What are a mother’s legal rights during pregnancy and childbirth?

Human rights law sets out the way we can expect to be treated by public organisations, including the NHS. Doctors, midwives, and those caring for you during pregnancy must respect your human rights as they go about their work. Your human rights that apply to maternity care derived from the European Convention on Human Rights, are;

Everyone is legally entitled to medical attention from healthcare professionals throughout pregnancy, childbirth and after your baby is born. This involves all midwifery, obstetric, and specialist care if needed, including routine screening tests such as scans blood tests and monitoring of maternal and fetal wellbeing.

Although pregnancy and childbirth is predominantly considered to be low risk, complications which can potentially cause harm to the mother or child can occur. If there are no underlying health issues, routine care is usually provided by the midwife without any obstetric involvement. However, if any deviations from the norm occur at any stage, it is required for the midwife to refer to the obstetrician.

You have a right to NHS care. For most people in the UK, this care will be free. Some people can be charged for their care, but should still be given care even if they cannot pay. Care cannot be refused or delayed because you cannot pay, or because the hospital is not sure whether you need to pay. Birthright.org.uk and Maternity Action have fact sheets available, setting out when people may be charged for maternity care. Maternity Action can also provide advice for individuals who are unsure if they may need to pay for maternity care or not. Maternity Action has an email advice service and also offer a free telephone advice service maternityaction.org.uk.

he healthcare professional should treat with kindness respect and compassion (See the NMC Code 2015) In other words, the mother should be listened to with her concerns or requests acknowledged.  

For example, if pain relief is requested it should be given unless there are good reasons against providing it. Also, if a caesarean section is requested, it should not be dismissed.  

There are some situations where there may be a medical reason for not performing a caesarean section because it could cause more harm to you or your baby. This would be considered a clinical contraindication that the healthcare professional should discuss with you.  

The right to autonomy means that a women’s consent must always be sought before performing any medical procedure. Carrying out a procedure without your consent violates your right to physical autonomy and integrity under Article 8. It may also violate your right not to be subject to inhumane and degrading treatment under Article 3.  

You have the right to make your own decisions about your body. It is against the law to give you medical treatment unless you agree to it. It is important that you understand the treatment or treatment options well enough to make a decision about what treatment you want to have. Failure to give you sufficient, subjective, and unbiased information to enable you to make an informed choice will violate Article 8. It also means that no-one, including your family or healthcare professionals, must put pressure on you to agree to have treatment. 

Making a birth plan and having respectful conversations with your doctors or midwives early in your pregnancy gives you a good opportunity to think about the treatment and care you may be offered, and that which you may not want. You can specify in your birth plan any treatment you do not want. 

However, at some stage during your pregnancy or labour, the doctors or midwives caring for you may think that your treatment should change. If anything changes, they must tell you what is different, and any changes to risks and benefits of treatment being offered, so that you can consent again. 

You also need to know who is giving you maternity care, and agree to them giving you that care. You must be asked before a medical student or a student midwife can be part of your care (though it’s important to note that involvement in your care provides a major part of students’ learning and they will work under the direct supervision of an obstetrician or a midwife). 

There are some situations where patients are asked to give consent in advance. For example, if you are going to have a planned caesarean section, then the obstetrician  should offer you a proper conversation about the risks and benefits ahead of time. A formal consent form is completed on the day of the surgery following further discussion of the risks and to discuss any concerns you may have. It is your right to change your mind. They cannot then do anything further during the operation that you haven’t agreed to, unless it is required in order to save your life or prevent serious harm. 

Likewise, if you have been booked for an induction of labour, you can change your mind and decline the induction at any time, including on the day of the procedure. It is required of the midwife or the obstetrician to provide you with all the information you require to make an informed choice about your care.  

Before you decide about any care or procedure, the obstetrician or midwife should tell you about the risks and benefits that will be important to you, so you can be fully involved in the decision-making process. You should be told if there are other treatments you could have instead and the risks and benefits of those. You should be made aware of what could happen if you don’t have the treatment. 

It is also extremely important that your doctor/obstetrician listens to you and finds out what matters to you. For example, if a treatment or procedure might make future pregnancies complicated, they need to talk to you about how important it is to you to have more children, so that you have the information you need to make a decision. It is not enough just to give you a leaflet or a link to a website. You should have a personal discussion with your doctor or midwife, to go through what is really important for you. 

You have the right to request certain care, but your doctor or midwife do not always have to offer care if there is a good reason why they should not. This should be explained to you fully and documented within your records. 

