Global Strategy for Women’s, Children’s and Adolescents’ Health: A Comment on the new Zero Draft for the Post-2015 Agenda
18/07/2015 § Leave a comment
(This blog was first published on BMJ Blogs on 22 June 2015.)
This week in New York, the Zero Draft of the Outcome Document of the Post-2015 Development Agenda ‘Transforming Our World,’ will be negotiated at the United Nations (UN). The document provides the main framework for the Post-2015 Development Agenda that will be adopted during the UN Summit in September. A Post-2015 Women’s Coalition, coordinated by the Center for Women’s Global Leadership in the US (http://www.post2015women.com), has been contributing to the development of these frameworks in support of a comprehensive gender equality strategy which is inclusive, addresses inequalities, and is accountable to all. While the Outcome Document does highlight women’s rights and gender equality prominently, it is not a given that this focus will remain, since women’s rights are often used as a bargaining chip and dropped during negotiations.
Moreover, according to the Post-2015 Women’s Coalition, the Zero Draft of the Outcome Document falls short of ensuring the universal realisation of women’s and girls’ human rights as a core principle. Other important criticisms of it by Coalition members are that it creates only voluntary follow-up mechanisms, which are disconnected from existing human rights monitoring mechanisms, and its restricted targets and indicators fail to capture the ambition needed for transformative change (The Zero Draft for Post-2015 Development Agenda contains gaps on key feminist issues, 17 June 2015. http://www.awid.org/node/3574).
Equally problematic are omissions in the 2015 Zero Draft of the Global Strategy for Women’s, Children’s and Adolescents’ Health, which will feed into the final Outcome Document as regards women’s and children’s health. Its authors claim it is based on stakeholder consultations with over 4,500 participants, that subsequent drafts will reflect updated content from working papers and further consultations, and that a consensus process is underway to finalise its goals and targets (Global Strategy for Women’s, Children’s and Adolescents’ Health: Zero Draft for Consultation, 5 May 2015). But will it call for sexual and reproductive health and rights?
The UN Secretary-General, Ban Ki-moon, launched the first Global Strategy for Women’s and Children’s Health in 2010, in order to focus attention on the lack of progress towards Millennium Development Goals 4, 5 and 6 (to improve child and maternal health and combat HIV/AIDS, malaria and other diseases) and highlighted how these goals also play a role in the other MDGs. That first Global Strategy called for urgent increases in resources and coordinated efforts to accelerate progress for women and children, and it specifically identified safe abortion as an essential intervention for women. Yet in its 2015 iteration, no longer in the hands of Ban Ki-moon, the focus on women has been reduced to a focus on maternal health only, reverting back to the narrowness of MDG 5, anchoring the needs of women to childbearing.
I applaud the many people who put so much effort into documents like this, but a far greater commitment to democratic representation of women’s proven needs is called for. Women are far from just mothers, and neither adolescents’ health nor women’s health can be reduced to maternal health. Unless they are amended substantially, these documents will take us back several generations. Improving maternal health in isolation, and tying women’s health needs to those of infants and children, failed women during the 15 years of the MDGs, and will continue to do so.
The 2015 Global Strategy for Women’s, Children’s and Adolescents’ Health only mentions abortion once, referring briefly to unsafe abortions among adolescents and the potential for reducing unsafe abortion through the use of contraception. This is a major omission and is particularly disturbing given that the 2010 Strategy did call for abortion to be made safe. It is critical that the key stakeholders in this process demonstrate their support for explicit inclusion of women’s right to safe abortion in the strategy.
Along with the 20 prominent individuals and over 60 international and national NGOs who signed the “Joint statement on the importance of including safe and legal abortion as a key approach in Round 2 of the Global Strategy for Women’s, Children’s and Adolescents’ Health” on 1 June 2015, http://www.ipas.org/~/media/Files/Joint-Statement-on-Zero-Draft-Global-Strategy.ashx), initiated by Ipas, the International Campaign for Women’s Right to Safe Abortion is concerned that the Zero Drafts of the Outcome Document and the Global Strategy for Women’s, Children’s and Adolescents’ Health fail to address sexual and reproductive health and rights adequately, and in particular, fail to make any call for women’s right to safe abortion.
Fertility control is essential to the earth’s future and safe abortion is essential to fertility control. Abortion needs to be decriminalised globally as an integral part of sexual and reproductive rights. If documents purporting to be about gender and women’s rights do not reflect this, then, I’m sorry, they do not support women’s health.
