Where can childbirth litigation can learn from feminist reform of rape trials?

 Where can childbirth litigation can learn from feminist reform of rape trials?

The key is to say: we are not equating rape with infant death or brain injury. Rather, we are learning from decades of feminist legal scholarship on how courts can mishandle trauma, consent, silence, delay, credibility, memory, and resistance. Rape law reform has had to confront myths about “real victims”; birth injury litigation must confront parallel myths about “reasonable mothers.”

The transferable lesson

Feminist legal scholars and advocates changed the conversation around rape victims by exposing that courts often asked the wrong questions:

Why didn’t she scream?
Why didn’t she fight?
Why didn’t she leave?
Why didn’t she report immediately?
Why was she polite afterwards?
Why is her memory fragmented?
Why is she emotional?

The lesson for mothers after infant death or brain injury is similar:

Why didn’t she refuse the intervention?
Why didn’t she insist on a caesarean?
Why didn’t she ask for a consultant?
Why didn’t she complain immediately?
Why did she appear calm or compliant?
Why can’t she give a perfectly linear account?
Why is she so angry, distressed, or traumatised?

In both contexts, the legal system may misread survival behaviour as consent, passivity, unreliability, or exaggeration.

The rape-law insight is therefore this: a victim’s behaviour during and after trauma should not be assessed against an idealised model of resistance. That lesson can be applied to mothers whose babies died or were brain damaged in childbirth.

1. From “rape myths” to “birth injury myths”

Feminist rape law scholarship exposed the idea of the “real rape victim”: the woman who resists, screams, reports immediately, gives a consistent account, and appears visibly devastated but not “too emotional.” Susan Estrich’s Real Rape was foundational in challenging the assumption that only stranger rape with force and visible resistance counted as “real” rape. Liz Kelly’s work on the continuum of sexual violence similarly showed that coercion, fear, pressure, and submission can be part of violation, even where overt force is absent.

The equivalent in childbirth litigation is the myth of the reasonable, vigilant, assertive mother.

This imagined mother:

• understands clinical risk in real time;
• knows when the CTG trace is pathological;
• challenges midwives and doctors appropriately;
• asks for escalation;
• refuses unwanted procedures clearly;
• insists on alternatives;
• preserves evidence;
• complains promptly;
• gives a coherent narrative afterwards.

But this is not the mother who exists in labour. The real mother may be in pain, frightened, exhausted, medicated, dependent, exposed, and terrified for her baby. She may not know whether what is happening is negligent, necessary, or simply frightening. She may believe that being polite and compliant is the best way to secure care.

So just as feminist rape scholars challenged myths about the “real victim,” feminist childbirth litigation could challenge myths about the “reasonable mother.”

A possible article phrase:

Birth injury litigation should learn from feminist rape law scholarship by identifying and rejecting “birth injury myths”: assumptions that a harmed mother would necessarily have objected, escalated, refused, complained, remembered consistently, or recognised negligence as it occurred.

2. Reframing silence: not consent, but constrained agency

Rape law reform has increasingly recognised that lack of resistance is not consent. Trauma, fear, freezing, dissociation, shock, coercive control, social pressure, and relational dependency may all shape how a victim behaves. Recent rape law debates have also emphasised that silence, lack of resistance, prior relationship, or delayed complaint should not be treated as proof of consent.  

The childbirth equivalent is to say: maternal compliance is not necessarily meaningful consent.

A mother in labour may “agree” to a procedure because:

• she fears that refusal will endanger her baby;
• she believes clinicians know best;
• she has been told there is no time;
• she does not understand that alternatives exist;
• she is afraid of being labelled difficult;
• she is exhausted or in pain;
• she is socially trained to be polite;
• she believes cooperation will secure better treatment.

This does not mean every intervention is unlawful. But it means courts should not treat silence, politeness, or apparent cooperation as simple evidence that the woman freely agreed.

The legal question should shift from:

Did she object?

to:

Was objection meaningfully available to her in that setting?

And from:

Did she consent?

to:

Were the conditions for meaningful consent actually present?

3. Understanding trauma responses after infant death or brain injury

Feminist advocacy around rape has pushed courts to understand trauma responses. Victims may freeze, comply, dissociate, delay reporting, remember fragments, or appear emotionally flat. Trauma-informed legal scholarship and policy argue that criminal justice actors need training to avoid misinterpreting these behaviours as signs of dishonesty.  

This should apply just as strongly to mothers after catastrophic birth outcomes.

A mother whose baby dies or is brain damaged may:

• replay the birth obsessively;
• remember some details intensely and others not at all;
• feel guilt for not intervening;
• become angry only later;
• appear calm at the time because she was in shock;
• initially thank staff because she was dependent on them;
• delay complaint because she was grieving or caring for a disabled infant;
• avoid records because they are traumatic;
• pursue litigation years later because only then does she understand what happened.

None of these behaviours should be treated as evidence that the harm was not real or that the mother is unreliable. They are compatible with trauma.

A trauma-informed childbirth court would recognise that grief, shock, guilt, dissociation, and maternal self-blame may shape testimony.

4. Preventing secondary victimisation in birth injury litigation

Feminist scholars have repeatedly shown that rape complainants may experience the justice process itself as a second injury: invasive questioning, disbelief, delay, character attack, and repeated retelling can retraumatise them. Research and advocacy continue to identify rape myths in court questioning and call for better control of cross-examination, expert evidence on trauma, and more specialised training for judges and lawyers.  

Mothers in birth injury litigation can experience a parallel secondary injury.

They may be asked, directly or implicitly:

Why did you not insist?
Why did you trust them?
Why did you not know something was wrong?
Why did you not complain sooner?
Are you really traumatised, or are you angry because your baby is disabled?
Are you seeking truth, or money?
Is your memory reliable, or has grief distorted it?

This can become a second violation: the first in the birth room, the second in the legal process.

