Obstetric Violence in War and Otherwise.

In her recent piece for The Morrigan, Fionnuala Ní Aoláin argues that prioritisation of sexual violence as a target of the the mainstream WPS Agenda means that reproductive violence is often overlooked. Under this Agenda, reproductive violence is essentially understood as a sub-category of sexual violence. Of course, sexual and reproductive violence are often connected, both during armed conflict and in its aftermath. However, as Ní Aoláin points out, failing to think beyond this connection means ignoring other crucial forms of violence deliberately mobilised against pregnant, labouring and post-partum women during wartime. It means side-lining targeted infliction of forms of obstetric violence (dehumanising, abusive or neglectful obstetric treatment) including denial of the resources necessary to dignified obstetric care.

This misrecognition of obstetric violence is not surprising. As Ní Aoláin argues, it is a broader feature of the ‘classical’ legal approach to gender-based violence, including in ‘peacetime’. In a forthcoming chapter in the Edward Elgar Research Handbook on Gender, Violence and Law I discuss the ECtHR’s attitude to mass obstetric violence and inhuman and degrading treatment. The Court’s jurisprudence is an excellent example of how the ‘classical’ approach normalises reproductive violence.

Provided that the state has established a minimally functional healthcare system, the Court prefers to view medical cases through the lens of the right to private and family life, rather than invoking the right to freedom from inhuman and degrading treatment. In other words, the Court assumes a firm division between medicine and violence, including where treatment is non-consensual. This barrier is deemed justified, in part, because medical staff are not typically seen as state actors, and in part because medicine is understood as an inherent social good. It is almost impossible for victims of reproductive harm to breach this conceptual barrier. Within this framework, efforts to reshape response to reproductive violence by comparing it to torture or rape cannot gain traction. There are two available legal strategies, perhaps best used in combination. First, the Court may be persuaded that the medical intervention was done without any meaningful life-preserving or health-preserving therapeutic purpose. Second, the Court may accept that the victim was exceptionally vulnerable.

‘Therapeutic purpose’ is typically established using the state’s preferred medical evidence. Even if a given medical practice was clearly influenced by the state’s own racist or sectarian policy, the Court will be reluctant to condemn it on that basis alone.  Interventions are unlikely to be deemed ‘inhuman’ or ‘degrading’, unless the treating doctors depart radically from accepted therapeutic approaches. The Court here assumes that violence is a matter of individual interpersonal violence rather than one of structural harm, even if similar acts of violence are repeated across whole institutions or whole cohorts of the population.

As for ‘vulnerability’, the Court’s approach has been disappointingly narrow. The Court  is interested in purportedly exceptional situations, where the victim was subject to detention, very young, intellectually disabled or otherwise systemically marginalised in wider society beyond the healthcare system. Pregnant, labouring and post-partum individuals are not presumed vulnerable, even where they may be in severe pain or under intense stress, exhausted, or effectively dependent on healthcare practitioners for their well-being or survival. My point here is not, of course, to offer an immovable essentialist account of bodily vulnerability, but rather, to suggest that the Court has been inattentive to relational and institutional power structures which have historically tended to diminish pregnant and birthing people’s autonomy.

The upshot is that this approach to human rights law inevitably misrecognises reproductive violence. It invisibilises forms of serious, if depressingly everyday, harm which are produced, intentionally or unintentionally, by the ordinary operation of healthcare systems and by underpinning gendered structures of exclusion.

Perhaps nothing in this version of the ‘classical’ approach presents an obstacle to reimagining the place of reproductive violence within the laws of war, or within the peace and security agenda. The actions Fionnuala Ní Aoláin describes in her piece are, after all, pursued with a deliberate intention to harm targeted populations, if not to destroy them entirely, with minimal regard for mainstream medical opinion. They are also directed at people who are (surely) self-evidently vulnerable, because they are surviving in circumstances of almost unimaginable precarity. Building on Ní Aoláin’s piece, however, I want to suggest that taking a holistic approach to recognising obstetric violence in conflict zones must require more than drawing conceptual boundaries around what may be considered its most blatant and appalling manifestations. Reproductive violence in wartime often involves a intensification of practices which have gone before. Reproductive violence often also persists in transitions from armed conflict and (as we know from the state’s tortuous efforts to address the legacies of institutionalised reproductive violence in Ireland) well into the long afterlives of nationalist authoritarian regimes. Any holistic assessment of obstetric violence during and after armed conflict requires that scholars avoid unnecessarily reproducing or reinforcing aspects of the ‘peacetime’ status quo exemplified by the ECtHR’s jurisprudence. For instance, a working concept of obstetric violence which focuses only on the deprivation of medical assistance in one context may miss harms associated with coerced, punitive or discriminatory medical intervention in another. Perhaps more challenging, this working concept of obstetric violence must recognise the structural and relational vulnerabilities which so often attach to motherhood (desired or undesired), without accepting them as inevitable

Máiréad Enright, Loughborough University.

Máiréad Enright is a feminist legal scholar working on issues including reproductive justice, law reform and grassroots organising, illegality in social movements, responses to historical injustice and the law on obstetric violence. Máiréad often works with and advises groups campaigning around reproductive rights and historical gender-based violence, especially in Ireland and Northern Ireland, and occasionally collaborates with artists interested in these issues.