Violence in childbirth’s assistance and (dis)respect for woman’s autonomy: the criminal treatment of arbitrary medical interventions in pregnant and parturient women

Abstract

This paper aims to analyze the criminal liability of health professionals with regard to medical interventions performed in childbirth assistance, especially those performed without valid consent or against the will of the pregnant woman. Considering the context of the so-called obstetric violence and the movement for the humanization of childbirth, the objective is to investigate the foundations that give legitimacy to obstetric interventions in order to determine the criminal treatment of arbitrary medical interventions performed in childbirth assistance. To do so, the research is oriented by concrete cases extracted mainly from the Brazilian jurisprudence, which are solved in the end according to the premises established in the paper. Thus, it is verified that violence in childbirth consists in disrespect for the pregnant woman's autonomy during childbirth or in the moments that precede it, which can occur both through limitation of her freedom and execution of procedures without her valid consent or against her will, as well as through other behaviors that indirectly affect her autonomy. This allows us to conclude that it is the free and informed consent, and not the physician's decision or the indication, that legitimizes the interventions carried out in childbirth care, making the arbitrary interventions punishable as bodily injury or constraint, despite the existence of certain gaps in punishability.