A feminist reform agenda would therefore ask how to reduce forensic retraumatisation in birth injury cases without abandoning proper evidentiary scrutiny.

Possible reforms:

• judicial training on maternal trauma, grief, and birth-related PTSD;
• limits on repetitive or blaming cross-examination;
• expert evidence on trauma responses after infant death or neonatal brain injury;
• recognition that delayed complaint is not inherently suspicious;
• careful treatment of clinical notes as institutional records, not neutral truth;
• separate assessment of mother’s trauma from financial valuation of the child’s injury;
• procedural support for bereaved mothers and mothers caring for disabled children.

5. Challenging credibility attacks based on emotion

Rape complainants have often been caught in a credibility trap: too calm and they are not traumatised; too emotional and they are unreliable. Feminist scholars have shown how “ideal victimhood” requires a narrow and contradictory performance.

Mothers in birth injury cases face a similar trap.

If the mother is calm, she may be seen as not truly traumatised.

If she is angry, she may be seen as vengeful.

If she is grieving, she may be seen as irrational.

If she is articulate, she may be seen as coached by lawyers.

If she is confused, she may be seen as unreliable.

If she delayed complaint, she may be seen as opportunistic.

If she complains immediately, she may be seen as blaming staff before understanding the facts.

This is where Miranda Fricker’s testimonial injustice and Kristie Dotson’s testimonial smothering are useful. The mother is not merely giving evidence; she is giving evidence under a credibility regime that may already position her as emotional, self-interested, or unreliable.

A feminist legal approach would not say that emotion proves truth. It would say that emotion should not automatically disprove truth.

6. Re-reading the medical record

A major difference between rape trials and birth injury litigation is the presence of clinical records. But this should not make courts complacent.

In birth cases, the clinical record often becomes the authoritative version of events. The mother’s memory is treated as subjective and retrospective; the notes are treated as contemporaneous and objective.

Feminist and epistemic injustice scholarship allows us to challenge this hierarchy.

The notes may be contemporaneous, but they are not neutral. They are written by professionals inside the institution whose conduct is being assessed. They may omit the mother’s words, fears, refusals, distress, questions, pain, or embodied knowledge. They may record “patient consented” without recording the pressure, urgency, fear, or lack of alternatives surrounding that “consent.”

This is where Sara Cohen Shabot’s work on obstetric violence as testimonial injustice is so relevant: birthing women’s embodied knowledge is often excluded because they are treated as not qualified to know.  

So the lesson from feminist legal scholarship is:

Do not treat institutional records as the whole truth when the central complaint is that the institution did not listen.

7. Moving from “maternal blame” to “institutional responsibility”

Rape law reform tried to move the focus from the complainant’s behaviour to the accused’s conduct. Instead of asking, “Why did she go there?” or “Why didn’t she fight?”, the better question is: what did he do, and did he have consent?

Birth injury litigation needs a similar reorientation.

Instead of focusing excessively on the mother’s failure to object, courts should ask:

• What did clinicians know or ought they to have known?
• What risks were visible on the CTG or clinical picture?
• What escalation pathways existed?
• Was informed consent meaningfully obtained?
• Were the mother’s concerns recorded and acted upon?
• Was there a culture of listening?
• Did staff rely on maternal compliance rather than ensuring understanding?
• Was the baby’s deterioration treated promptly?
• Did the institution create conditions in which the mother could speak?

The mother should not be turned into the safety system. She should not have to prove that she became a quasi-clinician in labour. The duty of care rests with professionals.

This may be one of your strongest lines:

A mother in labour should not have to perform vigilance, legal consciousness, and clinical escalation in order for the law to later recognise that professionals failed in theirs.

8. What a “rape myth” framework becomes in birth injury cases

You could propose a framework of maternal blame myths or birth injury myths.

Rape law myth	Birth injury equivalent
A real victim screams or fights	A reasonable mother objects or escalates
Delayed reporting suggests fabrication	Delayed complaint suggests opportunism
Calm behaviour means no trauma	Calm behaviour in hospital means she was fine
Emotional testimony is unreliable	Grief or anger distorts the mother’s account
Prior relationship implies consent	Trust in clinicians implies consent
Failure to leave implies agreement	Staying in the room/hospital implies cooperation
No visible injury means no violation	No written complaint means no concern
The victim should have prevented it	The mother should have known something was wrong

This framework could be extremely original for the article.

9. Applying trauma-informed court practice to bereaved mothers and mothers of brain-damaged infants

A trauma-informed court would not lower the burden of proof. It would improve the quality of legal interpretation.

It would recognise:

• trauma may affect memory without making testimony false;
• grief may intensify the search for explanation without making the mother vindictive;
• delay may reflect trauma, childcare burden, or lack of knowledge;
• maternal self-blame may coexist with institutional fault;
• compliance in labour may reflect dependency, not consent;
• clinical notes may omit precisely the forms of knowledge that matter most;
• hostile cross-examination may retraumatise and distort testimony.

The goal is not to make courts sentimental. The goal is to make them more accurate.

10. The article’s core contribution

You could formulate the contribution like this:

Feminist rape law scholarship has shown that courts historically misread women’s responses to sexual violation by measuring them against an ideal of immediate resistance, coherence, and complaint. This article argues that birth injury litigation risks a parallel misreading. Bereaved mothers and mothers of brain-damaged infants may be judged against an ideal of maternal vigilance, assertiveness, and legal legibility that is incompatible with the realities of labour, trauma, grief, and clinical dependency. A trauma-informed feminist approach would not collapse rape and childbirth harm, nor abandon evidentiary discipline. It would instead recognise that silence, compliance, delayed complaint, fragmented memory, and emotional testimony may be effects of power and trauma rather than signs of consent, unreliability, or exaggeration.

