Your legal rights during pregnancy and childbirth
Are you clear about your legal rights during pregnancy and childbirth? Judging by many threads on the MN Talk boards, lots of women have concerns not just about their actual rights but also how to exercise them, for example in relation to home births, antenatal check-ups, epidurals and elective caesareans.
Birthrights, a new charity providing legal support and advice to childbearing women, has kindly provided detailed answers by legal experts to your most common questions.
We hasten to add that this is not intended to be anti-midwives (perish the thought) and we hope that if pregnant women are clearer about their rights, it will actually make working life easier for hard-pressed midwives and obstetricians. Birthrights is also working closely with midwives and doctors to provide them with information and support on these issues.
If you have asked for an epidural, or another form of pain relief that is available at your place of birth, it should be given to you unless there is a sound medical reason why it is not appropriate for you. If your midwife or doctor believes an epidural is not safe for you at that time, they should explain to you very clearly why this is and offer an appropriate alternative.
Article 3 of the European Convention on Human Rights prohibits inhuman and degrading treatment. So, if your caregivers don't provide you with a requested epidural or other suitable and safe pain relief, then this could amount to inhuman or degrading treatment if you suffer serious distress as a result.
Cost-saving or short-staffing are not sufficient reason for you to be refused an epidural outright, though in practical terms when a labour ward is busy and if your labour progresses quickly it may not be possible to site an epidural in time. While you are waiting for an epidural your caregivers should provide you with alternative pain relief if requested and sufficient support if needed to ensure any pain is well managed in the interim.
- For more information see Birthrights's Right to Medical Assistance factsheet
Yes, under the 1998 Data Protection Act you have the right to access your health records, including your pregnancy and labour notes, and the notes relating to your baby.
You can view your records for free at the hospital or GP's surgery if you have had an appointment within the last 40 days. If your care ended more than 40 days before you make a request, you will be charged around £10 for viewing the notes. If you want to copy them, a charge of no more than £50 will be made. If you cannot afford this charge, and can show that you are on a low income, the hospital should waive this fee.
- You can read more about whether you have a right to photograph your notes, on what grounds you could be refused access to your notes and how to have your notes amended in Birthrights's factsheet, Accessing Your Records
Everyone has the right to make decisions about their body for themselves. This is protected in our national laws and also under the European Convention on Human Rights.
A pregnant or labouring woman can refuse any treatment for any reason at any point in her pregnancy, birth or after she has had her baby. She can refuse treatment, such as the injection for placental delivery, even if medical professionals agree that this could lead to her death and/or the death of her baby.
She can decline this injection even if she has previously stated she is happy to have it.
The only exceptions to this are if a woman doesn't have the mental capacity to make decisions. There are strict guidelines about how mental capacity is assessed. Having an existing mental disorder does not automatically mean a woman isn't able to make decisions about her maternity care. Making decisions that midwives or doctors feel are irrational and/or potentially harmful should also not be considered adequate reason to say that a woman is mentally incapable of making decisions about her health.
For more in-depth information on what 'informed consent' means and refusing treatment please see Birthrights's Consenting to Treatment factsheet
If it is medically necessary for you to have a caesarean birth for this baby, you care-providers must make this available to you in good time. If they don't this could constitute medical negligence. If you have suffered from psychological trauma as a result of your previous birth, your care providers should consider whether this constitutes a medical reason for a caesarean and if so, you should be offered one.
If your request for a caesarean section is based on your preference rather than a medical reason then the National Institute for Clinical Excellence (known as 'NICE') recommends that you are referred to a mental health specialist who deals specifically with women in your situation to talk about the reasons you would like a caesarean. If you still want to have a caesarean after this meeting then it should be approved. Individual obstetricians can refuse to perform the caesarean but they should refer you to someone who is willing to perform the operation.
NICE guidance is not law and does not give you a legal right to a particular treatment, but if a health professional declines to follow the guidance they should provide good and clear reasons for doing so and you can seek a second opinion.
- Take a look at Birthrights's Right to Medical Assistance factsheet
Yes, as with any form of treatment it is your right to refuse forceps even if this puts you or your baby's life in danger. Medical professionals should explain clearly to you why they wish to use forceps, what the alternatives are, what the risks and benefits of a forceps delivery are and what the risks and benefits of refusing the treatment are.
