How much autonomy do women actually have when giving birth?

You spend your pregnancy researching and planning for when your baby finally arrives, as well as considering what might happen if things don’t go according to plan.

But as over-stretched hospitals rush women through labour and discharge them early where possible, you might be left with less choice than you expected.

In recent years, parliamentary inquiries in New South Wales and Tasmania have investigated the mistreatment of women during childbirth, showing how ignoring their right to autonomy and informed consent contributes to physical and mental trauma.

Thousands of submissions and testimonies described a lack of autonomy, disrespect and coercion into birth interventions that were unwanted.

Women from minority groups (including First Nations, migrant, refugee, lesbian, non-binary, single and disabled women) are even more vulnerable to discrimination, coercion and lack of autonomy.

So what rights do women actually have when giving birth?

Informed consent includes the right to refuse

Providers must obtain informed consent before performing treatment. Even in genuine emergencies, a conscious patient has the final say.

Informed consent makes permissible medical treatment that would otherwise constitute civil and criminal assault or battery.

Pregnant women have the right to refuse any proposed medical treatment or intervention without having to justify their reasons.

Australian courts have consistently declined to override a competent pregnant woman’s refusal of treatment, even if it means putting herself or the fetus at risk.

As NSW Health notes:

Women have the right to give, withhold, or withdraw consent at any time, for any reason, even when that decision has the potential to lead to harm to herself or her unborn baby. Their decision must be respected.

The courts confirm coercing treatment is illegal

This year, the Victorian Supreme Court clarified the legal implications of coercing women into interventions they expressly refuse in childbirth.

In 2020, Larissa Gawthrop and her midwife had developed a birth plan which stated:

I decline all vaginal examinations unless there is an urgent medical reason to do so.

When Gawthrop arrived at her local hospital (Bendigo Health) in labour, however, staff would not admit her or call her midwife unless she agreed to a vaginal examination. After labouring a few hours, she relented and was formally admitted.

Justice O’Meara held that the hospital’s conduct constituted battery and negligence. Battery is an old legal word for unlawful physical contact which, in Ms Gawthrop’s case, was because her “consent” was not freely given.

Bendigo Health was ordered to pay general damages.

This judgment reflects growing social expectations that providers, like everyone else, have an obligation to respect women’s bodily autonomy and informed choice.

What a provider should do if a woman refuses

A woman’s refusal does not mean that a provider can just walk away.

Providers owe a duty of care not to cause injury to a child who is later born alive. But this is not a duty to prevent injury.

Negligent conduct during pregnancy or birth that foreseeably causes injury to a child can give rise to an action in negligence by that child.

The focus is on the provider’s communication, not the woman’s decision-making. A provider who performs their duty and documents their recommendations and the woman’s decision cannot be held responsible for her choices.

Being present and continuing to support the woman mitigates any negligence claim against inaction.

How a provider should obtain consent

Ideally, a midwife or doctor will engage in meaningful, honest and ongoing discussions about a woman’s birth preferences from the very first antenatal appointment. This builds the foundation for a sound, trusting relationship.

The discussions should consider all birthing options, such as waiting for labour to start spontaneously, inductions and planned caesareans, and any other proposed interventions requiring physical contact, diagnostic tests or medications.

These discussions will form the basis for a birth plan that can be fine-tuned throughout the pregnancy.

Discussions in relation to specific treatment options require a multi-dimensional approach: the “if”, “what”, “where”, “how”, “why”, “who” and “whether” dimensions.

What this might look like in practice

Let’s say an induction of labour has been recommended because a pregnancy has gone past the due date.

It’s not ethical or legal to simply tell the woman that induction is required. Discussions must involve:

• what the treatment is
• why it is being recommended
• how, when and where it would happen
• whether there are alternatives
• if it will impact the woman physically and mentally.

The risks and likelihood of an induction failing – and leading to either a forceps, vacuum delivery or a caesarean – must be discussed, as well as the possibility of more pain, having continuous monitoring and a longer hospital stay.

Any risk for the baby for women going past their due date must be explained in a way that is easily understood, such as one in 1,000 risk of stillbirth, or one in 500 births.

This is the information women need in order to give the consent required by law.

Following the discussion, the woman must be given time, without pressure, to ask questions, discuss with her support person, and weigh up her options before communicating her decision.

She can agree, delay, decline, or stop an induction at any time without having to explain herself. Her team must respect and record her decision, while keeping open the opportunity for further dialogue if she changes her mind.

Building relationships and trust has significant benefits for mothers and babies. Women cared for by a known midwife experience fewer interventions and greater satisfaction.

We need to humanise maternity care so women can have autonomy in their decision-making and emerge from their birth feeling respected and empowered.