Or even more sharply:

The feminist lesson from rape law is that courts must stop asking violated women why they did not behave like legally trained, physically safe, emotionally regulated subjects at the moment of harm. In childbirth litigation, this means refusing to blame mothers for not resisting, escalating, documenting, or complaining while they were in labour, grieving, or caring for a catastrophically injured child.

That is the bridge. And it is a very strong one.

 

Feminist legal scholars on law not hearing women

1. Feminist legal scholars on law not hearing women

Lucinda Finley is very close on legal reasoning itself. Her article Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning argues that legal concepts and reasoning often fail to fit women’s experiences, forcing women to translate their harms into male-shaped legal categories. This supports your point that law does not simply “listen badly”; it structures what can count as legally meaningful speech. 

Carol Smart, especially in Feminism and the Power of Law, is also central. Her argument is that law does not merely resolve women’s claims; it produces authoritative meanings that can redefine women’s experiences. For your article, Smart helps you say: when women enter law, their account is not simply assessed — it is transformed.

Catharine MacKinnon is crucial for the claim that law often treats the male standpoint as neutral. Her work on sexual harassment, rape, and the state helps you argue that “objective” legal standards may already encode gendered assumptions about consent, resistance, reasonableness, and harm. The Stanford Encyclopedia summary of feminist rape scholarship identifies MacKinnon as central to the critique that rape law has often defined non-consent through force and women’s resistance. 

2. Feminist rape law scholars on resistance, silence, and consent

This is the most obvious parallel literature for your argument.

Susan Estrich, Real Rape, is probably one of the closest. She challenged the legal image of “real rape” as stranger violence involving force, visible resistance, and immediate complaint. Her work helps you show how law historically demanded a particular performance of resistance from women before recognising violation. 

Lois Pineau, “Date Rape: A Feminist Analysis,” is very useful for your “boyfriend/girlfriend” example. Pineau critiques assumptions about natural male sexual aggression and female reluctance, and argues for a communicative model of sexuality. This maps beautifully onto your point about unspoken pressure, expected politeness, and the difficulty of saying no inside intimate relations. 

Liz Kelly, Surviving Sexual Violence, gives you the “continuum” framework. Rather than seeing sexual violence only as exceptional physical attack, Kelly shows how women experience coercion, intrusion, pressure, and fear across ordinary gendered life. This helps you bridge overt violence and subtler forms of pressure without collapsing them.

A recent legal reform debate also supports your direction: the European Parliament’s 2026 position on consent-based rape law explicitly states that consent should not be inferred from silence, lack of resistance, prior conduct, or relationship, and it recognises freeze and fawn trauma responses. That is not an academic source, but it shows the legal direction of travel and strongly supports your critique of “why didn’t she resist?” reasoning.  

3. Epistemic injustice scholars: women are disbelieved, quieted, or smothered

Miranda Fricker, Epistemic Injustice, gives you the established concept of testimonial injustice: someone receives less credibility because of prejudice. This is already widely used in healthcare and gender scholarship.

But your argument goes one step earlier. You are not only saying women are given a credibility deficit once they speak. You are saying the social world prevents or reshapes speech before it appears. For that, use Kristie Dotson. Her concepts of testimonial quieting and testimonial smothering are especially close. Testimonial smothering occurs when a speaker truncates or withholds testimony because she expects the audience cannot or will not receive it appropriately. A recent article on motherhood and epistemic injustice explicitly links Fricker and Dotson to “testimonial quieting” and “testimonial smothering.”  

This is where your contribution can be sharp:

Fricker explains how women are not believed. Dotson helps explain why women may not speak fully. My argument applies this to childbirth: the birthing woman’s silence is not absence of knowledge, but a socially produced response to gendered and clinical power.

4. Sara Ahmed on complaint

Sara Ahmed’s Complaint! is essential. Ahmed argues that complaint is not a simple procedural act; when someone complains, institutions often treat the complainant as the problem. This is extremely useful for childbirth litigation and hospital complaints.

Ahmed helps you say: women do not necessarily stay silent because nothing happened. They may stay silent because complaint carries costs — being labelled difficult, unstable, ungrateful, obsessive, or hostile. This links strongly with your point about women being socialised into politeness and then blamed for not becoming confrontational.

5. Socialisation and gendered compliance

For the deeper feminist theory of how women are made compliant:

Simone de Beauvoir gives you the foundational line: one becomes a woman. This supports your claim that “woman’s voice” is not naturally quiet; it is socially produced.

Judith Butler helps you describe femininity as performance: politeness, smiling, yielding, softening, not making trouble, managing others’ discomfort.

Pierre Bourdieu, especially Masculine Domination, gives you symbolic violence: domination that is internalised, normalised, and misrecognised as natural. This is useful for arguing that women may experience compliance as “being good,” “being reasonable,” or “not making a fuss.”

John Gaventa, Power and Powerlessness, is very relevant for your phrase “power-over.” His work on quiescence shows that power does not only defeat resistance; it can prevent resistance from emerging in the first place. This is one of the closest theoretical supports for your exact sentence.

6. Childbirth, obstetric violence, and epistemic injustice

This is where your article becomes original.

Camilla Pickles is very important. Her 2024 article on obstetric violence proposes that obstetric violence can be understood as a violation of integrity in antenatal, intrapartum, and postnatal care. This gives you a current legal/human-rights frame for childbirth harm. 

Sara Cohen Shabot is also very close. Her article “You are Not Qualified—Leave it to Us” argues that women in labour suffer both systematic and incidental forms of testimonial injustice. That is directly relevant to your point about medical authority disqualifying women’s embodied knowledge. 

There is also a 2026 article on “silencing obstetric violence” in Australia, which appears to address how obstetric violence is resisted or minimised through arguments about definition, medical benevolence, and the discomfort around calling obstetric practice “violence.” That sounds very close to your concern with institutional silencing.  

