Interview with Hermine Hayes-Klein.

By Home Birth Aotearoa
Sep 2014

Hermine Hayes-Klein, lawyer and the director of the Bynkershoek Research Centre for Reproductive Rights in The Hague, may not be a familiar name in New Zealand for many, but she should be.  Her work as a human rights lawyer has helped define some of the discussions we have around birth and freedom for birth worldwide.  She was the guiding light behind the 2012 Human rights in Childbirth conference that was held at the Hague as well as contributing to the Freedom for Birth documentary where she spoke about birth rights for women. She is also the founding program director   the Human Rights in Childbirth movement.

Hermine gave birth to both of her children in Holland, and through those births she saw how birth could be.

“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 centre with a midwife. Or I could give birth in the hospital, with a midwife, or in the hospital with a gynaecologist. 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.”

                                    Opening Address for 2012 Conference of Human rights in Birth

Hermine at the birth of her son.

Hermine now lives in Portland, Oregon, with family. Her work now focuses on legal issues surrounding childbirth, including the defence of midwives and protection of birth rights for women. She has kindly taken time from her work and her life to answer some of our questions.

• 1. When we talk of birth choice, there is a conversation about the difference between the right to decline intervention versus the right to request intervention (e.g., truly elective caesareans). What are your thoughts on this?

Hermine: I’d be more comfortable with the choice for elective caesarean if I know that women also have the genuine choice for supported vaginal birth. Women are sometimes told that surgical birth will prevent damage to their pelvic floor– but it isn’t vaginal birth that harms the pelvic floor so much as medical vaginal “delivery” with instruments and episiotomies.  Simone Diniz of Brazil wrote a great article exposing the contextual nature of “choice” in childbirth:  Choice is not choice if it is not informed.

In a study, where they actively follow these women through the hospital and through their choices they see that the Dr might go into the hall and say to the husband and the woman’s mother “it’s been 6 hrs it will be safer if your wife has a caesarean” and then they go back into the room and talk to mother and say, your husband wants you to have a c-section, your mother wants you to have a c-section to keep baby safe” and so of course the mother says yes and then it’s labelled as mothers choice. This is not choice.

Hermine: “Many women choose for caesarean in a maternity care system in which they are almost certain to be cut either for caesarean surgery or with an episiotomy, and this isn’t a meaningful choice for caesarean.”

• 1. What would you consider to be the top 5 breaches of human rights in birth internationally?

1. Unequal access to healthcare, as reflected in racial and ethnic mortality disparities both between nations, and within nations.
2. Violation of every woman’s right to be supported in making all the decisions about her body and what will be done to it.
3.  Violation of every woman’s right to be supported in making all the decisions about her baby and what will be done to it.
4.  Legal and systemic enforcement of medical monopoly over childbirth, including the persecution and eradication of midwifery in many places.
5.  Imposition of western/colonial/patriarchal models of obstetric care that eclipse woman-centred community traditions, resulting in the loss of traditional knowledge and cultural integrity and repeating the poor practices that are entrenched in the West, like the lithotomy position and the electronic foetal monitor.

• 1. What do you think we can do, as an international community to bring the most change to birth rights?

Hermine: “The international community needs to recognize that birthing women have a human right to survival, but it isn’t their only human right.  Women themselves need to stand up for the full range of their human rights in maternity care, at the local and individual level as well as together and across communities.”

Essentially, protecting Home Birth is one way of protecting all women’s birth choices, because when women have alternatives and options in their care providers, they’re more likely to have a respectful dynamic with any given provider.

• 1. In your mind, what are some top advocacy statements women can use to protect their birth rights when they are under pressure?

Hermine: “You want to ensure that you are going to be respected as the ultimate decision-maker throughout the birth process and do whatever you can to ensure that you are giving birth with a provider who will respect that. So, you want to be having those discussions when you interview your provider, prepare for birth, and talk about your ‘birth plan.”  Even if an emergency arises during birth, you want to be giving birth with people who will tell you what is going on, share their advice, and support you in deciding what you want to do about it. Bring people to birth who will ensure that our voice is never ignored.”

• 1. In New Zealand, informed consent is a key part of our healthcare and consumer rights (as I imagine it is in America), yet we consistently hear from women that feel they didn’t experience informed consent, or worse, were not even aware of their rights. How do we ensure that true informed consent happens, what needs to change?

Hermine: We need to try to ensure that women know what their rights are before they give birth, and that providers know too.  If everybody understands that the birthing woman is the central agent in her care, then informed consent will be treated as a meaningful conversation instead of a signature on a form.  Even when a woman says, “Just tell me what to do, doctor,” the woman remains an autonomous agent with the right to change her mind and go against her doctor’s advice at any time.

• 1. What do you think of the term birth rape, does it help or hinder our cause?

