A Little Mistake That Cost Lives: Mothers’ Rights Arising from

Doula Practices in Malaysia

Nurul Jannah binti Mustafa Khan, Siti Hafsyah binti Idris , Nadia binti Omar, Zuhaira Nadiah binti

Zulkipli

Faculty of Law, UiTM Shah Alam, Selangor, Malaysia

Keywords: Doula, Ethics, Malaysia, Mother’s Rights, Protection, Safety.

Abstract: Lately, there has been a disturbing rising trend of unsafe birth that is related with the so-called gentle birthing

or also known as pro-birthing in Malaysia. This movement is promoted by individuals known as doula. In a

developed country like the United Kingdom, the practice of doula has been long accepted and encouraged. In

the United Kingdom, mothers’ rights are said to be protected because of the existence of the Doula UK Code

of Conduct. The situation is very much different with the Malaysian scenario where doula is not being

recognized by any medical associations or being controlled under any regulatory measures. Therefore, this

paper aims to examine any current related laws pertaining to mothers’ rights arising from doula practices as

to whether there is legal protection available to them. This paper employs a doctrinal analysis methodology

in examining the relevant laws and related cases. This paper proposes ethical approach as a mechanism to

protect mothers’ rights arising from doula practices. At the end of this paper, it is hoped that mothers’ rights

and safety will be guarded and protected via appropriate regulations or mechanisms

1 INTRODUCTION

The implementation of various maternal and child

health initiatives by the Ministry of Health has

resulted in an evident decline in maternal and

mortality rates in Malaysia to a very low level,

making Malaysia of the equivalent level with the

developed countries. However, lately there has been

a perturbing rising trend of unsafe birth that is related

with the so called gentle birthing or also known as

pro-birthing in Malaysia promoted by a small

community known as doula. The director General of

Health, Datuk Dr. Noor Hisham Abdullah has

expressed his concern regarding unsafe birth in

Malaysia where in 2017, there has been five death

cases related to doula been recorded by the Ministry

of Health. At the surface, there is no issue for one to

be a doula as vast body of research from other

countries shows that emotional and physical support

significantly shortens labor and decreases the need for

caesarean deliveries, forceps and vacuum extraction

and other intervention (Scott, Klaus and Klaus. 1999).

In addition, based on a research, mothers supported

by doulas during childbirth rate the experience as

https://www.bharian.com.my/berita/nasional/

being less difficult and painful than women who were

not supported by a doula (Lantz, Low, Varkey and

Watson, 2005).

However, in Malaysia, the concern rises when

these doulas started promoting for delivery at home

without even considering whether these pregnant

women are of high risk birth (Aziz, 2018).

addition, the non-existence of any guidelines or

regulatory measures to control the practice of doula

in Malaysia may increase the possibility of a doula to

escape responsibilities if unfortunate event happened

to mothers or babies as a result of doula practice.

Based on the above concerns, this paper examines the

rights of the mothers arising from doula practices in

Malaysia. The method used to conduct this research

is through doctrinal methodology based on statutes

and case analysis as well as secondary sources

analysis such as policy, guidelines, fatwa and

government documents.

Khan, N., Idris, S., Omar, N. and Zulkipli, Z.

A Little Mistake That Cost Lives: Mothers’ Rights Arising from Doula Practices in Malaysia.

DOI: 10.5220/0010054102750280

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 275-280

ISBN: 978-989-758-482-4

275

2 WHO IS A DOULA?

A doula can be defined as an individual who has

undergone training and provide doula care during

antenatal, intrapartum or postnatal periods with an

amount of fees for women (Steel, Frawley, Adam and

Diezel, 2015). American Pregnancy Organization

defined doula as a trained professional who assist

mothers, mothers-to-be or during the birth itself,

emotionally and physically with the purpose to help

women experiencing a safe and memorable birth

experience.

The main role of a doula is to provide

emotional support for the mother who is about to give

birth, so that these mothers will have a more relaxing

and serene experience of giving birth and not to assist

the birth by herself. There are three types of doula,

which are antepartum doula, labor doula and

postpartum doula.

It is seen not to be a problem for a mother

to seek to help from antepartum doula who provides

the pregnant mother on the advice on giving birth, for

an example ways to deliver. Nor it is seen to be a

problem for the mother to seek help from a

postpartum doula as this doula would definitely be of

a great help as she assists the mother after the birth by

taking care of the needs of the mother and her

newborn. As for labor doula, she would be with the

mother during the process of giving birth. However,

it should be noted that in Malaysia, most hospitals’

policy did not allow any party aside from the husband

to enter the labor room during the actual process of

birth.

