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We agree with van der Pijl et al that the question of how to ensure consent is obtained for procedures which occur during labour and childbirth is vitally important, and worthy of greater attention.1 However, we argue that the modified opt-out approach to consent outlined in their paper may not do enough to protect the choice and agency of birthing people. Moreover, while their approach reflects a pragmatic attempt to facilitate legal clarity and certainty in this context, this is not necessarily responsive to the messy realities of decision-making during labour (and beyond). We outline some of our concerns with their proposals and demonstrate how these illuminate some broader, longstanding tensions around consent and medical law.
The universal and the particular
The authors place significant focus on the particularities of labour, outlining six ways in which maternity care is ‘unlike the usual healthcare setting’ (van der Pijl M et al,1p4). We support the need for attentiveness to these particularities and the problematic nature of consent in this context. Recent scholarly attention on the possible ‘political, ethical and theoretical implications and meanings of birthing embodiment’ (Chadwick R,2p2) has invited more nuanced conversation about consent, agency and decision-making during labour. However, while recognising the embodied particularities of labour, we must also avoid essentialising the differences of labouring bodies and thereby reinforcing exclusionary norms of consent.
This points to a long-standing tension in feminist theory between the universal and the particular; between recognising and responding to the powerlessness of individuals without reinforcing the source of that powerlessness. Critiques of existing consent models, built on legal norms of contract and enlightenment ideals of rationality, abstraction and individualism, are prevalent in feminist legal literature. Such models overlook material and biological differences, particularly with regard to women.3 When calling attention to the particularities of labour, we must remain cognizant of the norms against which difference is being positioned.
This represents a key tension in the article, worthy of further attention. The authors note, for example, that though consent for procedures ‘is always necessary’, it ‘does not always have to be fully informed or explicit’ (van der Pijl M et al,1p1). This is concerning, as it demonstrates that exceptions may be carved out once individuals or their situations are positioned as being outside the norms of consent. Similarly, the suggestion that departure from standard consent approaches may only occur in exceptional or emergency circumstances has concerning implications as the temporal boundaries of ‘emergency’ are malleable, leaving significant power in the hands of healthcare professionals.
Vulnerability theory, which seeks to trouble the legal framing that shapes individualistic norms of consent, provides a useful avenue for thinking this through. It shifts focus away from the liberal legal subject who is rational and independent, towards the vulnerable, embodied and embedded legal subject.4 This invites attentiveness to both particular experiences of individuals and to their situatedness within a broader social context. Vulnerability and interdependence are seen as universal, thus avoiding ‘othering’ people experiencing embodied vulnerability. It, therefore, allows for recognition that the hierarchical and patriarchal healthcare system renders women and birthing people ‘situationally’ vulnerable, while also resisting paternalistic notions that they require protection from their own irrationality.
This approach might trouble some of the assumptions underpinning the article, while sharpening the tools for analysis. The focus on labour as embodied and embedded facilitates a critical analysis of the broader structures of birth, inviting recognition that this experience occurs ‘in relation to sociocultural norms, local material structures, physiologies, intersectional and transnational relations of power’ (Chadwick R,2p3). We must consider whether the inadequacies of current consent frameworks are particularly stark with regard to labour because of the embodied particularities of this situation, or whether there is something unique about the space within which labour occurs which magnifies inadequacies which are common across health and social care. This approach can also facilitate a more sustained focus on the uneven distribution of unconsented procedures across racial and socioeconomic lines; an issue noted, but not fully developed, by the authors (van de Pijl et al,1 p1).
The messy realities of pregnancy and labour, and the blurring of consent boundaries, must not be used to create spaces of exception for women and birthing people, situated against the normative force of current medicolegal logics of consent. Instead, they invite us to (re)consider the broader suitability of the consent framework.
The current legal framework, within which the authors’ proposal is situated, is predicated on binary understandings of capacity and consent. We are sympathetic to the authors’ aims of seeking a pragmatic and timely approach to addressing the performance of procedures such as episiotomies without obtaining appropriate consent, particularly as some of the authors are healthcare professionals. However, any solution which acts within the existing framework is inherently constrained by flaws within that system. Murray has recognised that rigid binary understandings of consent and capacity are limited in their protection of labouring women and birthing people: ‘the model of consent on which the legal framework is based is not sufficiently flexible to be effective for women in labour’ (Murray C,5p167—168).
We suggest expanding this line of reasoning; asking whether the binary model is problematic per se rather than merely in the labour context. A growing body of literature has engaged with the flaws of this stark legal binary more generally pointing to the ways that it is built on problematic, masculine, ableist ideals of subjectivity and is positioned as objective and neutral when it instead smuggles in (often problematic) normative assumptions.
Debates about choice and consent during labour are heavily constrained by this capacity/incapacity binary, which has roots in case law which has positioned pregnant and, particularly, labouring women as exceptions to the liberal legal norm of the consenting, capacitous adult. This has enabled obtrusive and often unwanted medical interventions against labouring women and birthing people. It is compounded by normative ideals of motherhood which permeate the case law; ideals which, when situated within hierarchal healthcare spaces, can reinforce pressures on individuals to acquiesce to interventions.
The challenge is how to recognise that labouring individuals may sit outside of the binary understanding of capacity/incapacity, without perpetuating problematic sociomedical presumptions about their ir/rationality (Murray C,5 p170). Work engaging with embodied experiences of birth must be attentive to the inherent constraints of the frameworks within which these experiences are situated, and avoid reinforcing these.
This article brings an important issue to the fore. However we suggest that in addressing the issue, greater attention needs to be paid to the broader structures of consent and agency - and the legal frameworks within which these are situated. A careful balance must be struck between necessary attentiveness to the embodied experience of labour, and the risk of exceptionalising or ‘othering’ labouring women and birthing people. We must recognise the shortcomings of the current ethical and legal approach to autonomy and agency, and the ways this is buttressed in medicolegal frameworks more broadly. Our concerns also underscore the need for careful consideration of the embeddedness of individuals within medicolegal spaces and frameworks that constrain choice, to ensure we empower rather than responsibilise individuals.
Patient consent for publication
Contributors Both authors contributed equally to the conception and writing of this work.
Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.
Competing interests None declared.
Provenance and peer review Not commissioned; internally peer reviewed.