possibly even amounting to inhumane and
degrading treatment) and psychological/emotional violence (as ‘Abuse/
humiliation: Non-sexual verbal abuse that is insulting, degrading,
demeaning; (…) whether in public or private. It can be perpetrated by
anyone in a position of power’276) within the realm of GBV.
3.2 obstetric violence: a potentially effective legal device
If, as I have argued, the denial of pain relief during childbirth is
placed within the larger framework of disrespect and abuse in maternal
care, a relatively recent legal device can be operationalised in order for
such abuses and human rights violations to be effectively identified and,
from there, prosecuted or, better yet, prevented from happening in the
first place: this is obstetric violence, defined for the first time within the
domestic legal framework of Venezuela in 2007 as:
275 African Commission on Human and Peoples’ Rights, ‘General Comment 2 on African
Commission on Human and Peoples’ Rights. General Comment No. 2 on Article 14.1 (a), (b),
(c) and (f) and Article 14. 2 (a), and (c) of the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa’ 15.
276 UNHCR Optional Module on Gender-Based Violence (2005) 17 accessed 14 June 2019.
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the appropriation of women’s bodies and reproductive processes by health
personnel, which is embodied in a dehumanizing treatment, in abuses of
medicalization and pathologizing of natural processes, thus causing loss
of autonomy and of free decision-making on a woman’s own body and
sexuality, negatively influencing women’s quality of life.277
How can such a concept be useful for supporting the right to pain
relief? To illustrate the grounds on which I defend such thesis, I will first
consider, once again, childbirth as a social and cultural event embedded
in gender. If, as Lynn Freedman and Kate Ramsey have remarked,
‘Health systems are deeply embedded in society’s broader social and
political dynamics, which can contribute to disrespect and abuse of
women giving birth’,278 then the assumption that common stereotyping
on women hinders the full realisation of their human rights279 applies
to the health realm as well, and even more in the reproductive rights
arena, in pregnancy and childbirth, which have traditionally been
quintessentially female events.
Some of the most pervasive gender stereotypes on women – even
more so in a moment where they are more vulnerable and ‘prey’ of
their biology,280 such as childbirth – are that, due to their emotional
instability, they are incapable of making sensible decisions,281 which
on one hand leads to the potential violation of the right to informed
consent, and to the loss of autonomy, and on the other ‘requires’ the
presence, guidance and protection of someone who can take control
of the situation, in this case healthcare providers – usually, a man.
Clara O’Connell and Christina Zampas observed that women ‘are thus
perceived as individuals in need of being controlled and incapable of
exercising their agency, and should therefore be denied access to health
care services of their choice’.282
277 Ley Orgánica Sobre el Derecho de las Mujeres a una Vida Libre de Violencia, Nº
38.668, lunes 23 de abril de 2007 art 15, comma 13. The original text reads ‘apropiación del
cuerpo y procesos reproductivos de las mujeres por personal de salud, que se expresa en
un trato deshumanizador, en un abuso de medicalización y patologización de los procesos
naturales, trayendo consigo pérdida de autonomía y capacidad de decidir libremente sobre
sus cuerpos y sexualidad, impactando negativamente en la calidad de vida de las mujeres’ (my
translation).
278 Lynn P Freedman and Kate Ramsey, ‘Defining disrespect and abuse of women in childbirth:
a research, policy and rights agenda’ (2014) 92(12) Bulletin of the World Health Organization accessed 19 April 2019.
279 O’Connell and Zampas (n 257) 117. See also Khosla and others (n 107) 134.
280 See chapter 1 of this thesis.
281 O’Connell and Zampas (n 257) 117.
282 ibid.
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in pain thou shalt bring forth children?