2.1 Regulatory Frameworks to Protect

Mothers’ Rights Arising from

Doula Practices in the United

Kingdom

In other countries, there is really no issue with the

practice of doula, as these doulas did not abuse their

role by superseding the doctors’ and midwives’

power. For an example in the United Kingdom, these

doulas support has always been encouraged and

welcomed by the medical team (American Academy

of Paediatrics). In the United Kingdom, the doulas

are recognized by an organization known as Doula

UK. It is expressly mentioned by the Doula UK

website that a doula are not healthcare professionals

and do not take the role of midwives (Doula UK,

2018).

The Doula UK also has a Complaints

Procedure, which allows the organization to audit

http://americanpregnancy.org/

https://doula.org.uk/

their membership and maintain good practice. The

existence of Complaints Procedure will indirectly

impose pressure on the doulas to adhere by the

guidelines so as to protect the women from any

misconduct. The practice of doula is being controlled

or guided by a code known as the Doula UK Code of

Conduct. It is noteworthy to mention that the Code

emphasized that doulas should only offers practical

and emotional support to women and not to perform

any clinical, midwifery or medical tasks which of

course include diagnosing medical conditions or

giving medical advice. Besides that, the Code also

accentuates that a doula will be accountable for

herself and must work within the law and the

framework of Doula of UK Guidelines. The Code

provides that a doula must refer their clients to

appropriate professionals if the client’s needs are

beyond their scope of role as a doula. Another

significant guideline is that a doula is recommended

to have a contract with their clients. The doulas

should also accurately represent their doula education

and experience and must not any time, mislead other

doulas, clients or other birth professionals. These are

all significant guidelines and principles that must be

adhered by the practicing doulas in the United

Kingdom as to protect the rights of women who opted

for their services.

The existence of a Code shows the commitment

of an organization in protecting the right of their

clients and also acts as an internal guideline among

the members. A code of conduct clarifies an

organization's values and principles requiring the

members to adhere with certain standards of conduct.

A violation of the code may get the doulas

accountable to their clients under the suit of

negligence.

2.2 Regulatory Frameworks on

Mothers’ Rights Arising from

Doula Practices in Malaysia

The situation is different with the Malaysian scenario

where there have been reports of mothers’ and babies’

death because of the intervention of doula. In

Malaysia, doula is not being recognized by any

medical associations or bodies,

therefore has no code

or guidelines as in the United Kingdom (Aziz, 2018).

The Malaysian Medical Association (2018) has been

cited saying that a doula cannot replace trained

midwives and doctors during birth.

In Malaysia,

there is a misconception that giving birth at home

https://www.bharian.com.my/berita/nasional

https://mma.org.my

iN-LAC 2018 - International Law Conference 2018

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without medical intervention is natural process.

These misconceptions have been fed by doulas who

are profit oriented. A delivery without the

supervision by the doctors and trained midwives is a

great risk taken by these mothers. A delivery without

the supervision much needed may attract

complications such as severe bleeding, fits, ruptured

uterus or infections to the mother. As for the babies,

they may suffer brain damage, fits, physical or

nervous system injuries if the delivery is

unsupervised and complications not detected.

For the purpose of this paper, specifically section

14(1) the Midwives Act 1966 will be looked into to

see whether a doula falls under the application of this

Act and the effects. It should be noted here that a

midwife is different with a doula in the sense that a

midwife is a certified medical assistant and a

professional who is being recognized and regulated

under Midwives Act 1966.

A midwife is a person who, having been regularly

admitted to midwifery educational programmes, duly

recognized and has successfully completed in the

prescribed course of studies in midwifery.

She must

acquire the requisite qualifications to be registered

and or legally licensed to practise midwifery. Being

a midwife is not simply having the ability to give

continuous emotional and physical support for the

mother and her partner throughout pregnancy and

labour, like most doula do. A midwife is required to

have the ability to give medical care includes

preventive measures, the detection of abnormal

conditions in mother and child, the procurement of

medical assistance and the execution of emergency

measures in the absence of medical help.

In Malaysia, a doula is not legally recognised as a

midwife under the Midwives Act 1966 nor a medical

practitioner under the Medical Act 1971 having

regard to the qualifications. Unlike doula, nurses who

specialised in midwifery are required to undergo a

one-year course, pass the Malaysian Midwives

Board’s examination and obtain the midwife license

before she is allowed to practise midwifery as

required by the Midwives Act 1966. In contrast, some

preparatory classes offered at several doula schools

are ridiculously short. It is discovered that some of

the classes offered only of a total of 21 hours and

upon completion, one will become a ‘certified’ junior

doula. Having only basic knowledge on delivering

babies certainly does not make a doula qualified to

perform midwifery care, leaving mothers with no

protection under the law, if unfortunate events

http://nursing.moh.gov.my

happens to her or the baby. It shows that home births

with only a doula in attendance are extremely

dangerous to both mother and child.

