Human Rights and Giving Birth

By: Louise Smith, barrister - Updated: 15 Aug 2016 | *Discuss

 

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In the UK the right of women to choose where and how they give birth is widely respected. The NHS can often accommodate a range of different birth choices to allow women to choose the method with which they feel most comfortable. However, there may be instances when the supervising medical professional wishes to override a woman's preference on medical grounds. The professional opinion may be that a particular birth choice places the unborn child and / or the mother at higher risk.

Two main questions may arise out of this topic:

• Whether there is evidence to support professional opinion that one type of birth is inherently more risky than another; and,
• At what stage an unborn child may acquire human rights which equal – or even take precedence to – those of the mother.

The United Nations Convention on the Rights of the Child

Article 3 of the Convention states that in all actions relating to children the interests of the child must be a “primary consideration”. Article 6 recognises that every child has the right to life. Article 24 requires steps to be taken to ensure that medical assistance and health care is given to all children. The UK ratified the UN Convention in 1991. This means that the UK should usually take steps to uphold the declarations contained in the Convention unless specifically exempt from doing so.

The European Convention on the Exercise of Children's Rights aimed to bring the UN Convention into effect in the EU and contains similar provisions.

The Pre-Birth Rights of Children

It is clear that international human rights law deems human rights to apply prior to birth. The current law in the UK (but not Northern Ireland) is that abortions may, subject to certain requirements, be carried out at up to the 24th week of pregnancy. However, medically necessary abortions may be carried out at any stage if the birth may present a serious risk to the mother's health. When deciding whether an abortion is appropriate the risk to both the mother's physical health and mental health may be taken into consideration.

By reducing the “normal” limit for abortions to 24 weeks UK law seems to recognise that a foetus has acquired some additional human rights at this stage of its gestation.

Giving Birth in the UK

In practice pregnant women in the UK may feel that they are pushed towards using a particular hospital – generally their local one. Different health authorities may favour different types of births and some women may not realise that they are entitled to choose where they go. Further, a woman who has chosen to have a home birth, for example, may then find that her choice is overridden by a midwife or doctor who deems this type of birth to be too risky for the mother or unborn child.

Questions may also arise if a woman insists on a particular method – against the advice of medical practitioners – which then results in problems with the birth. It might potentially be arguable that the mother could then bring a claim against the medical practitioners for not insisting that she use a “safer” birth method.

The medical profession's responsibility to both mother and child may involve ensuring that a birth is as risk-free as possible. Arguments about the relative safety of different birth methods continue - with those on either side of the argument interpreting the statistics on the risks of the various methods in different ways. Whilst a woman’s right to choose how she gives birth is widely respected, it may not always override the rights of the unborn child.

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