Women’s and Provider’s Moral Reasoning About the Permissibility of Coercion in Birth: A Descriptive Ethics Study

Numerous studies have evidenced that limitations of autonomy are crucially linked to women’s negative birth experiences [3, 26, 31, 48]. One way that deprivation of autonomy actualizes is coercion, which hence qualifies as a form of mistreatment in birth [3]. While noting that different forms of coercion are not entirely mutually exclusive, the following distinctions can be made: (a) formal coercion—acting physically on a patient’s body (e.g. forcing into lithotomy position, strapping to bed), (b) informal coercion—acting more subtly on a patient’s mental state (e.g. intimidation, manipulation, withholding information), and (c) coercive environment—consciously limiting a patient’s array of infrastructure-related options (e.g. not affording an available bathtub, locking the door) [15, 31, 40]. For example, in a Canadian sample 1 in 10 women reported feeling coerced into accepting options recommended by providers [47]; in a US sample half of women who preferred vaginal birth over caesarean-section were not afforded this option [8]; in a Swiss sample more than 1 in 4 women experienced informal coercion [31]; in a Nigerian sample more than 1 in 6 women were restrained or tied down during labor [32].

Any form of coercion attempts to override a patient’s self-determination. Related to this, pathological birth situations were reported to lead to, if not to justify coercive measures which are seen as a means to gain compliance from women and to adhere to guidelines [21, 36, 37]. Coercion in birth is not only recognized as a violation of human rights [52], but is antithetical to quality care [50], and often causes adverse psychological outcomes [9, 31], which ultimately affect mother–child-bonding and child well-being [39], as well as parental couple relationships [33]. In contrast to its widespread occurrence, both ethical and medical associations (e.g. World Health Organization, American College of Obstetricians and Gynecologists, Nuffield Council on Bioethics, Swiss Academy of Medical Sciences) universally reject any coercive measures being imposed on women (with decision-making capacity) during birth and emphasize the right to autonomy as well as the deduced requirement of informed consent, thereby codifying the recognition of women’s reproductive rights [27, 40, 45, 51]. Also, these publications indicate that coercion has generally garnered attention in obstetrics.

From a swiss legal perspective, reproductive autonomy and bodily integrity are affected whenever a physician orders a pregnant woman to undergo a particular treatment to protect the embryo. According to the Swiss Constitution, reproductive autonomy is a fundamental right and part of the constitutionally protected right to personal freedom and bodily integrity (Art. 10) [13]. It follows, that for restrictions to be justified they need to pursue a public interest or protect the fundamental rights of a third party, and they need to be proportionate. However, there are uncertainties regarding the scope of reproductive autonomy which are essentially attributable to the fact that the appropriate legal treatment of the embryo has not been fully determined. Technical developments have exacerbated these uncertainties. There is now increasing scope for carrying out medical interventions on the embryo itself. This has shifted perceptions significantly. The foetus is increasingly seen as an entity separate from the mother, and a patient in his or her own right. The public discourse refers to the “anticipated well-being of the child” and to the “unborn child” as a “patient” to justify infringements on a woman’s reproductive autonomy and her corporal integrity. Nevertheless, legal norms in Switzerland and many other countries hold that legal personality does not begin until birth. The unborn have no fundamental rights. That also means that a woman’s right to reproductive autonomy and bodily integrity is not matched by similarly robust rights on the part of the foetus.

Any prenatal medical intervention is performed on the body of the woman giving birth. Birth is a significant moment in the status of a human life. In many jurisdictions, it marks the beginning of legal personhood. Of course, a woman’s autonomy does also encompass the choice of delivery method used and she can decline medical assistance in the birth process. She is the patient and any action taken requires her consent, which she is entitled to withhold, even if the suggested action can be deemed to serve a useful purpose and medical indications support it. The prerequisites for a valid consent are a woman’s decision-making capacity and full information about benefits and risks of the intervention and possible alternatives to it. The woman may have a moral duty to tolerate a bodily intervention which benefits the health of the future child, she does not, however, have a legal obligation to do so.