Existing feminist legal scholarship has shown that law disbelieves women, misconstrues consent, demands resistance, and disciplines complaint. Existing obstetric violence scholarship has shown that women’s embodied knowledge is often dismissed in maternity care. This article brings these literatures together to argue that childbirth litigation often requires women to produce evidence of resistance in precisely the context where gendered socialisation, medical authority, maternal fear, and institutional dependency have trained them into compliance.

Women who are Socialised into Silence..

It is not just that Women's Voices are not Heard, it is that Women are Socialised to not to Raise their Voices. In childbirth, as in sexual violence, women are frequently expected to be compliant, polite, grateful, reasonable, and deferential. They are socialised to make their bodies available to others’ authority, desire, expertise, or institutional need. Yet when harm occurs and the woman later seeks legal recognition, the court often asks whether she objected clearly enough, refused forcefully enough, complained quickly enough, or produced sufficiently objective evidence of breach.

The legal system asks women to prove that they objected, resisted, complained, or made themselves audible — while gendered socialisation, clinical authority, trauma, dependency, and fear often teach women that safety lies precisely in compliance, politeness, silence, and bodily availability. The contradiction is stark: women are disciplined into compliance, then judged for not resisting.

While it remains true that women’s voices are not heard by law, the problem begins earlier. Women are often socialised, pressured, traumatised, or institutionally managed into not speaking at all — or into speaking in forms that law does not recognise as legally meaningful.

In childbirth litigation, the burden of proof rests on the mother. She must show breach, causation, and damage. But this legal structure often fails to account for the clinical, emotional, and gendered conditions under which the alleged harm occurred. The birthing woman is not simply a rational legal subject choosing whether to consent or object. She is often in pain, dependent on staff, afraid for her baby, and positioned within a powerful hierarchy of medical authority. The question is therefore not only: why was she not heard? It is also: what social and institutional forces made it difficult, dangerous, or impossible for her to speak in the first place?

Simone de Beauvoir’s highlights that one is not born, but rather becomes, a woman. The point is not biological but social: women are trained into forms of bodily availability, emotional accommodation, politeness, and self-monitoring: This is the social production of female compliance.

Social constructionist and feminist scholars have long shown that femininity is performed through compliance: saying yes, being nice, not causing trouble, not appearing difficult, and not embarrassing others. Women learn to read the room, preserve relationships, and manage male, professional, or institutional authority.

This matters legally because law often evaluates women after harm as though they were free-standing, assertive, autonomous subjects. It asks: did she say no? Did she leave? Did she complain? Did she insist? Did she refuse?

But these questions may misunderstand the gendered reality of the situation. For many women, safety lies in remaining polite. Compliance may be a survival strategy, not consent.

Feminist scholars have successfully challenged the figure of the “ideal rape victim”: the woman who resists, screams, reports immediately, and behaves in ways that law recognises as credible. They have shown how women who freeze, comply, delay reporting, maintain contact, or minimise harm are often viewed with suspicion.

This article argues that a parallel dynamic appears in childbirth cases.

In sexual violence, the court may ask: did she say no? Did she fight back? Did she leave?

In childbirth litigation, the court may ask: did she refuse the procedure? Did she complain at the time? Did she ask for another clinician? Did she insist on a different course of action? Did she make her wishes clear?

In both contexts, the woman’s failure to resist may be used against her, even where resistance was socially, emotionally, physically, or institutionally constrained.

Some violations are easier for law to recognise because they involve overt force: the stranger attack, the explicit assault, the obviously abusive act. But feminist legal theory has shown that power often operates more subtly: through intimacy, dependency, authority, silence, expectation, and fear. The more difficult cases are often those where the woman did not scream, run, or fight.

The boyfriend who pressures his girlfriend into sex may rely not on physical force but on emotional pressure, entitlement, expectation, and the unspoken assumption that her body should be available.

The clinician who performs or pressures a procedure in childbirth may rely not on overt violence but on institutional authority, medical urgency, fear for the baby, and the woman’s learned obligation to be polite, cooperative, and compliant.

In both settings, the woman may experience violation precisely because an expected social contract of respect has been broken.

The birthing woman enters the clinical encounter with an implicit expectation: if I cooperate, remain polite, and submit to medical authority, you will use that authority to protect me and my baby.

This is not passive consent. It is a social contract built on dependency and trust.

The woman may comply because she believes that cooperation will secure care. She may avoid confrontation because she fears being labelled difficult, hysterical, non-compliant, irrational, or obstructive. She may remain silent because she believes that conflict could endanger her baby.

But when harm occurs, the law may reverse the terms of that contract. It may ask why she did not speak louder, object more clearly, leave the room, demand another doctor, or refuse treatment.

The woman is therefore caught in a contradiction: During childbirth, she is expected to comply. After childbirth, she is judged for having complied.

This section examines how women’s accounts of childbirth harm are often pathologised. Women may be framed as too emotional, too sensitive, traumatised, disappointed, unrealistic, angry, confused, or unable to understand medical necessity. Their distress may be treated as evidence of unreliability rather than evidence of harm. In litigation, this pathologising can be intensified by adversarial legal practice. Prosecutors, defence counsel, experts, and institutional representatives may perform roles that deconstruct the woman’s narrative. Her memory, emotional tone, body language, expectations, and motives may all become objects of scrutiny.

A key tension must be acknowledged: courts must test evidence. Defendants must be protected from unfounded claims. Solicitors may frame claims strategically, and damages claims may be contested.

But the article argues that evidentiary testing becomes gendered when women’s compliance, trauma, politeness, or delayed articulation of harm are treated as signs that no violation occurred.

A legal system cannot simply accept every subjective experience of violation as proof of negligence. Courts must distinguish between poor outcomes, traumatic experiences, clinical judgment, and legally actionable breach. There is also a legitimate concern that litigation may be shaped by lawyers, experts, or financial incentives.

