Obstetric violence: to criminalize or not to criminalize the practice
By Vânia dos Santos Simões
Doctorate in Law, Professor e President of APDMGP
The issue of obstetric violence has been increasingly discussed in Portugal since 2014–2015, with the creation of the Associação Portuguesa pelos Direitos da Mulher na Gravidez e Parto (Portuguese Association for Women’s Rights in Pregnancy and Childbirth). In 2015, the association launched the first national survey on childbirth experiences in Portugal, covering the period from 2012 to 2015, which revealed the occurrence of obstetric violence in Portugal — although in forms somewhat different from those observed today.
Several years later, access to healthcare has become the main problem faced by pregnant women, parturients, and puerperal women in Portugal, as a result of a particularly fragile National Health Service (Serviço Nacional de Saúde, SNS) in the field of obstetrics, reflecting a general decline in specialized care. Although 2025 has not yet ended, there has already been a significant number of babies born in ambulances due to restricted access to specialized obstetric services — partly resulting from the unconstitutionality of the “SNS Pregnant Line” (Linha SNS Grávida).
From a legislative standpoint, Law no. 110/2019 of 9 September was approved with the goal of eradicating obstetric violence in Portugal. However, the enacted statute contained no explicit reference to the term “obstetric violence,” despite its ratio legis clearly relating to its prevention and combat.
In this regard, in 2021, independent Member of Parliament Cristina Rodrigues presented Bill no. 912/XIV/2 (which later expired), proposing the criminalization of obstetric violence. The first criticism of this bill—specifically regarding the introduction of Article 166-A into the Penal Code — concerned the nature of the offence, which was classified as semi-public. The main consequence of that classification would be the six-month limitation period for the woman to file a complaint, which is incompatible with the physical and emotional recovery period following childbirth.
Moreover, it was difficult to understand why obstetric violence during childbirth should constitute a semi-public crime, while criminal provisions related to reproduction — such as forced abortion (Art. 140), non-consensual artificial procreation (Art. 168), or forced sterilization (Art. 144(b))—are public crimes. Other criticisms included the reduction of the applicable penalty range for certain forms of violence during childbirth, particularly non-consensual medical interventions.
Let us consider the compatibility of this proposed article with Article 156 of the Penal Code, which punishes arbitrary medical or surgical interventions — those performed without the patient’s free, informed, and clarified consent. In our view, the application of Article 156 to cases of obstetric violence would become redundant, since the proposed Article 166-A so realistically reflected what occurs during childbirth that Article 156 would become inapplicable in that context. Consequently, non-consensual interventions would be subject to a maximum penalty of one year’s imprisonment, whereas Article 156 currently allows for up to three years.
The bill also relied on vague and indeterminate concepts such as “physical or psychological violence,” “unnecessary pain, harm or suffering,” and “limitation of choice and decision-making power,” thereby violating the principle of legality in criminal law. The legislator should have opted for a list of clearly defined behaviours deemed sufficiently serious and lacking adequate criminal protection—similar to the Venezuelan legislation on the subject.
At present, several initiatives remain under discussion within the Parliamentary Health Committee (9th Committee), aiming to amend Law no. 33/2025 of 31 March, which has not yet entered into force as it is subject to approval under the 2026 State Budget. This law formally defines obstetric violence and establishes the National Commission for Rights in Pregnancy and Childbirth, tasked with information dissemination, awareness campaigns, and the preparation of annual obstetric data reports. It also mandates professional training in this field, the inclusion of educational content on violence prevention in higher education programmes in health sciences, the obligation to justify non-compliance with birth plans and to record all acts performed during care, and the imposition of sanctions for unjustified episiotomies — ranging from disciplinary proceedings to financial penalties for hospitals.
From a criminal law perspective, obstetric violence is not yet typified in the Portuguese legal system. Although it does not correspond to a specific criminal offence within the Penal Code, this does not mean that healthcare professionals are “immune” from criminal liability, at least in the most serious cases. Depending on the specific circumstances, criminal responsibility arising from acts of obstetric violence may involve the concurrence of various criminal offences, which may nevertheless fail to encompass all forms of obstetric violence, as they protect distinct legal interests belonging to the woman and/or the unborn child.
Accordingly, obstetric violence may fall under the following offences provided for in the Penal Code:
Simple bodily harm (Art. 143) – e.g., the use of physical force to impose a birthing position;
Serious bodily harm (Art. 144) – where the woman’s sexual or reproductive capacity is affected;
Medical-surgical interventions in violation of professional standards (leges artis) (Art. 150(2));
Threats (Art. 153);
Coercion (Art. 154) – e.g., statements such as “if you don’t cooperate, your baby will die”;
Arbitrary medical interventions (Art. 156);
Unlawful detention (Art. 158);
Rape (Art. 164) – cf. Supreme Court judgment of 15 February 2012, case no. 476/09.BBGC.P1S1;
Insult (Art. 181) – cf. Northern Central Administrative Court decision of 5 March 2021, case no. 118/10.1BEPNF;
Invasion of privacy (Art. 192);
Breach of confidentiality (Art. 195);
Refusal of medical assistance (Art. 284).
Despite Portugal’s low maternal and infant mortality rate, the crime of homicide may also occur in obstetric care. For criminal law purposes, legal personality of the unborn child (nasciturus) begins with the onset of rhythmic, intense, and frequent contractions. Thus, the death of the unborn child during labour, attributable to healthcare professionals, constitutes homicide rather than abortion (cf. Coimbra Court of Appeal, judgment of 15 May 2013, case no. 1053/10.9T3AVR.C1).
However, there are forms of obstetric violence that do not fit neatly into any existing criminal offence, such as the rude or demeaning treatment of a pregnant or postpartum woman, or inappropriate comments made during labour that do not reach the level of criminal insult. Other examples include the unjustified and prolonged separation of mother and newborn without communication about the baby’s condition—situations that, given the context of vulnerability, have a significant and potentially traumatic impact.
Paula Ribeiro de Faria highlights relevant offences such as exposure or abandonment (Art. 138) and sexual abuse of a hospitalized person (Art. 166), and questions whether obstetric violence might also be framed under Article 152-A (mistreatment). She argues that there is no true criminal gap, since many of these behaviours already fall within existing offences, but acknowledges that the creation of an autonomous offence — similar to that of female genital mutilation — could be justified given the specific legal interests at stake: physical, moral, and sexual integrity.
Andreza Santos notes that the legal interests affected by obstetric violence include life, physical integrity, sexual freedom, intimacy, privacy, honour, and the right to information. According to her, the gender-neutral nature of current criminal provisions fails to capture the power dynamics inherent in this form of violence, leading to inadequate legal treatment.
Regarding the criminalization of obstetric violence in the Portuguese legal system, we contend that although the existing offences are not entirely adequate, the creation of a specific criminal offence at this stage would bring more disadvantages than benefits. Given the current problems in accessing specialized care and the potential social alarm among healthcare professionals, such a legislative change could discourage doctors and nurses from practising obstetrics, or lead to excessively defensive medical practice—outcomes that should be avoided.
While in 2015 advocacy efforts focused on recognizing obstetric violence as a form of gender-based violence, by 2025 the central demand has shifted toward ensuring access to healthcare.
Bibliography
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Assembleia da República. (2025). Lei n.º 33/2025, de 31 de março. Criação da Comissão Nacional para os Direitos na Gravidez e no Parto. Diário da República, 1.ª série, n.º 63.
Assembleia da República. (2021). Projeto de Lei n.º 912/XIV/2.ª (Criminalização da violência obstétrica). Diário da Assembleia da República, II Série-A.
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