Nevertheless, open legal questions remain regarding the extent to which a pregnant woman can be required to submit to certain obstetric procedures or indeed to give birth by caesarean section. For example, it can become necessary to change the method of delivery. This may be the case if there is deterioration in the fetal heart sounds or if persistent lack of oxygen would result in damage to the fetal brain, so that a caesarean section needs to be considered. There is some legal uncertainty surrounding the birth-giving process, for within the realm of Swiss Criminal Law (Art. 116) [44]—different from the Civil Law (Art. 31) [43]—personhood begins at the onset of labour. Yet, the cardinal principle that no medical interventions are permitted in cases of a person capable of judgment does not consent to them holds true also during the process of giving birth. Coercive delivery by Caesarean section is tantamount to injury to the bodily integrity of the woman concerned. If the law does not place any obligation on women to subject themselves to bodily interventions benefiting the child neither during their pregnancy nor after birth, to deprive her of the right to bodily integrity during the hours surrounding a birth not only creates an incoherent value hierarchy, it also impinges on the woman’s dignity at a time when she is especially vulnerable. Finally, whether medical intervention occurs in the first place, and what form it takes if it does, varies considerably—not only according to the cultural and social setting but also based on personal attitudes to risks (eg. life, health). As birth has become increasingly medicalised, women are finding it ever more difficult to oppose the use of technology. To then transpose their decisions into the context of criminal law is hardly compatible with the principles of reproductive autonomy.

In light of the frequently observed divergence between obstetric practice and ethico-legal standards it is of paramount importance to understand the reasoning of involved parties (e.g. providers, women) underlying the view that coercion in birth is (im)permissible. It is imperative to first analyze their normative reasoning descriptively to identify their reasons for and against coercive measures. Only in a second step, the particularities of their reasoning can be addressed normatively. Deliberately departing from a normatively neutral stance, descriptive ethics describes the manifold aspects and manifestations of morality as a natural phenomenon (e.g. people’s moral behavior, values, principles) [12]. Descriptive and normative ethics are inextricably linked and mutually constitutive in their attempt to answer the question “what is morality?” [12]. Along similar lines, Hämäläinen argues that “philosophical ethics cannot be pursued in meaningful ways without substantial descriptive work” and that “the main reason why the projects of descriptive ethics are left to others [e.g. social scientists] is that there is in today’s philosophical ethics too little appreciation of the philosophical import of descriptive work and the philosophical hazards involved in such work”[25, p. 2]. Sharing this conviction, we applied a descriptive ethics lens to providers’ and women’s moral reasoning concerning the permissibility of coercion in birth. In doing so, our analysis aimed to serve the descriptive task of ethics, namely to provide “rich and accurate pictures of the moral conditions, values, virtues, and norms, under which people live” and which drive their behavior [25, p. 1]. The reasons for and against coercion in birth identified by our analysis can serve as points of leverage to dismantle coercion by addressing possible fallacious arguments (e.g. formal logic) or premises that do not match current legal or ethical standards (e.g. premise on the moral status of the fetus) or that are not empirically true (e.g. coercion does no harm to the child). Moreover, they can advance the ethical discussion surrounding coercion in obstetrics by providing a comprehensive list of factors considered morally relevant for this subject. Most importantly, however, our analysis ultimately contributes to improving lived birth experiences.

Mapping factors considered morally relevant for coercion in birth is a prerequisite for a meticulous normative analysis. For example, considered moral judgements and moral intuitions of relevant agents can be fed into a process of reflective equilibrium [46], which was originally developed as a method of doing moral philosophy [34], but which has also been widely applied as a discussion and decision model facilitating case-based reasoning and justifying decisions regarding concrete ethical issues [35]. More recent versions of reflective equilibrium consist in working back and forth among the following four relevant groups of moral beliefs: considered moral judgements of relevant agents, morally relevant facts, ethical principles, and both descriptive and normative background theories [46]. By equilibrating this quadratic set of moral beliefs, the moral justification is not founded in “secure, incorrigible foundations outside of our processes of reflection, but rather in the coherence of all flotsam and jetsam of our moral life” [29, p. 47]. As such, our descriptive ethics analysis can help anchoring future normative analyses of coercion in birth in existing moral beliefs of persons other than the ethicist(s). Notably, the fact that in our study a relative majority of women and providers approved coercion in birth under some circumstances contrasts with existing legislation and relevant medical ethical guidelines [5, 27, 40, 45]. However, it fits into the global picture that numerous empirical studies from various countries have highlighted that many women experience violations of autonomy during birth [4, 30, 38, 48].