Thus, authority, knowledge and hierarchy interplay with gender –
and often, class and educational level283 – and put birthing women in a
disadvantaged position in which it becomes easier for their rights to be
violated; the notion of obstetric violence articulates different types of
such violations by rooting them in the power imbalance which results
from (1) being a patient and (2) being a woman, pregnant or giving
birth. This gives us leeway to advocate for a right to pain relief whose
legal foundations might otherwise be difficult to trace in the context
of pregnancy and childbirth: it is possible, I argue, to consider the
denial of pain relief in childbirth as included in the practices defined as
obstetric violence, which in turn is a type of GBV. Some of the practices
considered as dehumanising and as constituting obstetric violence, as
Juliana Tamayo Muñoz and others reported, include:
criticizing the woman for crying or screaming during labor, forbidding her
from asking questions and expressing her fears or doubts; mocking her,
making ironic disparaging remarks, restraining her or hitting her, intentionally
refusing to administer pain relief or anesthesia and preventing her from forming
an early attachment to her child when this is not medically necessary.284
This way, practices which have long been normalised in health
facilities – such as the absence of pain treatment, on the grounds that pain
is regarded as a necessary component of childbirth – can be uncovered
as human rights violations if only they are read through the prism of
power and gender, even when women and medical staff themselves do
not perceive them as such285 due to their habits, traditions or beliefs.
Alicia Yamin pointed out that:
The dynamics of power at work in structuring health outcomes remain
largely invisible if analysis focuses on the independent effects of individual
risk factors, precluding fundamental challenges to the status quo. In a rights
framework, a core public function of epidemiology is precisely to make the
connections among (…) discrimination, inequality, and health visible, which
requires contextual, multi-level analyses. Under this approach, misfortunes
are understood as injustices - violations and are therefore, (…) actionable,
rather than be ignored or accepted as inevitable.286
283 Solnes Miltenburg and others (n 144) 7.
284 Juliana Tamayo Muñoz and others, ‘Obstetric Violence and Abortion. Contributions
to the Debate in Colombia’ (2015) 10 accessed 31 May 2019 (emphasis added).
285 Freedman and Ramsey (n 278); Solnes Miltenburg and others (n 144).
286 Alicia E Yamin, ‘Will we take suffering seriously? Reflections on what applying a human rights
framework to health means and why we should care’ (2008) 10(1) Health and Human Rights 45, 48.
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What a human rights approach to health and, more specifically, to
childbirth adds to social medicine and social epidemiology is, Yamin
argued, ‘precisely to demand justifications and accountability, and there
by to expose the hidden priorities and structures behind violations’.287
If women are able to conceive themselves as subjects of rights, a
‘rights framework provides a mechanism for reanalyzing and renaming
“problems” as “violations,” and, as such, something that need not and
should not be tolerated’.288
In fact, what obstetric violence can help us to make visible are the
patterns of ‘abuse and negligence at the systemic level’,289, which go well
beyond contingent medical practices. The neglect of women’s needs and
choices is part of a larger web of values and practices which permeate
society at all levels. The fact that many women reports being mistreated,
abandoned or even scolded and humiliated during childbirth reveals
how, often, the mistreatment or total lack of treatment of pain is not a
casual medical malpractice, but happens as a manifestation of deeper
dynamics to be understood and properly contextualised if what we
aim at is the elimination of un-dignified birthing practices. Analysing
this mistreatment through the lens of obstetric violence as a form of
GBV helps unpack the patterns and relations of power which would
otherwise be harder to discern, and consequently act against.
Although the WHO has not (yet?) endorsed, as an organisation, the
adoption of obstetric violence as a legal tool,290 states such as Venezuela,
Argentina and Porto Rico have introduced the term in their domestic
legislation. By framing ‘institutional violence as a manifestation of
obstetric violence, the states include situations where state officials,
personnel, or agents of public entities or institutions impede, obstruct,
or delay women’s access to public services or the enjoyment or their
rights’.291
As Carlos Vacaflor pointed out, ‘the legal concept of obstetric
violence seeks to shed light on the ongoing lack of state oversight on the
287 Yamin (n 286).
288 ibid.
289 Carlos H Vacaflor, ‘Obstetric violence: a new framework for identifying challenges to
maternal healthcare in Argentina’ (2016) 24(47) Reproductive Health Matters - Violence: a
barrier to sexual and reproductive health and rights 65, 70.
290 WHO, ‘Prevention and elimination of disrespect and abuse during childbirth’ (2014)
accessed 12 June 2019.
291 Vacaflor (n 289) 67.
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in pain thou shalt bring forth children?
provision of maternal health services in both the public and the private
health sectors’.292 Accordingly, the fact that states might become liable
for such rights violations (through the creation of obstetric violence as
a human rights violation) might push public authorities to act in the
direction of better protecting, promoting and fulfilling women’s rights
in childbirth.