However, this article does not argue that all women’s claims must automatically succeed. Rather, it argues that the legal assessment of breach, consent, causation, and credibility must be trauma-informed and gender-sensitive.

The key question is not whether subjective experience alone should determine legal liability.

The question is whether current legal frameworks unfairly privilege forms of resistance, refusal, and documentation that many women are structurally discouraged from producing at the time of harm.

The law often imagines consent as an individual, autonomous, verbal act: the woman either agreed or did not agree. But childbirth complicates this model. The woman may be in pain, exhausted, frightened, dependent, and worried about her baby. She may not experience herself as free to refuse.

A request from a clinician may not feel like a request. It may feel like an instruction.

A recommendation may not feel optional. It may feel like the only acceptable path.

A consent form may not represent meaningful consent if the woman has been pressured, rushed, frightened, or deprived of alternatives.

The article therefore argues for a more relational and contextual understanding of consent in childbirth: one that recognises the power imbalance between birthing women and clinical staff, and the gendered expectation that women should endure bodily intrusion for the sake of others.

The article concludes by asking what a trauma-informed and feminist legal approach to childbirth harm would require.

Such an approach would not remove evidentiary standards. But it would change the questions courts ask.

Instead of asking only whether the woman clearly objected, courts should ask:

What were the conditions under which she was expected to speak?

Was she given a meaningful opportunity to refuse?

Was she dependent on the person or institution she would have had to challenge?

Was compliance produced through fear, urgency, authority, shame, or concern for the baby?

Was her politeness later misread as consent?

Was her silence treated as agreement, when it may have been a strategy of survival?

Women are not only unheard by law. They are often made legally inaudible before they ever enter the courtroom.

The birthing woman is socialised to be polite, compliant, and trusting. The clinical system often depends on that compliance. But when harm occurs, the legal system may ask why she did not become the opposite kind of woman: assertive, resistant, articulate, confrontational, and legally legible.

This contradiction lies at the heart of feminist legal analysis of childbirth trauma.

The problem is not simply that women’s voices are ignored.

It is that women are trained not to raise them — and then blamed for the silence.

 

The Concepts of Medical Misogyny, Obstetric Violence and DA in Childbirth

 

The concepts of medical misogyny, obstetric violence and disrespect and abuse (DA) in Childbirth overlap, but they are not the same concept. This article takes the concepts in turn. 

Medical misogyny is the widest concept. It refers to gendered bias in medicine: women’s pain, symptoms, reproductive experiences, and embodied knowledge are dismissed, normalised, under-researched, or treated as less credible than biomedical or professional authority.

It is not limited to childbirth. It can appear in endometriosis, menstruation, menopause, chronic pain, autoimmune disease, heart disease, contraception, gynaecological procedures, and maternity care. The UK Women and Equalities Committee, for example, described women’s reproductive symptoms being normalised and pain dismissed, linking this to “medical misogyny” and racism in healthcare.  

So medical misogyny is a structural diagnosis of medicine itself: it asks why women are so often not believed, not prioritised, or not treated as authoritative knowers of their own bodies.

2. Disrespect and abuse in childbirth

Disrespect and abuse in childbirth is narrower. It focuses on how women and birthing people are treated during facility-based childbirth.

This language is often used in global health and human rights literature. It includes things like verbal abuse, humiliation, physical abuse, non-consented procedures, lack of privacy, denial of pain relief, neglect, abandonment, discrimination, and detention in facilities. WHO frames disrespectful and abusive treatment during childbirth as a violation of the right to respectful care and as a threat to rights such as life, health, bodily integrity, and freedom from discrimination.  

Bohren et al.’s influential typology uses the broader term mistreatment and classifies mistreatment during childbirth into domains including physical abuse, sexual abuse, verbal abuse, stigma and discrimination, failure to meet professional standards, poor rapport between women and providers, and health-system constraints.  

So this concept is often operational and measurable. It helps researchers, policymakers, and health systems identify what went wrong and design respectful maternity care interventions.

3. Obstetric violence

Obstetric violence is more politically and legally charged. It does not merely say “care was disrespectful” or “quality was poor.” It names the harm as a form of violence, often linked to gender inequality, reproductive control, medicalisation, and loss of autonomy.

The term is especially associated with Latin American feminist and legal movements. The Organization of American States’ materials define obstetric violence around the appropriation of women’s bodies and reproductive processes by health personnel, expressed through dehumanising treatment and abusive medicalisation/pathologisation, leading to loss of autonomy and decision-making capacity.  

That means obstetric violence is not just about bad manners or individual cruelty. It is about how birth can become an institutional process in which the woman’s body is controlled, accelerated, cut, restrained, ignored, or over-medicalised without meaningful consent.

There is debate about how broad the concept should be. Some scholars argue that “obstetric violence” is powerful because it names harms that had been normalised; others warn that if it becomes too broad, it can become difficult to operationalise in law or policy.  

Harm in Childbirth 

Dr Katrine Nohr does not simply offer another label for the harm. She is asking why the human rights-based approach can fail in practice.

Her point is that childbirth is a very difficult place to act as an empowered rights-holder. During labour, the woman is physically vulnerable, dependent on clinicians, concerned for the baby, and embedded in a biomedical setting where doctors, midwives, risk protocols, fetal monitoring, medical records, and professional judgement carry more authority than her own embodied knowledge.

Dr Katrine Nohr’s thesis found that many mothers used a pragmatic rather than explicitly rights-based approach during childbirth, partly because of the mother–infant relationship and the immediate need to secure care. After childbirth, even when women did try to use complaints, legal claims, or accountability mechanisms, many felt re-traumatised rather than empowered because the same biomedical knowledge/power hierarchy was reproduced.  

Dr Katrine Nohr shows that women’s complaints could be dismissed as “subjective” or “emotional,” while professional or biomedical knowledge was treated as more authoritative. She describes the “authoritative knowledge” hierarchy as operating not only during childbirth but also afterwards in accountability mechanisms, with healthcare providers’ knowledge positioned above mothers’ accounts.  