Upwards of a million women have died from unsafe abortions internationally since the Programme of Action of the International Conference on Population and Development was approved in 1994. Although the death rate has fallen a lot since 1994, it is mainly because women have taken the law (and medical abortion) into their own hands. The Programme of Action was passed only with a fatally compromised position on safe abortion, but 20 years on, this compromise should not remain written in stone. The world has moved forward on this issue ‒ and so have women themselves. 42 million women have abortions every year, and half of them are still unsafe.
The International Campaign for Women’s Right to Safe Abortion has members in 21 African countries, 20 Asian countries, 6 Pacific countries, 11 Central and Eastern European countries, 19 Latin American and Caribbean countries, 8 Middle Eastern/Mediterranean countries, 14 Western European countries and both North American countries. These more than 900 organisations and individuals are the voice of women internationally on this issue. Maternal health demands that every mother should be a willing mother. The sustainable development goals need to call for women’s right to safe abortion ‒ to reduce maternal deaths from the complications of unsafe abortion, to ensure access to safe, legal abortion on request as a legitimate form of fertility control ‒ and as a public health, gender equity and human rights issue.
UK Parliamentary Hearing on Population Dynamics in the Post-2015 World – urbanisation, migration, climate change and conflict – 12 March 2015
12/07/2015 § Leave a comment
Proposed questions and responses from Marge Berer
- You suggested in your RHM editorial May 2014 that we need to start thinking very differently about ‘population’. What did you mean by this?
What I meant were several things: 1) that given the growing risk of disasters arising from climate change, Hanna Zlotnik, a long-time expert at the UN Population Division, said in 2011 in a conference in London about Population and sustainability issues that in 50 and 100 years from now, population growth and its consequences may no longer be the main population-related issue to confront but rather that huge numbers of people may be killed in natural disasters, reducing population levels enormously. Almost no one seemed to hear her. Consider for example just in the last few years the after-effects of the tsunami in Thailand, the tornado-related storms in the Philippines, the nuclear power station disaster in Japan ‒ yet these are just the dress rehearsal.
2) To put it in another way, the future of human life on this planet is at stake. The planet will survive, but the question is: will we? Already, many species of animals are becoming extinct. On 6 March the Guardian letters page was all about threats to global food security. The meaning of sustainable development to me is about making changes that will ensure the future of human life beyond the next few generations. That includes in industry and economic production, food and energy production and consumption, and reduction in pollution and waste. Yet much of this is considered a minor irritant on the political agenda; only the Green Party and a few NGOs like Greenpeace take it seriously enough here in the UK, and the media give it far too little attention. It’s good that Alan Rusbridger has finally decided the Guardian will begin to do so, I hope it makes a difference. I believe these issues need to become a major focus of national and European Parliaments and the UN system.
- Can you expand on your comment that family planning did not save the world in the 1960s and will not do so again now?
I said this because I do not believe that reducing population growth by greater use of contraception is “the answer” to sustainable development. It is not. Fertility control is crucial for both men and women. Keeping fertility rates low in countries which have achieved low fertility is crucial. Like Britain. So why is our FPA getting almost no funding anymore? They are a shadow of what they used to be. Education for Choice had to close because it couldn’t get funding. So I recommend that you try to ensure the government prioritises funding for groups like them again.
Reducing fertility rates in countries with above replacement fertility levels, i.e. most middle-income countries, or high fertility, as in the poorest countries, is equally important. But it is also important to recognise that the total fertility rate globally by 2005 was already as low as 2.6, that is, near the replacement level of 2.1, and it has fallen further since then. In the more developed countries it was already well below replacement at 1.6 by 2005. And although in the least developed countries (which are only 18% of the global total) it was 5.0, that is far lower there than it was even 20 years ago.
“Development is the best contraceptive” ‒ was the slogan of the global South at the first ICPD in 1974, because development was not being prioritised enough. So my second recommendation is definitely to support the delivery of contraception to everyone who wants it, but also to ensure women are given a choice of method and supported to use it because the drop-out rate is still high, and that targets and coercion should not be permitted. At the same time, contraceptive use alone will not take care of the environment and development, nor will it erase the problems of gross inequality that we face on the earth today, nor reduce poverty on its own.
Let me stress also that there are almost 44 million abortions globally every year which cannot be ignored. I consider abortion a legitimate health service for women, not a problem. But half of all abortions are still illegal and unsafe. That is unacceptable. So I have to ask why everyone is not more critical of those who promote contraception but are anti-abortion and of the target of getting 220 million women on contraception by 2020. I thought we had dealt with the risk of abuse arising from targets and incentives in the 1980s ‒ these gave family planning a bad name then and could do so again. It wasn’t just the focus of ICPD on sexual and reproductive health that took the focus away from family planning; it was coercive practices and the failure to ensure informed choice and consent that did it.
