The judicialization of childbirth. A case of testimonial epistemic injustice

Abstract

Obstetric violence is an internationally recognized concept among which multiple abusive practices are perpetrated, ranging from physical aggression and verbal abuse to hospitalization and forced sterilization (WHO, 2014). Obstetric violence is defined as a form of gender-based violence that reproduces a situation of structural discrimination against women (Šimonović, 2019). It is difficult to understand why women with full capacity and recognition of rights, experience daily these abuses that, despite their heterogeneity, are exercised in virtually all gynecological-obstetric contexts in the world. Among these abuses, we must frame judicial interventions in childbirth as a complex practice of violence in which reproductive subjects are dismissed as subjects of knowledge and subjects of rights. Despite their scarcity, judicial intervention in childbirth entail a violation of multiple fundamental rights and limit women's ability to make decisions about their bodies and reproductive processes. This is the case of a recent Spanish Constitutional Court decision (STC 66/2022), popularly known as the "Oviedo Affair". The dismissal of this appeal for protection with an emphasis on the absence of fair hearing throughout the judicial process marks a palpable trend in which reproductive subjects are configured as subjects of dubious epistemic status. The silencing of women and the disavowal of their testimonies in reproductive health settings, as well as in the judicial and administrative system, should be considered as acts of testimonial epistemic injustice. At the root of these injustices lies a lack of recognition of women as epistemic subjects based on a constant credibility deficit that places them on the periphery of the production of knowledge on reproductive processes. This displacement must be understood as an act of oppression articulated by structural conditions that keep women out of the rhetorical spaces where both obstetric discipline and law hegemonically determine who knows and what knowledge counts.