Obstetric violence is one of the tools we can utilise to trace a legal
foundation for the absence of pain relief as a mistreatment of birthing
women; as Joanna Erdman put it, ‘the experience of abuse and disrespect
with respect to any maternal care practice may be voiced across rights
categories or through none at all, but an analytical method must be
sufficiently open to capture its varied nature’.293
My argument is that the notion of obstetric violence, as recent and
‘in progress’ as it can be in the international human rights framework,
could serve effectively as such an analytical method. It has to be kept
in mind that the effectiveness of a human rights approach to women’s
reproductive life can be undermined if we only consider its abstract
dimension, related to principles and general standards, without
providing such approach with practical articulations and situations
in which it may be used. To define what exactly constitutes obstetric
violence is complex, but one possible approach could be, as hypothesised
by Freedman and Ramsey, to:
take local drivers of disrespect and abuse seriously, using both top-
down and bottom-up approaches to incorporate normative standards
into routine practice (…); simply promoting abstract standards through
advocacy and education – or even through legal enforcement and
punishment – is unlikely to solve the problem of disrespect and abuse.
The abstract standards could only acquire meaning over time by careful
attention to the lived experience of disrespect and abuse, and to the
deeper dynamics of power that underlie it.294
Therefore, if a human rights-based approach is necessary, it may not
be sufficient to set general standards and theories without them being
based on the factual experience of women as patients; women’s bodies,
lived experiences and subjectivity should be taken into account in the
292 Vacaflor (n 289) 66.
293 Erdman (n 111) 4.
294 Freedman and Ramsey (n 278).
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implementation of existing human rights standards to pregnancy and
childbirth, so as to be able to see it as structural and not contingent to
particular contexts or circumstances.
Some authors, such as Fred Sai, went as far as to state that ‘the focus of
legal activism for women’s rights should be less about the development
of new laws and conventions, and rather more on education and creating
a familiarity with and regular use of already existing instruments in the
every-day situations of women’s lives’,295 thereby stressing that what
is needed may not necessarily be new human rights instruments, but
rather, a different basis for the application of the existing ones – a basis
which is gender-aware and which focuses on the actual practices and
habits which constitute violations precisely because they are carried out
on women in the context of childbirth.
Obstetric violence as a form of GBV, in fact, does not create new legal
obligations: rather, it frames existing human rights by rooting the causes
of their violations in specific settings and relations between genders, on
one hand, and between medical staff and patient, on the other. Hence,
women’s rights come to be interpreted with an attention to gender and
its implications in the realm of (reproductive) health, keeping in mind
the consequences of the lack of such gender component; ‘reproductive
health is often compromised not because of lack of medical knowledge,
but because of infringements of women’s human rights. Powerlessness
of women is a serious health hazard’,296 as rightfully pointed out by
Cook. The legal notion of obstetric violence draws attention precisely
to this powerlessness and creates a framework in which, among other
mistreatments, the denial of pain relief could find a legal foundation.
If, as Yamin wrote, rights are:
sites, as well as tools, of struggle, (…) then using rights to advance the
health of impoverished and marginalized peoples around the world
requires more than reference to positive norms; it also demands critiquing
and expanding limited understandings of rights in theory and practice.
Implicitly, doing so also requires challenging underlying premises about
justice and power.297
295 Fred Sai, Adam & Eve and the Serpent (International Planned Parenthood Federation
1994).
296 Imogen Evans, ‘Reproductive Health and Human Rights. Integrating Ethics, Medicine,
and Law’ (2004) 97(1) Journal of the Royal Society of Medicine 43, 44.
297 Yamin (n 286) 46.
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in pain thou shalt bring forth children?
This is precisely what the concept of obstetric violence permits by
focusing on ‘challenging underlying premises about justice and power’
regarding women’s role and agency within determined environments
and societies.
Obstetric violence as a legal device, in sum, allows us to take a
sociological approach298 to human rights in childbirth, meaning that
‘rather than subsume individual experience under a human rights norm,
it seeks to construct the content of that norm from the particulars of
experience’.299 By linking abstract norms (what Erdman defines as the
‘principle-based approach’300 to human rights) to the lived experience
of birthing women within the (institutional) context in which births take
place (allowing for the implementation of a ‘sociological approach’301),
one can perceive how, however varied and often contradictory, the
experience of violations can help us find a material foundation to
explain to what extent women’s rights are (or are not) violated.