- Would you like to explain in a bit more detail your suggestion to ‘re-conceptualise’ family planning?
I said this because we still underestimate how much access to the means of fertility control has changed how people see having children. Most people want fewer children and a growing percentage want no children at all. With total fertility at less than two children, women spend only 1-2 years of their lives pregnant. Many women are postponing first births until their late 20s. Over 60% of women born in 1965 in England & Wales were childless at age 25. So the need to prevent pregnancy covers many years, starting in adolescence. The rest of the time, people are not planning their family, but managing their fertility. The phrase “family planning” is not what is going on. What is going on is the wish to have sex without fear of pregnancy or sexually transmitted infections. If programmes were based on this fact, there would be far fewer unwilling mothers and fathers, especially among adolescents who, in many countries, are still not allowed to access contraception.
- In a footnote you highlighted some negative consequences of below-replacement fertility. Can you expand on this?
Below-replacement fertility is, in my opinion, a very good thing. Few countries put enough resources into jobs, housing, education for their young, health services, money for benefits for the poor, or pensions for older people. However, below-replacement fertility makes a lot of governments very nervous ‒ Russia, Iran, Turkey are examples. Countries see a growing population as a symbol of status and power among nations, necessary for economic growth, or for having enough men to fight wars, and so on. Racism prevents many low fertility countries from encouraging in-migration from countries with high fertility. Instead, countries try to increase birth rates by restricting access to safe abortion, contraception and sterilisation, as well as offering positive incentives, as in France. Global education on this issue and why below replacement fertility is a good thing for sustainable development and the environment is badly needed.
- What are the main obstacles to expanding family planning and sexual and reproductive health and rights laws/policies and services at a global level and in particular developing countries?
The main obstacle is misogyny, and the fact that so many men are unwilling to give up their power over women and over women’s sexuality and reproduction.
The second is the anti-choice movement. Abortion is a major method of fertility control: one in three women in Britain has had an abortion and yet we have a very high contraceptive prevalence rate. It’s past due time to stop treating abortion as less acceptable than contraception. Efforts to make even some abortions illegal should be buried in the history books.
The Vatican and the Catholic church are the world leaders in opposing safe abortion and family planning, and I believe they have encouraged anti-women fundamentalism and a conservative backlash against women’s autonomy among other conservative religious as well, serving as an example of how to gain political power. I have just been reading Good Catholics, which is a history of the extent to which the Vatican and Catholic bishops in the USA have gained political power, not only to influence national politics but also to influence who stands for election, and who wins and loses. I think it should be required reading for politicians, and that the ethics of these actions must be challenged.
My last recommendation to you as Parliamentarians is to stregthen your own APPG, support the European Parliament’s SRHR group, who made an important commitment to safe abortion a month ago in Brussels, and try and get our Parliament to agree that sexual and reproductive health and rights are crucial for the wellbeing of the whole population.
 Patricia Miller. Good Catholics: The Battle over Abortion in the Catholic Church. University of California Press, 2014.
These perspectives are spelled out in more depth in my editorial: The sustainable development agenda and unmet need for sexual and reproductive health and rights. Reproductive Health Matters 2014;22(43):4‒13. http://www.rhm-elsevier.com/article/S0968-8080(14)43775-3/pdf
12/07/2015 § Leave a comment
The November 2014 RHM journal was my last as RHM’s editor, and I stayed on this year until 30 April to support Shirin Heidari as the new editor during a transition period, edit some of the papers in the May 2015 journal for her, and write a farewell editorial. My best wishes go with Shirin! I hope everyone will give her their full support in continuing to make RHM a critical journal for the field as the world moves into the post-2015 agenda, a period when continuing support for sexual and reproductive health and rights is and will remain crucial.
It’s hard to believe that it’s been 23 years and leaving has been very hard. But I am proud to have been RHM’s founder and editor ‒ with (more than) a little help from my friends! Moreover, there’s no need to say goodbye, as I’m not disappearing. Far from it; I’ve never felt more like engaging with the issues, and I’ll be doing so as an advocate, writer, editor and lecturer.
In these last few months, I’ve returned full-time to my roots as an abortion rights advocate to become the Coordinator of the International Campaign for Women’s Right to Safe Abortion, which I also helped to found in May 2012 and have been the listserve editor for ever since.
The Berer Blog has followed me, and I plan to start writing it more regularly again. So farewell, but not goodbye!
