There is no global data on, or estimates of, the number of pregnant women in prison or number of children born in prison globally. While the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) encourage non-custodial sanctions for pregnant women, many countries still permit the imprisonment of pregnant woman, with laws remaining silent on the issue.
A recent report details how 11 countries have enacted laws to either prohibit the imprisonment of pregnant women or severely limit the detention of pregnant women. Different measures have been taken including the exemption, deferral or substitution of sentences and the prioritisation of non-custodial measures such as house arrest and electronic monitoring. In Brazil, for example, pre-trial detention is substituted with house arrest for all pregnant women and in Ukraine, pregnant women sentenced to up to five years in prison may be discharged on probation until the child reaches seven years of age. Pregnant women in Georgia can have their sentence suspended until their child is one year old, at which point the court can consider exempting them from serving their sentence or commuting it. In Armenia, detention is not imposed on pregnant women or on persons with a child below the age of eight in their care.
Some countries specify stages of pregnancy, or the like, where detention is to be limited or prohibited, such as the later stages of pregnancy. This is the case in Costa Rica (advanced stages of pregnancy), Nicaragua (last three months of pregnancy) and Colombia (two months or less before delivery). In addition to pregnant women, some countries also include ‘nursing mothers’ (Mexico), women with ‘new-born babies’ or in the postpartum stage (Brazil), and during the six months after birth (Colombia). In Ecuador, house arrest or electronic monitoring may be applied during pregnancy or the first 90 days after childbirth, plus another 90 days in the case of neonatal illness. Some countries also include all women with children under a defined age (one year in Georgia, three years Peru, seven in Ukraine, eight in Armenia, and 14 in Russia).
Many of these laws and policies are longstanding, but there have also been some recent developments. For example, in July 2021, Minnesota became the first US state to authorise the release of pregnant and postpartum people from prison to community-based programmes.
For those who give birth while detained, childbirth usually takes place in hospital. In Romania, the prison service must transfer pregnant women to a prison hospital one month before their due date, and the prison hospital then transfers them to an external care facility to give birth. In some cases, however, women give birth in prison or during transfer to hospital. Analysis of hospital data revealed that six women in prison in England gave birth outside hospital in 2017/18 (over 10% of imprisoned women who gave birth), four in 2018/19 (over 10%) and one in 2019/20 (2%).
In recent years, there have been reports of women giving birth alone in prison cells, including in the US and Australia. A number of cases involving the death of infants in prison have trigged investigations, calls for reform and, in some cases, action. In Sierra Leone, the death of a 17-month-old baby in a police cell with her detained mother in December 2021 led to the NGO AdvocAid calling on the Government to urgently review all cases of pregnant women and women with young children detained in police stations and correctional facilities across the country.
In England, the death of a baby after an 18-year-old gave birth alone in her prison cell, and another incident where a woman who did not know she was pregnant gave birth to a still-born baby in a prison toilet, triggered investigations by the Prisons and Probation Ombudsman which identified key failings in the healthcare provided to the women. The Government has committed to providing extra training for staff on looking after pregnant women and to collect and publish data on the number of pregnant women in custody and births in prison. In the US, a 2018 law requires the collection of data on pregnancy outcomes in federal prisons, but this does not apply to the majority of women (85% in 2018) who are held in jails and state prisons. Findings from the Pregnancy in Prison Statistics (PIPS) Project and other data sets that aim to fill this gap suggest an estimated 58,000 admissions of pregnant women into jails and prisons every year, with pregnancy rates among young women in detention being similar to those among adults.
Despite international standards that prohibit the use of shackles or other restraints during transfers to hospitals, gynaecological examinations and birth, the practice persists in some limited places. In the US, at least 13 states fail to prohibit the shackling of detained pregnant women despite a prohibition in federal prisons. In Canada, where there is no specific legislation or policy in place to prohibit these practices, several women have reported being placed in solitary confinement or restraints like handcuffs and shackles while pregnant in prison.