New study of 3450 pregnant women finds that 52% were told they couldn’t take photographs or videos during their scan even though their birth partner was unable to attend

Birthrights has received legal advice stating that Trusts which prevent partners from attending scans, and don’t allow partners to be involved in the appointment remotely, may be acting unlawfully and unreasonably. Together with the campaign group Pregnant then Screwed, they are calling on hospitals to review their policies after their study of over 3450 pregnant women found that more than half (52%) attended scans alone and were also told that they couldn’t record the appointment.

Legal advice from Birthrights, prepared with Shu Shin Luh of Doughty Street Chambers with support from Irwin Mitchell concludes that “a blanket prohibition on the use of streaming or recording during antenatal appointments in circumstances where the support partner is unable to attend in-person with a pregnant woman is likely to be unlawful, discriminatory and violate both Articles 8 and 14” of the European Convention on Human Rights.

It makes clear that “there is a well-established body of clinical evidence showing that partner participation in antenatal appointments and through a woman’s pregnancy improves maternal and foetal health.” However the clinical nature of partner participation appears to have been ignored or disregarded in the Statement from the Society and College of Radiographers (SCoR), the British Medical Ultrasounds Society (BMUS), the Royal College of Obstetricians (RCOG) and the Royal College of Midwives (RCM) and none of the reasons listed in the Statement provide an adequate basis for outweighing this clinical benefit. Furthermore “providing a woman with a 10-30 second clip of the scan does not fully address the clinical importance of facilitating proper patient participation.”

The advice goes on to say that NHS organisations who have simply adopted the Society and College of Radiographer’s recommendation as a hard and fast rule, will have acted unlawfully by failing to take into account all “relevant and available evidence” that they are required to address when formulating a policy on this matter.

Maria Booker, Programmes Director, Birthrights said: “We have written to the Society and College of Radiographers to share this legal advice, and will be writing to individual organisations who currently ban filming or streaming at scan appointments, to ask them to review their policies immediately.  We are keen to see maternity services accommodate partners in person, in line with national guidance. However if this is really not possible at some hospitals during the current peak, maternity services must find other ways to ensure women feel supported and partners remain involved.”

The research, with 3,450 pregnant women, found of those who attended scans alone and asked whether they were or weren’t allowed to take photographs, 52% said they were not allowed. Anecdotally, both charities have heard from pregnant women themselves saying they’ve been told it is ‘illegal’ to photograph or film their scan, despite this not at all being the case and entirely reasonable given restrictions in some hospitals.

Joeli Brearley, founder and CEO of Pregnant Then Screwed comments; “Our research clearly shows that many pregnant women are attending scans alone and are also being told they cannot document their scan so they can share the experience with their birth partner. This feels unnecessarily cruel. The legal position is clear, it is not illegal to take photographs and videos and for many this is a vital way to help their partner feel included and retain information at this incredibly stressful time.”

Faith Salih, Associate Solicitor at Irwin Mitchell LLP comments: “Pregnancy can be an exciting but nerve wracking period for parents to be, and the pandemic must make it even more daunting. We consider that the law supports remote participation in antenatal scans and call on Trusts to ensure that they facilitate this. Hospital trusts have a legal duty to take into account all relevant factors when taking a decision. The clinical and other benefits of partner participation in antenatal appointments are highly relevant considerations, along with the views, needs and rights of pregnant women. An outright refusal to make arrangements to enable pregnant women to involve their partners in the antenatal appointments, either by streaming or recording the appointments could breach the rights of both parents.”