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Childbirth customs as women's culture: A jurisprudential argument for protection under international and American legal norms

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Childbirth customs as women's culture: A jurisprudential argument for protection under international and American legal norms

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Content INFORMATION TO USERS This manuscript has been reproduced from the microfilm master. UM i films the text directly from the original or copy submitted. Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of com puter printer. The quality of this reproduction is dependent upon the quality of the co p y subm itted. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthrough, substandard margins, and improper alignment can adversely affect reproduction. In the unlikely event that the author did not send UM I a complete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. Oversize materials (e.g., maps, drawings, charts) are reproduced by sectioning the original, beginning at the upper left-hand comer and continuing from left to right in equal sections with small overlaps. ProQuest Information and Learning 300 North Zeeb Road, Ann Arbor, Ml 48106-1346 USA 800-521-0600 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHILDBIRTH CUSTOMS AS WOMEN’S CULTURE: A JURISPRUDENTIAL ARGUMENT FOR PROTECTION UNDER INTERNATIONAL AND AMERICAN LEGAL NORMS Copyright 2002 by Gayl M. Anglin A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (POLITICAL SCIENCE) May 2002 Gayl M. Anglin Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UMI Number: 3073740 Copyright 2002 by Anglin, Gayl Marie All rights reserved. ___ ® UMI UMI Microform 3073740 Copyright 2003 by ProQuest Information and Learning Company. Ail righis reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code. ProQuest information and Learning Company 300 North Zeeb Road P.O. Box 1346 Ann Arbor, Ml 48106-1346 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. UNIVERSITY OF SOUTHERN CALIFORNIA THE GRADUATE SCHOOL UNIVERSITY PARK LOS ANGELES, CALIFORNIA 90007 This dissertation, written by under the direction of h£X. Dissertation Committee, and approved by all its members, has been presented to and accepted by The Graduate School, in partial fulfillment of re quirements for the degree of DOCTOR OF PHILOSOPHY Dean of Graduate Studies Date «& y..JU )*..2Q Q 2 DISSERTATION COMMITTEE Chairperson Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGMENTS My sincere gratitude to Dr. Alison Dundes Renteln, for all of her encouragement and for being a wonderful professor and mentor. My thanks to Dr. B.J. Snell and Dr. Marlene Wagner for serving on my committee. To Russell McClain, thank you for your love, support, editing skills and for “playing devil’s advocate” by poking holes in my arguments and debating with me over my topic. I greatly appreciate Dr. Angela Hegamin for being a good sport and friend by reading and giving feedback on this work and for pushing me to finish. Thank you to my sister, Cheryl Anglin, for always lending a willing ear to listen to me complain or vent my stress. To Mei Lin, Rysa, Remy, Roxanne, Coltrane and Miles; thank you for lying by my feet until the wee hours of the morning, walking on my keyboard, messing up my notes and tugging on my sleeve to pull me away from my computer. And, to all of the other four-legged creatures that passed through my life on the way to their permanent homes, you were all a welcome distraction and your paw prints can be seen between the lines of my writing. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS Page No. ACKNOWLEDGMENTS ii ABSTRACT v PART I INTRODUCTION 1 CHAPTER 1 INTRODUCTION 2 PART II CHILDBIRTH IN THE CONTEXT OF THE UNITED STATES 12 CHAPTER 2 THE “WESTERN,” SCIENTIFIC APPROACH TO HEALTH The Doctor-Patient Relationship The Culture o f “Modernized” Scientific-Based Obstetrics Medicine’s Assumption of Power in Childbirth Doctor-Patient Relationship During Pregnancy and Childbirth The Role of the Modem Hospital and Birth Procedures The Midwifery Model of Childbirth 3 A BRIEF HISTORY OF CHILDBIRTH IN THE UNITED STATES 39 4 THE REGULATION OF MIDWIFERY 51 Licensing and Regulation 52 Practicing Medicine Without a License 54 Regulatory Boards 57 Regulation of Home Births 59 Hospital Privileges 60 Reimbursement 61 iii 13 15 21 24 25 27 35 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. TABLE OF CONTENTS (continued). Page PART II CHAPTER 5 APPLYING THE RIGHT OF PRIVACY TO CHILDBIRTH 67 Privacy 67 PART III THE INTERNATIONAL CONTEXT OF CHILDBIRTH 79 CHAPTER 6 CHILDBIRTH: INTERNATIONAL DIMENSIONS 80 The United Nations’ Agenda for Childbirth 80 The Role of Midwives in Safe Motherhood 83 Safe Motherhood and Culture: Can One Be Achieved Without Losing the Other? 86 When Culture is Not Considered: The Hazards of Western Medicine 89 Conclusion 92 7 A WOMAN’S RIGHT TO CULTURE: REPRODUCTIVE FREEDOM AND BIRTHING 94 The Right to Health 94 The Right to Culture 97 Analysis of Practicality of International Human Rights Instruments for the Protection of Women’s Right to Traditional Childbirth 104 8 THE INTEGRATION OF TRADITIONAL PRACTICES AND BIOMEDICINE 113 The Netherlands: A Model to Emulate 116 PART IV CONCLUSION 122 CHAPTER 9 CONCLUSION 123 BIBLIOGRAPHY 129 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ABSTRACT This work examines childbirth policy in the United States and the developing world. It is my contention that women should have a choice of caregiver during childbirth, a choice that could be protected by existing legal norms, the right to privacy in the United States and the right to culture under international law. Using the United States as an example, the project examines the male-based cultural values of the “Western,” scientific approach to medicine and implications of this approach for childbirth. In contrast, midwifery, and its foundation within a female cultural tradition, is discussed. The reemergence of midwifery in the United States offers women the opportunity to regain control of the birthing process. Despite the growth of the practice of midwifery, however, there are barriers that exist for women to gain access to midwives. By extending the American constitutional right to privacy in a positive fashion, women could be guaranteed the choice of caregiver during birth that would include access to midwifery services. Childbirth practices are also explored in several developing countries. Birth is still controlled by women in many places, but the introduction of Westernized medicine is slowly replacing female control with a more male-dominated system. The importance of childbirth practices for women’s experience is interpreted as a form of culture. In the international arena, I provide an interpretation of reproductive freedom as it relates to birth within the analytic framework of v Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. international human rights norms. The right to culture can be construed in such a way as to guarantee the possibility of female-controlled approaches to childbirth insofar as these are understood as cultural traditions. While acknowledging the value of biomedical approaches to medicine inasmuch as they improve women’s health (e.g., decreasing maternal mortality), this case study demonstrates the value of maintaining or restoring women’s control of the process. Hence, the argument for integrating biomedicine and traditional, female-based practices into childbirth processes offers the most possibilities to women and can be justified by invoking existing constitutional and international principles. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. PA R TI INTRODUCTION Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 1 INTRODUCTION Childbirth has substantial cultural and social implications as it is a major rite of passage for women. In many cultures, it demarcates a girl’s emergence from youth into womanhood. For all women, irrespective of their cultural, ethnic, class or national backgrounds, bearing a child is a major life transition during which women themselves take on a new identity. This is the identity of “mother,” a role whose significance for society and the world is far greater than that for which it is ever given credit. While women prepare themselves to take on this powerful responsibility, they often find themselves physically, emotionally, spiritually and politically powerless to control the birth process itself. This powerlessness stems from a lack of choices available to pregnant women with regard to their selection of caregivers and birthing methods. This project will focus primarily on two models of birth: the medical model and the midwifery model. The medical model will be discussed in the context of its role in Western, patriarchal culture, while the midwifery model will be examined in relationship to women’s culture. While birth is examined in a “Western” context, the focus is on the United States because of the high rate of medical intervention as well as the relative empowerment of women as compared to other societies. This is juxtaposed to childbirth processes in developing countries. In these countries, women still maintain control of the birth process 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. including cultural traditions associated with it, but they risk losing this control with the movement of Western medicine into these societies. The United Nations has promoted a shift from traditional caregivers to medically trained midwives. In the United States birth was traditionally an event rooted within women’s traditions. It was not until the late-eighteenth century that birth started to become a medical event in the West, controlled by men. Men, under the pretense of making birth “safer,” have increasingly taken over this domain of woman. Historically, problems did occur with childbirth, but typically these had nothing to do with the women who attended it, but more with a lack of knowledge of sepsis and pre-natal care. People died for many reasons, e.g. influenza, before the advent of antibiotics, and the risks of childbirth during early America should be viewed in this context. The hazards surrounding birth would be eliminated, as would the risk of death from common illnesses, with new discoveries in science as well as education. Birth was not a naturally dangerous process and thus not in desperate need of help by medical men. In 2001, physicians attend most births in the United States. Although many barriers both for midwives to practice and for women to gain access to these professionals, midwifery as a profession has been growing at a slow rate. Despite the relative liberation of women in the United States, women remain “captive” to the medical model of birth. In most developing societies, women who are classified as Traditional Birth Attendants have historically attended childbirth (Grieser, 1985; WHO, 1992). 3 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While women have not been discouraged from having the assistance of traditional healers in the past, with the introduction of Westernized medical care, they are increasingly being pressured to discontinue their use of these traditional caregivers and instead to utilize the services of allopathic clinics. In conjunction with this, the World Health Organization (WHO), while providing training for Traditional Birth Attendants, is doing so with the express goal of “phasing out” this classification of healer from these societies, thereby eliminating her from various cultures. The following examples are provided in order to understand fully the multiplicity of birthing cultures. The universal approach to childbirth may have limited success given the diversity of birthing customs. Within Bangladeshi villages for example, birth is seen as being the most extreme version of pollution and filth. Women are secluded, or held in parda, from the village during and following childbirth because the pollution associated with it is believed to attract evil spirits. This seclusion is also in place in order to save the family from shame by protecting its honor or izzat (Rozario, 1995). Birth among the Maya of the Yucatan region of Mexico is treated as a woman’s event. The only man allowed to be present is the husband. He is expected to be in attendance in order to see the suffering his wife must endure. Often among indigenous peoples, there is little knowledge of scientific anatomy that lends itself to the creation of ethnological organs. The Maya believe that the most vital organ of the body, an ethno-anatomical organ called the tipte, is located 4 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. beneath the naval. According to their beliefs, this organ often becomes displaced during childbirth (Jordan, 1983). In Papua New Guinea, among the Angal Heneng, parturient women receive no assistance during childbirth. This is because it is believed that a woman’s blood is extremely dangerous and can cause illness or even death. Pregnancy and childbirth are not discussed between men and women. A woman is isolated when she is in labor. Other village women may speak to her, but only from a safe distance outside her hut (Alto, Albu, & Irabo, 1991). Another band of indigenous people in New Guinea is the Abelam. As it was among the Angal Heneng, childbirth is also private, although occasionally, female family members will assist with the birth. They are compensated for their assistance because childbirth is considered to be a great pollutant, and thus they can not touch or cook for their immediate family for one week. After the mother gives birth to her child, she cuts the umbilical chord and waits for the child to cry. The child is not considered to be alive, even if it is moving, until it cries. The placenta is buried in exactly the place where the child was born (Winkvist, 1996). Muslim and Hindu Indians in South Africa both have similar childbirth customs. Women give birth in an isolated place in their mother’s home and are attended by a birth attendant of a lower caste. The lower caste member is required to perform this role because of the polluting effects of birth. Female family and friends give support to the woman, while all men are not permitted in the house. All the windows are covered during the birth to protect both mother and baby from 5 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. evil spirits thought to be attracted by the blood. The laboring woman is marked with sacred ashes and may drink from holy water if her labor becomes difficult. The precise time of delivery must be noted in order to determine the new baby’s horoscope. For Muslims, someone must whisper the name “Allah” in the newborn’s ear. Rituals must be performed if the baby is bom with a caul or with the cord wrapped around its neck. These are signs of potential family problems (Chalmers, 1993). Childbirth among the rural populations of North India is also viewed as being highly polluting. Women are attended by a dai, the traditional birth attendant of their culture. These women are of a low caste and thus will clean up after the birth, including cleaning the new mother and her baby. There is much stigma attached to things of a sexual nature and consequently pregnancy and childbirth are viewed as shameful. While there is joy in the birth of a new child, the process that brought the baby into the world is never discussed. Birth is seen as strictly a woman’s domain, and thus consulting with male health workers is dishonorable for the woman (Jeffrey & Jeffrey, 1997). In Nigeria, a Zarma woman also delivers her baby in isolation in her mother’s home. The woman gives birth while squatting with either her mother or a female birth attendant sitting behind and holding her around the waist. The attendant massages the parturient woman’s abdomen when she has contractions. A woman cannot push during labor as this is believed to cause pain after birth, and shouting in pain is considered shameful. Following delivery, the woman will place 6 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ashes on the paths leading into the village in order to prevent after-pains caused by evil spirits. The placenta is buried with the maternal side sky-ward to prevent evil spirits from being attracted by the blood (Jaffre & Prual, 1994). The Eipo people of Irian Jaya focus on comforting a laboring woman in any way possible during the pain of birth. They use massage and touch and incorporate prayer into these practices. The massage and prayer brings forth the souls of ancestors to aid in comforting the laboring woman (Lefeber, 1994). The Malay peoples of Malaysia utilize a directional system for delivery. The direction is matched with the prevailing winds for a particular day, with preference for facing south and West as North is considered to be associated with death and East being the opposite of West that is in the holy direction of Mecca (Lefeber, 1994). The Indian peoples in Guatemala perceive the body as a long tube through which organs can move up and down. As a result of this belief, the umbilical cord is not cut until the placenta is expelled, for fear that it will move up into the woman’s body and choke her. They also believe the child will die if the cord is cut too soon (Cosminsky, 2000). Among the Lauje’ peoples of Indonesia, special significance is given to cutting the umbilical cord of the newborn. The child’s spirit is said to be connected to its placental spirit via the cord and the separation should not be “hard.” Cutting the cord with a metal object, such as a knife, would be a hard separation and thus cause a complete separation of the spirits. Because of this, a knife made from 7 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. bamboo is used to cut the cord. Bamboo is employed because it is seen to connect the earth and the sky. “Symbolically it does not separate, but connects two realms” (Nourse, 1999). For example, as shown earlier, the Maya Indians in Mexico believe that the most vital organ of the body is located near the uterus. Anthropologist Brigitte Jordan explains that this is the reason why Mayan women are resistant to modem medical practices for fear of having a Cesarean section. They consider this an extremely dangerous surgery (Jordan, 1983). In Nigeria, women are reluctant to obtain pre-natal care early in the their pregnancies because they wish to avoid the resulting shame if they were to lose a child (Brieger, Luchok, Eng, & Earp, 1994). These types of cultural beliefs cause women to be fearful of modem medical practices. In finding the subtle similarities between the historical evolution of birth in the United States and the current changes occurring in developing countries, my goal was simply to facilitate “learning from past mistakes.” As the world tackles the high rates of maternal mortality in the developing world, I wait to see if history will, in fact, repeat itself insofar as women will be theoretically “removed” from the birthing process as in the United States. I am not arguing that allopathic medicine be withheld from developing societies, but I am suggesting that caution be taken to avoid a form o f cultural imperialism, albeit under good intentions. Clearly the need for “cosmopolitan” medicine is there, but the dangers of introducing this model into these countries are of concern. The distinction between 8 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. modem and traditional forms of medicine exists under a false dichotomy. This analysis critiques this dichotomy and proposes that the two co-exist. This would create a “win-win” situation for women worldwide in that they might benefit from the advances of modem medicine, while also maintaining cultural control over the birthing process. This study draws on a broad range of sources from a variety of disciplines. Though the scholarship reviewed examined various aspects o f my topic, no analysis directly addressed the question considered here. For example, feminist scholars in a variety of fields have addressed the issue of birthing. While some have provided a critical analysis on birth (LoCicero, 1993), the literature has focused primarily on the United States and has evaluated motherhood as an “institution” (Dinnerstein, 1963; Rich, 1986). Some of them have recognized the phenomenon of legal control of pregnant women by analyzing such issues as court-ordered Cesareans, “colonizing” the womb, and the criminal prosecution of pregnant women for using drugs (Ikemoto, 1997; Ehrenreich, 1993; Roberts, 1991; Colb, 1992). Despite their attention to these matters in domestic contexts, they have ignored the international dimension. Medical anthropology has provided a rich literature analyzing childbirth, both in the United States (Davis-Flovd. 1990.1992. 1994; Martin, 1987) as well as in international contexts (Jordan. 1983; Jeffrey & Jeffrey, 1997; Winkvist, 1996; Cosminsky, 2000; Nourse, 1999; Davis-Floyd & Sargent, 1997). This study attempts to combine these literatures in order to provide an analytic framework that is applicable to both domestic and international settings. 9 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In this work I also seek to expose gaps in the literature including the presumptions of scholars whose works are central to the politics of midwifery. In reviewing the scholarship, I was concerned by the presumption for instance, of many Western scholars of the presumed superior value of modem allopathic medicine over traditional medicines. This was followed by yet another presumption that women in developing countries necessarily have the same goals with regard to their reproductive health as women in the West, i.e., that “health” concerns are universal in nature. Indeed, I was intrigued by the lack of awareness of the controlling nature of many practices and their blind acceptance by Western scholars including some feminists. I was also interested in examining the barriers encountered when women did choose to experience birth according to their own cultural values. Chapter 2 examines the models of birthing. It specifically addresses the cultural aspects of childbirth and allopathic medicine. Chapters 3, 4 and 5 analyze childbirth in the United States. Chapter 3 provides a brief history of the evolution of birth. Chapter 4 addresses the barriers that midwives encounter in their efforts to practice and Chapter 5 is a reinterpretation of privacy doctrine. I argue that privacy has been interpreted too narrowly and could be a useful principle for ensuring access to midwifery. Chapter 6 discusses childbirth in an international dimension. It gives an overview of the United Nations’ agenda for birthing practices. Chapter 7 provides a legal defense of the cultural aspects of birth based on international human rights norms. In this chapter. I advance the argument that women have a 10 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. right to culture. Chapter 8 argues that biomedicine and traditional practices can be integrated into the same system. The chapter gives an overview of an “ideal model” of birthing where women have maintained cultural control over childbirth while also benefiting from modem healthcare. This model is that of childbirth in the Netherlands. It is my hope that this study will show that a universal approach to childbirth may have limited success because of the multiplicity of birthing customs. The presumption that there is only one appropriate way to give birth is unfounded. Women have a right to choose a culturally appropriate method of birth that may involve the participation of a birthing attendant in the process. This right should be protected by legal norms both in the U.S. Constitution and international human rights law. The goal of this project is to advance the argument for this right and to find an “end” to achieving it. This right of choice has far-reaching implications for women as it allows them to regain control of a significant, powerful process that rightfully “belongs” to them. It is crucial that women have full command over their bodies and their lives. 11 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. PART II CHILDBIRTH IN THE CONTEXT OF THE UNITED STATES 12 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 2 THE “WESTERN,” SCIENTIFIC APPROACH TO HEALTH Biomedicine,1 the Western model, has been lauded throughout history as well as in the year 2001 as being objective, i.e., without bias (Turkel, 1995; Rosser, 1994; Williams & Mackey, 1999; Kleinman, 1995). Based in the scientific method, biomedicine seeks to find rational answers. Yet, the scientific method has been classified as being ethnocentric as it provides only one way of looking at the world and does not take into consideration other aspects, paradigms or values that can affect the subject of study (Loustaunau & Sobo, 1997). This method of study is based on order and classification and it views medicine as a “natural process.” However, one main difficulty is that this approach relies on imposed constructs (Romanucci-Ross & Moerman, 1991). These criticisms are derived from the basic argument2 that medicine is simply an aspect of culture, as well as a culture unto itself (Loustaunau & Sobo, 1997; Ehrenreich, 1993; Lieban, 1990; Wagner, 1994). It is not derived from some greater natural order, but simply a human creation that is a reflection of other constructs and values of society (Turner, 1996). These ' This is not meant to be a comprehensive study o f the field o f medical anthropology or anthropology o f birthing. Rather, this information is provided to establish for the reader a background in its application to Western medicine and childbirth in the United States. 