With best regards,
New email: email@example.com
This is an excerpt from my farewell editorial for RHM45 May 2015, Doi: 10.1016/j.rhm.2015.07.001
11/07/2015 § Leave a comment
A 2013 article by Elizabeth Raymond et al makes a compelling case for encouraging reproductive health researchers to develop new post-fertilisation methods of birth control. As she points out, post-fertilisation can cover the time periods both before and after implantation, which in every woman will not happen in the exact same number of minutes, hours or days. But as they argue, and Sally Sheldon also discusses, the greater difficulty is not the scientific challenge but the political one.
Developing new and improved methods of contraception, emergency contraception and abortion has been one of the priorities of the UN’s Human Reproduction Programme (HRP), based at the World Health Organization, for over 40 years now. HRP’s public sector research has had a huge influence on pharmaceutical companies’ research, production, sale and distribution of birth control and abortifacient methods. Without their research and collaboration with the French company that developed mifepristone, for example, it is unlikely that medical abortion with mifepristone+misoprostol would exist, nor that work would have been done on effective regimens for using misoprostol alone for inducing an abortion.
While HRP are not researching post-fertilisation methods of fertility control, they are, according to their website, working on a just completed “proof of concept” study on the use of a levonorgestrel pill that can be taken 24 hours before or after intercourse up to six times a month. All praise to them for this ‒ a pericoital method that can be used more than once a month ‒ what a great idea!
HRP’s current research projects also include a study of three possible pain control approaches for medical abortion, and another on the burden and severity of complications related to unsafe abortion. Might it be possible to get them to engage in new research on a post-fertilisation method or even a very early abortion method? After all, mifepristone and misoprostol have been around for 25 years now, and if we think about how much pre-fertilisation contraceptive methods have changed during that 25 years, perhaps the motivation to get back to the bench would increase.
Women are definitely interested. A recent survey of more than 1,000 women in Britain by Bpas found that 48% of women would consider a once-a-month pill to stop development of early pregnancy by detaching any fertilised egg from the lining of the womb. Only a quarter (26%) said they would not, with the remainder (26%) unsure. Why take a pill every day if you could take one once a month ‒ and perhaps only if your period is late.
Meanwhile, the rest of us need to get to work on the political difficulties new methods like this might raise. As Sally Sheldon discusses, the legal difficulty is that such methods would not be considered contraception but would fall within current legal definitions of abortion, potentially limiting their approval by governments. Thus, in countries like Great Britain that define pregnancy as beginning at implantation, approving them would require a change in the law.
Which is only one of many good reasons why abortion should be treated like every other form of medical care, subject to approval, availability and use based on its public health benefits, safety and efficacy.
 Raymond EG, et al. Embracing post-fertilisation methods of family planning: a call to action. Journal of Family Planning & Reproductive Health Care 2013; 39(4):244-246.
 Sheldon S. The regulatory cliff edge between contraception and abortion: the legal and moral significance of implantation. Journal of Medical Ethics http://jme.bmj.com/content/early/2015/06/17/medethics-2015-102712.full
 UNDP/UNFPA/UNICEF/WHO/World Bank Special Programme of Research, Development and Research Training in Human Reproduction (HRP).
26/03/2015 § Leave a comment
A Quiet Inquisition
A film by Holen Sabrina Kahn and Alessandra Zek, Chicken & Egg Pictures, 2014 (65 min), in Spanish with English subtitles
A review by Marge Berer
This is a film about Daniel Ortega’s betrayal of Nicaraguan women. Made over a period of several years, this documentary film features the experiences of young, rural, pregnant women who arrive at a public hospital’s emergency room in Nicaragua, many of them adolescents, many as young as 13 years old, and anywhere from 16-17 weeks pregnant onwards, with life-threatening obstetric conditions.
These conditions range from placenta praevia in a twin pregnancy to advanced uterine cancer whose treatment might affect the embryo, to haemorrhage, sepsis and eclampsia. Some are miscarrying, some end up with stillbirths, and some have attempted unsafe abortions on their own. What happens to them in the hospital is shown through the eyes of a highly professional and highly caring obstetrician-gynaecologist, Dr. Carla Cerrato, who is often the first to arrive at the hospital each day and the last to leave. If there are 60 patients in a day, she says, she probably treats 30 of them and supervises three other doctors who treat the rest.
The story that emerges, as the film shows Dr. Cerrato helping one woman after another, is a familiar one by now from Central America, but also one that implicates the one-time superhero of the Sandinista revolution in Nicaragua, Daniel Ortega, who deposed a dictator and began to transform the country. However, when after many years he lost the presidency in an election, he sold out to the Catholic Church in order to obtain enough votes to win again in 2007. The payback, his betrayal of women, was to implement a total ban on abortion even when it is necessary to save a woman’s life ‒ even though Nicaraguan law had permitted therapeutic abortion for 130 years.