In court or formal hearings, the problem can become even sharper: the mother may have to prove injury, fault, causation, and credibility while being cross-examined, often after trauma, bereavement, or infant injury. Nohr reports that mothers who went through complaints procedures or court could feel re-traumatised and give up rather than gain empowerment or justice.  

How they fit together

A non-consented vaginal examination, forced intervention, or ignored request for help could be described in all four ways, but each term highlights something different.

It is medical misogyny if the woman’s pain or testimony is dismissed because women are treated as unreliable or overreacting. It is disrespect and abuse if the conduct violates standards of dignified, respectful maternity care. It is obstetric violence if the focus is on gendered domination, coercion, medicalisation, and loss of reproductive autonomy. And it illustrates Nohr’s argument if the woman cannot effectively assert her rights during birth, and later finds that complaints or courts privilege biomedical authority over her lived account.

Dr Katrine Nohr shows that childbirth and court/accountability processes can both reproduce a hierarchy in which biomedical knowledge is treated as objective and authoritative, while women’s embodied knowledge is treated as subjective, emotional, or legally weak. The result is that a human rights approach premised on empowerment and rights-claiming may underestimate how deeply power shapes both the original clinical encounter and the later search for justice.

Historical overview: the human rights-based approach to maternal mortality up to 2026

Historical overview: the human rights-based approach to maternal mortality up to 2026

The human rights-based approach to maternal mortality developed through a gradual doctrinal shift: maternal death moved from being treated as a tragic health outcome, to a preventable development failure, and finally to a matter of legal obligation, discrimination, dignity, accountability, and remedy. By 2026, UN doctrine no longer treats maternal mortality as a narrow clinical problem. It treats preventable maternal mortality and morbidity as evidence of deeper failures in health systems, gender equality, sexual and reproductive health and rights, social protection, data systems, and accountability.

1. Pre-doctrinal foundations: women’s health as equality and non-discrimination

The legal foundation existed before maternal mortality was explicitly named as a human rights issue. The right to health under the ICESCR and CEDAW’s guarantee of non-discriminatory access to health care provided the doctrinal basis on which later maternal mortality work would build. CEDAW General Recommendation No. 24, adopted in 1999, was especially important because it clarified that states must eliminate discrimination against women in health care “throughout the life cycle,” particularly in family planning, pregnancy, confinement, and the post-natal period.  

At this stage, however, maternal mortality was not yet fully articulated as a distinct human rights problem. The dominant framing was still reproductive health, women’s health, access to services, and non-discrimination, rather than a dedicated doctrine of preventable maternal mortality and morbidity as a human rights violation.

2. The global health precursor: Safe Motherhood and the idea of preventability

The Safe Motherhood Initiative, launched in Nairobi in 1987 by major international health and development actors, was the major precursor. It did not yet formulate maternal mortality primarily as a human rights issue, but it helped establish a crucial premise: maternal death was not natural, inevitable, or merely private tragedy. It was preventable and required public action. Nohr’s thesis describes this as the moment when maternal mortality was cemented as “not ‘natural,’ but instead represented avoidable loss of life,” creating an ethical obligation for governments and the international community.  

The 1994 International Conference on Population and Development in Cairo then placed reproductive health and rights, women’s empowerment, and gender equality at the centre of population and development policy. UNFPA describes the ICPD Programme of Action as remarkable precisely because it recognized reproductive health and rights, women’s empowerment, and gender equality as cornerstones of population and development programmes.   The Beijing Platform for Action in 1995 further consolidated the view that women’s health, autonomy, and equality were central to human development and human rights.

3. The MDG period: measurement, skilled attendance, and technocratic limits

The Millennium Development Goals gave maternal mortality unprecedented visibility. MDG 5 called for improving maternal health, including reducing the maternal mortality ratio and increasing skilled attendance at birth. This helped push maternal mortality to the top of the international development agenda, but it also narrowed attention to measurable indicators, especially maternal mortality ratios and skilled birth attendance. Nohr’s thesis notes that MDG 5’s emphasis on measurable targets helped elevate maternal mortality globally, but also produced a technocratic focus that often ignored empowerment, dignity, and human rights violations in childbirth.  

This period is therefore best understood as transitional. Maternal mortality had become a major development priority, but the dominant frame remained aggregate reduction, not yet rights-based accountability. The problem was often framed as insufficient skilled birth attendance, weak referral systems, lack of emergency obstetric care, and poverty, rather than as a failure of states to respect, protect, and fulfil women’s rights.

4. The decisive UN doctrinal turn: Human Rights Council resolution 11/8 in 2009

The decisive doctrinal shift occurred in 2009, when the Human Rights Council adopted resolution 11/8 on Preventable maternal mortality and morbidity and human rights. This was the first major UN Human Rights Council resolution to frame preventable maternal mortality and morbidity explicitly as a human rights issue. The resolution linked maternal death and injury to rights to life, dignity, education, information, scientific progress, freedom from discrimination, and the highest attainable standard of physical and mental health, including sexual and reproductive health.  

This was a major conceptual move. The Council did not simply say that maternal health was important. It stated that preventable maternal mortality and morbidity implicated already-existing human rights obligations. In other words, maternal death was no longer just a failure of medicine or development policy; it could indicate a failure of law, governance, and equality.

5. The 2010 OHCHR report: maternal mortality as state responsibility

The 2010 OHCHR report, prepared pursuant to resolution 11/8, systematized the new doctrine. It identified the human rights dimensions of preventable maternal mortality and morbidity within the existing international legal framework and emphasized that maternal mortality could result from state action or omission. The report identified core principles of a human rights-based approach: accountability, participation, transparency, empowerment, sustainability, international assistance, and non-discrimination.  