2 A primary focus in the field o f anthropology is the study of culture, and medical anthropology is a recognized sub-field within the discipline. The study o f medicine within anthropology does not only concentrate on so-called ‘indigenous’, ‘ethic’ or ‘undeveloped’ societies, but also examines allopathic or biomedicine. In doing so, it provides insight into its development, western biases and variations within the West. 13 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. values shape a society’s views of health, disease and wellness (Loustaunau & Sobo, 1997; Muller, 1994; Rothman, 1989). This is evident when comparing various applications of biomedicine in Western countries (Loustaunau & Sobo, 1997; Muller, 1994). “Biomedicine as a part of culture essentially incorporates, supports, and reflects both the ideals and realities of society in its philosophies and functions. Even science itself, the foundation on which the dominant medical institution and the practice of biomedicine rests, reflects social realities and is open to cultural interpretation” (Loustaunau & Sobo, 1997). While allopathic medicine has often disregarded or attempted to discredit what are deemed as “alternative” forms of care (e.g., chiropractic, acupuncture, Ayurvedic medicine, etc.), history shows that much of modem, Western medicine was itself rooted in these “folk/indigenous” practices (Loustaunau & Sobo, 1997). Indeed, many practices have become more accepted as a result of public demand (Oumeish, 1998). Within biomedicine certain issues are culturally determined such as the Doctor-Patient relationship, the medicalization of various natural physical and psychological issues, understanding of the “nature” of women, and the view of the body as a machine. This chapter examines these issues within the context of the United States because of the high rates of medical intervention and relative empowerment of women. 14 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The Doctor-Patient Relationship Within the context of allopathic medicine, doctors are seen as having supreme knowledge (Loustaunau & Sobo, 1997; Morgan, 1998). Those who seek help with problems are termed as the “patient.” This designation implicitly accepts a hierarchy. In such a relationship, a patient is expected to place all trust in her physicians and in following the “Doctor’s orders” (Loustaunau & Sobo, 1997; Morgan, 1998; Wagner, 1997). This relationship discounts any individual knowledge that one has about his or her own body or symptoms. While physicians now practice many different models of care, relationships between remain hierarchical. Also of importance within this relationship are two overlying value-systems that interact when an individual consults with a physician. Both the doctor and the patient bring their own historically and culturally-based views to the relationship. This influences their interaction, which further affects their views of any symptoms or illness as well as potential outcomes of any treatment (Loustaunau & Sobo, 1997; Howell-White, 1999). Medicalization The medicalization of various conditions, both physical and psychological, has been a recurring theme for biomedicine. “Biomedicine presses the practitioner to construct disease...” (Kleinman, 1995). Medicalization has a certain payoff for those who are part of the biomedical system. Identifying natural occurrences or 15 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. conditions and labeling them as pathologic creates another disease to be “cured” by allopathic physicians, sometimes with the assistance of new “miracle” medications. Medicine can be viewed as a market economy; once the need is established, physicians are there to meet it, and thus Capitalism promotes medicalization (Loustaunau & Sobo, 1997, Treichler, 1990; Finkelstein, 1990; Kleinman, 1995). This meets a two-fold need. The increasing societal need for medicine gives power to those that hold medical knowledge and also places them at an economic advantage (Finkelstein, 1990; Kleinman, 1995). An interesting example from the literature is that of balding. Balding is a natural occurrence, not pathologic. Drug companies developed medications that could impede the balding process and then began to market them to the general public. Individuals could visit their physicians to have their balding “cured” (Loustaunau & Sobo, 1997). This medicalization of conditions is a necessary step for biomedicine to further its hegemonic and technocratic control through its financial gains as well as its control of knowledge. The power gained through this is “normative, cultural and opportunistic insofar as it privileges the needs and desires of certain groups and individuals” (Finkelstein, 1990). Woman within the biomedical model The basis of biomedicine is rooted in the idea of rationality and objectivity. The male model places importance on remaining distant from the subject in order to keep from being biased or allowing emotions to interfere. These are considered 16 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to be preferred traits based in a more male tradition (Rosser, 1994; Turkel, 1995). The culture of biomedicine holds these values in high esteem making that which is contrary to them is considered undesirable. The more female-based approach, one that places more emphasis on feeling, connectivity and the subjective-person, is ironically seen as “biased” and non-scientific. The classic duality of “rational man” and “emotional woman” is explicit throughout the discussion of biomedicine and is challenged by feminist critiques as being a social construct (Turkel, 1995; Ehrenreich, 1993). Catharine MacKinnon, in her discussion of what she calls an issue of ‘dominance’, considered the idea that women are compared against the male model (MacKinnon, 1987). When considering issues of discrimination with regard to gender, one cannot look at sameness or difference, but at the place of dominance of men over women. The idea of gender neutrality comes from a male standard whereas gender difference is based in female tradition. But, MacKinnon states, “...do not be deceived: .. .maleness, is the referent for both” (MacKinnon, 1987). When applying this argument to women within health care, it is important to recognize the potential for continued dominance as long as a biomedical model utilized, regardless of whether women are viewed as “the same” or “different.” When examining illness or disease under a purely rational, biologically- defined lens, one can easily overlook what social factors may have had an impact on the evolution of the disease (Morgan. 1998). The point is not that rationality and objectivity are necessarily bad, but that an approach based entirely on this is 17 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. biased and not objective at all. Valuable information regarding the individual and her social interactions are ignored. The power of empathic emotion on the healing process is also lost (Williams & Mackey, 1999). While the number of women within the medical sciences is increasing annually, this has had a minimal impact on the medical system as a whole. By participating in a culture that is patriarchal and devalues women’s experiences, in order to be taken seriously, women must sacrifice a certain part of themselves that represents a more female-based approach if they wish to succeed. During medical school because they are socialized into the same way of thinking as their male counterparts they end up perpetuating the same values (Rosser, 1994; Davis-Floyd, 1992). The research agendas of medical institutions including those of individual physicians have overwhelmingly focused on the health needs of white, adult men. Even when disease has been studied outside of the classification of gender, white, adult males have been treated as the norm or model (Rosser, 1994; Moss, 1996). Findings have presented extremely biased results, typically leaving out persons of color and white women because they are usually not recruited as part of the research studies (Rosser, 1994. Moss, 1996). One example of this is heart disease. While white men are more likely to die of heart disease during mid-life, heart disease is the leading cause of death in elderly white women and women of color have substantially higher rates of heart disease during mid-life (Rosser, 1994; Bayliss, Downie, & Sherwin, 1998). Despite this, research has typically been 18 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. directed at causes and prevention of heart disease in middle-aged white men. Similarly, when new diseases are discovered, the focus has been on the detection of the disease with men. Another example was the case with early detection studies of the Human Immunodeficiency Virus (HIV). It was not until after 1993 that researchers stopped to consider the correlation between the likelihood of a positive test for HIV and a previous high occurrence of yeast infections in women (Rosser, 1994; Teare & English, 1996). The female body was consistently giving this sign as an indication o f the presence of HIV, but a “male thinking” medicine failed to take note and missed an opportunity to diagnose many women before the virus had taken a greater hold on their immune systems. This same pattern is replicated in drug trials. The hormone make-ups of individuals interact with drug compounds to produce both results and side effects. The hormonal make-ups of men have been classified as typical and stable, while women’s hormones, because of cyclical deviations, have been classified as unstable and thus abnormal (Rosser, 1994). The result of this is that potential side effects in women may remain undetected until after there have been enough reports of problems. Unfortunately, by this point the drug is likely to have been approved and to have been used by countless numbers of women, sometimes to the detriment of their health. In studies focusing on both psyche and physical conditions, the view of the male hormones as being “normal” is typical of the general view of the male as opposed to the female. The female body is viewed as being pathologic as is the 19 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. female psyche (Morgan, 1998). This has been called the medicalization of women (DeKonink, 1998; Norsigian, 1992). The relationship of women to medicine has been paralleled by the relationship of women to the law.3 Both medicine and law are hegemonic, androcentric cultures that devalue women and women’s experience. There is a shared mutual respect between physicians and lawyers that has negative consequences for women when confronted by both, particularly when they wish to exercise a right to reproductive freedom (Ehrenreich, 1993). The body as machine Perhaps one the most intriguing cultural determinants of biomedicine is the conception of the body as a machine (Martin, 1987; Davis-Floyd, 1992). This belief is based in the evolution of science and rationality. Historically, when man attempted to control nature, he moved from a religious perspective of the “cosmos” to a more mechanical view of it. This outlook places man in a much more appealing place - at the nexus of control. This framework was then systematically applied to the body (Davis-Floyd, 1992), which has significant cultural underpinnings: “The human body presents a profound conceptual paradox to our ’ I explore this briefly in Chapter 5, but do not discuss in detail as it is somewhat out o f the scope o f this project. Despite this, it is noteworthy to mention this peculiarity. Cases o f relevance where women have encountered the dual force o f both medicine and the law include but are not limited to the following: In re A.C., 539 A.2d 203 (1988); In re Madyun Fetus, 114 Daily Wash. L Rep. 2233 (1986); Davis v. Davis (1990) Tenn. LEXIS 466; International Union, UA W v. Johnson Controls Inc. I l l S. Ct. 1196(1991). 20 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. society, for it is simultaneously a creation of nature and the focal point of culture” (Davis-Floyd, 1992). Within medicine, physicians become the engineers in this natural- mechanical view of the body. When the machine breaks, the mechanic, or physician in this case, “fixes” it (Martin, 1987). This view of the body is especially significant when juxtaposed to the view that the body is natural and is able to function independently of medical intervention.4 This connotes that the body is “imperfect” (Wagner, 1994). The medical view of the body automatically imposes a level of control of biomedicine over human function. All of these cultural imperatives of biomedicine are further developed within medical specialties. The following section will examine these within the context of the field of obstetrics, with a focus on the United States. The Culture of “Modernized” Scientific-Based Obstetrics Ostensibly, childbirth in the United States is culturally neutral or without any cultural significance because it is widely based in allopathic medicine and thus rational and “scientific.” This is a misconception as childbirth has importance in all cultures (Callister, 1995; MacCormack, 1994). Medical anthropologist Robbie Davis-Floyd, after identifying United States’ culture as a technocracy, goes on to apply this notion to the American view of childbirth. Technocracy places a high 4 This view o f the body will be discussed in the subsequent section in midwifery. 21 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. value on science and attempts to force the concept of the body into that of a machine (Davis-Floyd, 1994). This ideology is defined as a manifestation of patriarchy. The male body is seen as the correct demonstration of the body- machine. Woman is viewed as being closer to nature and thus weak and to be dominated (Razak, 1990). Man has an overwhelming desire to overcome nature and make it succumb to his power. In an effort to control nature, man must control its effects on human beings. The most difficult manifestation of nature’s power is that of childbirth. Not only is it a powerful female process, but it is also unpredictable and will occur without intervention by man. Because it is unpredictable, it is difficult to control. Hence, technology is used as a cultural control over birth (Turkel, 1995). The creation of technological devices and medicines for the management of birth are efforts of man to “pathologize” a natural process and force it to submit to science. Both men and women in the United States are taught from birth to believe in the scientific process. Women are taught to give up their independence and power over their births and allow for complete control of the medical establishment. They become an observer in the process. They do not give birth to their babies; medical science, or the technocratic culture does. By creating standard hospital procedures for childbearing, medicine transforms birth into a predictable and manageable process (Davis-Floyd, 1992). Not only does technocracy place a high value on the technological aspects of medicine, but it also places high value on the hierarchical structure that is put 22 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. into place as a result of the cultural attitudes of allopathic medicine (Davis-Floyd, 1992). Technology maintains the authority of the physician. Because o f the extensive use of machines, the physician is needed to read the output and then make decisions based on these machine readings (Turkel, 1995). In addressing this issue, one author articulated it this way. “Is this the way men have transformed an event of nature, in which as fathers they are not required to take part, into a cultural ceremony in which the woman becomes an anonymous and inferior object and the male doctor the symbolically significant, life-sustaining agent? Seen from this perspective, medical men have become the high priests in the contemporary ritual of childbirth”(Callaway, 1978). Americans5 are taught to fear the unknown. Placing childbirth under the control of medicine eliminates the fear and angst associated with a truly natural birth. Medicine seeks to eradicate nature’s control thereby reinforcing the cultural beliefs in the supremacy of technology (Davis-Floyd, 1990). It also underscores the American value of heroism (Loustaunau & Sobo, 1997) in that the physician plays the role of the hero who saves both mother and baby from the throes of birth. Another factor that encourages the use of technology is the cultural attitude toward pain. Pain is viewed in a negative light in American culture (Trevathan, 1993: Morse & Park, 1988), a consequence of which is an increased desire to eliminate pain in childbirth, typically with anesthesia or analgesics. 5 In this paper, “Americans” connotes citizens o f the United States. 23 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Medicine’s Assumption of Power in Childbirth While non-traditional birth procedures do arise, they are either thwarted by medicine by not being allowed in hospitals or are assimilated into the male- technocratic process. Truly natural childbirth is a threat to medicine because it disposes of the notion that birth is pathological by replacing it with the conception that it is a normal and spontaneous process. In addition, it empowers women with the knowledge that they are strong and capable without a doctor’s care. Because of this, women who are aware of choices available to them often decide to have their children at home or in mid-wife operated birthing centers. The birth process is still strongly entangled with the medical establishment, even though women are increasingly given more options for birth, these options are usually in response to women choosing to have birth away from hospitals and in birthing centers, under the care of midwives. While there are many female obstetricians in practice in 2001, the specialty is still dominated by men, who in 1993 represented approximately 75-80% of the profession (LoCicero, 1993) (as is the entire medical profession within the United States). Even though women enter into obstetrical practice, as previously discussed, they are often socialized by the medical field during their education into the technocratic process (Davis-Floyd, 1992). There are many questions as to what is behind the desire for men to enter the fields of obstetrics and gynecology. Although there are undoubtedly men who choose this specialty for noble reasons, the main concern is with those who are driven by less than noble motivations. 24 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. One controversial theory is that of “womb envy” (Ruzek 1978). This psychoanalytic theory of Melanie Klein, called into question Freud’s concept of “penis envy” (Freud, 1990; Freud, 1952). Her theory is based on the premise that the original envy is actually that of boys who are unconsciously jealous of women’s reproductive capabilities (Klein, 1975, pp. 176-235; Klein, 1975, pp. 306-343; Colb, 1992; Diamond, 1986; Fast, 1994; Goldwater, 1989; Minsky, 1995). The application of this idea in this context could mean that in an effort to be able to “have a baby," some men choose the field of obstetrics. The birth process has been manipulated into a circumstance that puts women in the position of observer and the doctor into the role of “deliverer” of the child. This process fulfills a latent fantasy held by the male doctor and somehow overcomes his feelings of inadequacy (Ruzek, 1978). Men have used medicine, perhaps unconsciously, as the grounds for obtaining power as well as for overpowering women. Childbirth is a domain that is inherently female by means of biology. The fact is that a man cannot physically have a child by himself alone. By taking control over the birth process, male doctors can exercise their dominance to usurp the one role that women can fulfill. Doctor-Patient Relationship During Pregnancy and Childbirth Male doctors further their position of authority and power during the nine- month prenatal/pregnancy phase. During this time women have regular visits with their obstetrician during which they are treated paternalistically (Danziger, 1986). 25 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The form of the advice they give their patients often resembles that of a father speaking to his child. There are also expectations attached to the advice. It is not unusual for doctors to admonish their patients for behavior they deem unacceptable or for not participating in an activity they recommended. This admonition could even include the threat of punishment, e.g. threatening to put a woman in the hospital, so that the nurses can make sure she does not stay up too late (Danziger, 1986). One might question whether punishing a pregnant patient should be the responsibility of an attending physician. When women are poor or of the working class and without insurance, they encounter an even different scenario. Physicians have the option of accepting patients who are either uninsured or on public aid. Many doctors simply choose not to accept these patients, forcing them to search for care elsewhere. When assistance is found, there is no guarantee of quality. Both public and private facilities often treat poor women disparately from their insured counterparts. At public facilities, women wait all day to be seen while private doctors may also take advantage of these same women. One study of private, obstetrical practices in Chicago that found offices located in poor neighborhoods were nicknamed “Medicaid Mills.” The doctors would see as many patients as possible during the business day, and while purporting to give them pre-natal care, would, in fact, provide little meaningful health care. These physicians not only exploited these women for profit, but also put them at potential risk by allowing them to believe 26 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. their pregnancies were normal when problems may have actually existed (Mitford, 1992). During pregnancy, though women inevitably have a multitude of questions, doctors often treat the questions on merely a “need to know” basis. In other words, the doctor believes he has everything under his control. In the birth context this means the obstetrician has the control, and the woman does not (Weitz & Sullivan, 1985; Davis-Floyd, 1992). Unfortunately, women have been somewhat complicit in this process. While all patients tend to be submissive in the United States, this is especially true of women (Davis-Floyd, 1992). Perhaps because they have been socialized to accept what physicians tell them, most women, including those who are empowered politically, socially and/or economically, entrust their bodies as well as their unborn children to a man, whom often they have never met prior to their pregnancy. It is troubling that women so willingly submit to this authority and do not question or rely on their own judgments. This is directly linked to women losing control of a uniquely female process that is significant for the general empowerment of women. The Role of the Modern Hospital and Birth Procedures The condescending attitude of physicians often follows a woman into the hospital. She may well encounter nurses and aides who, having been socialized by the medical machine, will also treat her as a child during her labor. One young 27 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. woman explained that when she turned to a nurse for support and told her how painful her labor was, the nurse responded by asking, “Well, what did you expect?” She then walked away without offering any help.6 While the needs of all pregnant women are usually not met within the hospital, those of the lower classes have an even greater chance of being ignored. Most hospitals that accept women without insurance are usually overworked. These women are often attended by physicians they have never seen previously, a situation which can create both an uncomfortable and confusing scenario. One woman described her treatment in Los Angeles County-Harbor UCLA Medical Center. After her baby was delivered, she was not given a room, but was left on a hospital gumey in the hallway.7 Middle- and upper-class women and women with health insurance typically do not receive similar treatment. The comparison between the experiences of women from differing social classes is disturbing. There are various ways in which women succumb to the medical establishment. The birth experience in an American hospital is a largely technocratic encounter, from the moment a woman enters through the hospital doors (Davis-Floyd, 1992). Many procedures practiced throughout labor, delivery, and the post-natal period, are unnecessary and often are as dangerous as they may be beneficial. Why then, do hospitals and doctors, with very few exceptions, adhere to these procedures as if they were law? One of the most prominent 6 Personal confidential correspondence/interview. 7 Personal confidential correspondence/interview. 