When the film opens, several women’s deaths are presented that occurred as a direct result of this law. Pregnant women with wanted pregnancies and serious but treatable complications were left untreated in their hospital beds by medical professionals too frightened to do anything to help. Why? Because although the pregnancies were nonviable, the law forbids terminating the pregnancy as long as a fetal heartbeat can be detected. The doctors involved are caught between implementing the medical protocols they had been taught, which unequivocally tell them to provide the treatment ‒ and an unjust law that forbids them to do so. Yet terminating the unviable pregnancy is the only way to hope to save the women’s lives.
We have published this story before ‒ Savita Halappanavar in Ireland at the end of 2012. This is the Catholic Church’s so-called health policy, enshrined in law, which has a lot of pregnant women’s deaths on its hands.
The heroine of this film, Dr. Cerrato, a lifelong Sandinista supporter, a woman from a rural background who was only able to study medicine because of the Sandinista revolution and who still believes in the revolution and what the Sandinistas have accomplished ‒ but who condemns them on this issue. Her belief in the right of her patients to live, to get help in this hospital because the hospital is there to help them, shines out from this film from beginning to end. And she does help them, quietly and with great warmth and understanding ‒ every one of them ‒ a fact which only slowly emerges during the course of the film. But then one case comes up where she is going home for the weekend on the Friday and the young woman who comes in is bleeding, her life is at serious risk, the pregnancy is not viable, and she tells the resident to give the woman misoprostol to induce the pregnancy, but the resident doesn’t do it. The conversation among the medics in the absence of Dr. Cerrato is fraught; they don’t all support doing it, and the resident caves in. On Monday, when Dr. Cerrato arrives for work she learns that the young woman is still bleeding, and she gets so upset she’s sent home for a week with high blood pressure. In the interim, the young woman dies after lying for eight days untreated in her hospital bed.
The film is hard-hitting politically and heartwarming in equal measures in its portrayal both of the doctor and her patients. How long Dr. Cerrato will be able to go on saving these young women’s lives is the unanswered, breath-stopping question that dogs the entire film. No one is in prison in Nicaragua for illegal abortion, as they are in El Salvador, but that’s no guarantee for the future. Whether the hospital will be forced to let her go now that she has become known is perhaps a bigger risk. However, the film ends on a high note, with her reaffirming her commitment to her patients, come what may.
Like the film Al Jazeera made in 2014 about the young, rural poor women in El Salvador in prison accused of illegal abortion and homicide when they had only had miscarriages or stillbirths, this powerful film is important contribution to the continuing struggle to make abortion safe, which will only come about when pregnant women’s health and rights become more important to governments than the misogynistic ideology of the Catholic church hierarchy which condemns them to death. Don’t miss it!!
Shown at the Human Rights Watch film festival, 25-26 March 2015, in London.
To host a screening or bring the film to your University or organization, email: firstname.lastname@example.org
On general release for rental from 29 April.
 Berer M. Termination of pregnancy as emergency obstetric care: the interpretation of Catholic health policy and the consequences for pregnant women. An analysis of the death of Savita Halappanavar in Ireland and similar cases. Reproductive Health Matters 2013;21(41):9-17.
12/02/2015 § Leave a comment
Marge Berer, RHM Editor, presentation at: Divided we stand? Universal health coverage and the unfinished agenda of the health MDGs, Institute of Tropical Medicine, Antwerp, February 2014
If you click on the forward arrow after the final slide it will take you to Slideshare pages which are not part of the powerpoint presentation. Please ignore these.
10/02/2015 § Leave a comment
Marge Berer – Editor, Reproductive Health Matters
10th February 2015
This was a case that should never have been allowed to happen. While female genital mutilation (FGM) is a harmful practice and needs to stop, the UK government, politicians from David Cameron on down, and especially the Crown Prosecution Service (CPS), the Director of Public Prosecutions Alison Saunders, the police and the General Medical Council all need to take a giant step backwards and reconsider their position.
The CPS were desperate to find a case with enough evidence that could end in a conviction; the political pressure on them was enormous. By their own admission, however, they spent several years having great difficulty finding a suitable case with enough evidence. They found a case, all right. But on 4 February 2015 at Southwark Crown Court, they had mud on their faces, because the case they had chosen hadn’t got a chance of succeeding, even if they won’t admit it.
