No woman should have to give birth with her wrist fastened to a hospital bed or her ankles restrained. In Australia, incarcerated women are placed in shackles during one of their most vulnerable times. This practice is inhumane and not justified. As a midwife, I find this practice deeply troubling. Whatever has brought her into custody, she remains entitled to dignified maternity care.
On 8 October 2026, the National Indigenous Times reported that the
Senate Legal and Constitutional Affairs Legislation Committee recommended
against passing Senator Lidia Thorpe’s Crimes Amendment (Prohibiting Shackling
During Childbirth) Bill 2026, citing state and territory responsibility. The
committee also recommended Commonwealth engagement with those governments and
better data collection. This committee recommendation is on a bill, rather than
a final Senate vote rejecting a petition. At the time of writing, Parliament
lists the bill as before the Senate. [1, 2]
The distinction matters because the opportunity for parliamentary
action remains. It also leaves a question that deserves a proper answer: how
will Australia ensure that no woman is shackled while giving birth?
A woman in labour may need to stand, kneel, lean forward or turn
onto her side. She may reach for someone she trusts. Physical restraint can
prevent these movements and make even changing position dependent on another
person’s permission. The World Health Organization’s (WHO) recommendations
emphasise respectful care, a companion of choice, communication and women’s
participation in decisions about labour and birth. Custodial restraints
obstruct the conditions the WHO approach seeks to protect. [3,
4]
The emotional consequences deserve equal attention. Being unable to
move freely while in pain and under guard can be frightening and humiliating.
For a woman who has experienced sexual assault, family violence or other
coercion, restraint may reactivate experiences of being overpowered [5].
Care informed by trauma should reduce avoidable threats and support a woman’s
sense of control. The American College of Obstetricians and Gynecologists’
guidance on care during incarceration specifically calls for trauma-informed
care and avoiding restraints during pregnancy and labour. [6]
Labour also involves interactions between hormones, the nervous
system and a woman’s experience of her surroundings. An early, small
physiological study found associations between anxiety, adrenaline, uterine
activity and labour duration [7]. Freedom
to move and adopt different positions helps with pain management, shortens
labour and reduces intervention [8, 9,10].
While these studies did not study shackling and cannot establish its effects on
an individual birth, women in the control groups in the later studies were
generally restricted in their movements. The clinical case against restraints
rests more directly on their interference with movement and care, as well as
the distress they can cause. A woman’s suffering matters even when it cannot be
measured through a hormone level or an obstetric outcome
[4, 6]. Restraints can obstruct assessment and delay
treatment when an emergency develops. After birth, they can interfere with a
woman’s ability to hold and breastfeed her baby safely. The US National
Commission on Correctional Health Care recommends that restraints never be used
during labour and birth and recognises these risks across pregnancy and the
postnatal period. Its guidance distinguishes custodial restraints from medical
interventions governed by ordinary clinical and ethical standards [4].
From a feminist perspective, shackling makes institutional power
visible on a woman’s body. Someone else determines how far she may move and
when she may be released. We should question any system that allows a woman’s
custodial status to override her needs during childbirth. Health professionals
have a responsibility to recognise that power and advocate for care that
respects her autonomy. This questioning of the misuse of institutional power also
requires attention to racism. Aboriginal and Torres Strait Islander women are
disproportionately imprisoned in Australia. Reform must centre their needs and
authority. Cultural Safety requires services to examine whose judgement is
trusted, whose distress is dismissed and who can challenge a harmful decision.
Aboriginal women and community-controlled organisations should help determine
how safe maternity care in custody is designed and monitored [11].
The international standard is explicit. Rule 24 of the United
Nations Bangkok Rules states:
“Instruments of restraint
shall never be used on women during labour, during birth and immediately after
birth.” [12]
The Bangkok Rules are internationally agreed standards, rather than
a treaty or a self-executing Australian prohibition. Their significance sits
alongside Australia’s binding treaty obligations. Article 7 of the
International Covenant on Civil and Political Rights prohibits torture and
other forms of ill-treatment. Article 10 requires humane treatment and respect
for the dignity of people deprived of liberty. Shackling during childbirth
raises grave concerns under these protections. A woman retains her human rights
while she is in custody [12,13].