For the purpose of this paper, it is essential to

highlight the effects and rights of a mother as from

legal contract perspective when dealing with doula.

Did the mother aware of the consequences should

they entered into a contract agreement with an illegal

practicing doula? Did the mother know that she could

lose their rights in the contract should any negligence

by doula arises while the mother giving birth without

the supervision of a qualified midwives?

The law is crystal clear. Any person, thus

including a doula which are not certified and

registered yet practicing midwifery has committed an

offence in the eye of the law. In this case, the law will

not give any assistance to the mother who found her

cause of action upon an illegal act. A plaintiff whose

cause of action appears to arise from a wrong done or

transgression of a positive law of the country has no

right to be assisted by the law. The mother’s rights

will not be assisted by the law because in this

situation, the mother and the doula are equally at

fault. In Holman v Johnson, the court mentioned that

when both parties are equally at fault, the defendant

would be in the better position against the plaintiff.

Therefore, it is crucial for all mothers in Malaysia to

be well aware that section 14 of Midwives Act 1966

clearly prohibits any person who is not registered

under the Act to practice midwifery. Section 10 of

Contracts Act 1950 (CA) in Malaysia further provides

that for an agreement to be a contract, it must be made

by the free consent of the parties competent to

contract and that the consideration and object of the

agreement must be lawful and are not expressly

declared to be void. Further, by virtue of section 2(g)

of the CA, an agreement not enforceable by law is

said to be void. Next, section 24 of the CA has also

laid down the situations wherein the consideration or

object of an agreement could be unlawful specifically

if (a) it is forbidden by law, (b) it is of such a nature

that, if permitted, it would defeat any law, (c) it is

fraudulent, (d) it involves or implies injury to the

person or property of another or (e) the court regards

it as immoral, or opposed to public policy.

By applying section 24 of CA, it is unlawful for

any doula to enter into a contract with a mother for

the purpose of midwifery tasks because it is clearly

forbidden by the law. An agreement is void for

illegality when the statute prohibits the act and the

contract.

This is by virtue of Section 14 of the

Sababumi (Sandakan) SdnBhd v. Datuk Yap Pak Leong

[1998] 3 MLJ 151.

A Little Mistake That Cost Lives: Mothers’ Rights Arising from Doula Practices in Malaysia

277

Midwives Act 1966 that stated any unregistered

midwife who practice midwifery shall be guilty of an

offence. In this paper it is contended by the authors

that a doula is an unlawful object forbidden by the law

and have no legality to enter into any contract relating

to midwifery practices with any mother in Malaysia.

A contract made between a mother and doula can

also be regarded as opposed to the public policy as

doula practices may cause injury to the mother and

the infant. The former Deputy Health Minister, Datuk

Seri Dr HilmiYahaya emphasized that in the United

States, instead of using doula services, expectant

women are not advised to deliver at home or placed

in situations which could prove harmful to them or

their babies.

For that reason, mother should not put their right

at stake. They should understand their position when

dealing and contracting with a doula as their rights

under the contract will not be protected by the law for

the reasons discussed above. These mothers who

contracted with doulas may encounter difficulties if

they wanted to bring an action of negligence against

doulas.

2.3 Protecting Mothers’ Rights

through Ethical Approaches

The contract made between a doula and a mother is

void as doula is not a person being recognized under

any body or regulation in Malaysia. Therefore, here

the loophole will be manipulated by the doula if legal

action is taken against them as there is no Code,

guidelines or regulations that govern their conduct in

Malaysia.

Hence, this paper proposes that the mothers’

rights may be protected through ethical approach

which can be the guiding principle for the court

decision-making in the event the case is litigated in

the absence of any code of conduct or legislations.

Ethical principle in medical ethics such as Principlism

propounded by Beauchamp and Childress (1994)

which is used to resolve ethical dilemmas need to be

considered in examining ethical issues affecting the

rights of mothers arising from doula practices. This

Principlism approach encompasses four principles

namely respect for autonomy, nonmaleficence,

beneficence, and justice. These four principles are

developed based on common morality, which are the

moral norms commonly shared by mankind

throughout the world. Beauchamp and Childress

(1994) explained that these principles ‘‘should

function as an analytical framework that expresses the

general values underlying rules in the common

morality.’’

