Impact case study database

(All translations by case study author)

4.1. Changing Dutch legal precedent

In July 2013, a Midwife was struck off for attending several ‘risky’ home births, in one of which the baby died. In each case, it was clear that the (legally competent, reasonably informed) parents would attempt the birth at home, with or without a midwife [ 5.1 – 2013 case].

That October Kingma published an article, “Tuchtzaak Verloskundigen Grote Misser” [“Court Case Midwives Big Mistake”], in Medisch Contact, the journal of The Dutch Medical Association, criticising the judgment for being inconsistent, unfair, and unrealistic: women are entitled to decide not to go to hospital for birth, and they and their baby are entitled to medical assistance. This requires that health care professionals cannot be faulted for assisting with births under such imperfect circumstances.

During the appeal (10 April 2014), Kingma’s article was submitted in full by the defence: “Professor Elselijn Kingma has, in Medisch Contact dated October 3rd, 2013, placed the shortcomings of the contested decision in the correct perspective. Prior to discussing the individual grounds on which we appeal, here is her article in full” [ 5.2]. The judge overturned the original judgment in line with Kingma’s reasoning: “The question is what the medical professional should do if a client persists in her refusal of a hospital delivery.[…] There is no doubt that the midwife has a right, and a duty, to do her work in the interest of mother and child in such an emergency situation”. The midwife was reinstated [ 5.1 – 2014 appeal].

This court case remains the landmark case on this matter, setting a legal precedent that changed subsequent practice. After the appeal midwives could feel secure about their legal standing when assisting with ‘risky’ home births [ 5.3]. The legal precedent set by the appeal was confirmed in a 2018 court case about another midwife who attended a ‘risky’ home birth where the baby died. Though the midwife was struck off, the court explicitly clarified that it was not the midwife’s attendance at a ‘risky’ home birth that was problematic, but instead other aspects of the case (e.g. improper resuscitation practices) [ 5.1 – 2018 case].

4.2. Critically Shaping Clinical Guidelines

The above court case, and more general questions about women making such choices, generated considerable upheaval, concern, and division amongst Dutch midwives and gynaecologists. This motivated the Dutch Royal College of Midwives (KNOV) and the Dutch Royal College of Obstetrics and Gynaecology (NVOG) to develop formal guidance for professionals facing birth choices beyond the medical guidelines [ 5.4]. Kingma was the only philosopher/ethicist consulted in this process, first, by presenting at an initial invitation-only workshop in October 2013, then by being selected to give a plenary presentation to all Dutch gynaecologists on this topic in November 2013 [ 5.3, 5.5]. These processes ultimately resulted in the 2015 ratification of joint guidelines by the NVOG and KNOV, which follow Kingma's recommendations: respect women’s informed choices, even if those choices go against medical advice, and never leave women and babies without the best care they are willing to accept in the resulting situation [ 5.3, 5.5]. Kingma’s work, both on the metaphysics of pregnancy, and the more applied ethical issues, made a crucial difference to these guidelines and in turn to subsequent practice [ 5.3, 5.5].

4.3. Changing Dutch Government Health Policy

In 2016, a new ‘integrated’ funding structure for gynaecologists and midwives was being considered in the Netherlands. In response, Kingma submitted a research-based [ 3.4] policy brief to the Dutch government and MPs [ 5.6]; wrote op-eds for a national newspaper ( the Volkskrant, comparable to The Guardian) [ 5.7], and the Dutch National Midwifery Journal [ 5.7]; and by invitation spoke at a public event – “De Geboortezorg: een nieuw begin” [“Maternity care: a new start”] – to approximately 200 attendees, including professionals and politicians. Kingma argued that the proposed changes might impede women’s freedom of choice, and their health and wellbeing. This resulted in the following direct impact:

• An MP directly quoted Kingma’s work in Dutch Parliament when arguing against the new policy [ 5.8].

• Kingma’s words were also used in an invited submission by the charity Geboortebeweging to the relevant parliamentary committee [ 5.9].

After these interventions, the government’s plans were changed: instead of a compulsory national implementation of the new system over two years, they instead opted for a two-year optional pilot scheme, subject to subsequent evaluation. By invitation, Kingma emailed expert advice to the ministry on how this pilot should be evaluated, so that it should measure outcomes not just for babies but also for mothers. The relevant body (RIVM) has since included maternal outcomes and maternal freedom of choices among its performance indicators [ 5.10].

The change to a two-year evaluable pilot has proven consequential – the two-year evaluation shows mixed results and recommends further evaluation; no compulsory national implementation has followed so far [ 5.11].