It should be noted, however, that gender-awareness is fundamental
not only at a legal level, but also, and possibly even more so, at the societal
level, including health facilities in which women give birth and citizens
– especially women themselves. While creating a legal framework where
the right to pain relief in childbirth finds its own space is necessary,
limiting the scope of actions to it could be counterproductive,302 in that
it could end up punishing perpetrators who might even be unaware of
the roots and causes of the human rights violations they are potentially
responsible for. A two-sided approach is needed, involving law on one
hand, and education of both medical staff and the general public on the
other, to make patients and physicians conscious about how the meaning,
values and beliefs attached to childbirth and how they interplay with
gender; in addition, becoming aware that a dignified childbirth is one
in which specific human rights are realised would benefit both birthing
women and medical staff.
Given the absence of case law on pain relief in childbirth, obstetric
violence as a legal device could be an effective way of pushing forward
298 Erdman distinguishes the sociological approach from the principle-based human rights
approach, the latter being theoretical and detached from the lived experience of right-bearers.
299 Erdman (n 111).
300 ibid.
301 ibid.
302 Rogelio Pérez D’Gregorio, ‘Obstetric violence: a new legal term introduced in
Venezuela’ (2010) 111(3) International Journal of Gynaecology and Obstetrics 201.
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a definition of dignified sexual and reproductive healthcare for women,
including childbirth. This would also make room for the definition
of pain relief in childbirth as a human right, as well as creating an
opportunity for women to be aware of their rights and to demand
accountability, and for medical staff to raise their own awareness and
include the gender dimension in their everyday tasks, so that human
rights violations are less likely to happen.
3.3 conclusion
In this short section I have strived to demonstrate how the denial of
pain relief in childbirth can, and ought to, be seen as a form of GBV
on birthing women; the notion of GBV is also what allowed me to trace
a connection between the argument for the existence of pain relief in
childbirth as a human right, and the relatively recent legal concept of
obstetric violence. The latter could set the foundation for a new stream
of case law regarding not only human rights in childbirth in general
(which is already happening, especially in Latin American countries),
but also the very right to pain relief in childbirth. The latter is one aspect
of a safe and dignified childbirth, in which, among other rights, both
the right to health and the right to be free from cruel, inhumane and
degrading treatment would be fully realised. The new legal paradigm
should be accompanied by a shift in society, within and outside
healthcare facilities, prompted by educational measures and raising
awareness and attention on the issue.
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in pain thou shalt bring forth children?
CONCLUSIONS
While pain relief in general is being increasingly acknowledged
as a human right, and the discussion on patients’ rights occupies an
indisputable space within the human rights arena, pain in childbirth is
remains largely ignored.
The lack of attention to this issue, be it on the part of medical staff,
legislators, society, or even birthing women themselves, can be traced
back to the persistence of deep-rooted stereotypes, beliefs and myths
around the notion of woman, mother, and pain and its meaning. These
dimensions all interact and enhance each other during childbirth and
have traditionally caused women to be seen as stereotyped creatures
who, ultimately, deserve the pain they are feeling as a consequence of
their lust, or even sin. The meanings and values attached to childbirth
pain make it difficult for it to be recognised as something which should
be paid attention to and relieved. Consequently, while a universal
human right to pain relief can arguably be derived from the right to
health and to be free from cruel, inhumane and degrading treatment (ie
prohibition of torture), a human right to pain relief in childbirth is more
difficult both to formalise and to implement.
In this work, I analysed the reasons why this is so, the existing human
rights framework on pain relief and the hurdles which have prevented
a human right to pain relief in childbirth from being recognised.
Accordingly, the notion of obstetric violence as a legal tool could be one
way of operationalising women’s rights in childbirth and, especially, their
right to pain relief. Creating an international human rights instrument
which recognises obstetric violence as a form of GBV could help
include the different and unique situations related to the issue of pain
relief in childbirth within a determined legal framework. In doing so,
it would also reveal that the reasons that such human rights violations
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are the result of issues that are structural, rooted in societal fabric and
embedded in stereotypes and categorisations which create imbalanced
gender-power relations. Viewing the denial of pain relief as (1) a form of
dehumanised care in the specific context of women’s reproductive life
and (2) based on gender stereotypes, in fact, would allow for a definition
of the violation of the right to pain relief in childbirth as a form of GBV.