As a birth injury solicitor, I often speak to mothers who have had concerns about information given to them regarding the best way to deliver their baby, and whether they were made aware of all of the relevant risks in order to make the right choice for them. There are some situations where it may be more appropriate for a mother to have an early induction of labour or an elective caesarean section. In this scenario then, it is important that a mother is made aware of all options available to her and the risks associated with each option, so that she can make the right choice for her and her baby. Often expectant mothers will want to know whether they can choose to have a caesarean birth, even if the doctor or midwife doesn’t think there is a medical reason for one. This is called a maternal request caesarean birth. If you are otherwise low risk and your preference is for a caesarean section, the midwife will refer you to the obstetrician for a full discussion of the reasons, risks and benefits. When this situation arises, your doctor or midwife must listen to your reasons for wanting a caesarean birth and have good reasons for saying no. 

If you request a caesarean birth during labour, your midwife should listen and take you seriously and refer you to the obstetrician You should be offered other support, such as pain relief, if you feel this would help you to be able to have a better conversation about caesarean birth or other alternative options. On occasion, you may have to wait to have a caesarean section if there are other individuals in the unit who need a caesarean more urgently. There are guidelines available from the national guidance for the National Institute of Health and Care Excellence (NICE), which recommend that if you ask for a caesarean birth, the hospital should support this if they are satisfied you are making an informed choice. The obstetrician should discuss with you why you want a caesarean birth, and the risks and benefits of caesarean and vaginal birth. 

If you are requesting a caesarean section due to anxiety about childbirth, the hospital should refer you to a healthcare professional who is an expert in perinatal mental health. However, you do not have to accept this offer of support if you do not want to. The guidance says that if you still want a caesarean birth after you and the hospital have talked about it, and you have been offered support, the hospital should offer you a caesarean. 

If you choose a caesarean birth but your hospital refuses to carry it out, you can ask to speak to the director/head of midwifery or the clinical director. 

Article 8 also gives you the right to choose your place of birth and choice of birth companion. You can therefore choose to give birth in a hospital, in a midwifery led birth centre, or at home. It is important that you understand the risks and benefits of each option. For example, many women do not understand that a midwifery led unit does not have immediate access to the obstetric team and pain relief does not include the option of an epidural. It is also important to understand that a home birth may encounter complications which could be life-threatening due to delays in transferring to the hospital in the event of an emergency. There are some situations such as a breech or a twin birth or any underlying health conditions where a doctor or midwife may recommend birth on the labour ward in which case it would be important to have a detailed discussion about the risks and benefits associated with this. However, no-one can make you give birth away from home if you want to stay at home and you are fully aware of the limitations of fetal monitoring, pain relief options and the availability of basic resuscitation.   

In order to discuss your maternity options with you, Article 8 also means there is a requirement to provide adequate interpreting services necessary to enable you to fully understand the options available to you and be able to make the right decisions. 

In addition, the Equality Act 2010 protects people against discrimination and harassment. It recognises nine ‘protected characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. The Equality Act means it is unlawful for NHS organisations or individual caregivers within the NHS to discriminate against people on the basis of these characteristics. 

The Equality Act 2010 also requires public bodies, such as the NHS, to make sure that people with substantial physical and mental impairments can access the same maternity care as any other person. This means that maternity services have to make ‘reasonable adjustments’ so that people with disabilities are not placed at substantial disadvantage compared to other individuals who do not have the same impairments. 

In UK law, the fetus doesn’t have rights. An unborn baby doesn’t become a separate person with legal rights until they are born and draw breath by themselves. 

Human rights are also protected by common law (decisions passed in the law courts in the UK over the years). The law has very clear requirements on the issue of consent. The law requires healthcare professionals to give a person the information they need before seeking consent. The information should cover any material risks, any alternative treatments that are available, and the risk of doing nothing. 

In a Supreme Court case, Montgomery -v- Lanarkshire Health Board (2015), the Court stated that the test for whether a risk is a ‘material’ one is whether a reasonable patient would attach significance to the risk, or whether the doctor should be aware that the particular patient would attach significance to it. This means that there must be an honest conversation between a doctor and a patient and the assessment of risk must be sensitive to that individual patient’s characteristics. Each person perceives risks differently and it is important to address how significant the risks are for that individual patient. 

Giving misleading information about someone’s medical condition or the proposed treatment, or not giving them relevant information, may mean that consent was not valid. The failure to provide appropriate information may also leave the healthcare professional open to a successful claim of negligence, if the patient suffers harm as a result of the treatment. The Royal College of Obstetricians and Gynaecologists also provides advice on consent, and on specific procedures and the risks associated with those procedures, including caesarean section, operative delivery and participating in research while in labour.