Nohr’s thesis captures the importance of this moment: the report stated that states are obligated under international human rights law to respect, protect, and fulfil human rights in relation to pregnancy and childbirth, and that preventable maternal death implicates rights to health, equality, non-discrimination, information, education, and the benefits of scientific progress.  

The significance of the 2010 report was that it converted maternal mortality into a question of state obligations. It asked not only whether women died, but whether states had put in place non-discriminatory, accessible, affordable, acceptable, and good-quality systems of maternal health care, including emergency obstetric care and accountability mechanisms.

6. 2011: good practices and the Alyne decision

In 2011, OHCHR produced a report compiling good and effective practices in adopting a human rights-based approach to eliminating preventable maternal mortality and morbidity. This helped move the doctrine from legal recognition to implementation, asking what rights-based maternal health policy should look like in practice.  

The same year, the CEDAW Committee decided Alyne da Silva Pimentel Teixeira v. Brazil, a landmark case in which a preventable maternal death was treated as a violation of CEDAW. The Committee found that Alyne’s death was linked to failures to provide appropriate medical treatment and timely emergency obstetric care, and it recognized discrimination based not only on sex but also on African descent and socio-economic status.  

Alyne was doctrinally important because it clarified that states may be responsible for preventable maternal deaths even when care is delivered through private or outsourced health facilities. It also confirmed that maternal mortality is often intersectional: poor, racialized, rural, adolescent, disabled, migrant, Indigenous, or otherwise marginalized women face heightened risks because discrimination is built into the conditions under which they seek care.

7. 2012: the OHCHR Technical Guidance and the mature HRBA model

The 2012 OHCHR Technical Guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality and morbidity is the central doctrinal document. It translated the 2009–2011 recognition into a policy framework. The guidance described women as rights-holders, states and health systems as duty-bearers, and maternal health policy as something that must be designed, implemented, monitored, and evaluated according to human rights standards.  

The Technical Guidance made accountability central. It required attention to monitoring, review, complaint mechanisms, maternal death reviews, remedies, participation, transparency, and non-discrimination. It also emphasized empowerment: women should be enabled to claim rights, not merely survive childbirth. Nohr’s thesis highlights this as a key policy premise of the human rights-based approach: the approach is not simply about avoiding maternal death or morbidity, but about empowering women to claim their rights.  

Doctrinally, this was the point at which the UN approach became fully recognizable as a human rights-based approach. It was no longer only about increasing facility births or skilled attendance. It was about availability, accessibility, acceptability, quality, dignity, informed consent, equality, participation, and accountability.

8. Respectful maternity care and the expansion from mortality to mistreatment

Around the same period, the respectful maternity care movement translated rights language into the childbirth setting. Bowser and Hill’s 2010 work on disrespect and abuse identified categories such as physical abuse, non-consented care, non-confidential care, non-dignified care, discrimination, abandonment, and detention in facilities. Nohr’s thesis presents this as a turning point in naming human rights violations in childbirth, not only maternal death.  

The White Ribbon Alliance’s 2011 Respectful Maternity Care Charter then anchored childbirth-specific rights in international human rights law, including freedom from harm and ill-treatment, informed consent, privacy, dignity, equality, freedom from discrimination, autonomy, and the right to health. Nohr’s thesis notes that this shifted attention beyond survival alone toward the wellbeing of the mother and infant during childbirth.  

WHO’s 2014 statement on disrespect and abuse during facility-based childbirth further consolidated this expansion. WHO stated that disrespectful and abusive treatment during childbirth violates women’s rights to respectful care and can threaten rights to life, health, bodily integrity, and freedom from discrimination.  

This was a crucial broadening: the human rights-based approach to maternal mortality became inseparable from the right to respectful, dignified, non-coercive, non-discriminatory childbirth care.

9. The SDG era: from MDG 5 to SDG 3.1 and SDG 3.7

In 2015, the Sustainable Development Goals replaced the MDGs. SDG target 3.1 calls for reducing the global maternal mortality ratio to less than 70 per 100,000 live births by 2030, while SDG target 3.7 addresses universal access to sexual and reproductive health-care services, including family planning, information, education, and integration of reproductive health into national strategies.  

The SDG era retained measurement but embedded maternal mortality within a wider rights-based and equality-oriented agenda. The Global Strategy for Women’s, Children’s and Adolescents’ Health 2016–2030 similarly aims to end preventable maternal, newborn, child, and adolescent deaths, while promoting wellbeing, accountability, and enabling environments under the “Survive, Thrive, Transform” framework.  

10. 2016–2020: consolidation through sexual and reproductive health rights

CESCR General Comment No. 22, adopted in 2016, strengthened the legal basis for the approach by clarifying that sexual and reproductive health is an integral part of the right to health under Article 12 of the ICESCR.   Together with General Comment No. 14 on the right to health, this provided a more developed legal structure for analysing maternal health services through availability, accessibility, acceptability, and quality.  

OHCHR then continued to monitor implementation through follow-up reports in 2014, 2016, 2018, 2019, 2020, and 2023. These reports examined how the 2012 Technical Guidance was being applied, including in humanitarian settings, and documented good practices and persistent challenges.  

During this period, the doctrine became more explicitly structural. It was not enough to provide emergency obstetric care in principle. States needed to address poverty, racism, disability discrimination, adolescent pregnancy, rural exclusion, harmful gender norms, unsafe abortion, user fees, weak referral systems, poor data, disrespectful care, and lack of remedies.

11. 2020–2023: COVID-19, backlash, and renewed Human Rights Council action

The post-2020 period exposed how fragile maternal health systems were during emergencies. COVID-19, conflict, austerity, debt, underfunding, misinformation, and anti-gender backlash all affected access to sexual and reproductive health services. The Human Rights Council’s 2023 resolution 54/16 urged states to eliminate preventable maternal mortality and morbidity, respect, protect, and fulfil sexual and reproductive health and reproductive rights, guarantee universal access to sexual and reproductive health services, and ensure availability, accessibility, acceptability, and quality of health information and services. It also requested OHCHR to prepare an updated technical guidance report for the Council’s sixtieth session.  

