PRESUMPTION AGAINST IMPRISONMENT OF WOMEN WHO ARE PREGNANT
As acknowledged by the 8th UN Crime Congress in 1990, imprisonment of pregnant women should be ‘restricted’. The International Centre for Prison Studies advises, “Pregnant women should only be held in prison in the most extreme circumstances.” A recent UN Office on Drugs and Crime publication states: “Pregnant women and nursing mothers have particular problems relating to their condition and should not be imprisoned unless exceptional circumstances exist.”
In order to protect the health of the mother and of the newborn child, pregnancy should in principle be an obstacle to incarceration, both pre-trial and post-conviction, and pregnant women should not be sent to prison unless there are absolutely compelling reasons to do so. The International Commission of Jurists suggests that for pre-trial detention such reasons might be a real risk of absconding or the concrete threat of a violent crime. Non-violent crimes should always carry noncustodial sentences for pregnant women. States might consider imposing non-custodial sentences, or deferring the sentences of pregnant women, although this merely postpones the problems of imprisonment to when the woman has a young child, unless the sentence is then subject to review or suspension in the light of the woman’s behavior in the interim. When women become pregnant during their incarceration, the need for their imprisonment should immediately be reviewed, and continue to be reviewed throughout the pregnancy. They should be considered for non-custodial measures instead of the remainder of their prison term.
ARRANGEMENTS FOR PREGNANT WOMEN
In any case where a pregnant woman, despite the above presumption, is imprisoned, special arrangements need to be made both throughout the pregnancy and after the birth. The UN Standard Minimum Rules for the Treatment of Prisoners specify only that there be “special accommodation for all necessary pre-natal and post-natal care and treatment.” In terms of what special accommodations are necessary, one must consider what is needed to address the human rights of both the mother and the child. In all arrangements concerning pregnancy, birth and post-natal care, the prison administration should ensure that full consideration is given to any cultural or religious issues surrounding childbirth, including rituals, food, dress and worship. Pregnant women should be ensured a nutritious diet, a healthy environment and regular exercise.recommends a high protein diet, rich in fresh fruit and vegetables.
The International Committee of the Red Cross suggests vitamin and mineral supplements, such as calcium, iron and folic acid. Current guidelines for healthy eating and nutrition during pregnancy should be followed.
Pregnant prisoners should be provided with the same level of health care as is provided to women not in prison, including access to obstetricians, gynecologists, if required, and midwives or birthing practitioners appropriate to their culture. If required, interpreters must be arranged during antenatal care, around birth and post-natally to ensure proper provision of health care. Midwives (or other staff) from the hospital where the woman is to give birth should provide antenatal care. This offers the advantage of continuity, and the midwives are more likely to view the mothers as pregnant women rather than prisoners.
Specialists recommend having a pregnancy-only unit in prison. This is important in putting in place structures to support the emotional and physical well-being of the mother and baby. Mixed units can lead to a lack of flexibility in the regime and lack of focused facilities. There should be 24-hour access to advice from midwives on whether the woman needs to go to hospital. This can be done via a mobile phone, with a direct link to the labour ward which can be handed to women in their cells at any time (this operates in Holloway Prison in the UK).
There should be an appropriate degree of flexibility in the prison regime for pregnant women and mothers. They should have opportunities to make up missed sleep and meals. They should not be forced to take part in activities if feeling unwell. Food allocations should reflect the needs of the growing baby, for example, by making available additional snacks in situations where meals have been missed or where there is a long gap between meals.
Measures of physical restraint, such as shackles or straitjackets, should never be used on a pregnant woman unless there is a compelling reason to do so. Advice on restraining pregnant women should always be sought from midwifery staff. The woman’s confidentiality in medical treatment should not be waived on the pretext that she is a prisoner. However, if she has an infectious disease, some informed disclosure may be necessary to ensure appropriate medical care (for example, in planning a caesarean section for an HIV positive mother). Pregnant women are likely to have particular counselling and support needs incoming to terms with having a baby and the transition to motherhood whilst in prison. This is particularly so if a pregnant woman is told that she will not be able to keep her baby with her.
Terminology used within the prison and the hospital should be positive, referring to ‘women’, ‘pregnant women’ and ‘mothers’, rather than ‘prisoners’. Pregnant women and mothers who have been given a custodial sentence should automatically be considered for a place with their baby, and should not have to apply. They should have access to legal representation and decisions should be made as early as possible to avoid stress to the pregnant mother and unborn child and unnecessary periods of separation.
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 126 A. Coyle (2002) A Human Rights Approach to Prison Management: Handbook for prison staff (International Centre for Prison Studies) p. 127 UN Office on Drugs and Crime and the Organisation for Security and Cooperation in Europe (2006) Criminal Justice Assessment Toolkit, Non Custodial and Custodial Measures: 1 The Prison System, p.27 128 International Commission of Jurists (2004) Human rights of women in conflict with the criminal justice system: submission to the Committee on the Elimination of Discrimination against Women, p. 23. Quaker United Nations Office