2012 Hague Opening Remarks from Hermine Hayes-Klein

Welcome, Everybody! I am Hermine Hayes-Klein. I am the director of the Bynkershoek Research Center for Reproductive Rights, here in The Hague.

You have come from around the world to The Hague, the world capital of peace, justice, and law. You have come to learn, to share, and to work together to figure out the role of law and human rights in the most fundamental of human experiences: birth.

In December 2010, the European Court of Human Rights held that childbirth is a human rights issue. In the case of Ternovszky v. Hungary, the Court acknowledged that more is at stake in childbirth than the right to survival, the right to access healthcare capable of saving the life of mother or baby, critical as that right is. In Ternovszky v. Hungary, the Court of Human Rights held that women have a human right to choose, not only whether to give birth to a baby, but how they give birth to that baby.

So we’re here to figure out, what does that mean, to say that women have a human right to choose the circumstances in which they give birth? You could say that such a right breaks down into two fundamental parts. First, is the woman the chooser? Is she recognized as the person with the ultimate authority to make the decisions about how she gives birth, where she gives birth, who is present at her birth, what is done to her body and her baby? Second, does the woman have choices? To be recognized as the chooser only has meaning if there are options to choose from.

The European Court of Human Rights held both that women are the ones with legal authority to make the decisions of childbirth, and that the state cannot use the force of law to take away their options. The basic options that the court discussed in the Ternovszky case were the choice between giving birth at home or in the hospital, and also the choice to be attended during childbirth by a medical doctor or a midwife.

These simple choices, between home and hospital, between doctor and midwife, are unavailable in many jurisdictions. In others, they are available, but the state lays a heavy thumb on the scale to steer all women toward one choice: giving birth at the hospital, with a doctor. The weight of that thumb can render the choice meaningless. When state insurance will pay doctors, but not midwives, women cannot afford to hire midwives. Midwives exist in any community, and can be found if you look hard enough. But if those midwives face the threat of prison for attending birthing women, can we say that women have a real choice to give birth with a midwife?

As the European Court of Human Rights explained in the Ternovszky holding: if there is one country that provides meaningful choice for birthing women regarding the circumstances in which they birth their babies, it is The Netherlands. I discovered that myself when I moved here from the United States five years ago, pregnant with my first child. I found myself in the one western country that never came to define childbirth as a medical event that can only be managed by doctors in hospitals. The Dutch have long seen birth as a normal life event, with the potential to become a medical event. Unlike the United States, they had never wiped out midwifery. The state had supported two professions, doctors and midwives, as partners in service of the birthing population. The Dutch tradition was that healthy women birthed their babies at home, and if medical issues arose, they could go to the hospital and be treated. This system resulted in more live babies and more live mothers than the United States.

And so here, I had options. I could give birth at home with a midwife, or at home with a general practitioner. I could give birth at a birth center with a midwife. Or I could give birth in the hospital, with a midwife, or in the hospital with a gynecologist. Like all women, I wanted a healthy birth and a healthy baby. My research into the physiological processes of birth made clear that my body would have the best chance of delivering safely if I felt safe, and supported, during my birth. For me, I knew that the place where I would feel safe and secure was in my home, with a midwife who I could really trust. And so I choose for a home birth, with a midwife, reserving doctors and hospitals for emergency backup.

I got the birth I wanted. Twice.

I gave birth at home in Rotterdam, with a highly skilled, experienced, and compassionate midwife. And her two sweet-hearted young apprentices. These were the circumstances in which I chose to give birth. I am certain that the quality of care that I received, and the security that came with laboring in my own home, are the reasons that I was able to deliver without a medical emergency arising.

Does this right matter? Is the quality of a birth the frivolous concern of a privileged western woman? All I know is that, in most parts of the world, women do not really get to choose the circumstances in which they give birth. They don’t have many choices, and they aren’t really treated as the central authority in what happens during the birth. The right to be the decision-maker is not just about the right to choose who will attend your birth, or where you deliver. If birthing women have real authority over their birth processes, they can never be told that they “must” do anything. They can’t be told that they must lie down, stay still for the machine, keep quiet, or push that baby out within the next 10 minutes. But if this is the case, if birthing women have the right of informed consent and the right to refuse treatment like everybody else, then most of the world hasn’t got the memo.

Does it matter? Give women a chance to tell you the deepest truth about the circumstances in which they gave birth, and you’ll find out that it does matter. Too many times have I listened to my friends weeping as they tell me about the births of their babies. Disrespect and abuse during childbirth are not the necessary price of safety. Quite the opposite.

This birth was my choice. It was safe and it was healthy, and not only on the level of survival. It was the best start to life that I could have wished for my baby, and the best start to parenthood for myself and my husband. I was lucky to give birth in a nation capable of providing that choice. A fully supported birth should not be only for the lucky; it need not. The human right to choice in childbirth is the legal basis for ensuring that all birthing women have the ability to access healthcare services that give them what they, personally, need for a safe, healthy birth.

You are here because you, too, know that this human right matters. And you know that great work will need to be done, all around the world, to bring this right from abstraction to reality. We are going to spend the next two days systematically unpacking the elements of this right. Today’s four panels will unpack the fundamental human rights at stake in childbirth.

We will start with the case of Ternovszky v. Hungary the first human rights case to formally address these issues. Panel 1 will tell us about that case. Who was this Hungarian mother, who sued her nation for the protection of her human rights? What did the Court say exactly? What does the decision mean? In what sense is this decision now “law”? What changes resulted from the judgment, within Hungary?

Panel 2 will assess the science of decision-making in childbirth. What choices are safe, what choices are risky; what does it mean to call them so? How do the different people involved in a birth decide what to do? What issues matter to them when they weigh the options?

Panel 3 will discuss the ethics of decision-making in childbirth. What would the baby want from its birth, if it could tell us? Who has the responsibility to protect that baby’s interests, and who has the power to do so? Can a mother’s decisions during birth put her in conflict with her unborn baby, and if that happens, then what?

Panel 4 will look at the professional healthcare framework in which women give birth. What are the rights and responsibilities of doctors, midwives, nurses and doulas? How does the relationship between these professionals affect the human rights at stake in childbirth?

The second day of the conference will also unpack the science, ethics, and practical problems underlying human rights in childbirth, but it will focus on the birth system of The Netherlands. The Dutch birth system gave me two happy, healthy births. But I have learned over my five years here that the Dutch are at something of a crossroad with regard to the unique tradition of Dutch birth. Tomorrow we will convene a wide range of stakeholders in the Dutch birth system to meet face to face and talk about this system, its value, its problems, and where it will go in the 21st century. The conference is a wonderful opportunity to bring the Dutch together with so many members of the global community working in birth care. It gives the international community a chance to bear witness to the complexities that the Dutch are facing with the Dutch birth system, and also a chance for the Dutch to see the global significance of their birth model.

Look around this auditorium. You have come from all over the world. Look at our panelists. They are many of the most famous thinkers, writers, and doers in the international world of birth care. They are midwives, doctors, lawyers, ethicists, anthropologists, mothers, fathers—you know, the list goes on. We come from so many cultures, from so many disciplines, from so many different personal experiences. There will be as many opinions on the issues that we discuss, as there are people in this room. That is the promise of this event—that through exchanging these opinions, and really listening to each others’ perspectives, we will all move forward in our own thinking on the subject of human rights in childbirth.

Thank you for making the journey to be here. No matter what occurs in the discussions that we will have over the next two days, something has already happened, by the mere fact of our assembly in this room.