In the first part of this article, some questions regarding the regulation of obstetric violence in institutionalized births worldwide were addressed. We will now review the current status of this regulatory framework in the Cuban public health system.
The Cuban Public Health Law recognizes in its articles 18, 19 and 35 the obligation of informed consent in doctor-patient relations, and of good treatment attached to bioethics, however, in gynecological-obstetric care, these protocols are not followed constantly in the country.
The doctor-patient relationship is part of civil legal relationships, even when public health services are established in a non-contractual manner. In Cuba, this relationship is supported by article 22 of the Civil Code and by article one of the Public Health Law. Both parties to this relationship have rights and obligations to fulfill, including the patient’s right to informed consent, seen not as a simple technical procedure, but as an element that guarantees the physical, mental and emotional integrity of the person receiving a health-related service.
Consequently, the breach of these obligations by the health professional can have consequences in the civil, labor, administrative and criminal sphere. In other words, the normative nature of the health professional-patient relationship is not a minor issue.
Is it possible to sue in Cuba?
In the film Fragmentos… we see the main character, Martha, testifying in the criminal jurisdiction against her midwife, in a lawsuit established by the protagonist’s sentimental partner. And there, in the institution of administration of justice par excellence, in the criminal court itself, Martha is re-victimized with hostility. By blaming her for her own loss, criminal proceedings destroy the parents’ claim to compensate for the death of their daughter in court. In the film, the responsibility of the midwife in the results of the trial is diluted once it is shown that both the technical and bioethical procedures were flawless.
Although the case presented by the feature film does not deal with obstetric violence, it opens up the possibility of asking ourselves: is a lawsuit of this kind unthinkable in Cuba? The answer is no. Let’s see some avenues that exist to sue in the country and what are the possibilities for the health professional to respond legally to cases of this type.
The Cuban Civil Code fosters the possibility that the affected party in a doctor-patient relationship can sue a health professional for illegal acts (Article 81), understanding them as “acts that cause damage or harm to others.” At the same time, it establishes that the damage or harm can be compensated, if the affectation is objective, by means of reparation, restitution, or compensation; or, if the damage is subjective, by repairing the moral damage. This reparation for non-pecuniary damage can only be carried out by means of a public retraction (articles 83 and 88).
For its part, the disciplinary regulations for health workers expressly prohibit lack of decorum, decency, dignity, or any other act contrary to ethics and morals of people in the exercise of their functions; as well as it prohibits endangering the health and life of patients by not acting with due responsibility, even incurring in acts that may constitute a crime (Article 5). If not, the disciplinary measures that may be imposed range from a public reprimand to being suspended, disabled, or separated from the national health system, among other sanctions. However, since the relationships established between worker and administration are part of labor, the application of the measures is the responsibility of the administrative authorities of the entity in question.
In accordance with article 17 of Decree-Law 176/97 of the Labor Justice System, “the initiation of criminal proceedings and, where appropriate, the requirement of material responsibility [civil jurisdiction] does not prevent the execution of the disciplinary measure imposed, nor does it paralyze the corresponding labor process.” In other words, the non-observance of the regulations can also have consequences in the criminal sphere, depending on the facts.
The Penal Code itself contemplates crimes specific to the profession and other common crimes that, due to recklessness or intentionality, can be committed in the exercise of medical functions due to the omission of ethical, technical, and legal obligations, some of them already commented here. However, in the case of deaths or injuries, both Instruction 110/83 of the Governing Council of the Supreme Court, and Resolution 99/08 of the Ministry of Public Health provide for the creation of a Medical Commission in charge of evaluating the criminal responsibility of the health professional, whose report constitutes the main evidence in the criminal process, with more legal relevance than the decision of the criminal judges.
There are several consequences that the current Cuban legal system regulates in relation to the breach of obligations by the health professional, applicable to the field of gynecological-obstetric care. However, the most important thing for any program to eradicate violence is prevention. The design of prevention programs against obstetric violence is a mandatory requirement for its elimination, I would like to conclude what has been pointed out so far with the following comments:
- It is imperative that the Cuban Public Health Law recognizes obstetric violence as a particular type of non-compliance with medical obligations in the doctor-patient relationship and as a particular manifestation of gender-based violence (recognized in article 43 of the Constitution). In it, decency, dignity, morality, ethics, and informed consent take on a core meaning in the legal relationship.
- One way to guarantee the foregoing is to recognize the obligation of so-called “humanized births” or “respected childbirths” through procedural regulations for health professionals that explicitly prohibit dehumanizing treatment, abuse of medicalization, and interventionism through unnecessary procedures and by inexperienced people, the loss of autonomy of the parturient and the omission of informed consent. In turn, it is necessary to implement other respectful treatments such as free choice of posture when giving birth, privacy, accompaniment, and more.
- It is necessary that informed consent be regulated in a univocal way for all types of medical procedures. Currently, it is partially regulated between articles 18, 19 and 35 of the Public Health Law.
- Reparation of moral damage through public retraction may be sufficient for some affected persons but may not be so for all. It is necessary for the Civil Code to expand the possibility of financial compensation in this type of civil liability. The trinomial damage-liability-reparation does not imply equivalence, but compensation and the effect of reparation.
- It is necessary that the Public Health Law itself protects the right and the capacity of the affected parties to sue from the hospital facility itself and that they can participate in the labor and/or criminal process, taking into account the particularities of this type of legal-civil relationship in conjunction with the work performance of the health professional and taking into account the lack of knowledge of criminal procedure and that it is not applied in all cases, nor is it the most appropriate.
- It is important to recognize as an affected person and with the capacity to sue not only the pregnant person but also those who accompany them (sentimental companions, relatives or others).
- As the WHO declared in 2014, training, campaigns and methods for measuring obstetric violence are also urgent.
- Extra-hospital childbirth with assistance is also one of the many global demands and practices of pregnant people. However, humanized delivery and hospitals cannot be mutually exclusive. Institutions must ensure and guarantee that births are positive and respectful experiences, as a human right.
- It is necessary to consider within the so-called obstetric violence those related to gynecology, such as those that take place in surgical procedures of hysterectomy, abortions, assisted reproduction, etc.
- It is important to draw attention to possible racial and gender identity biases, for example, in the care of pregnant trans people, who may be social groups of greater vulnerability in this area. Hence the need to respond to the request of the WHO regarding the segmented measurement of obstetric violence and the publication of these statistics.
- It is also necessary to review Resolution 99 of 2008 of the Cuban Ministry of Public Health, in such a way that medical criminal responsibility is defined by the court and not by the Medical Commission as judge and party.
Without a doubt, the prevention of infant and maternal deaths through the accompaniment of pregnant people and newborns by family doctors and, in general, the Maternal-Infant Program is a commendable task and an achievement of our medical services. The monitoring that the program provides for pregnant women is, in fact, one of the fundamental factors behind our extremely low mortality rates. That is why, in the same way, respectful accompaniment during deliveries will benefit these results.
Meeting these demands does not require higher expenses or public resources. The fundamental resource to achieve “humanized births” or “respected childbirths” is not material but human. The human dignity and physical, mental, and emotional integrity of pregnant people must also form part of the routine actions of gynecological and obstetric specialists, in such a way that both the rights of women in labor and medical responsibility find the imperative legal support in Cuba attending to the promulgation of a new Public Health Law.
When women in labor are approached with the term patient, it is not with the aim of reinforcing the notion of pathologization of pregnancies and childbirth, but in a technical-legal sense in line with the doctor-patient relationship that the Public Health Law regulates.