Introducing the roundtable series on Emerging Human Rights Standards on Obstetric Violence

PART TWO

Romina Gallardo | Universidad de la República

PhD in Law and Social Sciences. Assistant Professor at the Faculty of Law of the University of the Republic. Member of the Law and Human Rights Working Group of the International Platform on Obstetric Violence (IPOV)

Obstetric violence has been defined in different ways across a range of fields. While social scientists have studied it in depth, especially over the past decade, and several countries in Latin America now recognise it in their domestic laws, international human rights law has developed more slowly. This is why the Inter-American human rights system is especially important in shaping the legal understanding of obstetric violence, and should be given closer attention.

Obstetric violence is not explicitly recognised in human rights treaties or declarations. However, it can still violate a range of fundamental rights protected under human rights instruments such as the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. These include the rights life, health, personal integrity, privacy, equality and non-discrimination, autonomy, and confidentiality. Importantly, victim-survivors of obstetric violence can enforce through human rights through the Inter-American human rights system.

The explicit recognition of “obstetric violence” in Inter-American human rights law is relatively recent. Even so, earlier cases from the Inter-American Court of Human Rights (IACtHR) help to show how the concept has developed. One of the first relevant cases is I.V v Bolivia (2016), where the Court considered behaviour that we would now recognise as obstetric violence, even though it was not named as such. The Court confirmed the importance of informed consent in medical care, linking it to respect for patients’ autonomy and freedom to make their own decisions. It also highlighted the harmful role of gender stereotypes in the childbirth and the unequal power relationship evident between doctors and patients, shaped by differences in knowledge and control over information. These power dynamics have become central in later cases on obstetric violence because they help explain how obstetric violence occurs.

In 2022, the IACtHR returns to the topic in an Advisory Opinion, offering guidance on how the law should be understood in relation to women deprived of their liberty. In this opinion, the Court offered its very first definition of obstetric violence as violence perpetrated against women during pregnancy, childbirth, and the postpartum period. The Court made clear that obstetric violence is a form of gender-based violence and a violation of human rights. It emphasised that “pregnant women deprived of their liberty are especially vulnerable to obstetric violence, which is why States must strengthen preventive measures in the health services provided to this population.”

The concept was further developed in Britez Arce v Argentina (2022), where the Court provided more detail on what governments must do to protect and promote women’s rights during pregnancy, childbirth and postpartum period. This includes informing women that they could submit a birth plan to the healthcare institution, supporting skin-to-skin contact between mother and baby, and ensuring access to accurate and timely information based on scientific evidence and free from bias, stereotypes or discrimination. The Court stressed that the obligation to provide adequate, specialised and differentiated health services throughout pregnancy, childbirth and postpartum period and breastfeeding. Meaning, that health services offered during these times must be tailored to women’s specific and different needs.

In Rodríguez Pacheco v Venezuela (2023), the Court build on these earlier developments. It reaffirmed its definition of obstetric violence as a form of gender-based violence and a violation of human rights, and which “covers all situations of disrespectful, abusive, negligent treatment, or denial of treatment, during pregnancy and the pre-pregnancy stage, and during or after childbirth, in public or private health centers.”

The Court also introduced some important developments. For example, it used the term “pregnant person” to recognise that not all those affected by obstetric violence identify as women. It also took existing human rights rules and applied them more directly to pregnancy, childbirth, and the postpartum period. This includes requiring governments to prevent, investigate, and respond to violence, to regulate and oversee private healthcare providers, to ensure non-discriminatory access to care, and to guarantee access to justice in cases of obstetric violence. Finally, the Court gave closer attention to the roles of gender stereotypes and unequal power relationships in healthcare settings, and how these contribute to obstetric violence.

In closing, these cases are important because they help concrete standards for protecting women’s human rights in the context of pregnancy and childbirth. These standards clarify how rights set out in in the American Convention on Human Rights and the Convention of Belém do Pará apply in cases of obstetric violence, and what obligations this creates for governments. In this way, the Court’s rulings provide guidance on how these rights should be understood and applied in practice. While these standards may continue to develop over time, they already play an important role in shaping how obstetric violence is recognised and addressed in human rights law.

This text is based on the chapter entitled “Obstetric violence and its protection standards in the Inter-American Human Rights System” published in the collective book “Studies on Gender and Law” (2024), edited by the Law and Society Civil Association from Perú.

Emerging Human Rights Standards on Obstetric Violence

This three-part series introduces IPOV’s roundtable process on emerging human rights standards on obstetric violence. Across the three articles, Camilla Pickles, Romina Gallardo and Veronica Garcia de Cortazar examine how international and regional human rights bodies are progressively recognising obstetric violence as a violation of fundamental rights, clarifying State obligations, and contributing to the development of the future IPOV Charter on Human Rights in Childbirth.

PART ONE

PART THREE