Many women and providers justified coercion in birth by referring to the concept of decision-making capacity. Two misconceptions are evident in this context. First, although the question used in the interviews and survey explicitly assumed women with capacity, the latter was frequently questioned, even by women themselves. The mere reason provided for the assumption of limited decision-making capacity were the exceptional physical and emotional states birthing women are often in, rather than the ascription of incapacity based on a rigorous evaluation of the abilities underlying decision-making capacity (i.e. cognitive, evaluative, decisional, expressive) [41]. The standards for decision-making capacity during birth seem to be set differently and higher than in other areas of medicine, which, however, lacks any legal and ethical basis and can be seen as a form of paternalism and oppression of (birthing) women [36]. Moreover, precisely these exceptional states, which are cited as a reason for questioning birthing women’s decision-making capacity, are conducive to an effective physiologic birthing process [7, 11]. The second misconception which emerges in our interviews related to decision-making capacity is that often as soon as a birthing situation becomes pathological, coercion was said to be justified. However, overriding autonomy can only be justified if a birthing woman lacks decision-making capacity and not simply because she does not consent to a measure deemed necessary by providers [5, 41]. Apparently irrational refusal of recommended care options in health-threatening situations does not eo ipso equate to a lack of decision-making capacity [42].

In defense of coercion, it is often argued that providers hold the (more) objective knowledge. On the one hand, there is of course a medical knowledge asymmetry between women and providers (as generally between patients and providers). On the other hand, this should not result in a power imbalance between women and providers which would represent a form of epistremic injustice [14]. Also, the idea of providers’ assessments being always objective and correct conveyed by such justifications is contestable. Introducing the concept of “authoritative knowledge”, the anthropologist Brigitte Jordan analyzed how in birth a structural superiority of the medical system prevails and other systems of knowledge are disregarded [22, 23]. Furthermore, “maternity care providers are bound to the limits of a medicalised model of care, and socialised into the risk-focused approach of this model” [41, p. 338, 42]. Therefore, the situation described in the question used is often averted proactively, either by tailoring “information to ensure the selection of what the health care expert considers the best choice” [43, p. 267], or by evoking fear through manipulating and intimidating statements such as “if you want your child to die …” [31]. In this way, coercion actualizes beforehand at an informal level. The birthing woman consents and physical coercion has been avoided.

Related to this, many of the justifications made in support of the use of coercion also reveal a strong focus on the somatic dimension of health. Whenever “best interest”, “outcome” or “health” was mentioned, participants referred to (short-term) somatic health. Possible other health-related outcomes, such as the mental health of the mother, mother–child-bonding, parental couple relationships, or future reproductive choices are neglected and appear to be mostly unknown. Paradoxically, possible negative psychological consequences for providers are presented as an additional justification for coercion. Thus, overall, providers seem to be perceived as more accountable in regard to the protection of health and life than in regard to the use of coercive measures. It seems worse not to have protected health of the entrusted than not to have protected maternal autonomy, so that in (perceived) risk situations the principle of non-maleficence is given more weight than the principle of autonomy [36, 37]. Yet, providers are dually accountable, that is they have to respect autonomy and protect health and, in case of an unsolvable conflict between autonomy and non-maleficence, they have to prioritize autonomy [5, 27, 40, 45].