28 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. arguments in the literature concerning the need to adhere to standard procedures, is that guidelines are taught in medical school and during medical residencies that show the proper procedure for birth or “standard of care.” With the rising costs of malpractice insurance and fear of lawsuits, doctors see it as necessary to follow these guidelines in order to protect themselves. If they are ever sued they can show that they followed the accepted procedures in the birth in question (Livingston, 1987). In addition to this, the procedures become ritualistic (Davis-Floyd, 1992). There are other less than noble reasons for such strict adherence to these specifications of the birth process which I discuss later in this chapter. These procedures are often followed simply to make the birth process convenient for both hospitals and physicians even when they can often be detrimental to both the woman and her unborn child. Many procedures are followed in an effort to keep the birthing woman under control and the hospital staff, and, especially the doctor, in control. For example, it is clear that hospitals are run on a schedule. When a pregnant woman enters into a hospital, her labor and birth become part of that schedule, and the staff will make sure she “functions” like clock-work. In addition to the hospital’s schedule is the doctor’s schedule, which also plays a role in her delivery (Davis- Floyd, 1992). Modem medicine has created many ways to manipulate a woman’s labor and delivery. While many of these tools were created to be used when intervention was necessary, they have been interfused into the birth process in order to make it 29 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. more efficient. This efficiency is according to the hospital and/or attending physician’s definition (LoCicero, 1993). Maternity wards have a set amount of time until a woman is supposed to reach full dilation, (though naturally, this varies from woman to woman). If a woman is not progressing as rapidly as is desired, she is given a drug called pitocen, which increases her contractions. This drug is not without potential side effects to both mother and baby (Goer, 1994; Davis-Floyd, 1992). These problems include decreased oxygen to the baby due to pressure on the umbilical cord caused by strong or tetanic contractions and uterine rupture, also caused by tetanic contractions (Davis-Floyd, 1992). Further intervention can be the result of such problems. Though pitocen was originally created for women with problematic labors, it is usually given only to expedite the process. This is not necessarily a benefit to the mother as a longer, natural labor may ultimately be less painful than a shorter, induced one many also reduce the need for other interventions. An example of an intervention with adverse effects was the case of one young woman in Los Angeles. She was a primapara and had seen an obstetrician throughout her pregnancy. When her due date arrived, she had not begun having labor contractions. As the day wore on, her doctor expressed concern and told her that he would like for her to check into the hospital to have a pitocen drip started. She began having contractions from the pitocen, but her cervix did not soften or dilate as quickly as the contractions began to build. After her membranes were artificially ruptured, she developed tetanic contractions and the baby was basically 30 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. being battered against her pelvic bone. She began to go into distress, both psychologically and physically and the fetal monitor began to pick up distress in her baby. She was rushed into the delivery room for an emergency Cesarean section.8 Whether or not she would have developed complications without any intervention is undetermined, but there were no signs of any other than that her labor had not begun.9 Her entire experience may very well have been prevented by allowing nature to run its course. Another way that the hospital exercises its scheduling and control over the mother is by giving her an amniotomy or artificial rupture of the membranes. This is performed to speed up a woman’s labor as well as perform other procedures. This has drawbacks including a risk of fetal infections from inserted instruments, greater pressure on the baby’s head and increased chance of perineal tears in the mother. If the woman was in false labor and an amniotomy was performed, labor will have to be induced, resulting in a premature birth (Davis-Floyd, 1992). In order to determine cervical dilation, periodic checks are done. The frequency with which these exams are performed is only because the doctor and/or hospital wants to be able to keep the woman up with the hospital time table. If she has “fallen behind” the hospital's time clock (known as the Friedman curve), labor will be induced or accelerated. There is an increased chance of infection with each exam performed and the exams are usually extremely painful (Davis-Floyd, 1992). 8 Confidential personal communication. * 1 acknowledge that there can be danger if a baby is significantly overdue. 31 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Once the hospital has determined that a woman has reached full dilation of ten centimeters, the staff will encourage her to begin pushing. If she is in a hospital that has separate labor and delivery rooms, she will need to be transferred. Once she is en route, she will be told to stop pushing. If the woman should deliver her baby in the labor room or the hallway before she gets to the delivery room, her delivery would be classified as “precipitous.”1 0 It is not considered the error of the hospital staff, even though they decided too late to take her to delivery. If she should take a long time in delivery, it would be reason for concern by the doctor and staff, not an issue of her being taken to delivery too soon (Rothman, 1996). If the woman’s birth does not operate according to the hospital’s schedule, it is deemed as “irregular” and “pathologic.” All of these characterizations reflect the degree to which birth is subject to social control. The terms indicate belief that there is one correct way to proceed (Davis-Floyd, 1992). Birth interventions of any kind often occur simply because of the clock. One study noted that nurses at one hospital were aware that pitocen augmentation would not begin until close of business at the attending physician’s office. At another hospital, the nurses were aware that Cesarean sections were usually performed after office hours (Danziger, 1996). The study also showed that procedures are often used as a convenience for the doctor and the hospital (Danziger, 1996). It could also be inferred from these findings that hospitals and 1 0 Her labor would be considered early. This holds a negative connotation and is attached to the woman. 32 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. doctors rely upon these procedures to keep control of the process and force it to fit their schedules. Another major intervention that obstetricians utilize, is the Cesarean section (C-section). Since doctors usually consider childbirth pathological, they foresee it as fraught with peril. The rate of Cesareans in the United States is approximately twenty-five percent (LoCicero, 1993). Since the Cesarean section’s main purpose was for intervention in life-threatening instances, it seems highly unusual and unrealistic that one-quarter of births in the US require such an intervention. Delivering a baby by Cesarean is really the ultimate means by which doctors can wield their power over women and take charge of the birth. One physician stated his feelings. Performing a Cesarean is the one time that truly gives you the feeling of delivering the baby...my hand grasped the head of the baby and assisted it out through the incision. I felt a sense of excitement and of power and of personal accomplishment that is not present in a vaginal birth. This is the time the obstetrician truly delivers the baby; in a vaginal birth it is the mother (Davis-Floyd, 1992). Not only do interventions give doctors more power and control during the birth process, but other medical practices during birth do so as well. Probably one of the most obvious of these is that of the traditional medical birthing position. The lithotomy position, as it is called, places a woman on her back, with her feet in stirrups and her hands are sometimes tied to the bed. This position can cause a multitude of problems that contribute to an increase in pain. The delivering mother not only has to push the baby out, but up against gravity. When considering this, as Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. well as the fact that lying flat on the back actually causes contractions to be weaker, the woman in delivery will assuredly encounter a more difficult labor than she should. The only reason given for this position is that it is more convenient for the attending physician to intervene, if needed (Davis-Floyd, 1992), and its use is not scientifically supported (Dundes, 1987). It must be added that these interventions are frequent, even when they are not clearly needed. The examples given of ways that doctors and hospitals exercise their power and control over women represent a sample of the universe of these practices. These procedures can function for two purposes beyond their original medical purposes. The first is that they put physicians into complete command of the birth situation. The second function is economic. The more procedures that are “needed” or utilized, the higher a woman’s hospital bill and the more financial gain for the doctors. This is possibly the reason why women of the lower socioeconomic status are often not subjected to the high number of interventions that women of the higher socio-economic classes and those with insurance experience. In addition to this because physicians may already feel sufficient power over women of a lower social class, they do not need to exercise any special control over these women. Not giving them responsive care or the attention needed to administer extra procedures is an act of power in itself. The male-medical establishment has succeeded in achieving a place of preeminent authority and hegemony in childbirth in the United States. Despite this, those who prefer to experience childbirth in a way that is based in values and 34 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. beliefs that existed long before modem medicine was bom continue to express their dissatisfaction with the medical model. For those women who realize their lack of power and look for other healthcare options, the midwifery approach to childbirth is an appealing alternative. The Midwifery Model of Childbirth The woman-centered midwifery model focuses on birth as a natural event. The midwifery model empowers women to recognize their ability to accomplish childbirth successfully. This value system is rooted in a deep historical and cultural context where birth is the sole territory of women. Women rely upon one another through support and shared knowledge in this female process. While there is an overlap in the general knowledge base of midwives and physicians, beyond such things as anatomy and bacteriology lies completely opposite value systems whose foci are rooted in differing beliefs (Rooks, 1997). Where the physician’s concentration is on pathology in order to treat the “disease,” the midwife focuses on the normal and cares for the subjective woman (Wagner, 1994). While most midwives do work in hospitals, the values that are a part of the midwifery profession are a result of a long, rich history of “normal” births that took place at home (Rooks, 1997). As a result of this, midwives have become self- empowered to “protect, support and enhance” the natural birth process (Rooks, 1997). While they acknowledge that there are risks in childbirth, they do not enter the process expecting them. The midwifery approach does not attempt to control or 35 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. try to improve the process. Midwives recognize that by trying to do this, it not only disrupts the natural order of what is unfolding but can also lead to undesired or harmful consequences (Rooks, 1997). Because of the relative unlikelihood of complications developing, midwives treat complications by intervention when they develop. They do not use intervention to prevent a complication. They are aware of the limitations of science with relation to childbirth (Rooks, 1997). Because childbirth is viewed as a natural spontaneous event, the range of normal varies considerably (Rooks, 1997; Rothman, 1996), and there is an immeasurable subjective-dynamic aspect; it is impossible to fully measure birth using modem scientific medicine. Midwives view women’s knowledge as being at least as important as scientific knowledge (Turkel, 1995; Rothman, 1989). The relationships between midwives and pregnant women are non- hierarchical, regardless of race, ethnicity or social class. Rather than being classified as a patient, parturient women are seen as clients (Lichtman, 1988). Their relationship is more of equals. While the midwife is typically much more knowledgeable about pregnancy and childbirth, this knowledge is more of a sharing rather than an imposed, forced transfer. This enables the pregnant woman to make her own choices (Rooks, 1997; Rothman, 1996; Ehrenreich, 1993). By getting to know their clients personally, midwives are able to care for the whole person. They view the needs and desires of pregnant women as being inseparable from those of their unborn children. Pregnant women are encouraged by midwives to 36 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. take control of their births and to be active in monitoring and making decisions throughout their pregnancies. The midwife’s interests during pregnancy and birth are the needs of her client. She views birth as the pregnant woman’s experience and sees her role as being present to assist the woman in the delivery of her new baby (Rooks, 1997; Turkel, 1995). While a healthy baby and mother are certainly a priority in birth, she recognizes that these are not the only important outcomes from childbirth (Rooks, 1997, Rothman, 1996; Ehrenreich, 1993; Rothman, 1989). She places high value on the desires of her client. Having a birth that meets the mother’s needs is also an important goal. She understands that a birthing woman’s life, relationships, religion and cultural-belief systems are part of who she is. These will affect her pregnancy and birth (Rooks, 1997; Turkel, 1995; Lichtman, 1988). The midwife helps her negotiate these social and environmental factors during her pregnancy, birth and also postpartum (Rooks, 1997; Gaskin, 1990; Finn, 1995). Midwives encourage family involvement because pregnancy and birth are seen a time for building and strengthening the relationships that already exist (Razak, 1990). In this context, the midwifery philosophy emphasizes respect for the diversity of families. They educate families to help them prepare for the adjustments that will occur following the birth of a child (Turkel, 1995; Rooks, 1997). As the midwifery approach recognizes, childbirth is a highly individualized experience that is rooted is cultural, spiritual and historical values. Because of its 37 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. holistic approach to birth, midwifery allows women to experience birth as they see fit. The commitment to both successful outcomes and personal integrity allows midwifery to be continuous with women’s experiences. Midwifery exemplifies “feminist praxis” (Rothman, 1989). It is a vital, yet endangered aspect of woman’s culture. 38 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 3 A BRIEF HISTORY OF CHILDBIRTH IN THE UNITED STATES Childbirth in the United States has shifted from the hands of women to those of an overwhelmingly male-dominated profession o f obstetrics. This chapter will trace the shift from female-control to male-control of birth in the United States.1 1 This is important because it provides a point of reference when discussing the current situation of childbirth in the United States. It also demonstrates what can happen to women in the birth process when interventions are used at an increasing rate. This is important for when examining birth cross-culturally as will discussed in Chapter 6. In early colonial America, women were attended by their female friends and relatives during birth. A birth was a time that women shared together; a time of female bonding (Howell-White, 1999). The actual birth was overseen by a midwife (by definition this literally means “with-woman"). Midwives usually had little or no formal training who simply used their experience with their own births and the cumulative experience they acquired from assisting women. They were often highly respected members of the community, sometimes partially supported 1 1 This is not meant to be a comprehensive history o f childbirth in the United States, but is meant to provide the major events and changes in birthing practices as well as an examination o f the key players in birth in the United States. 39 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. by the township where they resided. Some states required that they be licensed, but character was the most important quality (Donegan, 1978). There are little data that show whether colonial midwives were a danger to birthing women. Despite negative stereotypes of early midwives, there are several reasons that led to the belief that mothers were not at risk. There are limited cases of incompetence and little criticism, as well as no recorded epidemics of maternal illness caused by midwives (Wertz & Wertz, 1977). In the few instances of complaints against a midwife, the woman was usually barred from practice or tried in court. In fact, reputable midwives were generally highly sought after by communities (Rooks, 1997). The role of the Christian church in childbirth was evident. Midwives who had practices that ran counter to the beliefs of the church were often charged with witchcraft (Donegan, 1978; Wertz & Wertz, 1977; Rooks, 1997; Litoff, 1986). Birth was seen as a highly religious event, which was a time of judgment for the mother. A successful birth with a healthy child was a good sign from God while a problematic delivery, stillbirth or sick or disabled child was seen as a result of God’s wrath. Women were conditioned to fear birth through the teachings of the church. For ought you know, your Death has entered into you, and you may have conceived that which determines but about nine months at the most, for you to live in the world. Preparation for death is that most reasonable and most seasonable thing, to which you must now apply yourself (Wertz & Wertz, 1977). 40 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Although death directly from childbirth was not a great risk to women, the birth process was approached it with dread rather than joy (Wertz & Wertz, 1977). This was again partially due to religious teachings as well as added responsibility of another child and the lack of strength to return to housework directly following birth. Childbirth was more physically draining for women in this period of time due to poor nutrition and because of engaging in physical labor, such as farm work, up until the actual time of labor. When possible, a woman’s mother would stay with her and allow her to take a month of “lying-in” or bed rest to regain her strength after birth (Wertz & Wertz, 1977). The second half of the eighteenth century saw an influence of European- taught obstetrics on American men who took their newfound trade to colonial towns (Wertz & Wertz, 1977; Sullivan and Weitz, 1988). There was a great value attached to modesty and as a result, there was significant resistance to the use of these man-midwives (Donegan, 1978; Roush, 1979). Despite opposition, use eventually increased because man-midwives capitalized on what they identified as the dangers of childbirth (Sullivan and Weitz, 1988; Donegan, 1978). The reality of the interventions practiced by these new man-midwives often caused greater problems which in turn, created an even greater need for intervention. As a result of this, most female midwives kept their view of birth as a natural event (Howell- White, 1999). These doctors relied on childbirth as a cornerstone of their medical practices and therefore began to attempt to discredit their competition, female midwives, by challenging their ability (Donegan, 1978; Reed & Roberts, 2000). 41 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Those in the field of medicine began to create a new image of childbirth by placing emphasis upon what they perceived to be the correct role of women. The attendance of a birth evolved from strictly a woman’s responsibility to something unfeminine and inappropriate. This period marked the beginnings of politics surrounding childbirth. Initially, these politics were of a more economic nature. The male-dominated medical system began to discredit the practice of midwifery because it posed a threat to medicine’s financial gain. The early part of the nineteenth century gave rise to medical schools in the United States and the founding of schools at institutions such as Harvard and Columbia. In addition to these prestigious medical schools, many small proprietary schools opened their doors at the same time. These schools, run by European- trained doctors, were for the most part unregulated. The programs were short, often only a few months, after which the students were given diplomas and the title of doctor. It is worth noting that the only specialty taught was obstetrics, and it usually did not include any practical experience (Wertz & Wertz, 1977; Borst, 1995). As a result of the multitude of tiny medical schools, a great number of women were attended by doctors with no experience and limited knowledge, formal or informal, of childbirth. These doctors used each birth as an experiment in delivering a baby, often intervening when intervention was not necessary. This was usually done because the doctors felt they needed to “perform” as a doctor. This intervention caused the evolution of the belief that birth was pathologic and in 42 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. frequent need of physician assistance. It also supported the notion that women’s bodies and the natural process were inadequate, an idea which came to be accepted by both doctors and women. Physicians capitalized this idea to gain dominance over childbirth by contending that women and their unborn children would be safer under their care than that of midwives (Amey, 1982). Because doctors were unaware of the existence of bacteria and had no means to practice effective antisepsis, these medical interventions gave rise to the great amount of postpartum puerperal fever. Indeed, this was the main cause of maternal death during the nineteenth century (Leavitt; 1986; Sullivan & Weitz, 1988). Female midwives still continued to practice on a wide basis into the mid nineteenth century. As a result of dissatisfaction with doctors, new practices and practitioners for childbirth began to emerge. These practitioners were classified as “irregulars” and included Thomsonian botanists (herbalists) and Homeopaths (Donegan, 1978; Wertz & Wertz, 1977; Ehrenreich, 1978). The fact that so many different practitioners were available was a great frustration to “regular” doctors and reflection dissatisfaction. The American Medical Association was founded in 1848 in an effort to exclude “irregulars” from practice as well as set enforceable regulations for “regular” practitioners (Sullivan & Weitz, 1988; Wertz & Wertz, 1977). Medical doctors continued to discredit female midwives by explaining why it was inappropriate for women to be employed as physicians. They described women as being too delicate to be physicians (Donegan, 1978; Sullivan & Weitz, 43 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 1988). They also maintained that the stress associated with being a doctor could cause irreparable damage to female reproductive systems. In addition to this, physicians claimed that menstruation caused “insanity,” which would disqualify women from the medical field (Wertz & Wertz, 1977). Women were also portrayed as not being intellectually capable of becoming doctors. Despite these widespread ideas about women’s attributes, a few women managed to join the medical profession, mostly in an effort to assist other women. The end of the nineteenth century saw the decline of female midwives among the middle and upper classes. It was considered more fashionable and appropriate for a woman to be attended by a doctor during childbirth. Midwives continued to practice among the poor and immigrants (Wertz & Wertz, 1977). While upper- and middle-class women continued to deliver their children at home, birthing hospitals were opened in urban centers for indigent women. These hospitals were used as teaching institutes where women were subject to the full authority of the doctors. This was the beginning stages of the evolution of the modem doctor-patient relationship (Ehrenreich & English, 1978; Wertz & Wertz. 