Ask the Expert: Bashi Hazard, about your legal rights during pregnancy and birth

legal rights during pregnancy and birth

Do you know your legal rights during pregnancy and birth? Let’s learn from the expert.

After two caesarean births, Sydney lawyer Bashi found private midwifery and had a normal vaginal birth. She combines her legal expertise with her passion for informing other birthing mothers about their rights.

Bashi shed some light at a Better Births workshop on human rights in pregnancy and birth. Our writer attended to bring some of her key messages to you.

Informed decisions need both information AND consent

Consent without information is not informed consent. Information without waiting for consent is not informed consent. You can’t have one without the other.

Information without consent, to give you an example, is: ‘We’re just going to do this vaginal examination, OK.’ It’s widespread, and it’s unlawful.

‘We might just speed this up because baby’s getting tired.’ That’s not consent. There’s no information. ‘I’m going to do this to you. If you’re quiet, I’m going to assume it’s OK with you.’ It’s not; it’s a violation.

The opposite is also true. A great example of consent without information is when somebody says to you: ‘If you want to come to this hospital, you must sign this form which says you allow us to do anything and everything.’ We don’t do this [blanket consent] in Australia.

One thing we do practise here in Australia is asking women to sign a c-section consent form without explaining what will happen, and without explaining the risks. We ask them to sign it as we’re wheeling them into the theatre. That, too, is, strictly speaking, unlawful.

The other ingredient is the informed consent

Consent must be freely given. So, I [the healthcare provider] give you the options, and I leave you for a minute or two to think about it, or when you’re ready, you call me back.

Consent must also be specific—every single vaginal examination. Every cannula, every treatment. Every single attempt to touch you requires your explicit consent.

It must also be enthusiastic. Not ‘I guess,’ that’s not consent. Informed consent means, ‘Oh yes, that makes sense, go ahead.’ That’s the difference. Because the first one is lying there while someone does something to you and conceding or showing submission. Whereas the second one is, ‘I think this is a good idea for me, I’m taking control of the situation, yes you can.’ It’s a very different proposition and goes a long way towards securing your mental health down the track.

legal rights during pregnancy and birth

Changing your mind after giving consent

Informed consent can be reversed. I hear this all the time: ‘I didn’t want it. They went ahead and prepped me, and then when I said I didn’t want it, they said the consultant was already here, and I couldn’t change my mind.’ No, no! At the point at which you change your mind, everything that happens to you is an assault. At that point, when you withdraw your consent, nothing is permissible. It’s the law.

Pregnant women are treated differently in making decisions

When a man enters a health service, and he says, ‘I need some treatment,’ the doctor says, ‘I’ll give you A.’ The man says, ‘Mmm, I like A, but I don’t want it, thanks very much.’  The doctor says, ‘OK, it’s on you, goodbye’.

A non-pregnant woman walks into the health service, saying, ‘I need some treatment,’ and the doctor says, “We’ll offer you option A.” The woman says, “I like it, but I don’t want it, thanks very much,” and the doctor says, “Well, it’s on you, goodbye”.

When a pregnant woman walks into a health service, they say, ‘You’re going to have option A’, and she says, ‘I don’t think so,’ they turn around and badger, bully, coerce and harass her into acceptance.

We have decided that the pregnant woman doesn’t have the same rights as everybody else in the law. We’ve decided she’s a means to an end, [a baby]. I hate to say it, but it’s like ‘cows on a conveyor belt’.

Emergencies and informed consent

Another thing commonly used in Australia, although it’s never articulated as such, is what we call the ‘doctrine of medical necessity.’ This is where the doctor says, ‘Oh, it’s an emergency, and we all must override your wishes and do what we want to do.’

In maternity care, there’s a lot that isn’t an emergency but is called an emergency. It seems to be an emergency if you’re a doctor looking after six other women, and you don’t want to spend more than two hours on this one case.

[Even in an emergency], no one speaks for you. You speak for yourself. The only time anyone is allowed to talk for you is if you’re unconscious or someone [an expert psychiatrist] decides you’re mentally unstable.

Explaining your decisions

You don’t have to give reasons [for your decisions]. Your care provider’s duty is to support and inform your decision-making; it’s not your job to rationalise it. They don’t know your life circumstances; they don’t know all your history, and they don’t know your responsibilities.  In truth, that’s why the power to decide what happens to you must be yours because nobody can understand your circumstances and assess what it means for you.

It’s vital to understand that you do not have to justify yourself.

Who speaks for the baby?

I often hear clinicians saying, ‘We must protect that baby.’ In law, they do not. They do not have any decision-making power concerning an unborn baby until it is born alive and separated from its mother.

Until then, the only person they’re treating is you. The birthing woman is the only person with the authority and responsibility to decide for herself and her unborn baby.

If doctors give you the power to make decisions over your body and give you the correct information to help you make those decisions, then it’s not on them what choices you make.

legal rights during pregnancy and birth

Discuss your provider’s policies and your birth plan well in advance

Request and examine your institutional policies and guidelines. If it’s a public facility, they’re obliged to show you. You must ask the doctor looking after you if it’s a private facility.

Get them before the six-month mark [in your pregnancy] and use them to decide your birth plan. I am astounded when women tell me, ‘The hospital threw my birth plan away and said you can’t plan for anything.’ Well, hospitals plan for things all the time.

I cannot stress this enough – you must have those difficult conversations with your facilities and vote with your feet. If you don’t like what you hear, look for an alternative because it doesn’t improve. If [the way you’re treated] is wrong before labour, it doesn’t improve in labour. It’s my experience that it gets much, much worse.

Your care provider sees you at least six to eight times before that big day. That’s a lot of opportunities to have those meaningful conversations and craft a birth plan (that may change). Or at least a shared understanding that they have your back.

Published 7th December 2022

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About the Author

Bashi Hazard is a lawyer, board member of Human Rights in Childbirth, and a mother. Bashi can be reached on Twitter. If you need information or legal advice for your personal situation, speak with your midwife, doctor or lawyer. Thanks to the Maternity Consumer Network for hosting the Better Births workshops.

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