4.4a. Influencing Key Decisions by Charities: Geboortebeweging

Geboortebeweging (GB) is the only Dutch birth-rights charity and is the key social partner in national policy discussions surrounding birth care. Kingma is an important intellectual influence on their work, having collaborated with them continuously for the past 7 years as the only philosopher/ethicist involved. For example, by invitation, Kingma has presented her research at multiple National GB events [ 5.9]. She has also advised GB on their opinion pieces, policy submissions and press releases. In this way, Kingma’s research has directly shaped GB’s response to health policy changes (section 4.3, above), the Bravis case (section 5, below), and to changes and restrictions placed on pregnant and birthing women in response to the 2020 COVID-19 pandemic [ 5.9].

Kingma’s collaboration with GB has been a two-way exchange. Kingma’s thinking and research have been enriched and shaped by her interaction with GB and with the women seeking advice on their rights via GB’s closed Facebook page. Vice versa, through both official and informal discussion, GB and its leaders have come to closely adopt the views developed and defended in Kingma’s work [ 5.3, 5.9].

4.4b. Influencing Key Decisions By Charities: Clara Wichmann Fund

Clara Wichmann Fonds (CW) is a Dutch charity that funds landmark litigation furthering the legal rights of women. In 2014, the charity was considering whether to try to establish a clear legal precedent that women have a right to refuse medical intervention intended for their fetus’s benefit. Kingma was invited (as the only ethicist/philosopher) to consult with the charity. At first, the committee was very unsure about this goal, worrying that women might in fact be under a moral and legal obligation to undergo some medical interventions for the sake of their fetus. But later, after Kingma presented (an early version) of her research to the committee, they decided to try to establish a precedent for the right to refuse treatment, once a suitable case presented itself [ 5.12]. This resulted in CW’s funding of the Bravis case (below) .

5. Shaping Discussion Of The Landmark Bravis Court Case

The Bravis case (March 2018) was funded by Clara Wichmann Fonds, and co-litigated by Geboortebeweging. Bravis (the name of the hospital) concerned a pregnant woman with a previous caesarean section. She demanded a court order forcing the hospital to let her give birth on the midwife-led ward (rather than, following medical guidelines, the obstetric ward), in water and without a fetal heart monitor (again against hospital protocol), and with her personal midwife who works in a different region (and hence for a different regional ‘integrated birth care organisation’).

The case is intricate and combines questions about women’s rights to refuse treatment and demand alternatives, questions about healthcare professionals’ duties to assist such women with (less safe) alternatives, and questions about the financial organisation of Dutch birth care and how that impacts on women’s freedom, autonomy and health, and on hospitals and other autonomous health care providers [ 5.6]. In short, it combines all the questions Kingma has been working on with various stakeholders and in her research since 2013. Kingma shaped the public and legal conversation surrounding the case in three primary ways.

First, Kingma contributed to public discussion of the case, which received widespread media attention. Kingma wrote research-based articles for two quality national newspapers: Trouw (circulation: 102,631) [ 5.13] and NRC (circulation: 136,000) – comparable to The Independent and The Times. The op-ed in Trouw was the focus of the Newspaper’s in-house editorial [ 5.13]. Kingma also directly advised GB on its press contributions [ 5.9].

Second, Kingma continues to influence those pursuing the case. The initial case was lost, but this was expected: CW only takes cases that are expected to travel all the way to the supreme court. CW and GB are therefore preparing an appeal in collaboration with a law firm and a team of legal scholars and students at the University of Amsterdam (for whom this also doubles as a practical teaching exercise). Kingma has been closely involved, presenting her research to students and the lawyers, and providing detailed feedback on their drafts of the court order, which states the grounds and reasons for the appeal. This has changed the text of that document, as well as the underlying legal strategy pursued; instead of just focusing on a right to “personalised best care” (as the academic lawyers advised), the litigator is now pursuing a two-pronged appeal that also pursues an argument that directly follows Kingma’s research: an argument based on the combination of (1) a woman’s right to refuse certain interventions, and (2) her right to receive the best care available given those choices, even if this pushes healthcare professionals outside their ordinary professional boundaries [ 5.9, 5.12].

6. Providing professional training for health and social workers

Third, by request, Kingma has delivered training for the NVOG and KNOV, and is revisiting the guidance for professionals on birth outside the guidelines. Whereas the legal situation surrounding birth outside the guidelines seemed to have settled between 2015 and 2018, the Bravis case complicated it again. The Bravis case was widely interpreted as showing that healthcare professionals are only permitted, rather than required, to assist women with birth requests beyond the guidelines. As a result, some hospitals refused to provide ‘care outside the guidelines’ [ 5.5]. Consequently, Kingma has been invited to train professionals for the NVOG and KNOV on their moral obligation to provide such care at meetings and conferences [ 5.14]. She is also consulting with the subcommittee of the NVOG in charge of writing further clarifications for the guidelines, who plan to revise the guidelines in accordance with detailed verbal and written ethical analysis provided by Kingma [ 5.5]. Kingma also provides research-based training to other health-care workers, such as social workers and others involved in the care of pregnant women with a substance addiction [ 5.14].