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Leading human rights lawyer concerned about steep rise in caesarean births

Ashley Hall reported this story on Thursday, October 11, 2012 12:42:00

ASHLEY HALL: A leading British human rights lawyer says the community's aversion to risk is compromising a woman's fundamental right to choose where and how she'll give birth.

Elizabeth Prochaska argues that the potential for costly legal action if something goes wrong has driven a big rise in the number of caesarean births and the simultaneous decline of midwifery.

But she says under human rights law, every woman must have the opportunity to make an informed choice about giving birth.

When she visited The World Today studio a little earlier, Elizabeth Prochaska told me birthing choice is one of the ultimate feminist issues of our time.

ELIZABETH PROCHASKA: It's not about individual doctors overriding women's rights. It is about our systematic approach to maternity care which is really denying women their human rights.

ASHLEY HALL: Well, that systematic approach has had a bit of a shake-up in recent years, at least in Europe thanks to the Temovsky case in the European Court of Human Rights. Why was that case so important?

ELIZABETH PROCHASKA: It concerned a woman in Hungary who wanted to give birth at home. She wanted to give birth at home with a midwife and she knew that that midwife would face potential criminal prosecution for assisting her if she gave birth at home and so she obviously didn't feel she could do it so she took her case to the European Court of Human Rights and said is it a breach of my right to private life which encompasses a right to bodily integrity, and the court said absolutely it is.

ASHLEY HALL: Opponents to home birthing say that it is more risky and more expensive than birthing in a labour ward at a hospital. What regard does the law pay to those arguments?

ELIZABETH PROCHASKA: Well, the law in some ways is blind to the risk argument when it is asking that informed consent question. The fact that there may be an alleged risk, a greater risk to the foetus or indeed to the mother as a result of for example a decision to give birth out of hospital, is not relevant to the question of informed consent.

ASHLEY HALL: There have been some examples in Australia where the law has moved to recognise an unborn child as an individual, not as a full legal person, but if they are killed in a motor accident there is an increased penalty accordingly. How does that grey the area around whether or not the unborn baby is a legal person and would then have human rights of its own?

ELIZABETH PROCHASKA: I don't think that you need to regard the foetus and the mother as inseparable entities in order to respect women's rights. You don't need to pretend that there isn't a distinction between the two because there is and of course the foetus does have legal interests, as you say. It can, prosecutions can be brought for killing, by killing a foetus but that is really very distinct from using the foetal rights to override the mother's rights.

ASHLEY HALL: Let's come back to those two issues that you raised at the outset. One of them was in relation to the surgeon, the number of caesareans that are being performed in the developed world. The notion that is often perpetrated in the media is that the surge has been as a consequence of women making a choice because they are quote, "too posh to push".

ELIZABETH PROCHASKA: Oh dear, (laughs). Yeah.

ASHLEY HALL: That it's easier to schedule a birth around a career and get your plans in place if you have a caesarean birth, do you accept that explanation?

ELIZABETH PROCHASKA: I don't accept that there is surge in caesareans because women are choosing to have them. It is true to say that the number of elective caesareans has risen. I don't have the statistics to hand but I am confident that that does not account for the massive increase.

ASHLEY HALL: What is the driver do you think?

ELIZABETH PROCHASKA: I'm not a doctor, I'm not an obstetrician, so I'm not best placed to comment on all the clinical factors that may be leading to an increase but I can say from my legal experience of women who have had what they deemed to be unnecessary caesareans, the increase in risk management policies, in risk aversion and the timing of women's births to suit the convenience of the system and the increase in induction are all reasons why caesareans may have increased.

ASHLEY HALL: Midwives were the other aspect that you raised earlier and we've seen a fight with the Federal Government here in recent years about the role of midwives and whether or not they needed to work with a doctor to get government funding as well. Why do you think midwives are under siege?

ELIZABETH PROCHASKA: You know midwives ever since the 16th and the 17th Century have been conflated with witches and I think that the global persecution of midwives that we are witnessing in this century is really a continuation of that trend in many waves.

ASHLEY HALL: Global persecution sounds like a campaign. Do you believe it is a determined campaign?

ELIZABETH PROCHASKA: Well, I wouldn't be able to identify a central figure who was responsible for particular persecutions but certainly there is a systemic approach to midwifery care which is suspicious of women and of women tending to other women.

ASHLEY HALL: The human rights barrister, Elizabeth Prochaska, and she will be speaking tomorrow at the childbirth and law forum in the Sydney.

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