It is hard to imagine how women with FGM, in whose name this case was pursued, were in the least helped by it. I sat in the courtroom listening to what was said for over two weeks. I believe it is crucial to share the details with those who weren’t there, to ensure that no one walks away from this thinking ‒ even for a second ‒ that a conviction would have been justified. Everything I report here was given in evidence in court.
The history: an emergency delivery
An exemplary registrar (Dr D) was called into the labour ward of the Whittington Hospital on 24 November 2012, a busy Saturday morning, to deal with an unbooked emergency delivery. It was the woman’s first baby (the court called her AB). She was 9 cm dilated upon arrival, the umbilical cord was wrapped around the baby’s neck and his heartbeat was falling rapidly. An emergency, instrumental delivery was required. The midwife called for a doctor, and Dr D and a junior doctor came in. AB had to be catheterised to empty her bladder. Neither the junior doctor not Dr D were able to access her urethra. AB had had female genital mutilation (FGM) aged 6 in her home country. She had come to the UK as a refugee and been granted asylum. She married in 2010. However, she had difficulty having sex because of the FGM, as the opening to her vagina was too small to penetrate. She went to her GP for help, and was referred to a specialist FGM surgeon, who deinfibulated her in 2011. She healed without problems, and was then able to have sex without difficulty, and got pregnant not long afterwards. However, it seems that during the healing process, she must have developed some scar tissue on her labia that became a problem during her delivery.
With the baby’s head coming down, Dr D and the junior doctor examined AB and discovered that she had previously had FGM. It was later agreed in court with expert witnesses that scar tissue from the deinfibulation was covering her urethra. To open it, Dr D made an incision of 1.5-2cm, which exposed the urethra, and he successfully emptied her bladder. Because of the size of the baby’s head, an episiotomy was also done. Dr D tried forceps first, which didn’t succeed, and then used a suction cap. The baby was born safe and sound. Everyone agreed that Dr D had saved his life. The episiotomy was bleeding quite a lot and was stitched by the junior doctor under Dr D’s supervision. It was her first perineal repair and took about 20 minutes. She was informed she was needed elsewhere and left. As the scar tissue was also bleeding, even though not very much, he did one figure-8 stitch at the apex of the incision, and the bleeding stopped. He then left to do an emergency c-section.
That one stitch − clinically justified, according to several senior physicians’ expert testimony − became a central focus of the case: Dr D was accused of reinfibulating AB, which is illegal.
Dr D had never seen the genitals of a woman with FGM before. He had never received any training or information on how to deal with FGM at a delivery, let alone an emergency delivery. He had only been at the hospital for about a month. He had come to the UK as a child from a country in which FGM is not practised. Although AB comes from a culture that widely practises FGM, she wanted her labia to be opened surgically in 2011 ‒ to have intercourse and children. Why would she want to be closed up again a year later? There was no evidence that she did. She resumed sexual relations after she healed from the first delivery and had a second baby in 2013 ‒ with no incisions and only a small perineal tear.
While Dr D was doing the c-section, he thought about the stitch he had made in AB. He had no doubts it was clinically necessary, but he wasn’t sure it had been the best stitch to use in the circumstances. After completing the c-section, he sought out his consultant and asked for her views. She confirmed that a stitch was necessary to stop the bleeding, but that she would personally have used a different stitch to ensure that the scar tissue would not reseal. However, she decided that it would be humiliating for AB to be approached by her on the post-natal ward to be examined, and she advised Dr D to let it be. Expert witnesses confirmed that Dr D behaved properly in talking to her after the fact, rather than delaying completing his care of AB to seek advice.
Midwife J did not see AB antenatally nor during the delivery. She was sent to AB’s home six days after AB had left the hospital, to examine the alleged reinfibulation. She gave evidence that she examined AB on her bed (a soft surface and without the aid of the sort of bright lamp that would normally be used to examine a woman with FGM), and she thought AB’s labia were almost completely closed. In contrast, AB described her own genitals at the time as swollen and sore, but not closed. Midwife J did not mention seeing any swelling herself, but because the notes in AB’s green book had been “lost” (torn out, in fact), she was working from memory. Who should be believed if not the “victim”, however? Surely, having her labia stitched together again would have been the last thing AB wanted − she had been “opened” in 2011 by her own choice and considers herself still open today.
The prosecution’s case
Having no idea of what was to come, Dr D was promoted by the hospital in April 2013 to senior registrar. Yet someone must have reported the “incident” to the Trust, because Dr D was unexpectedly subjected to an investigation − and then someone brought the police in. Who? We weren’t told. However, it was public knowledge that the Crown Prosecution Service was looking for cases, and the issue of FGM was all over the news by 2013. The police investigation led to charges in 2014, which led to the trial − two years and two months after the delivery of AB’s first baby.