1977). Childbirth was also fully medicalized during this time (Howell-White, 1999). Because women wanted safe, less painful deliveries they willingly adhered to the medical paradigm (Howell-White, 1999; Borst, 1995). There were still women though, who, as a result of tradition or lack of finances, continued to use midwives. “The Midwife Problem” (Edgar, 1911) and how to eliminate it, became a central issue for the American medical institution. A discussion developed as to 44 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. whether to educate, eliminate or place under state control all practicing midwives. While the debate centered on the health of the public and the lack of midwives’ training, there was clearly an underlying concern about competition. “Some 30,000 women have taken enough practice away from the physicians to obtain a livelihood” (Emmons & Huntingdon, 1912). Some entertained the ideas of education and licensing because “the evil cannot be eradicated” (Edgar, 1911), but there was clearly an emphatic preference for the elimination of midwives (Ziegler, 1913; Emmons & Huntingdon, 1912). The first few years of the twentieth century saw the importation of “twilight sleep” from Germany. This method of anesthesia kept women in a semi-conscious state throughout labor. It simply removed the memory of actually giving birth from these women’s minds, thereby eliminating negative feelings toward childbirth. Its use was widely sought by women who felt that childbirth involved too much stress and too much physical pain for women. Despite enthusiasm for its use, it was not without great side effects, some of which jeopardized the safety of the unborn baby. Because of the problems associated with it, medicine eventually phased out its use (Sandelowski, 1984; Rooks, 1997; Wertz & Wertz, 1977; Leavitt, 1986). Hospital births rose rapidly after medicine established its dominance. By the 1920s, hospital births accounted for fifty percent of urban births. The percentage rose to seventy-five percent by the beginning of World War II and by 1960. hospital births accounted for almost one-hundred percent of all urban and rural births (Wertz & Wertz, 1977). This rapid movement into hospitals was 45 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. encouraged by the medical establishment for many practical reasons. The main purpose was to gain full control of childbirth by excluding midwives (Howell- White, 1999). This marked “.. .another step in the passing of power over the birth process from traditional female to professional male” (Mitford, 1992). Childbirth during the twenties through the forties was marked by the rise of prophylactic obstetrics and the continued use of drugs to eliminate pain during birth, an experience that was seen as being so dangerous that it was compared to warfare (Sandelowski, 1984). The prophylactic procedures were highly invasive and restrictive: shavings and enemas, handcuffing to the bed, tying women’s legs together to prevent delivery in the labor rooms, a routine combination of episiotomy and instrument delivery assisted by fundal pressure. For the lay person, this form of delivery equated to cutting the woman’s vaginal opening, reaching in with forceps to pull the baby while an assistant pushed on her abdomen to force the baby out (Arms, 1975; Wertz & Wertz, 1977; Sandelowski, 1984). While births in hospitals were bound in technology, midwives continued to practice on a smaller scale and births outside of the medical paradigm were a small percent of all births. During the mid-1950s, the American College of Nurse- Midwifery (later renamed the American College of Nurse-Midwives) was established in an effort to increase professionalization and lobbying strength (Devries & Barroso, 1997; Rooks, 1997). Nurse-midwifery programs began to become part of medical schools as a result of the postwar baby boom. Because 46 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. obstetricians were overworked, midwives provided the necessary relief (Rooks, 1997). As a result of disappointment and frustration with doctor and medical intervention during pregnancies, the period from the 1960s through the 1980s saw the emergence of the alternative childbirth movement. This can be attributed to an increased lack of trust in authority that was a sign of the times, disappointment with birth experiences, and increasing political clout of women. It is noteworthy that this was the second time in American history that new medical practices came about out of dissatisfaction with traditional medicine (the first was the rise of “irregular” practitioners during the mid-nineteenth century). The most prominent methods during this period included Dick-Read, Leboyer, Bradley and Lamaze. The Dick-Read method from Great Britain was much more holistic as it sought to reduce fear of birth and thus overcome pain psychologically, rather than pharmacologically. This method, while placing the power back into the hands of women, emphasized motherhood as the central role of womanhood. While the truly natural procedure was desirable, the conceptual grounding of this method was problematic. This method was not as popular in the United States because it stripped doctors and hospitals of their power and absolute authority (Arms, 1994; Davis-Floyd, 1992). Leboyer, a more gentle method of birth that was imported from France, still allowed intervention. The birth was performed in a darkened delivery room, so that the baby would have a more gentle entrance into the world. After birth, the baby 47 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. was placed into a “Leboyer Bath” that would simulate the watery nature of the womb (van Olphen-Fehr, 1998). The Bradley method was a husband-coached method. It was designed for husbands because Bradley believed that their knowledge and presence during birth would help their wives relax and alleviate any fear that they might have. In contrast to other mammals, human females, did not have the ability to relax during birth without assistance, or so thought Bradley (Richardson-Gates, 1995). Lamaze, which is still popular in 2001, worked in conjunction with the hospital and the technocratic birth process. Interventions and medications were consistent with this technique. Early Lamaze books actually preached the superior knowledge and power held by the physician. As quoted from a Lamaze book, In all cases the woman should be encouraged to respect her own doctor’s word as final... It is important to stress that his job and hers are completely separate. He is responsible for her physical well-being and that of her baby. She is responsible for controlling herself and her behavior” (Davis-Floyd, 1992). Women and their partners are trained in classes to focus on the woman’s breathing. This keeps the laboring woman busy, so that the physician can take control of the actual birth (Livingston, 1987). While popularly considered to be “natural childbirth,” it is based on the technocratic model of birth and doctors have utilized it in order to maintain their authority in birth (Davis-Floyd, 1992). Also as a result of the consumer demand for more natural births, hospitals began creating alternative birthing centers. Rooms in the maternity ward which were set aside for this were decorated more comfortably. They allowed a woman 48 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to labor, deliver and then stay in the same room. Along with these rooms, the hospitals would have more flexible visitation policies that permitted “rooming in” of newborns with their mothers. The reality of these birthing centers was that the technology of the modem hospital was on the other side of the wall and could easily be transported into these rooms (Kahn, 1995). Despite the hospital’s response to consumer demand, birth interventions did not decline; the steady high level of the rate of Cesarean section serves as a good example. During the progressive periods of the 1960s and the 1970s, traditional midwifery responded to the desires of anti-establishment with the creation of such communes as “The Farm” (Gaskin, 1990) in Tennessee. Women would travel great distances to have a truly natural birth at this relatively renowned place. Nurse-midwifery began to grow during this time as a result of the cost- effectiveness of midwifery services (Rooks, 1997). This furthered the use of nurse- midwives during the last two decades of the twentieth century. With the rising cost of medical care, the demand for public health services, and the emergence of health maintenance organizations (HMOs). nurse-midwifery was a logical choice. Despite the increase in the demand for midwives and studies based in various methodologies showing both the dangers of medical interventions and the excellent outcomes of natural births attended by a midwives (Davis-Floyd, 1992; Greulich, Paine, McClain, Barger, Edwards, & Paul, 1994; Rooks, Weatherby, Ernst, Stapleton, Rosen, & Rosenfield, 1989; Weitz & Sullivan, 1985; Yankou, Peterson, Oakley & Mayes, 1993; Goer, 1994; Suarez, 1993), natural births attended by 49 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. nurse-midwives1 2 only accounted for approximately nine percent of all births in the United States in the year 2000.1 3 This chapter has provided the background of childbirth in the United States. This history is helpful to understanding the current tensions that exist in the midwifery profession. In the following chapter, I will identify the barriers surrounding the practice of midwifery and whether they violate a woman’s right to choose a birthing assistant. 1 2 Because o f the varied legal status o f non-nurse midwives, it is difficult to estimate the number of births attended by these practitoners. 1 3 Personal communication, Dana Silverman, Professional Services, ACNM. 50 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 4 THE REGULATION OF MIDWIFERY There are numerous barriers to practicing midwifery in the United States. These barriers directly interfere with women’s ability to access this form of woman-centered childbirth care. There are two different categories of midwives in the United States: Certified Nurse Midwife (CNM) and non-nurse midwives. The second category includes Certified Midwives, Certified Professional Midwives, Licensed Midwives and Direct-entry or Lay Midwives. Certified Nurse Midwives are college-educated persons who have completed a special program in nurse midwifery and passed a national certification exam as well as other requirements of the American College of Nurse Midwifery (ACNM). Certified Nurse Midwives attend women in a hospital setting, free-standing birth center or, state law permitting, in their homes. Non-nurse midwives receive their training through a variety of ways, depending upon the classification under which they fall. For example, Certified Midwives receive their training through a combination of academic training and practical experience approved by the ACNM, but are not required to be nurses. Direct-entry or “Lay”midwives are individuals who have practical experience in the role of midwife and usually have no formal training as a primary care-giver in obstetrics, while they often have informal training via their own various professional organizations, both local and national (Rooks, 1997). They assist women not only 51 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. in their homes but also in birthing centers. As Certified Nurse Midwives can legally practice throughout the United States, licensing is not as much of a concern for this category of midwife as it is for Direct-Entry Midwives (DEM). In this chapter, I focus on CNMs and DEMs in the United States1 4 as these are typically the categories of midwives discussed in the law. Despite the appeal and therapeutic benefits of midwifery, they face numerous legal barriers. Licensing and Regulation CNMs practice legally in all fifty states, while DEMs face varying levels of recognition. One of the most controversial issues and a problem facing midwives in 2001 is licensing and regulation. Regulations are handled on a state-by-state basis, and little uniformity exists between the states. The problems surrounding licensing and regulation include such issues as classification of midwives, under what jurisdiction are midwives held accountable, and restrictions and boundaries placed on the scope of practice. Legislation is often vague when discussing the right to practice medicine with regard to midwifery licensing. The law often does not state specifically what the practice of medicine entails, or expresses it as merely treating those afflicted. The definition of pregnancy as being pathologic is recurrently an issue here. Is the assistance in childbirth the practice of medicine or simply aiding a spontaneous, biological event? The medical community defines 1 4 Certified Midvvives (CMs) make up a very small group o f midvvives. Issues o f legality are, by definition, focused around CNMs and Lay-midvvives. 52 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. birth as being natural, but fraught with pathologic dangers. Midwifery defines it as being completely natural. The legal community has tended to lean toward the medical interpretation because of mutual admiration for increased professionalization that limits access to the field. DEMs face the greatest boundaries with regard to licensing. Many states only allow for the licensing of CNMs. A few allow Direct-entry midwives to practice without any sort of regulation, but many either explicitly specify that only CNMs can legally practice or stipulate that only midwives who can meet the criteria expressed in the regulations may practice. While the rules may not specifically demand that the midwives have to be CNMs, the requirements effectively eliminate any midwife who does not fall into the category of CNM. A few states allow for Direct-entry midwives who hold a license to practice, but no longer issue licenses. This practice is undermining the profession of Direct-entry midwives in these states. There have been a series of state-level cases that have dealt with the licensing of midwives. The c?'-es have stemmed either from the prosecution of a Direct-entry midwife who was practicing illegally as legislatively defined or by Direct-entry midwives challenging laws that effect their ability to practice. The issue of privacy was often central in cases challenging the restriction of midwives because they arguably limit a woman’s right to choose her birth attendant. The first case to address licensing was the California case of Bowland v. Municipal Court of Santa Cruz (Bowland et al. v. The Municipal Court..1 9 7 6 ). 53 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Direct-entry midwives were allowed to practice in California with a license. Bowland was practicing as a midwife without a license. One of the principal factors at issue was the precise definition of Direct-entry midwifery and whether it included the practice of medicine. Bowland stated that Direct-entry midwifery was not the practice of medicine but rather was attending to women in childbirth; a condition that is not pathologic, but natural, and therefore should not be held to the law that required individuals that attend to the “sick or afflicted” to be licensed. While agreeing that pregnant women are not sick, the state rejected Bowland’s argument citing the statute, stating that midwifery applies to any person “who.. .treats.. .for any...physical condition of any person.” Bowland also disagreed that the regulation prohibited Direct-entry midwives from attending pregnant women and argued that this violated their right to privacy. The court rejected this as well.1 5 Practicing Medicine Without a License Several cases followed Bowland which dealt with states that only allowed for the licensing of CNMs and excluded Direct-entry Midwives (Smith v. State Ex Rel. Medical Licensing Board, 1984; Colorado v. Rosburg, 1991; State v. Kimpel, 1995; Hunter v. Maryland, 1996; Board of Nursing & Osteopathic Examiners v. Jones, 1977; Lang-Kessler et al. v. Department of Education of the State of New York, 1997). There were two recurring themes in these cases: whether midwifery, 1 5 Privacy within the context o f Bowland will be discussed in detail in the following chapter. 54 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. specifically Direct-entry midwifery, was, in fact, “the practice of medicine” and, whether there existed a right of privacy for the pregnant women to choose their birth attendants.1 6 In each case only CNMs were recognized as being able to practice, and, in each case, midwifery was equated to the practice of medicine. Sammon v. New Jersey Board of Medical Examiners (1995) addressed the requirements of licensing in the state of New Jersey. The state did not disallow Direct-entry midwives from practicing but had requirements that were out of reach for most individuals in this category, effectively preventing them from acquiring the ability to become licensed. In another federal case, based on the argument that midwifery was not the practice of medicine, a woman challenged an Illinois law that regulated the practice of medicine (Peckmann et al. v. Thompson et al., 1990). While the law did not specifically state that Direct-entry midwifery was the practice of medicine, two midwives were successfully prosecuted under this the law. The court found that the state had the right to define midwifery as such and regulate it according to its discretion, but needed to be specific in its definition of midwifery under the law. The debate continues over whether the licensing of midwives is a way for medicine to maintain control over them and to continue its dominance in obstetrical care (DeVries, 1983; Weitz & Sullivan. 1985; DeVries, 1996) or whether regulatory control is necessary to protect the profession as well as public safety (Yagerman, 1982; Reilley, 1986). 1 6 This is be discussed in detail in the following chapter. 55 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Regulation of midwives has been viewed as a hostile political act by some scholars, midwives and midwifery advocates (DeVries, 1996). While some might contend that regulation, in an attempt to license midwives, would afford them greater autonomy, it may actually serve the opposite function. Licensing for DEMs is a “double-edged sword”; to be given legal recognition is to obtain the status of a legitimate profession but it comes at the cost of losing autonomy. Direct-entry midwifery has often been an effort to reclaim birth from organized medicine in order to restore it to the domain of woman. Licensing by the state is antithetical to many values and the basis upon which Direct-entry midwifery is built. DEMs argue that what they practice is not medicine but an art form and should thus not be placed under any sort of medical regulation. The medical community is able to retain its place of dominance by both its political power and because of the faith and cultural value that people have placed in the scientific process (DeVries, 1996). It has also been argued that regulation is necessary to preserve the profession in order to allow it to win the respect it deserves (Reilley, 1986). With regulation, the different categories of midwifery ideally could be merged into one; that of “professional midwife” (Reilley, 1986). The requirements to obtain this title would give individuals the option of pursuing the educational route than CNMs follow in the 1990s or utilize the practical course followed by licensed-lay midwives. This would eliminate not only confusion but also the preferential treatment of medically trained midwives (Reilley, 1986). The unification of the differing groups of midwives might increase the political voice 56 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and lobbying power of the profession, making them a more viable opposition to the political authority held by the medical establishment. One important aspect of regulation of midwifery that has generated controversy includes the use of regulatory boards. These boards are the designated bodies in the states that ensure that midwives are practicing according to the law. Regulatory Boards In Leigh v. Board of Registration in Nursing (1985), a registered nurse, Janet Leigh, was practicing as a lay-midwife. The registration board suspended Ms. Leigh’s license for three reasons: they believed that she was practicing nurse- midwifery without a license, without the board’s approval, and in homes (an illegal setting for a nurse-midwife). Because the board did not have the authority to regulate midwifery performed by lay persons, Leigh argued that the board did not have the right to suspend her license. In addition to this, she claimed that she was herself denied due process and the right to practice her profession. She also advanced a due process argument on behalf of pregnant women. These women were being denied access to lay-midwifery services in their homes. The court found that the board did have authority to suspend her license grounded in gross misconduct as a nurse, but they did not have grounds to discipline her for her actions if she was considered a midwife. With regard to her due process challenges, the court stated that Ms. Leigh did not prove that the existing legislation denied her this. Centered in the idea that the court believed the board may have 57 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. been reprimanding Ms. Leigh for her midwifery practice and not for her actions as a nurse, the court remanded the decision back for reconsideration by the board. In Leggett v. Tennessee Board of Nursing (1980), a registered nurse was engaged in the practice of lay-midwifery. The Tennessee Board of Nursing revoked her license because it thought she had violated the rule that a nurse could not act as a nurse-midwife without the proper education and authorization of the board. The local court reversed the board’s decision finding that the board had no authority “to discipline” (Leggett, 1980) Ms. Leggett when performing as a lay- midwife. The decision was upheld on appeal. Both of these cases speak to several issues, not the least of which was that there has been a failure to define the practice of midwifery clearly. There is a confusion between nurse midwifery and direct-entry midwifery. It is also apparent that in both cases the boards reprimanding these women are boards of nursing. These cases would perhaps never have made it into the court system had the regulatory boards overseeing them been midwifery-specific boards, boards that understood the scope of practice of both nurse-midwifery and direct-entry midwifery. In the majority of states, the agency that oversees nurse-midwifery is the Board of Nursing (American College of Nurse Midwives, 2000). Only two states have midwifery-specific regulatory agencies (American College of Nurse Midwives, 2000). As an independent profession from nursing, it would seem logical that CNMs should have the authority to regulate themselves rather than a 58 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. general board of nursing. A board made up of CNMs would be the most qualified to regulate other midwives because they know the standard of care for midwifery as well as would want to uphold the quality of their profession. Direct-entry midwives are regulated by a variety of agencies including, but not limited to, Departments of Health, Medical Boards, Departments of Human Resources and even a Board of Alternative Health Care (American College of Nurse Midwives, 1999). Depending upon the make-up of these boards, DEMs potentially face an unsympathetic audience. For some, merely having their profession regulated by a board made up of other professionals is a submission to authority - a willingness to give up autonomy and tacit consent to being judged and in need of supervision by other professionals. By placing DEMs under regulation, midwives are being placed in a submissive role as most review boards are made up of non-midwives or if not must answer to a medical board (DeVries, 1996). Regulation of Home Births In Leigh the key argument was that restricting midwifery from entering the home, the nursing board constituted an infringement upon women’s right to privacy1 7 with regard to family and procreation that was recognized by the U.S. Supreme Court in Roe v. Wade (1973) and Griswold v. Connecticut (1965). Leigh 1 7 This will be discussed in detail in the next chapter. 59 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. claimed she had standing in this instance because of her professional relationship with this group of individuals. Despite studies that have demonstrated the safety of home birth (Murphy & Fullerton, 1998; Anderson & Murphy, 1995; Declercq, Paine, & Winter, 1995; Jackson & Bailes, 1995; Gaskin, 1990), debate surrounding the safety of this practice continues. Some claim that it will be practiced with or without regulation, and thus it is important to ensure that it is as risk-free as possible. Regulation is necessary for public safety as well as to give recognition to the profession (McIntosh, 1989). There are realistic barriers for women who choose to have home birth. The principal barrier is accessibility to midwives who oversee home births. The reality is that liability insurance that will cover midwives is difficult to obtain at an adequate level to work within the homes of their clients. Pregnant women are also concerned about whether their personal medical insurance will cover the costs of home delivery and if so, at what level of payment. Hospital Privileges Of great importance to midwifery, both in a practical sense and also in recognition of the role of primary caregiver, is the ability to hold hospital privileges. CNMs are limited by specific regulations that either deny admission privileges or tacitly allow discrimination against midwives in the granting of these privileges. Ultimately, this restricts their ability to practice without the supervision 60 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of a physician. While some states may allow for CNMs to hold admitting privileges, only seven states specify CNMs as authorized to discharge patients (American College of Nurse Midwives, 2000). This is problematic for midwives because they must have their patients examined by a physician in order to be discharged. Not only does this undermine their authority, but it also places yet another restriction on their ability to practice. Full membership in the hospital staff, which includes the ability to have staff voting privileges, is limited only to those individuals who have admitting privileges (Rooks, 1997). This has even further effect on midwives as well as the care that is provided to women within the walls of the hospital. Reimbursement For CNMs, reimbursement from Medicare has been placed at sixty-five percent. While relatively few pregnant women utilize Medicare, the payment reimbursement rates for Medicare are often replicated by other programs such as CHAMPUS (insurance for the armed services) and other third-party insurance companies (American College of Nurse-Midwives, 1999). Medicaid reimbursement is dictated by the states and ranges from seventy percent to one-hundred percent with a few states that have unclear reimbursement schedules. Approximately two-thirds of the states mandate payment for CNM services by third-party health insurance. Seventy states have “any willing provider” clauses in their laws that apply to CNMs. “Any willing provider” laws 61 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. prohibit insurance plans from discriminating against any provider that is willing to adhere to their policies. The ERISA law has a significant effect on CNM services. ERISA exempts self-funded insurance plans from state laws, including mandated payment and “any willing provider” clauses. Seven out of ten employees in the US are in self-insured programs (American College of Nurse Midwives, 1999). DEMs face an even bigger challenge in reimbursement. There is limited information regarding payment requirements for DEMs. Some states do reimburse for Medicaid, and it is presumed that “any willing provider” clauses will allow for the payment to licensed DEMs (Reed & Roberts, 2000). Malpractice insurance One problem midwives face is the acquisition of malpractice insurance, which places limits on their ability to assist pregnant women. As with any health- related profession, malpractice insurance is a necessary protection for the practitioner; it is also designed to protect any victims of professional misconduct. During the latter part of the 20th century, lawsuits became a recurring problem for obstetricians. Many physicians are reluctant to deviate from the accepted "standard of care” in childbirth out of a fear of a lawsuit. Interestingly, many of the practices o f obstetricians may actually be the catalysts for problems that occur during birth, which result in the filing o f lawsuits. The increase in lawsuits has created a drastic increase in premiums for obstetrical malpractice insurance. These premiums not only affect the medical doctor, but also the midwife as midwifery is covered under 62 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. obstetrical insurance. While most OBGYN’s have substantial incomes to cover the rising costs of coverage, the average midwife does not make a large wage that is problematic for the profession. Midwives are rarely sued for malpractice, which supports the argument that the practices of midwifery are not the cause for the increase in premiums (Robinson, 1986). But the difficulty in securing insurance has also affected midwives who choose to practice in the home setting, often creating an impossible barrier to surmount (Rooks, 1997). Physician-midwife relationship A complex challenge for midwives is the