This would set the legal foundations for the existence and recognition
of pain relief in childbirth as a fundamental human right.
The gender component must be considered if we are to recognise
such a right: it is the way out of an ambiguous and problematic situation
– both at the legal and at the social, political and medical level. The fact
that it is women – and not men – who suffer from the denial of pain
relief while giving birth, makes it a gender issue that cannot be left out
if we aim at creating a theoretical framework first, and consequently a
legal one, for human rights in childbirth.
To this day, there has been no case law whatsoever on the issue
of pain in childbirth. This legal lacuna is due to mainly two factors:
firstly, the lack of a positive right to pain relief in this situation – the
legal complexity of which has been discussed in the previous chapter.
Secondly, birthing women do not perceive themselves as entitled to
that right, in that pain in childbirth is taken for granted as an essential
component, not only by medical staff, but by women and by society
more generally. Accordingly, a rights-bearer who does not know she is
one, will not even attempt to have her rights recognised, let alone file a
case for their violation.
Similarly, the lack of awareness and attention to the gendered
implications of childbirth on the part of medical staff is often303 what
motivates the lack of attention to pain relief in childbirth. Therefore,
while a gender-centred human rights approach is necessary to make
pain relief a formal right and demand accountability for it, it is also
of paramount importance to focus on education to prevent such rights
violations from taking place. Indeed, sanctioning these mistreatments
as human rights violations while neglecting the prevention aspect is not
enough and might even be counterproductive: a double-sided approach
has to be taken, and reproductive rights and gender studies education
303 I am referring to an optimal situation with no financial/material constraints, ie in which
medication and medical staff are readily available.
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in pain thou shalt bring forth children?
– both of medical staff and of citizens, especially women – have to be at
the centre of governmental attention.
Education must involve both women (on their rights and on how to
express their needs at such a crucial moment) and medical staff, thus
leading to a paradigmatic shift that can allow for an institutional and
legal one to follow. In fact, despite all the instruments and conventions
available, Cook has stressed that ‘women’s rights are still considered
“social” rather than “civil” or political, conditional on custom and
religion rather than universal’;304 only by acting at the educational level
can this status quo be reversed.
Through sensibilisation and education, on one hand, and specific,
gender-aware legal devices, such as obstetric violence, on the other,
we will be able to have pain relief in childbirth mainstreamed and
recognised as a human right, and its denial305 acknowledged as a human
rights violation.
304 Evans (n 296) 43.
305 If and when such relief is requested, and when the denial of pain relief is not grounded
on medical reasons.
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Global Campus Europe.
The European Master’s Programme in Human Rights and Democratisation (EMA)
EMA is a one-year intensive master’s programme with participation of 41 prestigious
universities representing all EU Member States. It is based on an action- and policy-
oriented approach to learning and combines legal, political, historical, anthropological,
and philosophical perspectives on the study of human rights and democracy with targeted
skill-building activities. As a measure of its success, EMA has served as a model of inspiration
for the establishment of EU-sponsored master’s programmes in several other regions of
the world, all of which are being coordinated and cooperate in the framework of the Global
Campus of Human Rights.
The Global Campus Europe - EMA Awarded Theses
Each year the EMA Council of Directors selects five theses, which stand out not only for their
formal academic qualities but also for the originality of topic, innovative character of methodology
and approach, potential usefulness in raising awareness about neglected issues and capacity
for contributing to the promotion of the values underlying human rights and democracy.
The present thesis - In Pain Thou Shalt Bring Forth Children? For a Human Right to Pain
Relief in Childbirth by Francesca Basso and supervised by Helena Pereira De Melo, New
University of Lisbon - was submitted in partial fulfillment of the requirements for the European
Master’s Programme in Human Rights and Democratisation (EMA), coordinated by EIUC.
This document has been produced with the financial assistance of the European Union
and as part of the Global Campus of Human Rights, coordinated by Global Campus of
Human Rights. The contents of this document are the sole responsibility of the authors
and can under no circumstances be regarded as reflecting the position of the European
Union or of Global Campus of Human Rights