In the interim, by order of the General Medical Council, who seem to work from the assumption that you are guilty until proven innocent, and then may subject you to their own brand of investigation even if you are proven innocent in court, Dr D was not able to complete his training or work as a doctor for two years. He has, however, thanks to the support of senior hospital staff, participated in research on urogynaecological problems in older women, and he received glowing professional and personal character references from senior medical experts who were witnesses for the defence in court. These witnesses confirmed in court that even though Dr D had had no experience of FGM, he behaved properly in talking to the consultant after the fact, rather than delaying completing his care of AB to seek advice. The prosecution, on the other hand, tried to make it look as if Dr D had behaved wrongly, irresponsibly, ignorantly ‒ for not knowing about FGM, for not having read the hospital’s policy and guidance on the subject, for not knowing which stitch was best to make, and for not interrupting his care of AB to find the consultant and ask for advice before he acted to stop the bleeding.
The prosecution’s case rested on evidence from several midwives and the junior doctor, which was inconsistent and full of gaps due to their witnesses not being able to remember a lot of what happened. With the absence of the green book notes, the lack of memory of details on the midwives’ parts was understandable; after all, they see hundreds of pregnant women every year and can’t possibly keep all the details in their heads. But that made the prosecution’s case incredibly weak.
Creating case law and a legal precedent
The defence requested more than once that the judge dismiss the case without the jury having to deliberate. Alison Saunders, the DPP, was quoted in the Guardian (6 February 2015) as implying that his decision not to do so meant there had been a strong case to answer. I disagree. The judge did decline, but the closing arguments and his instruction to the jury of the legal questions they had to answer to reach a verdict, based on the evidence, made it clear beyond any doubt how weak the evidence was. I believe he recognised, wisely, that had he dismissed the charges without going to the very end, the verdict and the legal precedent set would have been far less powerful in regard to future cases.
Given that it was the first criminal trial on FGM in the UK, he had to be sure that justice was done ‒ and seen to be done. And it was.
One of the most complicated aspects of this trial was that the law against FGM itself was being tested for the first time. In my opinion, the law was found sorely wanting, and more needs to be done to prevent weak cases from being brought against innocent people again, and particularly innocent medical professionals. A courtroom is not the best place to debate the rights and wrongs of complex clinical treatment. As it happened, both defence barristers and the judge dealt with the evidence brilliantly, so it should have been no surprise that the jury took less than half an hour to reach a “not guilty” verdict.
But what would have happened if Dr D had been found guilty? In deciding to bring this particular case, as opposed to bringing a case against someone who had actually done an infibulation, particularly on a child, I have to ask whether DPP Alison Saunders lost sight of the fact that the criminal law against FGM expressly mentions the importance of not creating barriers that would prevent necessary surgery, including during labour and delivery, which are specifically mentioned in the law in this regard. Yet the creation of barriers was likely to have been one of the main consequences of this trial had Dr D been found guilty.
Why was it these two men who were on trial?
In my opinion, it is not an accident that the first two people in the UK to be tried for FGM were people of colour and immigrants from Asia and Africa, albeit the doctor was educated, middle class and a health professional.
It is mainly African and to a lesser extent Asian women in the UK who have had FGM themselves. As activists in the cause of stopping FGM, they and others have been campaigning with passion, commitment, integrity and the best of intentions to have FGM recognised as a harmful practice ‒ here, as elsewhere. Nonetheless, I believe this issue has been used politically by people in power, particularly senior Tories, who are seeking to gain credibility as champions of women but only because they can present them as victims of their own cultures.
I am concerned that anti-immigrant politics is their motivation, and is why FGM is in the headlines 40 years after campaigns against the practice first began. Bona fide doctors and their patients, and their patients’ partners and families − most from Africa or Asia − are being demonised, investigated and prosecuted not only for the “crime” of FGM but also the “crime” of sex selective abortion. The connection is visible in the Serious Crime bill currently before Parliament, where all these “crimes” are clustered together to be further criminalised. Pick up any newspaper, any report from Parliament, any statement by a vote-seeking politician or the Director of Public Prosecutions, to see words such as “evil”, “abhorrent” and “barbaric” applied to the practices of people of colour, who are implicated for having brought them to these shores as immigrants.