attitude of physicians. In states that require a formal agreement of physician back-up, if there is a lack of cooperation or interest within the medical community, this can create a great problem for the practice of midwifery. The relationship between physicians and midwives should be one of collaboration; midwives attend births that do not have certain complications and refer their patients to a physician in cases of complications. While none of the states require a physician to be present during a “normal” birth attended by a midwife (American College of Nurse Midwives, 2000), several states have incorporated laws with supervisory language that restricts midwives by placing them under the control of physicians. For DEMs, these laws often impose even greater restriction on their ability to practice by requiring them to have formal 63 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. back-up plans and also requiring that their patients also be examined by a physician (American College of Nurse Midwives, 1999). One of the greatest obstacles to obtaining physician back-up is a concern by physicians of vicarious liability (Peizer, 1986). As was discussed in a preceding section, there is a fear of malpractice suits, whose number has increased dramatically. Vicarious liability or the doctrine o f respondeat superior exists only within an employer-employee relationship, where the master is in control of the situation (Jenkins, 1991; Peizer, 1986). The Restatement (Second) o f Agency (1958) defines the independent contractor as converse of the employer-employee relationship (Peizer, 1986). The issue of the independent contractor with regard to midwifery is unclear as to how it fits into the employer-employee relationship. To establish a situation in which vicarious liability exists, one would have to show that a back-up physician has considerable control and authority over a midwife (Peizer, 1986). To determine whether a midwife is an independent contractor, the existing legal doctrine specifies three criteria that must be met. The first is whether the individual is enlisted in a distinct profession. The second is whether or not the work is done under the supervision of a specialist. And third, is the skill level required for the position (Peizer, 1986). According to this definition, midwives function as independent contractors unless employed directly by a physician. Vicarious liability is a misnomer that limits midwives’ ability to obtain “back-up” because it instills fear in physicians (Jenkins, 1991). This also can effect their eligibility to secure hospital privileges because hospitals are also worried about 64 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. liability without understanding that their relationships with midwives are no different than with doctors (Jenkins, 1991). Generally, midwives and doctors both hold their own independent malpractice insurance. O f concern to midwives in 2001 is the trend by states to require a maximum physician/midwife ratio.1 8 The ratio allows a physician to be back-up only to the number of midwives specified by the state. This requirement has several implications for midwives. O f greatest concern is that in those states that require physician back-up, midwives often have difficulty finding doctors who are willing to play this role. Restricting these doctors significantly limits the number of midwives who are able to practice. Limitations on the number of midwives for which a physician may serve as back-up necessitates a more supervisory role on the part of the physician, thereby taking away the autonomy that midwives should enjoy. The various barriers to practice for midwives has put a strain on women's privacy and ability to choose both a birth attendant and a method of birth. Requiring licensing of midwives would seem acceptable (but not in the context of Roe), in that the state has an interest to regulate various professions that may have an impact of citizens of the state. The requirements for DEMs in many of the states, though, should be established under the appropriate guidelines, with reasonable expectations for the profession. Both DEMs and CNMs should be regulated by boards of their peers, not outside agencies. Common-sense dictates 65 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. that members of the midwifery community desire a healthy, vital profession as well as integrity of their profession. Members of the distinct categories of midwives are by far the best suited to oversee their membership and licensing requirements of them, just as OB/GYNs and general practice nurses regulate themselves. This would also ensure that midwifery would retain its unique character and standard of care for pregnant women. One problem with regulation is that the definition of medicine includes the practice of midwifery. The broad definition of medicine is not in the best interest and safety of women and children. Research has shown the dangers of medical births (Davis-Floyd, 1992; Greulich, Paine, McClain, Barger, Edwards, & Paul, 1994; Rooks, Weatherby, Ernst, Stapleton, Rosen, & Rosenfield, 1989; Weitz & Sullivan, 1985; Yankou, Petersen, Oakley, & Mayes, 1993; Goer, 1994), and regulations that restrict women from having natural births with midwives for the sake of safety are actually accomplishing the contrary (Suarez, 1993; Goer, 1994; Davis-Floyd, 1992). Midwives have faced all of these problems for several decades. Despite efforts to overturn these professional and political barriers, midwives continue to encounter difficulties in providing services to clients. Access to midwives has in the past been acknowledged by some members of Congress as an issue of freedom of choice (USA, December 1980), but legal challenges to barriers that prevent access have consistently been dismissed. IS Personal communication with Karen Fennell, C hief Policy Analyst, ACNM. 66 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 5 APPLYING THE RIGHT OF PRIVACY TO CHILDBIRTH The constitutional right of privacy is of concern when access to midwives or in the right to select the location where one will give birth is limited, either de jure or de facto. Governmental action is directly prohibiting the right of privacy because access has been denied by the overarching effect of laws by many states. The mere availability or legal presence of midwives may suggest women have access to these practitioners in principle, but, in fact, does not guarantee access in practice. The ability of a woman to choose a midwife should be protected by the constitutional principle of privacy.1 9 Privacy Privacy within reproduction has centered on whether it is a private choice to bear a child. Once a woman has decided to conceive and bear a child, the question over whether one should prevent or end a life is no longer relevant. The issues are choice about the circumstances under which and with whose assistance to give birth. In this chapter, I will argue that courts have misinterpreted the privacy doctrine as applied to childbirth. 1 9 There are other Constitutional rights that might be invoked with regard to childbirth. Freedom o f religion and the Right o f Association (both protected by the First Amendment) could be viable rights. The exploration o f these legal principles is outside the scope o f this project, but would be recommended areas for further research. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The right of privacy is perhaps one of the most elusive and vague constitutional rights.2 0 Rooted in both the Ninth and Fourteenth Amendments, privacy has protected individuals from undue encroachment into their lives by the state in such various circumstances as those under arrest by the state to persons seeking contraception (Clement, Goldstein, Krauss, Maio, Reske, Ravitz, Schreiber, Schulte, Shapiro, Sheeler, Whalen, & Zoublek, 1987). Privacy, while not explicitly mentioned in the Constitution, was first invoked in 1965 to safeguard reproductive freedom in Griswold v. Connecticut (1965). The Court struck down a Connecticut statute that forbade the use of contraceptive devices by married people, finding that there existed a “right of privacy older than the Bill of Rights (Griswold v. Connecticut, 1965)” and that “the right of privacy in the marital relation is fundamental and basic” (Griswold v. Connecticut, 1965). In 1972, the Court revisited the issue of contraception and privacy, but with respect to unmarried people in Eisenstadt v. Baird (1972). This case challenged a Massachusetts statute that prohibited the distribution of contraceptives to unmarried individuals. In the decision, the Court relied upon Griswold. While Griswold specifically addressed privacy within a marriage relationship, the opinion of the Court noted that this relationship is not one of an “independent entity.., but an association of two individuals” (Eisenstadt v. Baird, 1972). It further stated that if the right of privacy was to mean anything, “it is the right of the individual.. .to be 2 0 This chapter is not meant to provide a comprehensive history or current state o f Constitutional privacy. Rather, the purpose o f this chapter is to examine privacy within the context o f childbirth. 68 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (Eisenstadt v. Baird, 1972). The evolution of the privacy right from Griswold to Eisenstadt is significant for a study of privacy rights surrounding birth. This is because both decisions recognized the importance of a family’s decision to bear a child, though they do not define privacy so that it obviously applies to the birth process. Privacy is not specifically mentioned in the Constitution and thus its parameters and limits are entirely up to judges that apply it. Because of the lack of a clear-cut definition of constitutional privacy, the use of this principle has led to debate among scholars and attorneys. Many have argued that its application to abortion is ultimately the reason for the erosion of women’s ability to choose (Boling, 1994; Copelon, 1990-1991; Ridder & Woll, 1989). Despite its controversial usage, privacy remains a vital aspect of individuals’ lives. As a practical matter, it has become difficult to utilize it as a legal tool for reproductive rights, but in principle, it should not necessarily be discarded.2 1 The erosion of privacy as applied to reproduction has for the most part been a direct result o f the ideological shift of the US Supreme Court (Rosenberg, 1991). Ostensibly, if the 2 1 I do not believe that the use o f privacy with regard to childbirth would be useful in most courts o f law in the Year 2001 simply because o f the ideological direction that the US Supreme Court has taken. I do not agree with the current “state o f privacy" and believe strongly in the tenants surrounding it and am thus unwilling to discard it. Simply put. I believe just because it is not o f utility at this point in time is not a reason to discard it or discount its value. My hope is that privacy will regain its power with regard to reproduction and until then, lawyers will need to utilize other legal principles and avenues in pursuit o f reproductive freedoms and scholars will need to continue the dialogue surrounding privacy. 69 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Court were to shift back toward the left, it is conceivable that the privacy doctrine might become more accepted. Until then however, the search for definition and the continued “life” of privacy will be left to legal scholars. Rather than discount privacy as useless or overly eroded, the principle offers the best hope of protection reproductive freedom. Hence, scholars should not abandon it, allowing it to fall into desuetude. Privacy has typically been identified as a negative right or the “right to be left alone” (Warren & Brandeis, 1890; Gerety, 1977; Prosser, 1960). This simply means that in matters of personal integrity, individuals have the right to be free from governmental intrusion (Allen, 1987). This includes bodily integrity (Rochin v. California, 1952; Skinner v. Oklahoma, 1942), protection of those incarcerated from undue treatment by the State (Winston v. Lee, 1985; Mapp v. Ohio, 1961), limited disclosure of personal information and freedom to make personal choices (Clement, Goldstein, Krauss, Maio, Reske, Ravitz, Schreiber, Schulte, Shapiro, Sheeler, Whalen, & Zoubek, 1987). The interpretation of freedom of choice has centered on integrity and privacy of the family. The US Supreme Court has recognized the right to choose one’s spouse (Loving v. Virginia, 1976), the right of parents to decide how to raise and educate their children (Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925) and, in the first application of privacy to reproduction, whether or not to beget a child. With regard to reproduction, this principle was later extended also to the individual, including the right to choose whether or not to bear a child. 70 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While the US Supreme Court has not discarded this negative approach to privacy, it has severely limited the ability of many individuals to exercise this right by allowing restrictions on governmental spending with regard to abortion (Maher v. Roe, 1977; Harris v. McRae, 1980; Webster v. Reproductive Health Services, 1989) as well as the ability to make decisions with regard to sexuality (Bowers v. Hardwick, 1986). This line of argument also attacks the notion that privacy should be a positive right because it requires governmental action to ensure it. This conservative approach to privacy protects the right on its face but ultimately denies it to all but the privileged (Roberto, 1991). The application of privacy to childbirth relies on the notions of the integrity of the family as well as the ability to choose. Most would argue that childbirth is one of the most private events that many women will experience. Decisions such as whether to have a baby, the manner in which a woman chooses to deliver, and with whom to give birth are all extremely personal decisions. Unfortunately, while there have been significant levels of restriction placed on women’s ability to end pregnancies, there is no corresponding level of liberty with regard to carrying out pregnancies and giving birth (Binion, 1988). Various restrictions impede women’s ability to make decisions throughout their pregnancies.2 2 For women who have carried a baby to term, the desire to have that child at home or with the attendance 2 2 Such issues as forced cesareans, prosecution for fetal abuse are o f concern, but will not be addressed in this paper as they are out o f the scope o f the project. 71 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of a midwife, according to the logic of the privacy doctrine, should be protected decisions. Privacy doctrine has historically protected the rights and integrity of the family. The decision to deliver a child with the assistance of a midwife or at home is typically based on the value and importance of family. Most women choose to deliver a child with a midwife or outside of the hospital because of the belief, one that is substantiated by science, that this type of birth is safer with less intervention. This atmosphere of birth is usually less traumatic for both mother and baby. It also necessarily supports the value of the family over that of the medical-model of birth by preserving the integrity of the mother’s decision making process. The well being o f the baby in this model of birth is directly related to the well-being of the mother, based on the choice that she has made with regard to birth. Though privacy claims with regard to childbirth and midwifery have been rejected by the courts, this sort of question has never been addressed by the U.S. Supreme Court (Smolin, 1992). Legal decisions analyzing privacy in the context of childbirth have relied upon the 1973 case of Roe v. Wade (1973). The Roe decision created an analytic framework that divided pregnancy into trimesters. It invalidated existing laws that restricted abortion during the first trimester of pregnancy. The Court recognized that a woman has a fundamental right to choose whether or not to terminate a pregnancy during the first trimester as well as a right against governmental intrusion into her relationship with her doctor. The second trimester allowed for an increase the rights of the State to protect the 72 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. woman’s health according to which abortion could be regulated expressly for this concern. The State’s interest in the life of the fetus became the principal justification for intervening during the third trimester as this is when the fetus became viable. The first and most significant case to address the issue of privacy in the context of childbirth was a California case, Bowland v. Municipal Court of Santa Cruz in 1976. While this case dealt with the issue of licensing,2 3 Bowland, a midwife, argued that a California regulation prohibiting Direct-Entry midwives from attending pregnant women constituted a violation of their right to privacy. Relying on Roe, the court rejected this argument. The Bowland court specifically noted that the state’s interest in the life of the unborn child outweighs a woman’s right to privacy during the third trimester and that the U.S. Supreme Court found that the state can forbid unlicensed individuals from performing abortions, and consequently may require midwives be licensed. Cases decided after Bowland dealt with licensing requirements and relied on the privacy argument (Smith v. State Ex Rel. Medical Licensing Board, 1991; State v. Kimpel, 1995; Hunter v. Maryland, 1996; Board of Nursing and Osteopathic Examiners v. Jones. 1997). In those cases, the courts all cited the Bowland court's decision and accepted its interpretation of Roe uncritically. It was not necessary that Roe be interpreted the same way by these other courts as the The previous chapter examined the issue o f licensing as addressed in Bowland. but the privacy argument will be discussed in this chapter. 73 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Bowland decision was not legally binding. One federal case on point was Lange- Kessler. et al. v. Department of Education (Lange-Kessler, et al. v. Department of Education of the State of New York, 1997), which challenged New York state’s licensing law. The court agreed that the right to “choose a particular healthcare provider” is not protected by the right to privacy, and appeared to rely on the earlier cases, as well another federal case - Sammon v. New Jersey Board of Medical Examiners (1995). While not dealing with privacy directly, the court stated that parents did not have a constitutional right to choice of care provider. The right of privacy can only be encroached upon when there is a compelling state interest that overrides a woman’s individual freedom (McCormick, 1983). The argument by several courts citing Roe is that the state’s interest in the unborn child outweighs the woman’s interest to privacy during the third trimester of pregnancy. This is a misapplication of Roe as it specifically discusses abortion, i.e., ending a potential life. The only parallel between the issue in Roe and the case of access to a midwife is that the person at the center of the debate is a pregnant woman. The fallacy here is the assumption that the interest in the life of the unborn child is somehow separate from the privacy interest of the woman in the case of childbirth. This interest should be understood to encompass a certain attendant and method of birth. The courts’ application of Roe is simply not logical. While this misapplication of Roe should appear to be obvious to even the most casual observer, or not logically required, one must ask why courts advanced 74 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. this argument. It may have occurred because the vast majority of judges are male and tend to misperceive the connection between the pregnant woman and unborn child. Childbirth is a female-centered event and, ultimately, women ought to be the ones empowered in any positive attachment of rights that accompany birth. Unfortunately, legal decisions on procreation tend to reinforce traditional gender roles (Reilly, E., 1995; Smolin, 1992). While “family” can be defined in many ways, because of biological necessity, the family unit surrounding birth is typically viewed as a mother, father and the unborn child. Paternal rights during pregnancy have been examined under the law in those cases where they conflict with rights of the woman. Paternal rights claims are usually made in the interest of the unborn child where a woman is choosing to terminate a pregnancy. While there have been no cases dealing with paternal claims regarding the choice of birthing attendant, this same argument theoretically could be made if a father did not favor the pregnant woman’s choice of an attendant. One would expect that courts would employ a similar approach as used in abortion cases. Paternal rights have consistently been denied in those cases of an unborn child where the pregnant woman was seeking an abortion (Sharrin, 1990: Jones v. Smith. 1973: Doe v. Doe. 1974: Rothenberger v. Doe. 1977; John Doe v. Jane Smith, 1988; Conn v. Conn, 1988). This has also included spousal consent with regard to abortion (Planned Parenthood of Missouri v. Danforth, 1976; Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992). The fact that little work ahs been done in the late 20th century surrounding paternal versus 75 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. maternal rights during pregnancy may suggest this has become a somewhat settled topic insofar as the law is concerned. Conversely, the conflict between maternal rights and fetal rights continues to be litigated. This issue is usually confronted in cases where a woman either has engaged in an activity that would be of threat to her unborn fetus (e.g., drug use) (Roberts, 1991; Boatright, 2001) or wishes to refuse medical treatment (e.g., for religious reasons) (Ikemoto, 1997), often to the risk of the fetus. The question of whose rights should be supreme threatens to undermine women’s autonomy.2 4 In those cases where courts intervene, forcing women to undergo medical treatment, thereby valuing fetal rights over women’s rights - the court has given the fetus “super-rights” (Roth, 1997). The conflict between a woman and a fetus also arises within the context o f determining the right to refuse medical treatment. The law guarantees that competent adults may refuse medical treatment, even if that refusal will result in death (Glass, 2001). This guarantee is based in the right of privacy, specifically, bodily autonomy (Cruzan v. Director, Missouri Department of Health, 1990). Courts have typically granted pregnant women the right to refuse medical 2 4 A lengthy discussion o f the conflict o f maternal and fetal rights is out o f the scope o f this project. For further discussion, see: Johnsen, D. (1986). The creation o f fetal rights: Conflicts with women’s constitutional rights to liberty, privacy, and equal protection. Yale Law Journal 95, 599- 625. Condoll, B.(1994). Extending constitutional protection to the viable fetus: A woman’s right to privacy. Southern University Law Review 22. 149-159. DeBonis, S. (1995). The fetal-matemal conflict: Judicial resolution based upon constitutional rights. Ohio Northern University Law Review 2 2 .479-500. Arch, R. (1996). The maternal-fetal rights dilemma: Honoring a woman’s choice o f medical care during pregnancy. Journal o f Contemporary Health Law and Policy 12, 637- 672. Ikemoto, L. (1992). The code o f perfect pregnancy: At the intersection o f the ideology o f motherhood, the practice o f defaulting to science, and the interventionist mindset o f law. Ohio State Law Journal 53. 1205-1306. Thomson, J.J. (1990). The Realm o f Rights. Harvard University Press: Cambridge, MA. 76 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. treatment. When there is any danger to a woman’s health, judges have consistently deferred to the woman’s interests. While a few states have compelled women to undergo unwanted interventions based on either the idea of fetal endangerment or the state’s responsibility to protect the fetus, these are exceptions rather than the rule (Glass, 2001). This argument easily could be extended to women who are seeking the care of a midwife. As previously discussed, the incidence of medical intervention is significantly higher for women who give birth in a hospital with an obstetrician as caregiver rather than a midwife. If a woman chooses a midwife, and possibly home birth, her choice could be protected by the right to refuse medical treatment. More specifically, she could argue that this would be a safer form of childbirth as a hospital birth with an obstetrician would create risk to her health. As previously mentioned, privacy has been interpreted expansively by the Court. In most cases, privacy has been viewed as a “negative right,” i.e., the right to be “left alone” in private settings. While the court has been reluctant to recognize a more positive extension of this right, it has continued to adhere to a more narrow definition of privacy with relation to the negative aspect of privacy. The Court appears to want to define what the public has the “right to do” when it is being “left alone.” This seems to be antithetical to the concept of privacy. Privacy has fallen into a quagmire of political and legal debate, and as a consequence, the right has been significantly eroded as a result of Supreme Court decisions during the 1990s. 77 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Choice in childbirth returns us to the basic idea of the right of privacy in the family. The analysis of the termination of life associated with the abortion debate is an inappropriate vehicle for analyzing women’s right to have midwives assist them in the birth process. Childbirth is about continuing life. The question is simply who should decide how to bring that life into the world. If choice in childbirth as protected by privacy is accepted, it stands to reason that the barriers that were discussed in the previous chapter should be removed. 