Within Australia, state and territory governments administer
corrective services, including prisons. They set the laws, policies, and
operational arrangements under which women are held and escorted to hospital.
This makes them directly responsible for preventing harmful custodial
practices. They can act now; they do not need to wait for the Commonwealth to
lead [14]. The Commonwealth’s role is
different. Its Parliament needs a constitutional basis for legislation.
However, state responsibility for prisons does not exclude every possibility of
federal legislation affecting their operation. Section 51(xxix), the external
affairs power, can support laws implementing Australia’s treaty obligations,
including human rights obligations. The Australian Human Rights Commission
explains this power in its guidance on treaties and Australian law [15].
That guidance does not establish that every provision
of any particular bill is constitutionally valid. The scope and drafting must
fit the relevant power and obligations. It does mean that simply identifying
prisons as a state responsibility leaves the legal and policy questions
unresolved. The territories also have a different constitutional position from
the states. Section 122 gives the Commonwealth Parliament power to legislate
for territories. Although territory governments administer their own corrective
services, grouping states and territories together should not obscure that
distinction. For states, section 109 provides that valid Commonwealth
legislation prevails over inconsistent state legislation to the extent of the
inconsistency [16].
International standards do not automatically override Australian
legislation. Ratifying a treaty binds Australia internationally, but does not,
by itself, make all its provisions directly enforceable in Australian courts.
Domestic legislation and other measures are needed to give practical effect to
those commitments. That gap between an international promise and an accessible
domestic remedy is one reason legal reform matters [15]. International responsibility, however, belongs to Australia as a
whole. Article 50 of the civil and political rights covenant expressly extends
its provisions to “all parts of federal States without any limitations or
exceptions”. The UN Human Rights Committee [17] explains that a country cannot use its internal constitutional
arrangements to justify failure to fulfil the covenant. Federalism shapes how
Australia implements its obligations; it does not eliminate them [15,
17, 18]. The
response should therefore identify what each government will do, by when, and
how women will obtain protection and redress. Commonwealth leadership can bring
governments together, support consistent legislation and pursue
constitutionally sound national protections. State and territory governments
must make their own laws and practices comply. Intergovernmental discussions
need deadlines and public accountability.
I would like to see a clear legal prohibition on custodial shackling
during labour, birth and immediately afterwards, supported by safeguards
throughout pregnancy, transport and postnatal recovery. Hospitals and
correctional services need agreed procedures that protect clinical care,
specify escalation when restraints threaten safety, and support staff who speak
up. Independent scrutiny and accessible complaints processes are essential.
Data collection can expose failures, but protection must begin while those data
are being improved.
Women in custody should have access to continuity of midwifery care,
support from a person they choose, and care that respects consent and Cultural
Safety. Women who have experienced pregnancy and birth in custody must have
meaningful influence over these changes. Reform should also examine supported
alternatives to imprisonment during pregnancy and early parenting where
appropriate.
If parliamentarians consider this bill’s wording unsuitable, they
should explain the alternative that will protect women as needed.
Disagreement about legislative design carries a responsibility to produce an
effective response.
A woman in labour should be able to trust that those around her will
support her, listen to her and respond promptly when she needs care.
Australia’s governments need to ensure that every woman can give birth free
from custodial shackles.
Sources
1. 1. Brennan, D. (8
October 2026). Inquiry rejects bill to ban shackling during childbirth.
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2. 2. Parliament of
Australia. Crimes Amendment (Prohibiting Shackling During Childbirth) Bill
2026. Bill record and status. https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1507
3. 3. World Health
Organization (2018). Individualized, supportive care key to positive childbirth
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4. 4. National
Commission on Correctional Health Care (2025). Nonuse of restraints for
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