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Opinion: What happens when a pregnant woman or nursing mother gets sent to jail?

The question of women who are pregnant or parenting in prison is a complex one – and their number is rising.

Dr. Mary Rogan

ALL OVER THE world women go to prison in far fewer numbers than men, but the number of women in prison is rising. It is not known how many children have been born or who have spent time with their mothers in prisons around the world.

International human rights law has given some attention to the question of women prisoners who are pregnant or who have children, though bespoke standards for women are still something of a novel development. The European Prison Rules contains a section on women prisoners, and states that prisoners shall be allowed to give birth outside prison, but where a child is born within a prison the authorities shall provide all necessary support and facilities.

Support for women with children in custody 

The Council of Europe’s Parliamentary Assembly has also published a Resolution in 2009 concerning women prisoners. This Resolution is quite comprehensive and calls on states to ensure that, in situations where babies and young children in prison with their mother have to be separated from her, this should be done gradually so that the ‘process is as painless and non-threatening as possible’.

It further provides that states should ensure that mothers in custody are placed in prisons within a reasonable distance and travelling time of their families. The Resolution also seeks to encourage states to ensure that children staying in prisons with their mothers be given access to crèches outside prison, and that women are never shackled or restrained while pregnant or during or immediately after childbirth. This Resolution builds on another from 2000 which deals specifically with mothers and babies in prison.

States are also encouraged to develop small-scale units with social services support for mothers in custody, where children can be cared for in a child-friendly environment.

How long can a child remain with its mother? 

Practice varies across the world regarding how long a child can spend in prison with his or her mother. In Ireland, rule 17 of the Prison Rules 2007 states that a child of less than 12 months of age may be admitted to prison and remain with the mother to facilitate breastfeeding until the child reaches 12 months of age. This also applies when a woman gives birth during the term of her imprisonment.

A child in these circumstances may only be removed from the care of his or her mother on the order of a court or where the mother of the child consents, and only after the prison doctor and other healthcare professional have been consulted. It is only in exceptional circumstances that a child over the age of 12 months may remain in prison.

Non-custodial options

The United Nations’ General Assembly adopted the ‘United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders’, known as the Bangkok Rules in 2011. These Rules also emphasise a need for non-custodial options for women and the importance of contact between imprisoned women and their children.

The Rules also prohibit the use of close confinement or disciplinary segregation for pregnant women, women with infants and breastfeeding mothers, and state that disciplinary sanctions for women should not include a prohibition on family contact, especially with children.

Rule 25(2) provides that women prisoners who have been subjected to sexual abuse, and especially those who have become pregnant as a result, should receive appropriate medical advice, counselling, physical and mental health care, support and legal aid.

Health and diet 

Rule 48 deals with pregnant or breastfeeding women prisoners who should receive advice on their health and diet, along with adequate and timely food, a healthy environment and regular exercise opportunities free of charge. Women should not be discouraged from breastfeeding unless there are specific health reasons to do so.

Rule 51 states that children living with their mothers in prison must be provided with ongoing health-care services and that the environment provided for such a child’s upbringing should be as close as possible to that of a child outside prison.

International human rights law places a very clear emphasis on the importance of supporting breastfeeding and contact between a mother and her child in the early stages of the child’s life. However, importantly, those norms also encourage states to follow a non-custodial approach for women generally, and particularly in circumstances where they are the primary care-giver to children.

The consequences for families and communities

The need for a non-custodial approach for women who are pregnant or with children is all the more pressing in light of the consequences for families and communities when women go to prison. Not least amongst these consequences is the effect of visiting a parent in prison, which as the Irish Penal Reform Trust has documented, is sadly often a negative experience.

It is also of note that the law concerning women in prison usually constructs the female prisoner as a parent or views her through the prism of particular hygiene and health needs. While a gender-informed approach is essential, the experiences and circumstances of women prisoners are not homogenous. Much more research is needed into what is most required by and effective for women who are pregnant or parenting in or from prison, which should inform the legal instruments created in an effort to regulate these complex issues.

Dr Mary Rogan is the Head of Law at Dublin Institute of Technology. She writes on prison policy, prison law and prisoners’ rights, with a particular focus on the European Convention on Human Rights. She is a barrister and the Chairperson of the Irish Penal Reform Trust, Ireland’s leading NGO campaigning for penal reform. She is the author of Prison Policy in Ireland: Politics, Penal-Welfarism and Political Imprisonment (Routledge, 2011) and Prison Law (Bloomsbury, 2014). 

This post first appeared on Perceptions of Pregnancy. Perceptions of Pregnancy is an international and interdisciplinary network for researchers working on fertility, pregnancy and childbirth from the earliest times to the present day.

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Dr. Mary Rogan

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