78 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. PART III THE INTERNATIONAL CONTEXT OF CHILDBIRTH Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 6 CHILDBIRTH: INTERNATIONAL DIMENSIONS Traditional childbirth techniques play a significant role in many societies. Childbirth is also recognized as being a female event and one ordinarily controlled by women. However, culture not only plays a role in the childbirth of indigenous people, but has a significant impact on the formation of modern medicine in so- called developed societies, as has already been discussed. Modernized medicine has been utilized to usurp traditional forms of childbirth because it is supposed to create a safer birth for both mother and baby. This chapter will examine the United Nations Safe Motherhood program to improve maternal mortality. One of the goals of this program is to replace the Traditional Birth Attendant with medically trained midwives. While I argue that these caregivers are the best choice, it is important for the United Nations to be aware that they are representative of a Western medical paradigm. Consequently, the United National promotes the elimination of traditional female-based culture in the societies where this program is introduced. The United Nations’ Agenda for Childbirth Maternal mortality is a concern in most developing countries. Maternal mortality approximates a half-million deaths in the developing world with 80% in Asia and Sub-Saharan Africa (Conable, 1987; WHO, 2000). In Sub-Saharan Africa this equates to between 270-760 deaths per 100,000 live births (Jaffre & 80 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Prual, 1991). These high rates can be attributed to unsanitary conditions, lack of pre-natal care, poor nutrition as well as such things as the status of women. In February 1987 (Conable, 1987; Kwast, 1991; WHO, 1996), the World Health Organization (WHO), the World Bank, the United Nations Children’s Fund (UNICEF) and the United Nations Fund for Population Activities (UNFPA) sponsored an international conference in Nairobi, Kenya to discuss the high rates of maternal mortality in the world in order to devise an action plan. They were joined by such non-governmental organizations (NGO) as the International Planned Parenthood Federation (IPPF) and the Population Council. The International Confederation of Midwives and the International Federation of Gynecology and Obstetrics later joined (WHO, 1987; WHO, 1990; WHO, 1996). Safe Motherhood was coined as the name of this United Nations (UN) multi-agency action plan. The goals of the plan were to decrease maternal mortality partly by improving maternal health through guaranteeing all women in the world access to quality reproductive health services including skilled health care professionals before, during and after birth; access to emergency services for complications during birth; family planning services; health education; services to prevent and manage unsafe abortion practices; and community education services (WHO. 1998). The goal set by this working group of agencies was to reduce the maternal mortality rate by 50% by the year 2000. Unfortunately, goals were not met. The process of bringing these services to women around the world has also included discussion of the status of women in 81 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. many developing countries. Because of the subjugated state under which many women live, they have little access to educational, political and economic resources that do exist in their societies. In improving the health and welfare of these women, emphasis has also been placed on improving their social positions. The Safe Motherhood organization has worked with countries around the world to assist them in developing programs within their borders to reduce their respective maternal mortality rates. The embodiment of these goals have been adopted and promoted by the Committee on the Elimination of Discrimination Against Women, the committee that oversees and enforces the Convention for the Elimination of Discrimination Against Women (CEDAW) (United Nations, 14th session, 1995; United Nations, CEDAW, 1999; United Nations, 1994; United Nations, 13th session, 1994; United Nations, 18th and 19th session, 1998; United Nations, 15th session, 1996; United Nations, 20th , 21st sessions, 1999; Unicef website, April 3, 2001). Because the United Nations also considers some traditional birthing practices as unsafe (United Nations, 1995; WHO, 1996), it also developed a plan of action to deal with traditional practices that are deemed harmful to women (United Nations. 1994). The plan calls for specialized United Nations’ agencies to integrate this plan into their programs as well as for NGOs and states to cooperate together. It also encourages women to challenge harmful, traditional practices. And, while WHO has recognized the value of traditional medicine (WHO, 1978; Chi, 1994), it has integrated this plan into the goals of Safe Motherhood. The reality is that while 82 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. traditional medicine may be recognized as valuable, the WHO is dominated by a Western, medical paradigm. The United Nations Special Rapporteur on traditional practices identified some traditional practices as being counter to safe motherhood (United Nations, 1995). Despite this, she also stated that some traditional practices are, in fact, beneficial to both mother and child (United Nations, 1995). The Role of Midwives in Safe Motherhood Medically trained midwives have been identified as the preferred agents of care to women in developing countries (Kwast, 1991; Nasah, 1991; Cuppen, 1991; Bentley, 1991; Goubran, 1991; Turmen & AbouZahr, 1994; Nakajima, 1997; Penney, 2000; WHO, 1996). The majority of midwives are women, which places them at a similar stature as the women whom they attend. The philosophy of the profession makes midwives better capable of working in the various situations in which they may be placed. While the mortality rate is high for various reasons, many of these reasons can be alleviated by proper pre-natal care, which can be delivered by midwives. Since midwives screen all women whom they attend, they can refer any women who are classified as high risk to obstetricians. Because finances are limited in developing countries, the fact that midwives are cost- efficient is extremely significant and beneficial (Grieser, 1985). It is important that the WHO Women and Children’s Health programs support the midwifery model of 83 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. care as opposed to the medical model.2 5 It is also noteworthy that the midwifery model that would be introduced, while coming from a “woman-centered” position, is rooted in a Western, female paradigm. The traditional birth attendant The Safe Motherhood organization has identified traditional midwives, known as traditional birth attendants (TBAs). Childbirth in most developing nations has been assisted by these birth attendants. TBAs are women whose role within the village or community is strictly to attend to parturient women. In some cultures this position is seen as prestigious, while in others, it is viewed as inferior. In rural Bangladesh and in India, as previously mentioned, the TBA, whose local title is the dai, is considered of low status because of the association of birth with pollution (Rozario, 1995; Jeffrey & Jeffrey, 1997). In Portugal, midwives are seen as a normal part of the village. They are often viewed as women of courage, but no special status is attached to the role. Often, the midwife is a friend or family member of the women she assists (Cobb, 1995). Among the Angal Heneng of Papua New Guinea, birthing women are only allowed verbal contact with other women. They deliver their children unattended; thus the TBA does not exist within 2 5 This is a result o f the fifteen years o f leadership this program had by Marsden Wagner. See Wagner, Marsden (1997). Confessions o f a dissident. In Davis-Floyd, R. and Sargent C. (eds). Childbirth and Authoritative Knowledge: Cross-Cultural Perspectives. Berkeley: University o f California Press, pp. 366-396; and (1994) Pursuing the Birth Machine: The Search for Appropriate Birth Technology. Camperdown, Australia: Ace Graphics. 84 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. this culture (Alto, Albu, & Irabo, 1991). Because of the varying levels of social status and responsibilities held by the TBA in these developing societies, the program supported by WHO is problematic. Other programs implemented by individual countries often do not take this into consideration either. The TBA is responsible for educating members of her village about anatomy, basic health care surrounding pregnancy, and childbirth. This education responds to the various cultural beliefs surrounding childbirth and a lack of knowledge and understanding of reproduction. In those societies where the TBA has low status, members of her village do not view her as an authority on health care. In Bangladesh, the dai is never in a place of authority or in charge of a birth. She actually takes her instruction from the family. She is only needed, so that she can clean after the birth (Rozario, 1995). Since the dai is regarded as being of a lower status, the parturient woman and her family will not want to accept any instruction from this individual. The programs that have been implemented in developing countries are to utilize the TBA and train her as the primary care-giver or midwife, while supplementing her supervision with a medically trained midwife, medical doctor or health worker to provide obstetrical assistance and hospital care, when needed (Isenalmbe, 1990). The reason for doing this is that the TBA is common to most cultures (Grieser, 1985; WHO, 1992). The rationale is that these women are already in-place and are trusted by the women of whom they will serve. Despite earlier attitudes that TBAs were vital for the preservation of cultural heritage 85 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. (WHO, 1978) and recommendations by WHO Consensus meetings on maternal health (Wagner, 1994), the goal of Safe Motherhood is to phase-out these women because they are considered ignorant and to replace them with medically trained midwives (WHO, 1996; WHO, 1992). There is also some desire by obstetricians and some trained midwives to see TBAs eliminated because they are seen as competition (Itina, 1997). Safe Motherhood and Culture: Can One Be Achieved Without Losing the Other? The goals of Safe Motherhood are noble and should be pursued without hesitation. In doing so, the importance of culture, both its impact on the success of programs as well as the danger of destroying it, should be assessed. Culture has been addressed on a somewhat limited basis from the perspective of Safe Motherhood. Quite often the focus on culture involves only various culturally based practices associated with pregnancy and childbirth that are either their harmful or unnecessary (Cosminsky, 1986; WHO, 1998). There are certainly practices that have potentially harmful effects or side effects, which should be questioned in a culturally sensitive manner. Many practices, though, are benign or can be replaced with another culturally appropriate substitute without discarding the practice in its entirety. Despite suggestions such as this, Westernized medicine has often attempted to discourage the use of these practices altogether (WHO, 1991). The implementation of “modem” medicine brings with it many practices 86 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. that are considered as an extreme imposition by women in other cultures; practices that are second nature in the West may be taboo or even perceived as morally wrong in other value systems (see http://www.unicef.org.). “.. .most health professionals who teach and provide modem health care to third world people work among but not with the people they serve. They work apart because they are not taught to understand the people’s traditional medical practices, customs, values and beliefs about health care and health problems.” (Mutambirwa, 1987) An example is the lack of understanding or attention given to the role of gender in the birth process. Birth is clearly a female-based activity, both physically and culturally, and having men involved in the process is frequently a cultural taboo. This is a historical reality in many parts of the world (Madi, 1998). While men have moved into this domain in much of the West, this has not been the case in most developing societies. By staffing clinics with male health workers and hiring male physicians, there is great risk of under utilization of services by women in these countries because having men provide services is not acceptable. When staffing clinics, not only do the staff members need to by culturally acceptable, but also culturally sensitive to the needs of their clients (Sherratt, 1999; Chipfakacha, 1994;Nasah, 1991; WHO, 1996; Wagner, 1994; Thaddeus & Maine, 1994). While most countries do have some sort of traditional birth attendant, in some cultures the TBA does not exist at all. New Guinea created its own program for dealing with childbirth using the concept of birth attendants, even though this 87 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. role is non-existent in traditional childbirth among its indigenous people. Since the TBA was not a part of the culture of New Guinea’s Angal Heneng, the government health division trained women in the villages as midwives. A study of this procedure completed by government officials of New Guinea, claims that the outcomes had been successful. However further examination of the data showed that the percentage of births attended by these trained women actually showed a decline, contrary to the authors’ assertions (Alto, Albu, & Irabo, 1991). This is clearly an example of where culture must be considered when making policies. Culture is powerful and can directly affect the success or failure of programs. The desire to replace the traditional birth attendants is based on their purported lack of education and “so-called” ignorance. Implicit in this justification is that these women lack the capacity to be trained so that they can provide even better care.2 6 The knowledge that is held by these women, while not knowledge in the Western sense, is valuable in its own right (Nessa, 1991). These women could be perhaps the link that would bridge the gap between Western thinking and the values of any given culture (Kwast, 1992; WHO, 1998). While there may be costs incurred in educating these women, the social costs of eliminating these women should also be considered. By removing this role from within these various societies, a part of culture that is firmly rooted in woman’s history will be lost. 2 6 This a broad, sweeping generalization that in another context would be viewed as outright bigotry, but because o f the altruistic nature o f the goals o f Safe Motherhood, somehow this line o f thinking is justified. 88 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. When Culture is Not Considered: The Hazards of Western Medicine If cultural beliefs are not considered when implementing a new form of medical care, there can be a profound adverse impact on the members of a given society (Lefkarites, 1992). Not only are these new systems of medicine destined to fail, but individuals involved in the process, women and children, will be injured and thus become the victims of programs that were theoretically put in place to improve their well-being. Cultural beliefs are of great significance when governments and NGOs are attempting to modernize health care, and, as has been demonstrated, childbirth practices are a product of the society in which they are created. Organizations such as WHO often do not take into consideration the fact that scientifically-based medicine is a product of Western values. It is notable that medicine has evolved over time in Western cultures, though not always based in science. As discussed previously, true science in the United States has often been superseded by cultural values in childbirth as well. Likewise, it should not be expected that the people of developing societies would be eager to welcome medicine into their communities, particularly if it requires that they discard their cultural beliefs. The cultural imperatives for each gender are highly significant within childbirth customs. Men usually play a limited role or are not included at all in childbirth in most developing societies. The father may be expected or be required to be present during the delivery, but he is usually the only male figure involved in birth (Jordan, 1983). Because o f the separation of women from men in these 89 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. societies, a problem encountered within the medical community is that the majority of obstetricians are male. While most births are to be attended by female midwives, these doctors see those patients pre-natally who are high risk and attend those with complicated deliveries. These gender differences can cause complications for the midwives as well. These women tend to be more modernized and usually Westernized than the women they assist due to educational and economic backgrounds. Despite their backgrounds, these women must live under the cultural mores of their societies. For example, in Nepal, it is unacceptable for an unmarried woman to live alone or at a health post with her male co-workers. Even though this is a widely accepted belief, these women are often sent by the government into situations that would require these types of living arrangements (Justice, 1984). Within many developing societies, there exists a caste or hierarchical system within the culture. This, too, has an effect on the medical care. In Nigeria conflict exists between midwives and many of the women they serve. The midwives are generally from the upper and middle classes and reject many of the traditional cultural values to which are embraced by the poor women they attend as “primitive” (Jaffre & Prual, 1994). Midwives also come from the higher classes in Nepal, and villagers are uncomfortable with this disparity in caste (Justice, 1984). In order for the childbirth programs to be successful, both the caregivers and care- receivers must be able to communicate and be at ease with each other. 90 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Another important consideration regarding the implementation of modernized medicine in developing countries is the accessibility of health care facilities. For complicated deliveries, it is desirous to send women to hospitals. Because of the economic situation in many of these countries, the roads are typically undeveloped in the rural areas. Women in these regions typically live too far to go on foot, do not have adequate transportation, or do not have the money to afford transportation to the hospital facility (Thaddeus & Maine, 1994; Alto, Albu, & Irabo, 1991; Rozario, 1995; Cobb, 1995). Consequently, they will often choose to try to have their children at home. For them, it is better to die there than in the hospital or somewhere in-between. The creation of hospitals is practically useless if they are not constructed in regions of the country where they are needed. Many countries have rural medical facilities, but these are offices usually are staffed by men which is unacceptable according to cultural beliefs and which makes them inaccessible from a cultural standpoint (Alto, Albu, & Irabo, 1991; Thaddeus & Maine, 1994). Childbirth education programs are also problematic. These programs have been implemented in many of the towns and villages in developing countries, but they are not culturally sensitive. They are often taught by women who are outsiders who are therefore disregarded, or they are taught by men, something which is not culturally acceptable, as explained above (Justice, 1984; Al-Quotob & Mawajdeh, 1992). 91 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Conclusion Childbirth as a part of traditional health care (Barrett, 1995), is a significant aspect of culture. As the world “modernizes,” traditional health care systems are being undermined because they are defined as counter to the improvement of worldwide health. The United Nations has placed a high value on the improvement of health care, though it has not fully considered the cultural impact changes may have. The values being promoted clearly contain a Western bias. Fortunately, Safe Motherhood encourages the use of midwives as the first level o f care. This ensures that the continuity of care by women will be maintained. Those implementing programs at the state level must take precaution and be aware o f cultural mores when utilizing men and technology. Also, the goal of eliminating the TBA should be re-examined as this would interfere unjustifiably with women’s cultural systems. In societies that have implemented modem childbirth programs, the impact on women has been significant. This impact is demonstrated by the following examples. Inuit women have felt isolated from both family and culture. This isolation has been associated with of a loss of control not only over birth for women in this culture, but also of political control (Kaufert & O’Neil, 1990). Women from Rhodes, Greece have willingly modernized their birth procedures. This willingness was associated with the imposed idea that Western ways were better. In the process of transforming traditional birth practices over to an entirely Western model, these women unconsciously gave up their power to manage their 92 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. own births (Lefkarites, 1992). This loss of power was also experienced among women in New Britain, Papua New Guinea (McPherson, 1994). This power that encompasses women when they maintain control over childbirth is precisely the aspect that Western feminist legal scholars missed. This aspect of culture, I argue, is essential to maintaining women’s influence on society and to the preservation of their power politically. The West has all but lost this female impact on culture. Women have unfortunately relinquished their rights, rights guaranteed under international human rights law. 93 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 7 A WOMAN’S RIGHT TO CULTURE: REPRODUCTIVE FREEDOM AND BIRTHING CUSTOMS UNDER INTERNATIONAL LAW Choice in childbirth is protected by significant principles o f International Law. In what follows, I will discuss the particular provisions surrounding the right to health and the right to culture that can be invoked by women across the globe. The Right to Health Women have a right to healthcare. The right to health is protected under several documents. Health is defined in the preamble of the constitution of the WHO as “.. .a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” (WHO, 1946). Both the Universal Declaration of Human Rights (UDHR) (United Nations, 1948) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (United Nations, 77 t o 1966;Toebes, 1999) drafted more narrow definitions of health.' While the right 27 The definition in the ICESCR was a derivative o f the WHO definition. 2 8 Treaties (also called covenants or conventions) are legally binding on all parties. Declarations are not legally binding, although many norms within declarations, such as the UDHR, have come to be considered as part o f customary International Law and are thus binding on all nation states. Declarations can also be used as corollary documents to binding treaties. In this case, they can be used to further elaborate or define certain rights within the treaties. 94 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to health has been classified as a second generation right,2 9 one might contend that there is a direct link between the promotion and protection of health and other basic human rights (Mann, Gostin, Fruskin, Brennan, Lazarini, & Fineberg, 1999). If one is not in a state of health, it is difficult to realize other rights. Article 253 0 of the UDHR provides for the right of adequate health care. Section two of this article gives specific attention to motherhood, identifying it as being “entitled to special care and assistance.” This clause could potentially allow discrimination against pregnant women, as the interpretation o f this could lend itself to reducing women to “breeding machines.” If the exegesis of this phrase is to indicate the social importance of pregnancy and motherhood, it will promote the interests of women. However, if it is interpreted through the lens of biology, this short clause could advance a belief that pregnant women are in need of protection, thus implying a physical inferiority. The travaux preparatoires for Article 25 of the UDHR focus on issues of access to healthcare, protection of the poorer classes and whether “health” is the duty of the individual or the responsibility of the state (Toebes, 1999). 2 9 Civil and political rights have been classified as first generation rights, whereas rights o f an economic nature are deemed second generation. “Group" rights are referred to as third generation. This classification o f rights was a result o f the ideological differences o f the East and W est when the both the human rights covenants were being drafted; the west favoring the importance o f first generation and the east, second generation. 1 0 UDHR, Article 25( 1) Everyone has the right to a standard o f living adequate for the health and well-being o f him self and o f his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event o f unemployment, sickness, disability, widowhood, old age or to her lack o f livelihood in circumstances beyond his control. 25(2) Mother hood and childhood are entitled to special care and assistance. All children, whether bom in or out o f wedlock, shall enjoy the same social protection. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The International Covenant on Economic, Social and Cultural Rights (ICESCR) also contains the right to health care. Article 10(2)3 1 reiterates Article 25(2) of the UDHR in that it affords special protection to mothers before and after childbirth. As was seen in the UDHR, this forulation does not give a definite reason for this special protection. The drafters seemed to assume that there was a need to protect pregnancy. This protection could be construed in either a beneficial or detrimental way, depending on whether a paternalistic approach was taken. Article 12(2a)3 2 places the focus of childbirth on the child rather than on the mother. The implication is that the well-being of the mother and the well-being of the child are separate concerns. In reality, however, the well-being of a baby is directly linked to the health, both physical and mental, of the mother before and during birth (Davis-Floyd, 1994). This has also been interpreted as instead of promoting women’s health for its sake, promoting it for the benefit of the child (WHO, 2001). The one issue dealing with childbirth in the travanxpreparatoires (Toebes, 1999)3 3 surrounding Article 12(2a) was the addition of the word “stillbirth-rate.” The decision to include “stillbirth” was because the term “infant 3,ICESCR Article 10(2) Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3 2 ICESCR Article 12(2a) The provision for the reduction o f the stillbirth-rate and o f infant mortality and for the healthy development of the child. 33 The main concerns that were discussed during the drafting o f Article 12 were focused around the definition o f “health” and what level o f responsibility would be placed on states. The issue of responsibility was centered on the idea of the “dual principle” in that some states have large financial resources and can direct them toward specific problems while other states still need to develop health care systems to provide basic needs to their populations. See Roscam Abbing, p .7 1. 96 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. mortality” only concerned death after birth, during the first year of life. By contrast, the broader term “stillbirth” would include death while in the womb or at time of birth (Toebes, 1999). The Convention on the Elimination of All Forms of Discrimination Against Women also addresses the right to health. Article 12, one article on health care, provides for equal services and equal access for women and men. Section 2 of this same article deals with pregnancy, but only with such concerns as the establishment of appropriate, inexpensive services and adequate nutrition (United Nations, 1979). None of the provisions for the right to health provide explicit language that would necessarily protect a woman’s right to choose an appropriate caregiver during childbirth. The language is vague and subject to interpretation if it were ever applied to birth choices. In addition to the right to health, another principle of international law that could be invoked with regard to childbirth is the right to culture. The Right to Culture The International Covenant on Civil and Political Rights (ICCPR) (United Nations, 1966) is widely recognized in the international law community for its 97 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. powerful guarantee of the right to culture.3 4 Article 27 (United Nations, 1966) provides: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The Human Rights Committee, the body which enforces the convention, clarified 35 • the scope of the obligation to Article 27 in General Comment Number 23. This comment explicitly stated that “culture manifests itself in many forms...” (United Nations, 1994). The committee acknowledged that culture cannot be narrowly defined because there are a multiplicity of cultures and cultural practices. There is also no limitations clause on Article 27 as there is for other principles, e.g. the right to religion under Article 18. This interpretation allows for broad application to various practices, such as childbirth processes. General Comment Number 23 also involves an affirmative obligation for states to enforce Article 27.3 6 3 4 For further discussion o f Article 27 and the ICCPR see: Thomas W. Simon (1997). Prevent harms first: Minority protection in international law. International Legal Perspectives 9. 129-167; Adeno Addis (1992). Individualism, communitarianism and the rights o f minorities. Notre Dame Law Review 67. 615-676; Hurst Hannum (1992). Rethinking self-determination. Virginia Journal o f International Law 34. 1-69; Jeremy Waldron (1992). Minority cultures and the cosmopolitan alternative. University o f Michigan Journal o f Law Reform 25. 751-793; Sarah Joseph (1999). A rights analysis o f the Convention on Civil and Political Rights. Journal o f International Legal Studies 5. 57-93. 3 5 General Comments are policy statements designed to explain ambiguity or give further definition to provisions within treaties. ’6 The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which was inspired by Article 27 o f the ICCPR, further elaborates on the right to culture. Article 4(2) places the responsibility upon states to actively create an environment where individuals can practice their culture. See United Nations. Declaration on the Rights o f Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. G.A. Resolution 47/135 98 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. While Article 27 is useful in promoting cultural rights, it is in tension with certain codified women’s rights, which can be problematic when attempting to empower women. This is also an issue because it is implicit that there can not be a simultaneous right to culture and a right to non-discrimination for women, for example, there is clearly a tension between this article and Articles 2f and 5a of the Convention for Elimination of all Forms of Discrimination Against Women (CEDAW) (United Nations, 1979)3 7 which state: 2: States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;. . . 5: States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. (1992). Article 4(2) States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation o f national law and contrary to international standards. ” For further discussion regarding CEDAW see: Rebecca Cook (1994). State responsibility for violations o f women’s human rights. Harvard Human Rights Journal 7. 125-174; Jo Lynn Southard (1996). Protection o f women’s human rights under the Convention on the Elimination o f All Forms o f Discrimination Against Women. Pace International Law Review 8. 1-90; Julie M inor (1994). An analysis o f the structural weakness in the Convention on the Elimination o f All Forms o f Discrimination Against Women. Georgia Journal o f International and Comparative Law 24. 137- 153; William A. Schabas (1997). Reservations to the Convention on the Elimination o f All Forms o f Discrimination Against Women and the Children’s Rights. William and Mary Journal o f Women and the Law 3, 79-112; Andrew Byrnes and Jane Connors (1996). Enforcing human rights o f women - A complaints procedure for Convention on the Elimination o f All Forms of Discrimination Against Women. Brooklyn Journal o f International Law 2\_, 679-725. 99 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Although CEDAW explicitly places women’s rights above the right to culture, this formulation creates a false dichotomy inasmuch as women also have a right to their culture. It stands to reason then that with respect to childbirth, women have a cultural right to traditional birth practices. Yet, CEDAW does not address the cultural rights of women beyond briefly mentioning a “right to participate in .. .all aspects of cultural life” (United Nations, 1979) in Article 13. The travaux preparatoires indicate that the discussion surrounding this article focused on issues of leisure and sports.3 8 From the historical record it appears that drafters were more concerned with practical issues. They ignored rights conflicts almost entirely. While need exists to reconcile the tension that is present between these two forms of rights and how they pertain to other women’s issues, the right to culture should not be discounted as entirely against women. Women have the right to enjoy their culture as well as the right to non-discrimination. Scholars in feminist jurisprudence, like the international jurists, focus on tensions between cultural rights and women’s rights. It is the question of which right should trump the other which is at issue. Most feminists argue that cultural practices are manifestations of patriarchy whose creation serves to oppress women. This type of analysis not only presumes also that one right trumps another, but it also disregards an important aspect of the relationship between rights, namely that ’8 Culture is discussed in a more civic form, e.g., going to the theater or being allowed to participate in organized sporting events. Rehof, Lars Adam (1993). Guide to the Travaux Preparatoire o f the United Nations Convention for the Elimination o f all forms o f Discrimination Against W omen. Boston: M. N ijohoff Publishers, p. 150. 100 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. women have cultural rights. This right was recognized by the Human Rights Committee in the Sandra Lovelace3 9 case. In Lovelace v. Canada.4 0 a bom and registered Maliseet Indian woman lost her Indian status when she married a non-Indian. This was in accordance with Canada’s Indian Act. However, according to the Indian Act, if an Indian man were to have married a non-Indian, his status would not have been affected. Lovelace later divorced but was not allowed to return to the reservation. Because the Canadian Supreme Court had previously mled that the Act was not discriminatory (Attorney General of Canada v. Lavell, 1974), Lovelace pursued her case before the Human Rights Committee. She filed a claim with the Committee stating that the Act was contrary to provisions within the ICCPR that protected sex discrimination and equal protection,4 1 equality of spouses4 2 and the rights of minorities.4 3 3 9 Lovelace v. Canada, Communication No. R.6/24. Views o f the Human Rights Committee, Annex XVIII. General Assembly Official Records. 36,h Session. Supplement No. 40 (A/36/40). 40 For further discussion o f the Lovelace case, see: Bayefsky, Anne F. (1982) The human rights committee and the case o f Sandra Lovelace. Canadian Year Book International Law 120. 244-266; Valencia-Weber, Gloria & Zuni, Christine P. (1995). Women’s rights as international human rights; domestic violence and tribal protection o f indigenous women in the United States. St. John’s Law Review. Winter, pp. 69-135; Cook, Rebecca (1989). The international right to nondiscrimination on the basis o f sex. Yale Journal o f International Law 14. 161-190. 4 1 Articles 2(1), 3 and 26. 4 2 Articles 23(1) and (4). 4 3 Article 27. 101 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. The band argued that as a sovereign people with the right to self- determination,4 4 the band could determine its own membership requirements. The Committee found in favor of Lovelace, but based its decision on her right to culture under Article 27 rather than on discrimination on the basis of gender in violation of Article 26. While the Committee recognized her other claims as relevant, they were seen as being secondary to her denial of culture. While some viewed this analysis as questionable because it failed to recognize sex discrimination, this criticism misses the point. Lovelace’s importance lies in its recognition that cultural rights should extend to women. Culture, after all, belongs to women as well as to men. As the Human Rights Committee acknowledged in the Lovelace decision, it is crucial for women to fight for their culture and for new interpretations of it. Culture is not static, but a dynamic phenomenon that changes with time (Rao, 1995). This leaves room for social change. While aspects of any given culture may be discriminatory, when women claim ownership of their culture and refuse to allow it to be defined and managed solely by men, they can assist in the re-definition of aspects of culture so that it does not denigrate women and instead empowers them (Rao, 1995). Women must invoke human rights, such as the right to culture, in order to preserve important aspects of women’s way of life. When women maintain power over childbirth, they can prevent its misuse as a tool that relegates women to a private 4 4 Article 1, ICCPR; Article 1, ICESCR. 102 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. and domestic sphere. When women relinquished their power over birth, that is precisely when it came to be used against them. The Draft Declaration on the Rights of Indigenous Peoples (United Nations, 1994), an instrument designed to protect the culture of indigenous peoples, is one of the only ones that explicitly mentions the right to traditional health practices (United Nations, 1994). Though the pertinent part of Article 24 does not discuss childbirth but health practices in general, it is interesting that the drafters acknowledge the right to practice traditional health care. The other instrument, a legally binding treaty, that addresses traditional health practices is Convention No. 169 of the International Labour Organization (ILO), the Indigenous and Tribal Peoples Convention (1989). This treaty was designed principally to protect indigenous people in countries experiencing development. Article 25(2)4 5 states that health services should be “community- based” and should be administered in cooperation with indigenous peoples. The treaty states that those involved in health care must integrate traditional medicine and culture. The ILO stated in an explanatory document of Convention No. 169 that this article “constitutes a recognition of the value o f traditional medicine and the need to preserve and further develop it” (Tomei & Swepston, 1995). It also says that while indigenous peoples may need to adapt to the changes in society, 4 5 ILO Convention No. 169, Article 25(2) “Health services shall, to the extent possible, be community-based. These services shall be planned and administered in co-operation with the peoples concerned and take into account their economic, geographic, social and cultural conditions as well as their traditional preventive care, healing practices and medicines." 103 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ultimately, the decision on whether or not to change lies with these people (Tomei & Sweptston, 1995). Analysis of Practicality of International Human Rights Instruments for the Protection of Women’s Right to Traditional Childbirth In these various human rights instruments, a tension exists between the right to health care and the right to culture,4 6 except in the Draft Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169. The drafters of some instruments regarding the application of health care apparently presumed that traditional forms of medicine are inadequate. The type of health care discussed in these treaties and declarations is Western medical care. As discussed previously, this medical care is as much a reflection of Western values and culture as ethnological medical practices are a reflection of their respective cultures. Also of concern is the definition of health and its potential uses. Health is typically defined under either the bio-medical or public health paradigms, with bio medicine focusing on the individual and public health on society. Both are based in the Western tradition. While the WHO’s definition in its constitution takes a more sociological approach, in practice, both public health and bio-medical agendas are 46 There are other rights that could possibly also be invoked. While outside the scope o f this project, they would worthy o f further research. These rights include: the right o f equal protection (ICESCR Article 3, ICCPR Article 3), the right o f religion (ICCPR Article 18(3), UDHR Article 18), right to privacy (European Convention o f Human Rights Article 8). 104 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. pursued. Health itself is a culturally value-laden word whose use should be critically examined. In addition to the tensions that exist between the right to health and the right to culture, there is ambiguity in some of the verbiage in the legal instruments. This causes difficulty in interpreting the laws and in applying them to specific situations. This vagueness can also reinforce negative stereotypes of maternity and women. For example, giving special protection to pregnant women can be utilized to protect women from discrimination based on pregnancy (e.g., being fired from employment because of pregnancy), but it could also be utilized in a paternalistic fashion (e.g. not allowing pregnant women to work because they are viewed as “too fragile”). Should the various articles be interpreted in a manner that would benefit women, the difficulty of enforcing them exists insofar as the UDHR, Declaration of Rights of Minorities and Draft Declaration on Rights of Indigenous Peoples are not legally binding documents; the ICCPR, ICESCR, CEDAW and ILO Convention No. 169 while having widespread recognition, do not have universal ratification and are also subject to reservations, but the strongest basis for an argument for the right to traditional childbirth practices would be ICCPR Article 27, combined with the particular declarations as corollary documents. 105 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Women’s rights and the argument for reproductive freedom Women’s rights has become a growing subfield of International Human Rights law. While there has been discussion as to why women’s rights must be pursued separately from the general human rights’ agenda (Charlesworth, Chinkin, & Wright, 1991), the reality of the state of the United Nations as being overwhelmingly male-dominated (Charlesworth, Chinkin, & Wright, 1991; Charlesworth & Chinkin, 1993; Hemandez-Truyol, 1996) and of the discrimination women face has made this debate secondary to the general pursuit of equal protection and non-discrimination. The development of international law was from a male perspective, and the bodies of the UN continue to be overwhelmingly male- dominated in participation. Issues of concern to women have been continuously excluded in the development of standards, treaties and special legal considerations, such as jus cogens (Charlesworth & Chinkin 1991).4 7 Women’s rights scholars and advocates, many of whom are Western feminists, have advanced the rights of women internationally,4 8 identifying the areas of women’s lives where they experience discrimination and poor treatment. Western feminists have extended their support for reproductive rights from the national sphere to the international. The central issues that have been pursued domestically, such as child care and access to abortion services, have been placed on the international agenda. 4 7 Peremptory norm: non-derogable right that is binding on all nation-states. 4 8 These efforts have only been focused in certain parts o f the world, though. 106 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Biases exist in the literature with regard to women’s reproductive health with a focus on family planning and the interconnected issues of birth control and abortion (Hernandez, 1991; Hendriks, 1995; Chapman, 1995). One of the most comprehensive and serious treatments of reproductive freedom in the context of international law does not examine the issue of choice in childbirth (Eriksson, 2000).4 9 The fact that many Western feminists are oblivious to the existence of various methods of childbirth and the importance of this to women in various cultures is notable. This disregard while perhaps unconscious, reflects their enculturation. While family planning concerns are not trivial, as these should be addressed, more emphasis should be placed on certain aspects of pre-natal care. This need for better pre-natal care has been identified as being the direct link to the improvement of maternal and child health (McPherson, 1994). The problem lies in the lack of attention to actual childbirth.5 0 This want of attention could be attributed to a few reasons. First, many feminists who address women’s issues in the international sphere are from the West or educated in the West. As demonstrated previously, there is a strong belief by these women in the superiority 49 While a very comprehensive book on most issues central to reproductive rights, it does not cover birth or midwifery. 501 believe that the right to family planning and access to abortion should be universal, but believe that there are important issues that are forgotten. 107 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. of Westernized scientific, medicine, particularly in the United States,3 1 regardless of their political and social ideologies, because of their enculturation in Western values (Davis-Floyd, 1992). Many feminists from the West, because of this enculturation, do not see choice in childbirth as being a significant issue.5 2 Alternative forms of childbirth are either not acknowledged or are not considered as practical or useful. Admittedly, there are Western feminists who do acknowledge the controlling nature of the medical paradigm but they have not made the next step in recognizing the need for integration of traditional practices (Cook, 1999). Another reason for the failure to consider childbirth in Western feminism is the attempt by women to remove the stigma of women as “wombs.” Women have often been valued only for their ability to reproduce (Chapman, 1995). Perhaps by redirecting the emphasis toward issues of woman-based control on whether or not to conceive, it is possible that feminists believe this will de-emphasize the reproductive capacities of women. Western feminists have often categorized women into a singular conception of woman (Oloka-Onyango & Tamale, 1995; Obiora, 1997). This “essentializing” 5 1 While parts o f Europe tend to be somewhat more tolerant o f midwifery. I would argue that because o f the vast use o f male-dominated obstetrics still demonstrates a value linked to the control o f science. 521 by no means assert that this applies to all Western feminists. During the course o f the writing o f this dissertation, the National Organization for Women passed a resolution that expanded the scope o f their definition o f reproductive freedom to include the midwifery model o f care for childbirth. See NOW Resolution, July 1999. 108 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. (Fuss, 1989)5 3 of “woman” is extremely problematic when applying international human rights law. The concept of woman is relative to multiple layers of self- identification and personal experience (Crenshaw, 1989; Hemandez-Truyol, 1997; Harris, 1990; Wing, 1997). For women in the West, it is difficult to comprehend how women in non-Westem societies conceptualize themselves because they take their own conceptions of womanhood for granted. Enculturation is simply the process that takes place merely by growing up in a certain society. The members of any given society will view their values and ways of living as being the “right way” (Renteln, 1990). This attitude of superiority is predicated in a Western view of women and expectation that all women should meet this criteria. Another problem is that not only do Western women assume all women are alike, but they hold a contradictory view, namely that all women in a region share stereotypical traits (Ong, 1994). In attempting to “take up the cause” of women worldwide, Western feminists have repeated the error committed by second wave feminism in the United States. The error is that of misrepresentation by attempting to essentialize the concept of woman with a narrow definition. This functions in conjunction with the application of women’s rights in a universal fashion (Higgins, 1996). In considering the rights of women, many Western feminists make yet another assumption in their arguments. This assumption is the universality of 53 Essentialism is defined as the assumption o f universal female oppression from a patriarchal system. This oppression extends cross-culturally as well as historically. There is a universal female voice that presumes women’s unity. 109 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. rights (Funder, 1993). In pushing for reproductive freedom, feminists are fighting for a freedom that is of importance to women in the West. Whether this is applicable to women in non-Westem countries is questionable. By attempting to force these values onto the international agenda, Western feminists are playing the role of the oppressor through a form of cultural imperialism (Higgins, 1996). Some feminists attempt to discredit the notion of cultural relativism by arguing that women’s rights cannot be recognized as long as culture is used as a precautionary screen (Funder, 1993; Higgins, 1996). These feminists ignore the fact that some “rights” may not be wanted by women of other cultures/value systems. Their response is that such women suffer from “false consciousness.” Because of a woman’s enculturation in a patriarchal society, she is unaware of her oppression; thus it is necessary to determine the difference between false consciousness and true cultural belief (Higgins, 1996). This notion itself is problematic as it is an attempt to eliminate any other ways of thinking; it does not leave room for moral pluralism. It is also troublesome because it implies that some women are above culture and thus able to judge other women who are somehow under the bond of their own cultures. A Western feminist is free to criticize a traditional practice associated with childbirth which she finds abhorrent (Renteln, 1990).5 4 But with this must come the acceptance that this belief is a result of her own enculturation and that this other 5 4 Cultural relativism, in its descriptive form, is very powerful. The only requirement is that one acknowledge that there are different moral codes. This in no way requires tolerance. Tolerance is a product o f the prescriptive form o f cultural relativism. 110 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. society is functioning under a different morai system. Cultural relativism does not prevent an attempt to change another society’s practices, but it creates the responsibility that one must acknowledge that interfering may be imperialistic, despite the good intentions from which it comes.5 5 While change may be desired, feminists must consider what the impact of the change may be. In some situations, well intentioned reforms have made matters worse. The Shah Bano 5 6 case in India was championed as a step forward for women, but it actually created a backlash. This example underscores the point that interference can potentially create a worse situation than the one that was sought to be changed. As has been argued, in order for change to be legitimate, accepted and in accordance with the cultural ideals and morals of a given society, it must come from within (Toubia, 1995; An-‘Naim, 1994; Obiora, 1997; Mountis, 1996; 5 5 As a feminist from the West, I find many o f the birth practices that I have read about to be horrific and in desperate need o f change. I also do not want to make the mistake o f being paternalistic. One must find the right balance between pursuing one’s values and in respecting another’s own right to their values. 