Spotlighting Research - Troubling Consent: Pain and Pressure in Labour and Childbirth

6 Nov 2020

In this series, we spotlight exciting and impactful research currently being undertaken at the UCC School of Law. We also showcase the researchers themselves – academic staff at the School, who produce cutting-edge legal scholarship independently or through our research centres.

In this edition, we are shining the spotlight on Dr Claire Murray and her research on the issue of consent in the context of pregnancy. Dr Murray outlines her chapter, Troubling Consent: Pain and Pressure in Labour and Childbirth, in the forthcoming book edited by Pickles and Herring, Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability (Hart Publishing, 2020).

Dr Murray explores the background of this chapter and explains how it relates to her other research in this area. 

What is this chapter about?

This chapter explores how best to protect the autonomy of people in labour while recognising that pregnancy is different to other healthcare contexts and that decision-making in pregnancy is complicated by factors such as pain and pressure. As part of that consideration the chapter problematises the existing model of consent in medical law, drawing on case-law which illustrates the stereotypes and narratives which complicate any discussion of decision-making in labour. Ultimately the chapter argues that the current model of consent is not fit for purpose in the context of pregnancy, because it is too binary, and what is required is a more flexible model of consent, one which stretches the temporal context, in order to ensure that the legal recognition of autonomy for pregnant women and people in labour is meaningful.

Where did the idea to write it come from?

I was invited by Prof Jonathan Herring (Oxford) and Dr Camilla Pickles (Durham) to participate in a workshop in February 2019 at the University of Oxford entitled “Without consent: Vaginal examinations during labour and the law.” This was part of a wider British Academy project they were involved in on Obstetric Violence and the Law. I was asked to present a paper on the impact of pain and pressure in labour on consent. The workshop brought together a range of participants with backgrounds in obstetrics, midwifery, philosophy, law and civil society groups advocating on behalf of pregnant women, such as AIMS and Birthrights. It was an inspiring workshop, with lots of rich discussion on an issue that many of those working in the area were aware of but which had been neglected in the literature and was invisible in the caselaw.

The most powerful aspect of the workshop was the account given by a number of women of their experience of vaginal examinations without consent during labour. The embodied experiences of these women, which they bravely shared with a room full of strangers, highlighted some of the ways in which the medical and legal systems fail pregnant women and people in the context of labour and childbirth.

Who did you write it for?

The chapter forms part of an edited collection, developed from the Oxford workshop, which aims to promote interdisciplinary dialogue and to highlight concerns about care that is provided during labour and childbirth. So the book is aimed primarily at an academic audience, but I wrote the chapter for anyone who is interested in thinking about what consent means in the context of labour and childbirth, and how the legal understanding of consent might be improved to ensure that women’s choices and decisions in pregnancy and childbirth are supported and respected.

How does this tie to other themes in your research?

My other area of research interest is mental health and capacity law, and I’m particularly interested in the intersection of capacity law and policy with questions of autonomy and agency in pregnancy and childbirth.

While I was working on the initial paper which was the foundation for this chapter I was also working on a funding application to develop a research network focused on ethical and legal issues in pregnancy and childbirth in Ireland. This led to the establishment of the Ethics, Law and Pregnancy in Ireland Network (ELPIN), funded by the Wellcome Trust (https://www.ucc.ie/en/elpin) and @elpin_ucc). ELPIN is an interdisciplinary network (drawing from ethics, law, medicine, obstetrics, midwifery, social science, philosophy, sociology, psychiatry) which provides a space for members to engage in discussions around the emerging ethical and legal questions relating to pregnancy and childbirth in Ireland from a position which highlights the importance of agency, autonomy and dignity.

We have run a series of workshops considering issues such as framing the pregnant subject, responding to experiences of harm in pregnancy and childbirth, experiences of fatal foetal anomaly, and the impact of mental health and capacity law and policy on pregnant and birthing women in Ireland. The first workshop was held in person in the School of Law, but in response to the Covid situation, and with support from the Wellcome Trust, we moved to online workshops. This proved to be a smooth transition and the workshops have continued to provide regular opportunities for rich and nuanced discussions on complex issues.

What will you be doing next?

I’m currently working on two articles which have evolved from the research I conducted for this chapter. The first examines the role of capacity and supported decision-making in the context of childbirth in Ireland, and the second analyses the use of best interests decision-making under the Mental Capacity Act 2005 in cases involving court ordered obstetric intervention in England and Wales. ELPIN will also be running more online workshops over the coming months and we plan to have a conference to wrap up the project in 2021.

On a lighter note...

Why did you choose to study law?

I enjoyed English, History and languages at school and was torn between studying journalism and law. I did a few work placements with newspapers and really enjoyed the days I spent with the court reporters and that ultimately tipped the balance in favour of law.

Who is your greatest academic influence?

Prof Mary Donnelly has been my lecturer, PhD supervisor, academic mentor, and is now my colleague, collaborator and friend. She has been a constant in my academic journey, an inspiration and a support, and has been hugely influential in my approach to my research and my teaching.

What is your favourite law book?

Carol Sanger’s About Abortion: Terminating Pregnancy in Twenty-First-Century America is beautifully written and an important piece of scholarship. I’ve had the privilege to meet and work with Prof Sanger and all her work is thoughtful, thought-provoking and a pleasure to read.

What is your favourite non-law book?

I’ve always loved Jane Austen’s Pride and Prejudice. Recently I enjoyed The Midnight Library by Matt Haig and Notes to Self by Emilie Pine.

What is your proudest academic achievement to date?

My 2016 article in Social and Legal Studies “The Protection of Life During Pregnancy Act 2013: Suicide, dignity and the Irish discourse on abortion” is one that comes to mind. The article considered the impact of narratives and counter-narratives on the shape and content of the 2013 Irish abortion legislation. I was writing it at a time when the law and policy in the area was developing quite quickly. The ideas in the article took some time to come together and I remember working on it over the summer and feeling like it was never going to click. Because the process was challenging though the sense of achievement when it finally did come together was much greater.  

Further information

Claire Murray is a first class honours graduate of University College Cork (BCL, 2004; PhD, 2010; MA, 2013) and King's Inns (BL, 2008). She was awarded an IRCHSS Government of Ireland Scholarship to fund her PhD research and completed her thesis, "Feminism, Rights and Mental Health Law: Analysing the Contribution of Feminist Theories of Rights to Irish Mental Health Law", in 2009. She joined the School of Law in 2010 having previously practiced as a barrister and worked as the principal legal researcher on the Law Reform Commission's project on Legal Aspects of Family Relationships. She was a Visiting Scholar at the Feminism and Legal Theory Project, Emory University, School of Law, USA in 2012; at the Centre for Gender, Law and Sexuality at Kent Law School in August 2013; and at the Faculty of Law, University of Toronto, April-June 2018. Claire was previously Deputy Director of the CCJHR, Director of the BCL (International), and a Coordinator of the Gender, Law and Sexuality (GLAS) Research Initiative. She is the current Director of the LLM programme.

Claire's research interests lie broadly in the areas of mental health and capacity law, and maternal and reproductive rights. She is the Principal Investigator on the Wellcome Trust funded Ethics, Law and Pregnancy in Ireland Network (ELPIN) project.

Visit the ELPIN Project website: https://www.ucc.ie/en/elpin/ 

For more information about the book and issues raised in this piece, visit the Durham University CELLS blog: https://www.dur.ac.uk/cells/obstetricviolence/