If you decline forceps after you have this information, you should be offered an appropriate alternative form of treatment (such as a caesarean section). If there is no appropriate alternative available then the team should respect your wishes and not put undue pressure on you to consent.
The exceptions to this rule are in the very rare event that you have been deemed mental incapable to make decisions (see more about this in our Consenting to Treatment factsheet) or if it is an emergency and you are unable to communicate your consent – perhaps because you are unconscious. If you are unable to communicate your consent, and there is time, your next-of-kin should be asked for their consent.
All healthcare providers, including Midwife-Led Units, are entitled to set policies about who they will admit, but if a woman who does not fit the criteria asks to be admitted, her individual circumstances should be carefully considered and every effort should be made to respect her choices. Healthcare professionals are obliged by Article 8 of the European Convention to respect women's choices about their births, including the location, unless they can give a proportionate reason for refusing to do so. This means they have to treat you as an individual and consider making exceptions to their policy.
If you are seeking access to particular forms of pain relief available at the Unit, such as a birth pool, the fact that you are deemed high-risk should not prevent you from using water in a hospital setting so long as you make an informed choice about any risks. It is often helpful to speak to a supervisor of midwives in your area who may be able to help you access services. You can contact a supervisor 24 hours a day via your local hospital.
Yes, you can refuse induction at any point in your pregnancy and for whatever reason, even if midwives and doctors believe this will put you or your baby at risk. All of us have the right to make decisions about our health and our bodies and this right is just as valid when we are pregnant.
If you are offered induction your care providers should explain in detail the process, the risks and benefits of being induced and the risks and benefits of waiting to go in to labour on your own.
If you refuse induction, the NICE guidelines on Induction of Labour agree with principles that are clearly set out in our national laws and the European Court of Human Rights. These guidelines advise your care providers to respect your wishes and offer 'expectant management' (regular monitoring of you and your baby) until you go in to labour or decide to have an induction.
It does not matter how long you go past your due date, caregivers should treat you in exactly the same way.
If you decide to refuse induction, it is often useful to speak to a supervisor of midwives who should help ensure your choices are respected. A supervisor will be available 24 hours a day via your local hospital.
- Take a look at Birthrights's Consenting to Treatment factsheet
Yes, you can decline any check-ups or treatment during your pregnancy or birth. Your care-givers will have an obligation to let you know of any risks associated with refusing antenatal check-ups or particular tests but they are also obliged to respect your decision and not put undue pressure on your to change your mind. Occasionally, women find that they are threatened with referral to social services if they refuse ante-natal care. Our factsheet, Facing Criticism, explains more about this.
- Take a look at Birthrights's Consenting to Treatment factsheet
You cannot be refused a water-birth in your planned, or indeed unplanned homebirth. If you wish to labour and/or birth in a birth pool or bath you cannot be forced to get out of the water and undue pressure should not be put on you to do so.
If you have planned a homebirth and let your midwives know you plan to labour or birth in water then you have a reasonable expectation of being provided with a midwife who is appropriately trained to oversee this form of pain relief. If your midwife is not appropriately trained, you can request that another midwife attends you. A supervisor of midwives is on call 24 hours a day and your birth partner may want to phone the supervisor if this situation arises.
If there is a safety concern about you labouring or giving birth in the water, including lack of training, then any risks should be clearly explained to you. If you wish to continue in your plan to be in the water then this decision is entirely yours to make.
Hospitals have policies that midwives and obstetricians take into account when they advise women about their place of birth. High-risk women, such as those planning a vaginal birth after a previous caesarean or with an underlying health condition, may well be advised to plan an in-hospital birth.
In this situation your care providers should explain in detail the risks and benefits of birthing at home and in hospital in your particular situation, but they must make it clear that the decision is for you to make. You cannot be compelled to attend hospital. If your decision to attend hospital was made in response to undue pressure or threats, such as the involvement of social services, then your care providers could be liable for failing to obtain your consent.
Many women find their local supervisor of midwives (available 24 hours a day via your local hospital) is able to work with them to ensure that their choices are respected.
- Take a look at Birthrights's Choice of Place of Birth factsheet for more detailed information
If you have a question not covered here or by Birthrights' factsheets, you can ask a legal expert directly by contacting its free advice service