The responsibility of the hospital
No one suggested putting the hospital on trial, though it may yet come to that. It might easily be said that Dr D was a scapegoat for the hospital’s many failings in this case, and Dr D’s barrister and the judge were articulate about this point on the last day of the trial. AB had had three antenatal visits and had acknowledged having had FGM as a child at the first visit (where she also said clearly that she had been “opened”). Yet AB was not referred to a specialist FGM midwife, as she should have been, which would have avoided everything that happened subsequently. No one ensured that she had an interpreter at any of her antenatal or post-natal visits, and there was no time to find an interpreter during the delivery. Nor did she have a birthing plan. She arrived at the hospital at the last minute, an ambulance having refused to take her there when called several hours earlier. So it was convenient to focus only on Dr D.
However, it would be as much of a mistake now to lay blame on the hospital and the midwives as it was to lay blame on Dr D. Clinicians make mistakes, things are missed out in their training. In an NHS starved of cash by a government trying to bring the whole system to its knees (and also trying to close this particular hospital), they would have little spare time to find and digest the endless policy and guidance documents that now exist in the middle of seeing patients, let alone while handling emergencies, as happened in this case.
Turning a clinical judgement call into a criminal act: the consequences for medical professionals
Maternal deaths are rare in Britain, and one of the most important reasons why has been the historic role of confidential enquiries into every maternal death. The purpose of those enquiries is neither to punish nor to identify who did something wrong, but to identify, analyse and learn from what happened, including any mistakes made and how they could have been avoided or addressed differently. Because Dr D and almost all the witnesses in this trial were medical people, something akin to such an enquiry took place − in the Crown Court. But it was not confidential, it was not anonymous, and it was wholly intended to blame and to punish. In my opinion, this is the crux of the injustice of this case, and I believe it would be a serious error on the part of the medical profession to sit back and allow what happened there to happen again.
I hope it is clear that the legal issues in this case as regards Dr D were in fact clinical ones, and I hope from my description of the evidence that it is clear the law had not been broken. The law against FGM says that FGM, including infibulation (or reinfibulation), is illegal unless it is done on the grounds of the woman’s health and/or in relation to labour and birth. The case against Dr D rose and fell on the question of whether the single suture he did was necessary for AB’s health and was done in relation to labour and birth ‒ or whether it was clinically unnecessary and intended to reinfibulate her.
The violation of AB’s privacy and bodily integrity
I believe this prosecution was a gross violation of the privacy of a woman who had had FGM as a child, which was done in the name of protecting her. Not stating her name and not bringing her into court to give evidence were to protect her privacy. Her privacy was actually violated, however, because her most “private parts” were the main subject of attention throughout the trial, where she was talked about as if she were a piece of meat being dissected, with an unrelenting focus on the most minute aspects of her genitalia. In the end, although this might have been necessary, it almost felt like voyeurism.
The intended outcome of this trial was to open a door to further prosecutions, and indeed a new one was announced on 6 February. The CPS and the police are apparently not stopping to reconsider their position, nor apparently are FGM activists. I hope against hope that the medical profession does. The conviction of Dr D would have threatened the entire medical community, who are increasingly being subjected to criticism, opprobrium ‒ and the threat of criminal sanctions − by demagogic politicians, aided by sting operations against doctors carried out by media such as the Daily Telegraph. Several years ago, the Telegraph succeeded in demonising three South Asian doctors over their alleged willingness to authorise fictitious abortions on the grounds of sex selection. None of the doctors was criminally prosecuted by the DPP, who decided it was not in the public interest, but abortion providers have felt threatened, which was in fact always the intention.
I believe an analysis of the wording of the 2003 law against FGM is needed and would reveal major flaws. I believe this case raises questions about whether there should be a criminal law against FGM at all, and if so, what it should be covering. So if someone should be criminalised, who should it be? Do we really want to put grandparents and mothers and aunties in jail? Do we really want small children to be picked up by the police at the airport and taken into care? And little girls’ genitals examined in school? Should everyone getting into an airplane be treated as a suspected FGM criminal, in addition to being seen as a potential terrorist? The conclusion of most of the experts on this issue internationally has been that criminalisation is not the answer. These are questions I plan to take up next.
Lastly, and I think it cannot be said often enough, serious consideration is needed on the part of Parliamentarians, the Ministry of Justice, the police and the legal profession, as well as the medical profession and medical bodies like the Royal College of Obstetric and Gynaecology and especially the General Medical Council, of the negative and destructive consequences of criminalising medical care to do with women’s bodies and sexuality ‒ especially when it is linked to ethnic and racial profiling ‒ which is the bottom line of the many the ethical issues involved in this case.
Read RHM journal papers on FGM here.