The principle of autonomy is based on the

principle of respect for persons, which holds that

individual persons have the right to make their own

choices and develop their own life plan. In a

democratic society, people recognise that they have a

duty to let people make their own choices. Any

notion of moral decision-making assumes that

rational agents are involved in making informed and

voluntary decisions. In health care decisions, respect

for the autonomy of the patient would, in common

parlance, imply that the patient has the capacity to act

intentionally, with understanding, and without

controlling influences that would mitigate against a

free and voluntary act. This principle is the basis for

the practice of "informed consent" in the

doula/mother transaction regarding the doula

practices. This is also expressed in the language of

rights, by recognising the right of mother to make

choices in delivering their babies. In a prima facie

sense, the autonomy of the mother ought to always be

respected. Such respect is not simply a matter of

attitude, but a way of acting so as to recognize and

even promote the autonomous actions of the mother.

The autonomous person may freely choose values,

loyalties or systems of religious belief that limit other

freedoms of that person.

The principle of beneficence on the other hand,

refers to a normative statement of a moral obligation

to act for the benefit of others, helping them to further

their important and legitimate interests, often by

preventing or removing possible harms. The ordinary

meaning of this principle is that health care providers

have a duty to be of a benefit to the patient, as well as

to take positive steps to prevent and to remove harm

from the patient. These duties are viewed as rational

and self-evident and are widely accepted as the proper

goals of medicine. This principle is at the very heart

of health care implying that a suffering supplicant

(the patient) can enter into a relationship with one

whom society has licensed as competent to provide

medical care, trusting that the physician’s chief

objective is to help. The goal of providing benefit can

be applied both to individual patients, and to the good

of society as a whole. Hence, in this scenario, the

health care providers must also play a role in urging

the relevant authorities to regulate and monitor doula

practices as to protect the rights of mothers who opted

for alternative methods in delivering their babies

(Darryl and Macer, 1995).

Nonmaleficence is known as the principle of do

no harm. It can also be expressed as respect for human

life and integrity. The principle of nonmaleficence

requires of people to not intentionally create a harm

or injury to others, either through acts of commission

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or omission. In common language, it is negligence if

one imposes a careless or unreasonable risk of harm

upon another. Providing a proper standard of care that

avoids or minimizes the risk of harm is supported not

only by commonly held moral convictions, but by the

laws of society as well. This principle affirms the

need for health care providers’ competence.

Therefore, again it is emphasized here that the

practice of doula should be regulated under a proper

code or under a specific legislation so that their

conduct can be measured against a standard of care

for doula.

Justice principle emphasises the moral obligation

to assure the fair and equitable distribution of benefits

and burdens, in accordance to such things as needs,

effort, or merit between competing claims. The

formal principle of justice requires that society in

general treat equal cases equally. It is generally held

that persons who are equals should qualify for equal

treatment. Therefore, by applying this principle, if

negligence has been committed by a doula while

assisting mothers during delivery, the doula should be

treated equally as any other person who has

committed negligence under the law. The same goes

to the mother who should be able to get any damages

or compensation if it has been proven that the doula

has committed negligence towards her or her baby. It

is contended in this paper that the mother’s rights

should be taken into consideration by applying this

principle and not to extinguish it totally just because

the mother may have ignorantly entered into a

contract with a doula.

3 CONCLUSION

By looking at the rising trend of unsafe birth in

Malaysia, it is proposed in this paper that there should

be a specific regulation to control the conduct of

doula. This is because, based on the discussions

above, it can be seen that a contract made between a

doula and a mother may be void because of illegality.

Therefore, the mothers’ rights may not be protected

under the current law. The loopholes in the law could

be manipulated by irresponsible people and this

matter must be taken seriously as people’s lives are at

stake. It is noted that there has been plans by the

Ministry of Health to regulate the conduct of doulas

to protect the safety of women and babies from

calamitous events.

This plan by the Ministry of

Health should be celebrated and the progress of the

plan has to be monitored closely to ensure that it will

https://www.bharian.com.my

be realized hopefully soon. Alternatively, it is

proposed in this paper that in the absence of law

protecting mothers’ rights who has contracted with a

doula, the court may take into consideration the

ethical approaches discussed above in coming to a

just decision if there is any case between a doula and

a mother being brought before it.

For the mutual benefit and protection of Authors

and Publishers, it is necessary that Authors provide

formal written Consent to Publish and Transfer of

Consent ensures that the publisher has the Author’s

authorization to publish the Contribution.

The copyright form is located on the authors’

reserved area.

The form should be completed and signed by one

author on behalf of all the other authors.

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