The Supreme Court of Israel allows the operation of natural birth centres outside hospitals

Nashim Korot laledet (Freedom of Choice in Childbirth) v State of Israel is a ground-breaking ruling handed down by the Supreme Court of Israel (5120/18). It concerns lifting the ban on ‘natural childbirth centres’ which are designed to allow women more autonomous birth experiences, without fear of unnecessary medical interventions, and without being forced to give birth at hospitals or at home. Apart from focusing on the operation of birth centres, the important social and legal determinations made in this judgment underscore the basic rights of women giving birth in Israel: the right to dignity and autonomy.

Nearly four years ago, the Israeli Ministry of Health banned the operation of natural birth centres. In the first case, Yael Rom v State of Israel (5428/17, 1754/18), representatives of the birth centres and other organisations petitioned the High Court of Israel against the ban arguing that childbirth is a natural (rather than medical) process and women have right to choose. On the other hand, the Ministry of Health argued that it is committed to the well-being of mothers and newborns, and therefore in view of possible complications in childbirth, the law is very clear and therefore not open for discussion or flexible interpretation. The petition was heard by three judges and was rejected by a majority. However, the minority position is noteworthy; it emphasised that fear of possible complications can lead to absurd results. For instance, asking if other natural processes should be limited to a hospital only? What should one do in the context of physical exercise at the gym or marathon running? Despite raising these obvious concerns, the petition was denied and the birth centres were forced to remain closed.

In 2018, the birth centres applied to the Supreme Court again, and asked it to reconsider under the process of a ‘repeat hearing’. This is an exceptional and rare legal procedure that falls under the exclusive authority of the President of the Supreme Court where the President may allow the hearing if she is convinced that the issue is of special public importance. In this case, on 27 January 2019, the Judge President was persuaded, and approved another hearing before an extended panel of seven judges – a decision that in itself demonstrates a recognition of the importance of the issue.

After three years of litigation, the Supreme Court produced an exciting and inspiring ruling, which reversed the first decision by a majority of five to two and ruled that the Ministry of Health had no authority to close natural birth centres. The majority judgment was written by the Honourable Justice Dafna Barak Erez, a law professor with a strong liberal approach, whose past research was devoted to human and civil rights and included a focus on gender issues. The Israeli media classified her decision as ‘liberal’ and ‘supportive of human rights’.

The following are statements extracted from paras 65 and 72 of her ruling, as translated by me. She adopts a clear position regarding the basic rights of women giving birth in general and in Israel in particular:

‘It is important to start with the simple statement, and in the current context perhaps even say “natural”: birth is not a disease. In any case, it can be performed without the presence of a doctor, and even without medical supervision. In fact, even a hospital birth can be conducted without the presence of a doctor from start to finish, depending on the circumstances, and this is what actually happens in many cases. Indeed, the advancement of human knowledge has spawned medical procedures that may be vital, and even life-saving, for both mother and newborn. Nowadays, unlike in the past, births are usually performed with medical care and support. It is customary to describe the increasing use of medical procedures in connection with childbirth as a transition from the midwifery or physiological paradigm, which is associated with the midwifery profession and sees childbirth as a natural physiological event that does not require medical intervention, to the “medical paradigm”. However, this transition did not leave or erase the midwifery paradigm.

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The decision of the Ministry of Health not to allow women to give birth in natural childbirth centers leads, in effect, to a reduction in the options available to a pregnant woman regarding the birth process, with a real impact on the possibility of control over the process taking place in her body. It affects the ability of these women to tell the story of their lives, and more specifically – the story of their birth. This is not a marginal effect, but a limitation on the ability to choose in relation to a constitutive, sometimes one-time event, in a woman’s life. Childbirth is an experience of immense personal significance, which is the end of a long, and often not easy, process of pregnancy. Childbirth involves full and complete exposure of the body of the woman giving birth, and in particular of hidden and private organs, in circumstances where the physical, mental and emotional vulnerability is great. Many women carry the birth experience with them – for its positive and negative aspects – throughout their lives. If so, respect for her autonomous will and the choices of the mother is immeasurably important.’

This exciting ruling recognises the physical and emotional vulnerability of childbirth. While the road to address obstetric violence within the Israeli law is still a long one, it is arguable that the judgment helps to establish the foundations and prepare the ground for legal (and social) recognition of obstetric violence. Unfortunately, the task of establishing a regulatory framework for natural childbirth centres has been handed back to Ministry of Health and it is doubtful that the Ministry will take into account the paradigms set out in the above judgment (to which they objected in the first place). The struggle is still long, but there is no doubt that this ruling is a key milestone in efforts to tackle obstetric violence.

Advocate Dganit Sommerfeld, M.A. candidate, Women’s and Gender Studies, University of Haifa