Symphysiotomies as Obstetric Violence in the International Human Rights Framework

In 2014, the UN Human Rights Committee (HRC) observed that Ireland had failed to thoroughly investigate cases of symphysiotomy and provide an effective remedy, including adequate compensation and rehabilitation, for survivors of the practice. The HRC thus recommended that the State initiate an independent investigation leading to the prosecution of the perpetrators. In 2017, the Committee on the Elimination of Discrimination Against Women (CEDAW) and the Committee Against Torture (CAT) also commented on the ongoing failure of the State to investigate and prosecute cases of non-consensual symphysiotomies performed on Irish women, making similar recommendations to those of the HRC. In declaring the three Irish symphysiotomies cases inadmissible, the European Court of Human Rights departed from the approach taken by these international human rights bodies.

Individualising Blame

The European Court’s dismissal of these cases suggests that the UN treaty bodies have taken a more progressive stance on obstetric violence issues. However, there are shortcomings to the comments made by the HRC, CAT, and CEDAW in their failure to account for the structural inequalities that enabled non-consensual symphysiotomies to be performed on Irish women. In a previous blog post in this series, Máiréad Enright commented on the complexity of historical abuse in context of religious patriarchy which the European Court failed to address, by focusing instead on the behaviour of individuals. The recommendations of the UN treaty bodies also reflect this tendency to focus on the individual perpetrators, the medical professionals who performed symphysiotomies, rather than on the broader conditions that enabled this systemic abuse.

While CAT recognised that doctors refused to perform substantially less painful procedures for religious rather than medical reasons, this was framed as an individualised issue. Survivors of Symphysiotomies made a submission to CAT during the reporting cycle, highlighting the impact of religious norms on medical practice as an institutionalised issue, and calling for the recognition of symphysiotomies in the absence of medical necessity as gender-based violence amounting to cruel, inhuman, and degrading treatment. This broader context of gender-based discrimination and religious influence beyond the beliefs of individual doctors was, however, absent from CAT’s comments.

Recognising Symphysiotomies as Gender-Based Violence

CEDAW situated symphysiotomies in the context of further historical abuses against women and girls through the Magdalene Laundries and Mother and Baby Homes, recognising that these issues remained unresolved despite the previous recommendations made by human rights bodies. CEDAW recognised this abuse as a violation of women’s rights, but this is framed as an issue of access to justice and is not explicitly named as gender-based or obstetric violence. Naming the abuse of women during pregnancy and childbirth as obstetric violence is important in order to capture its structural and discriminatory dimensions.

However, the term obstetric violence is not yet in mainstream use by international human rights bodies, and CEDAW only heard its first case on obstetric violence in 2020. The case, S.F.M. v Spain, concerned non-consensual medical intervention performed on a Spanish woman during childbirth, and CEDAW acknowledged this as gender-based violence resulting from the reproduction of gender stereotypes within the State. Importantly, CEDAW recognised the need for the State to combat obstetric violence to ensure the right to safe motherhood for all women in Spain. CEDAW relied upon the report on violence towards women in reproductive health services by Dubravka Šimonović, the Special Rapporteur on violence against women, the year before. In this report, Šimonović opted to refer to obstetric violence despite the term’s lack of use by human rights bodies, and highlighted the history of symphysiotomies in Ireland as an example. The report situates this violence on a continuum of discrimination, structural inequality, and patriarchy. In exploring the various root causes of obstetric violence, Šimonović highlighted the relevance of gender stereotypes stemming from religious and socio-cultural norms, which States have an obligation to address.

Concluding Thoughts

The framing of this abuse as obstetric violence by CEDAW and the Special Rapporteur marks a significant step towards identifying the mistreatment of women during childbirth as institutionalised gender-based violence. While CEDAW did not recognise symphysiotomies as obstetric violence in 2017, this was prior to its recent adoption of the term. In the next reporting cycle, if Ireland has not provided an effective remedy for survivors, the treaty body could be more explicit in recognising this as obstetric violence. International human rights treaty bodies may be less well placed than the European Court to pressure the State into providing justice for survivors, but the approach they take nonetheless matters. There is a need to account for structural gender inequality perpetuated not just by individual medical professionals, but also by the State.

Zoe Tongue, PhD candidate and part-time tutor, Durham Law School

Series Editors: Zoe Tongue, Aoife Finnerty, and Camilla Pickles