This marked a renewed doctrinal moment. The Council recognized that the 2012 guidance remained foundational but needed updating in light of new evidence, global crises, regression in sexual and reproductive health and rights, and persistent inequalities.

12. 2025–2026: updated doctrine and the move toward systemic, preventive accountability

The 2025 OHCHR update, A/HRC/60/43, is the latest major doctrinal statement as of 2026. It says the 2012 guidance marked an important stride in understanding preventable maternal mortality and morbidity not only as a public health concern, but also as a human rights violation. It also states that current rates of maternal mortality should not be seen as inevitable, but as reflecting failures by states to ensure the full realization of women’s human rights, especially the sexual and reproductive health and rights of marginalized populations.  

The 2025 update is significant for four reasons. First, it strengthens the structural analysis: maternal mortality is linked to poverty, limited education, health emergencies, debt, austerity, unemployment, malnutrition, conflict, environmental degradation, discriminatory norms, and restrictions on women’s autonomy.   Second, it gives greater attention to intersectionality, including racial discrimination, disability, migration, HIV status, caste, poverty, rural residence, and adolescent pregnancy.   Third, it stresses transparent, disaggregated, human rights-based data systems, maternal death surveillance, privacy safeguards, and independent audits.   Fourth, it moves accountability beyond blame: litigation is important, but not sufficient; health workers should not bear the burden of institutional failures, and accountability should aim at systemic change.  

The global data gave this renewed doctrine urgency. WHO reported in 2025 that about 260,000 women died during or following pregnancy and childbirth in 2023, that a maternal death occurred almost every two minutes, and that the global maternal mortality ratio fell by about 40% between 2000 and 2023, although progress remains uneven and over 90% of deaths occurred in low- and lower-middle-income countries.  

In October 2025, the Human Rights Council adopted resolution 60/18 on preventable maternal mortality and morbidity and human rights without a vote. The Council requested OHCHR to facilitate inclusive consultations on implementation of the 2025 update and to compile best practices for a later report to the Council.   As of May 2026, this 2025 update and resolution 60/18 represent the most recent major UN doctrinal consolidation of the human rights-based approach to maternal mortality.

State of the doctrine by 2026

By 2026, the human rights-based approach to maternal mortality can be summarized in six propositions.

First, preventable maternal mortality and morbidity are not inevitable. They are evidence of remediable failures in law, policy, health systems, equality, and accountability.  

Second, states have duties to respect, protect, and fulfil rights related to maternal health, including the rights to life, health, equality, non-discrimination, dignity, information, privacy, bodily autonomy, scientific progress, participation, and remedy.  

Third, maternal health services must be available, accessible, acceptable, and of good quality, and must include the full continuum of sexual and reproductive health care, emergency obstetric care, referral systems, contraception, antenatal care, skilled care, postnatal care, and respectful childbirth care.  

Fourth, the approach is structural and intersectional. It requires action on poverty, racism, disability discrimination, rural exclusion, adolescent pregnancy, migration status, harmful gender norms, unsafe abortion, user fees, weak public health systems, poor data, and lack of accountability.  

Fifth, accountability must be preventive as well as remedial. Complaints, courts, litigation, public inquiries, and human rights monitoring remain necessary, but the 2025 update emphasizes systemic change, independent oversight, transparent data, community accountability, professional regulation, and institutional accountability.  

Sixth, the doctrine now reaches beyond survival to dignity and respectful care. Maternal mortality doctrine and respectful maternity care doctrine have converged: a rights-based maternal health system must not only keep women alive, but ensure that care is non-discriminatory, informed, respectful, confidential, non-coercive, and responsive to women’s needs.  

Nohr’s recent work identifies an important tension in this doctrine. UN bodies have transformed preventable maternal mortality, morbidity, and mistreatment in childbirth from clinical misfortune into matters of legal obligation, but rights-based accountability still often assumes that an informed and empowered woman can identify violations and activate complaint or redress mechanisms. Her ethnographic work argues that childbirth is embodied, time-pressured, institutionally dependent, and relational, so women’s agency may be constrained, redirected, or made unsafe to exercise in legally recognizable ways.   This critique does not weaken the human rights-based approach; it strengthens it by showing why states must build preventive, structural, and institutionally supported accountability before, during, and after childbirth, rather than relying mainly on individual women to complain after harm has occurred.  

Chapter-ready synthesis

The human rights-based approach to maternal mortality emerged from the convergence of global maternal health, reproductive rights, women’s equality, and right-to-health doctrine. The Safe Motherhood Initiative first established maternal death as preventable rather than natural. The MDGs made maternal mortality measurable and politically visible, but their technocratic focus on indicators and skilled attendance did not adequately address dignity, discrimination, or accountability. The decisive UN doctrinal shift began with Human Rights Council resolution 11/8 in 2009, followed by the 2010 OHCHR report, the 2011 good practices report, the CEDAW Committee’s decision in Alyne v. Brazil, and the 2012 OHCHR Technical Guidance. Together, these instruments reframed preventable maternal mortality and morbidity as failures of state obligation, equality, non-discrimination, health-system governance, and access to remedy. From 2014 onward, WHO and respectful maternity care initiatives expanded the frame to include mistreatment, coercion, abandonment, non-consented care, and loss of dignity in childbirth. In the SDG era, and especially in the 2025 OHCHR update, the doctrine became more structural, intersectional, and preventive. By 2026, the central proposition of UN doctrine is that maternal survival is a matter of justice, not only health care, and that eliminating preventable maternal mortality requires systemic human rights-based reform of law, policy, health systems, data, participation, accountability, and social determinants.

APA-style references

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