Hermine: I am addressing this issue in my next blog post, coming out this week!  Essentially, most legal traditions recognize non-consented medical intervention as an “assault” or a “battery.”  When we consider the specifics of, say, a forced episiotomy or hostile, non-consented vaginal exam, as a non-consented intervention on the sexual organs/ vagina, and especially if you recognize childbirth as a sexual event, then it isn’t hard to understand how women experienced non-consented birth interventions as sexual assault.

• 1. There was an infographic I saw a while ago about the multitude of laws that control a woman’s body.  Do you have any discussion to offer about how these laws are dictated by social or cultural precedent and how we could build laws that protect women rather than control them?  Editor’s note: This led to a long discussion that ended up in the ‘personhood’ laws that are appearing in certain U.S states and in Ireland.

Hermine: In all the countries in Europe, the one country that established personhood laws was Ireland, and this is the same law that is used to force women to have caesarean sections. So, a law that is designed to protect the rights of the unborn is the same law that causes actual harm to women. This concept is played out in America with the idea of personhood used to criminalise pregnancy. The southern US states that circumscribe abortion and subject women to criminal prosecution for “endangering” their baby in pregnancy are often the same states where homebirth midwifery is illegal, and the c-section rates are the highest in the nation. A woman in Florida who was advised she would be scheduled for a caesarean section with or without her consent. This woman ended up labouring at home and in fear – she then went to hospital and asked for pain relief, and they said they would only deliver pain relief if she also agreed to a caesarean. Which is coercion.

Hermine: “When homebirth is treated as an illegitimate healthcare choice and driven underground, it doesn’t change women’s choices so much as make those choices more dangerous, by undermining transparency and continuity of care.  With home birth as with abortion, laws designed to protect babies from their mother don’t cause more life, they cause more death.  When we have laws that protect the “rights of the unborn,” we actually undermine the human rights of birthing women because those women are reduced to “host entities” for beings that somebody else is claiming the authority to “protect.”

• 1. 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. (Ternovsky vs Hungary) How will this practically affect birth rights globally? Do you think it can make a tangible change?

Hermine: ECHR (European Court of Human Rights) holdings don’t apply to nations outside Europe, and even in Europe, women have a long way to go toward getting Ternovszky implemented.  But any state or nation that recognizes a right to privacy as an umbrella for reproductive rights should be able to recognize that reproductive rights apply in childbirth.

“Every woman has an interest in ensuring Home Birth is a supported and legitimate choice – because even a woman who chooses hospital, when she has a conversation with her doctor, that conversation will be entirely different if he knows, and she knows she has a choice to walk out”

• 1. There is a consistent theme in birth, that a mother and her unborn child are at odds with each other or have needs that are mutually exclusive. How do we pull apart that mythology?

Hermine: We need to take it head on.  Who is, in fact, looking out for the baby?  The mother who has been growing it out of her own flesh and blood for 9 months, and intends to birth and raise it?  Or the doctor or nurse-on-call that night, the policy-maker in parliament?  Always ground this discussion in the reality of the cases you know and are dealing with– because you’ll find those mothers were always looking out for their babies, passionately so.  Women choosing physiological birth or home birth often do so for their babies, because they recognize a value TO THEIR BABIES of a healthy, gentle birth– a value that the medical system generally refuses to recognize.  Similarly, they want to protect their babies from harm from practices like separation of mother and newborn to put baby in “nursery,” that the medical system doesn’t recognize. A good book to read is Leboyer’s “Birth Without Violence.

• 1. Coercion seems to be a key tactic for professionals that want to reduce choices or make women comply. Can we/do we take a legal stand on this as well?

Hermine: What constitutes coercion varies from professional to professional. Coercion can look different in different settings, but ultimately it happens when somebody tries to replace your choice with the choice, they want you to make– to pressure you into replacing your own will with theirs.

• 1. Do you think that human rights in childbirth is getting worse, cases of these nature getting worse, or do you think we are more aware of them because of our online communities and technology in media?

Hermine: What we find at the moment is that Midwives who historically practised in relative harmony with the system, with no outwards change to laws, are now increasingly being circumscribed. Midwives who practised for years without complaints now have a number of complaints against them and because midwives don’t have a legal position, they are being accused of practising medicine without license and the law allows for their houses to be searched with raids. Midwives have spoken of having 50 officers outside their house and being ransacked. When midwives are criminalised, women lose choice.  Midwives who practice in hostile environments, can’t offer support and work in fear. This means that the mother suffers. Midwives can’t support the transition to hospitals or communicate with the hospital for fear of their livelihood. Therefore, women are left with non-choices – a coerced surgical birth or an unwilling free birth.

“When choices are made illegitimate and made underground, then women are put at more risk”

Human Rights in Childbirthare an organisation that protects the rights of birthing women on a global scale. They have created an international support network with representatives in most countries who can offer legal advice, advocacy, and education.

Editor’s note: Since publication we undertook a few minor edits as requested by Hermine. These were to ensure we represented her opinions factually and accurately. Thank you.