5 6 Shah Bano was a Muslim woman who was divorced by her husband, who according to Islamic law holds a unilateral right to do so. The husband paid his wife a minimal monetary compensation because o f which she filed suit in the Indian courts for greater compensation. Because o f the Islamic culture, it would have been difficult for her to maintain sustenance on her own. The court examined the Shar’ia, the Islamic law and stated that when in conflict, state law took precedence over religious law, but it stated the Shar’ia did not specifically state what she should be paid and thus was not in conflict and thus found in her behalf. As a result o f this decision, there was protest from within the Islamic community and the Gandhi government, in a political decision, codified Islamic law into the Muslim Woman Act. Had the court not interpreted the Shar’ia, there would not have been protests and the new law would not have been enacted, which placed women at an even greater disadvantage. I ll Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Rahman, 1995). To assist in change, it is necessary for cross-cultural dialogue and external support (An-‘Naim, 1994; Mountis, 1996). The programs established by the United Nations and operationalized by states have not considered women’s right to their culture. Many western feminist legal scholars have not acknowledged women’s culture by supporting these programs and have focused on issues that are of central interest to women in the West and of questionable value to women of other societies. They have missed the link between this aspect of culture and the empowerment of women. Both the United Nations and feminists need to consider cultural significance when creating programs or fighting for reproductive freedoms. By establishing policies that are culturally sensitive, women will continue to enjoy their right of culture and the powerful role that childbirth allows them as well as enjoy healthy pregnancies and babies. 112 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 8 THE INTEGRATION OF TRADITIONAL PRACTICES AND BIOMEDICINE Reproduction should not be reduced only to its medical aspects. The socio cultural and political aspects must also be considered. The social conditions of women such as the general education levels and gender status must be addressed, not just the medical concerns, when instituting health policies into developing countries. Because of the cultural imperatives of Western medicine, it is necessary that when it is imported into developing countries, the “disempowering” effects be minimized; the knowledge should be shared, not transferred in that people of other countries should have a choice (De Koninck, 1998). Medicalized birth has become the status quo in American culture by having all but eliminated the female-centered model that has been slowly re-emerging with the growth of midwifery. While midwives have been identified as the first level of care in the developing world, it is important to remember that they are still approaching birth from a Western paradigm, albeit from a female approach. In addition to this, they also are expected to operate under the goals of Safe motherhood, which includes the removal of many traditional practices and the phasing out of the TBA. The next level of care is centered in technology. Technological birth is demonstrably incompatible with many of the cultural practices utilized by many people in non-Westem societies. While medical 113 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. technology has its role in birth, it should be used with caution when introducing it into other cultures. Medical intervention has been a result of the desire for economic gain as well as the strong androcentric belief in the power to control women and birth, the one truly female process. There has been a cultural shift in the United States as a result of the desire for the elimination of risks associated with birth. Women willingly followed physicians, albeit the reality that most risk historically had to do with the lack of knowledge of sepsis. The shift in care to physicians did not reduce maternal mortality but, in fact, increased it initially due to the high rate of interventions by physicians and the lack of knowledge of sepsis. As a result of both the desire for economic gain as well as usurping any female power, physicians exerted their control. Women in the United States, as a result o f their disempowered state, willingly, or because of their inability to protest, followed. Women in developing countries in 2001 are in a similar position in that these women are typically in a place of disempowered status. Maternal mortality rates remain extremely high, compounding women’s experience. Western medicine apparently offers a huge repose from this. The desire to educate these women and allow them to gain more stature in their societies as well as provide medical care is significant. However, in doing so though, it is imperative that individuals implementing the processes of so-called “modemization”are sensitive to the cultures surrounding childbirth and ensure female-based aspects of culture are not trampled (Conway-Tumer. 1997). 114 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Transplanting Westernized medicine in other countries could easily be identified as a form of cultural imperialism or at minimum, Western paternalism (Cosminsky, 1986). The integration of traditional medicine and Western medicine though, can prove to be useful and acceptable to many (Campbell, 1998; Bently, 1991; Betts, 1991; WHO, 1992; Lili, 1992; Oumeish, 1998; Chi, 1994) because the benefit of both value systems can be extracted to create an acceptable system of care. It would make health care more accessible and thereby reduce maternal mortality. It is vital that the individuals in these societies play an active role in this process to ensure that the health system that is developed is one that is acceptable to them and will therefore be utilized (WHO, 1991). The retention of traditional birth attendants would most certainly be practical, if simply increasing their knowledge to become assistants to the medically trained midwives. By training these women in modernized health care, they could serve as “ambassadors” to their own people of the value of modem practices. Alternatively, they would also be vital links for the medical establishment to understand the cultural imperatives of their societies. Following this line of thought, it is meaningful to visit the birth model of a country that has maintained women’s control over birth, integrated midwifery into the primary care of pregnant women as well as maintained highly successful outcomes with quite low rates of maternal and infant mortality. The Netherlands has continuously been the example to which researchers and healthcare providers from around the world have turned when searching for what most closely 115 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. resembles an “ideal model” (Odent, 1991; Bradley & Bray, 1996; DeVries, 1996; McKay, 1993; Tasharrofi, 1993). Although this is a Western example, which has worked in the Netherlands, aspects of it may not be transferable to other cultures. The Netherlands: A Model to Emulate There are several reasons why the Netherlands’ Maternal-Child Health Program has been respected around the world. One of the important lessons that can be learned is that birth has remained in the hands of women and has maintained the traditional cultural attitudes that birth is a natural event, under control of the mother and can take place in the setting of her choice. Birth is considered in the Netherlands as a normal, physiological event; not as pathologic (Bradley & Bray, 1996; Abraham-Van der Mark, 1993). This belief is not only backed by science, but is embedded in their culture. “Dutch women expect home birth; it is part of their everyday experience” (DeVries, 1996). This attitude has an overarching effect on the birthing systems in the country, as a whole. A combination of this cultural predisposition toward childbirth and the desire to have an efficient healthcare system has prompted policy-makers to encourage home births attended by midwives (McKay, 1993). This view of birth entitles women in the Netherlands to maintain control over their births, including the location. Women are allowed the choice of having their babies at home or in a hospital. Approximately 34 % of women choose to deliver their children at home with a midwife (Bradley & Bray, 1996). The remainder, who choose to have a 116 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. midwife-attended delivery in a hospital, still do not consider birth to be a medical event. The Dutch call these births “poliklinische bevallingen,” which means polyclinic birth or being in the hospital without actually being a patient (Wiegers, Van Der Zee, Kerssens, & Keirse, 1998). Midwives are the first-line in caregivers to pregnant women. This privileged status was given to midwives during the early 1940s as a result of a Dutch law that declared that midwives are the best choice for obstetrical care and should therefore be the primary care giver (McKay, 1993; Abraham-Van der Mark, 1993). Both those in private practice and those working for the government practice independently. They are responsible for making all referrals of pregnant women to obstetricians when they deem it necessary for high-risk pregnancies or complications. Referral decisions are based upon a list of medical indications that is generally accepted among health/birth care providers, while somewhat controversial among the professional organization for obstetricians because of the level of control granted to midwives (Treffers, 1993; Tasharrofi, 1993; DeVries, 1996). This list is known as the Kloosterman List as it was developed by Dr. Gerrit-Jan Kloosterman (Abraham-Van der Mark. 1993). Dr. Kloosterman is internationally acclaimed for his support o f the Dutch childbirth model and its use of midwifery and of minimal interventions during birth. “The wishes of the woman are the only valid argument in obstetrics” (van Daalen & van Goor, 1993). Midwives in the Netherlands are not trained as nurses as in many countries, but attend midwifery-specific training schools. These institutions are highly 117 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. competitive with fewer than 10% of all applicants accepted (Tasharrofi, 1993). Midwives attend most home births and also attend approximately 50% of hospital births (McKay, 1993). Approximately 45-50% of all parturient women deliver their children under the care of a midwife in the Netherlands (Tasharrofi, 1993; Wiegers, Van Der Zee, Kerssens, & Keirse, 1998). One of the defining characteristics of the health care system in the Netherlands is that it is “socialized.” The Sick Fund provides insurance to approximately 60% of the population (Tasharrofi, 1993), and the remainder of the population, because of their higher level of income, may take out private insurance. Because there is universal access to the same quality of care for all, the impact that certain socio-economic factors can have on birth outcome is negated. For normal births, the Sick Fund only covers the cost of a midwife. If an individual chooses to utilize the services of an obstetrician, this expense must come from her own pocket. Along with socialized medicine is a guaranteed paid maternity leave of sixteen weeks total for all working women, regardless of occupation or employer (Rothman, 1996). Certainly of importance to the positive outcomes of birth in the Netherlands is the fact that there is relatively easy access to both birth control and abortion services. By reducing the number of unwanted pregnancies, the Netherlands has been able to have a positive impact on its birth outcomes. As a result of intersection of all of these items, the use of medical interventions during childbirth in the Netherlands is relatively infrequent. The 118 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Cesarean section rate is a clear example of this. The Netherlands consistently has one of the lowest national Cesarean rates in the world; 7-8% compared to the United States’ rate which remains closely at 24% (Bradley & Bray, 1996). For those mothers who choose to have births in a hospital, there is a consistent early release policy. The Dutch see no reason to keep a healthy mother and infant captive in a hospital. They are typically released during the first 24 hours following delivery, with some stays only lasting several hours (Bradley & Bray, 1996). This belief is of special interest when compared to the outcry in the United States during the 1990s with regard to hospital policies that required early release of women and newborns (De Lafuente, 1995; Evans, 1992;, Hill, 1995; Murphy, 1994; Nordheimer, 1995; Shirk, 1994; Smathers, 1995; Squires, 1995). Headlines such as “Snappy Birth Day” (Shirk, 1994), “Want Some Fries With That Baby, Sister?” (Hill, 1995) and ironically, “How About a Brochure on Stay-At- Home Childbirth?” (Smathers, 1995) graced the pages of the nation’s newspapers. Women’s organizations and doctors’ associations became allies in the fight against early release and what they viewed as potential harm to women and babies. These societal driven cultural attitudes regarding childbirth differ greatly from the Dutch model. An integral part of the Maternal-Child health program that supports both home birthing and the early release of women from the hospital is the role of the Maternity Home Care Assistant. This is a unique occupation that exists to such an extent only in the Netherlands. This individual often assists the midwife if the birth 119 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. is in the home and then, under the direction of a midwife will visit the woman following the birth of her child on a daily basis for a period lasting approximately 8 to 10 days (van Teijlingen, 1993). The home care assistant helps the new mother with care of the new baby and of other children in the home, housework, shopping and provides educational services (Cuppen, 1991; Bradley & Bray, 1996). This service is available to all new mothers in the Netherlands and the Sick Fund covers most of the cost, with minimal out pocket expense to the new mother (e.g., care for 5 hours per day would cost a mere $16 a day) (Bradley & Bray, 1996). Maternity care assistants are greatly respected by their clients and their clients’ extended families (Bradley & Bray, 1996). They are viewed as having a certain expertise beyond the acquired knowledge of mothers, grandmothers and other relatives. The success of the Netherlands approach to maternal health is demonstrated by the country’s birth statistics. The country is consistently listed in the top five countries in the world with lowest infant mortality rates (1989 6.8%), compared to the United States who typically ranks somewhere between 20 and 25 (1989 9.8%) (Bradley & Bray, 1996). In addition to this, the Netherlands outpaces or approximates the United States in every other health indicator related to maternal and child health and spends less money, per capita, on health care (Bradley & Bray, 1996). The Dutch model serves as a Western example of a successful birthing system where women within the society have maintained control over the birth process. While this model should not be replicated exactly in non-Western 120 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. cultures, there are valuable lessons to be remembered when establishing childbirth programs in other societies. 121 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. PART IV CONCLUSION Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. CHAPTER 9 CONCLUSION This study grew out of my long-standing interest in women’s rights. Although I expected that my dissertation might focus on women’s reproductive health, the direction this study took was serendipitous. After stumbling upon Robbie Davis-Floyd’s book, Birth As an American Right of Passage (1992), one day while perusing the shelves in my university’s library, I became inspired by her work to conduct research on different aspects of birthing. What I found was a variety of literatures, but a need to bring these together and take things a bit further with regard to policy. So much attention has been paid to reproductive rights, but rights in childbirth are often not considered under the same lens. This study represents an effort to unite the disparate scholarship including medical anthropological discussions of birth, legal analysis of reproductive rights and midwifery (both in a domestic and international context) and feminist approaches to both international law and reproductive rights. By undertaking this synthesis, I advance the argument that women should have a right to choose a caregiver during childbirth and that traditional childbirth practices should be protected as part of women’s culture. It is my hope that this study will serve as a stepping stone to change and further discussion. The key principle that was the basis for my argument is the idea of “choice.” The pro-choice argument has typically been considered in the context of 123 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. abortion, but can certainly be applied to other issues, such as childbirth. Choice has been narrowly construed, and this project takes a broad approach to it. While I clearly favor one model of birthing over others, I ultimately believe in the value of “choice.” I recognize that others may choose differently than I would, but that is the beauty of having the right to choose. Women do not have to agree or want to have the same experience in childbirth, or any other life event for that matter, but having the right to choose allows women to be able to pick what is appropriate for them; having the right to choose requires more than different options simply being available. Procedural or legal barriers, misinformation or no information all place limits on the ability to choose. Why is it that so few women in the United States give birth under the care of midwives, despite the evidence that this form of birthing has such positive medical and psycho-social outcomes? Why is it that so few women with whom I discussed this topic during my research were even aware that midwifery was an option during birth? Although some may think that I oppose medical births, it was never my intention to advocate replacing all of them with midwifery-assisted births. This work was in no way meant to say that medical interventions should be discarded. On the contrary, while recognizing that some women may choose to have a medical birth, medical interventions are also necessary in some cases to protect both the birthing woman and her unborn child. While watching someone very close to me go through infertility treatments in an effort to have a child, perhaps some of the most invasive and scientific procedures within reproductive healthcare, I was 124 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. grateful that medicine is capable of these interventions. Indeed, everything has its place. Enabling access to non-medical births for low risk women simply allows midwifery to have its proper place while reducing the amount of unneeded interventions that take medicine out of “its place.” The Netherlands, as discussed in the previous chapter, provides an excellent example of how a balance can be achieved, while allowing women full choice in their birthing options. While studying the jurisprudence of human rights, including the case of Sandra Lovelace,571 came to the realization that birthing customs constitute a form of women’s culture. Accordingly, I accept the Human Rights Committee’s reasoning that women also have a right to culture (despite the standard view that the decision was a disappointment because the issue of gender equality was not addressed). There is great value in the decision as culture is something that has traditionally been viewed as belonging to men. In addition to culture being regarded as something under male-control, it has historically been perceived as being something that has been subjugating to women. This was clearly the case with the culture of Lovelace’s band before she brought her grievance. With childbirth, there are so many practices that have naturally come from women since birth has historically been under women’s control. Childbirth is a central part of many women’s lives. These practices are clearly products of culture and valuable. 5 7 Lovelace v. Canada, Communication No. R.6/24. Views o f the Human Rights Committee, Annex XVIII. General Assembly Official Records, 36th Session, Supplement No. 40 (A/36/40). 125 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. particularly in that they are vestiges of female influences on culture. These cultural practices are empowering rather than dis-empowering for women. Some assume that a focus on birthing is inconsistent with feminist principles. Those who do fail to acknowledge the empowering aspects of giving birth. Rather than viewing childbirth as something that relegates women to the private sphere, I see it as something that is extremely powerful. I will not deny that childbirth and the rearing of children have been used to subjugate women, but find there is irony in this. The ability to bring life into the world is something that exclusively belongs to women. While men obviously must contribute to this process at its earliest stage, gestation and birth do not require a man. If men have felt threatened by women and the need to control them either on a conscious or subconscious level, then birth is clearly something that must certainly draw fear as it is something that men cannot do. The irony lies in that birth is something that is powerfully unique to women but it has been used to subjugate them by either controlling it or removing them as much as possible from the process, thus taking away their control. One important issue this study only touched upon is what financial impact that changes in current birthing policies in the United States might entail. As this study gave only brief consideration to the question of financial accessibility, further research on this matter is needed. Insurance companies play an important role by influencing to what services women have access. Certainly, if more women were to seek out midwives as their principal caregiver in birth, physicians would see a 126 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. significant change in their profits. Indeed, a question that should be explored with regard to this is why insurance companies do not promote midwifery services, not only because of the positive outcomes, but also because of the large cost savings for the insurance companies; birth with a midwife is cheaper. The World Health Organization is to be commended for designating midwives as the desired lead medical staff in developing societies as it was initially expected to find a greater role played by physicians. This is perhaps a result of European influence on the WHO’s policies as midwives play a greater role in European health care than in the United States. While appreciating the value of having these caregivers as primary providers of health care, the value of the traditional birthing attendants within the individual cultures cannot be lost. Western-trained midwives and the traditional birthing attendants together have the potential to provide the valuable link between the much-needed benefits of allopathic medicine and the preservation of cultural practices surrounding childbirth.5 8 Allowing choice and protecting culture in no way jeopardizes women’s health. On the contrary attempting to have a universal approach to childbirth may have a negative impact on women’s health. 5 8 Some may misconstrue my discussion o f Western healthcare practices in developing countries as a critique o f midwifery. My point is that these midwives, while utilizing a female-based approach to birth, have been trained in a Western-cultural paradigm. They cannot help but carry some of those values with them and should be aware o f this cultural predisposition. 127 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. This project advanced the argument for protection of women’s right to choose a birthing attendant and presented a means to achieve this. I do not create new legal principles, but take existing principles and apply them to birth. If women present an argument based on both the principle of choice and the right to culture, they will have the possibility of regaining control over childbirth, a vitally important part of women’s culture. This would have far-reaching implications for women inasmuch as they would then hold power over their own bodies and lives. 128 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. BIBLIOGRAPHY Abraham-Van der Mark, E. (Ed.). (1993). Successful Home Birth and Midwifery: The Dutch Model. Westport: Bergin & Garvey. — , Introduction to the Dutch system of home birth and midwifery, pp. 1-18. — , Dutch midwifery, past and present: An overview, pp. 141-160. Adams, A.E. (1994). 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Asset Metadata

Creator Anglin, Gayl Marie (author)

Core Title Childbirth customs as women's culture: A jurisprudential argument for protection under international and American legal norms

Contributor Digitized by ProQuest (provenance)

School Graduate School

Degree Doctor of Philosophy

Degree Program Political Science

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag Law,OAI-PMH Harvest,Political Science, international law and relations,women's studies

Language English

Advisor Renteln, Alison Dundes (committee chair), Snell, B.J. (committee member), Wagner, Marlene (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c16-210697

Unique identifier UC11334663

Identifier 3073740.pdf (filename),usctheses-c16-210697 (legacy record id)

Legacy Identifier 3073740.pdf

Dmrecord 210697

Document Type Dissertation

Rights Anglin, Gayl Marie

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus, Los Angeles, California 90089, USA