In face of the challenge of decision-making in birth, the legal scholar Abrams argues that a decision-making framework is applied which elects the outcome that minimizes any, even minor, fetal risk [1]. The author points out that such a fetal-focused framework perpetuates an illusion of autonomy in birth and concludes that “law [and ethics] standards should explicitly govern not just the ‘what’ of childbirth outcomes, but the ‘how’ of childbirth decision-making (…) to ensure that women ‘s autonomy is actual and not illusory” [1]. Correspondingly, it has been argued that framing moral problems of birth as maternal–fetal-conflict is a misguiding conception which disregards women, results in a baby-centric bias, and commonly turns providers into allies of the fetus [49]. This is also apparent in the results of our study in that mothers are never mentioned on their own under the aspect of beneficence, but only—if at all—in combination with the fetus. Such a conflict-lens abets a contest between women’s autonomy and fetal beneficence, which, in turn, may contribute to strained decision-making, as argued by the bioethicist De Vries [49]. Hence, the author proposes to replace autonomy with respect, which cannot be ignored in the name of beneficence or non-maleficence and which creates an ethical obligation to honor women’s preferences, fears, and uncertainties [49]. Both bioethics and law have to self-critically assess their contributions to coercion in birth (e.g. by putting fetus and woman in opposition, deprioritizing respect, avoiding the subject all together) in birth.

Many respondents voiced that they found the question difficult to answer or answered “don't know”. This suggests that providers facing such difficult situations in obstetric practice may suffer from moral distress [20]. In fact, available research indicates that one growing challenge for midwives in Switzerland is moral distress, amongst others due to institutional limitations of women’s autonomy and quality of care [28, 29]. Although the ethico-legal background is unambiguous, many of the interviewees seem to work in uncertainty or ignorance about the legal and ethical standards underlying their work. Both moral distress and uncertainty may be exacerbated by the absence or the marginal role the issue of coercion in birth plays in several medical-ethical guidelines on coercion in medicine [15, 40]. This is surprising given the huge number of people affected by this issue (e.g. woman, companions, partners, children) and the growing body of evidence on mistreatment (e.g. coercion) in birth [4, 30, 38, 48]. Here, the question has to be raised how existing patriarchal norms and power structures may contribute to the invisibility and marginalization of women’s experiences of coercion.

Considering practical implications of our study, we first advocate that it is of immense importance that providers are well aware of the ethical and legal bases, for example that the topic of coercion is (more extensively) dealt with in education and training. Furthermore, also women and their partners should know their rights better. This could be addressed through a systematic implementation of this subject in birth preparation courses in hospitals or birth centers. Should autonomy violations nevertheless have occurred, it would be helpful that low-threshold possibilities and sensitive mechanisms exist for the women concerned to denounce them. It is known that civil justice systems are mostly of limited value in addressing mistreatment in birth (e.g. coercion) and, hence, render redress out of women’s reach [10]. Against this backdrop, the concepts of obstetric violence and mistreatment have been welcomed as a first step and an epistemic intervention, that is “by rejecting the normalization of reproductive oppression, [it] constitutes a refusal of epistemic frames that silence, diminish, erase, and devalue alternative and embodied forms of reproductive knowledge and agency” [50, p. 104, 51]. However, existing law standards have to catch up to these new realities.

Self-selection-bias resulting in interviews and survey with participants who hold strong attitudes towards the topic. In fact, women with a preference for birth centers were overrepresented in our sample. Moreover, we only interviewed and surveyed participants from the German-speaking part of Switzerland. Participants from other major language regions might have reasoned differently. Lastly, the wording of our analyzed question on coercion applied a conflict-lens which might have obscured the interconnection between the woman and the fetus and, thus, biased responses. However, we used the exact same wording as in the medical-ethical guideline of the Swiss Academy of Medical Sciences, since the latter is legally binding for Swiss providers.

Our study has mapped various factors considered morally relevant by providers and women when deliberating on the permissibility of coercion in birth, including women’s decisional capacity, beneficence and non-maleficence, authority through knowledge on the part of providers, flaws of the medical system, or the imperative to protect the most vulnerable. Also, we identified various misconceptions, such as the conviction that a pathological birth can justify imposing coercive measures on a woman with capacity or that fetal rights can justifiably infringe on women’s autonomy. This apparent discrepancy between several statements and existing medical-ethical guidelines and legislation urgently calls for information and education on the issue of coercion in birth to enable women to fully exercise their reproductive autonomy, to prevent long-term adverse health outcomes of women and children, and to make “women’s enfranchisement in their own care rest easily with the medical vigilance which has helped to reduce perinatal and maternal morbidity and mortality” [52, p. 1144].