Between Walls and Cradles: Motherhood in Prison and an International Human Rights Review

Adopted by the United Nations General Assembly in 1948, the UDHR is the founding document of modern human rights. While not a legally binding treaty, its principles have become international custom and are the basis for numerous subsequent treaties. Relevant to motherhood in prison are Articles such as Article 3 (right to life, liberty, and security of the person), Article 5 (prohibition of torture or cruel, inhuman, or degrading treatment or punishment), Article 12 (right to protection against arbitrary interference with privacy, family, and home life), and Article 25 (right to a standard of living adequate for health and well-being, and special assistance for motherhood and childhood). These articles establish the minimum standard of respect for human dignity, which is not suspended by imprisonment, and the special protection that must be provided to mothers and children.

This treaty, binding on States Parties, expands on many of the rights set forth in the UDHR. Particularly relevant are Article 6 (inherent right to life), Article 7 (prohibition of torture and cruel, inhuman, or degrading treatment), and Article 9 (right to liberty and security of person, and the right not to be subjected to arbitrary arrest or detention). Of utmost importance for mothers and their children is Article 10, which states that "every person deprived of his liberty shall be treated with humanity and with respect for the inherent dignity of the human person." It also states that "juveniles under investigation shall be separated from adults and brought before a court of law as soon as possible for trial." Although it refers to juveniles under investigation, the principle of separating children from inappropriate prison environments is extensive. Article 17 protects private and family life, a fundamental right that is directly affected by a mother's incarceration.

This legally binding Covenant focuses on rights that are crucial to the well-being of mothers and their children. Article 12 recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, which includes access to adequate health services for pregnant and nursing mothers in prison. Article 10 establishes that "the widest possible protection and assistance shall be accorded to the family, which is the natural and fundamental unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children." It also emphasizes that "special protection shall be accorded to mothers for a reasonable period before and after childbirth." These principles are essential for formulating policies that support motherhood in prison and protect child development.

The CRC is the most widely ratified human rights treaty in the world and is of vital importance to children living with their mothers in prison. It recognizes that children have specific rights due to their special vulnerability. Article 3 establishes the "best interests of the child" as a primary consideration in all actions concerning children. This means that any decision regarding an incarcerated mother with her child must primarily weigh the child's well-being. Other key articles include Article 6 (right to life and development), Article 7 (right to know and be cared for by one's parents), Article 9 (right not to be separated from one's parents except in the best interests of the child), Article 18 (parental primary responsibility for the upbringing and development of the child and State assistance), and Article 24 (right to the enjoyment of the highest attainable standard of health). The CRC obliges States to take all appropriate measures to ensure that children of incarcerated mothers are not penalized by the situation of their parents.

This treaty defines discrimination against women and establishes an agenda for national action to end such discrimination. For women in prison, CEDAW is critical because it addresses women's specific vulnerabilities, which are often different from those of men in prison. Article 1 defines discrimination and calls for its elimination. Article 2 obliges States to adopt policies to eliminate discrimination. Article 12 is particularly relevant in addressing discrimination in the area of health care, urging States to guarantee women appropriate services related to pregnancy, childbirth, and the postpartum period. This implies that incarcerated women must receive medical care that is not inferior to that available to women at liberty, with a focus on their reproductive and maternal needs. CEDAW also promotes equality in other areas that can affect the lives of women in prison, such as access to justice and non-discrimination in treatment.

These instruments, taken together, form a solid basis for demanding that States respect, protect, and fulfill the human rights of imprisoned mothers and their children, ensuring that their particular situation is recognized and addressed with the necessary sensitivity and protection.

Originally adopted in 1955 and revised in 2015, the Mandela Rules constitute the universally accepted standard for prison management and the treatment of prisoners. Although not designed exclusively for women, they contain general provisions that are critical to guaranteeing the rights of mothers in prison. They establish principles such as the separation of men and women (Rule 11.a) and the provision of adequate medical care, including "specialized medical care for women prisoners" (Rule 25.2). Although the Mandela Rules are broad, they served as the basis for the development of more specific standards for women, recognizing that their health, psychological, and social needs, especially in the context of motherhood, are distinct.

Adopted in 2010, the Bangkok Rules are the most comprehensive and specific instrument on women in prison and represent a significant advance over the Mandela Rules in addressing the gender specificities of incarceration. They are crucial for motherhood in prison, establishing detailed guidelines on:

Healthcare: They recognize the right to sexual and reproductive health care (Rule 8) and the need for adequate prenatal and postnatal care, as well as skilled attendance during childbirth (Rule 9).

Children in prison: They provide that decisions regarding the continued presence of children with their mothers in prison must be based on the best interests of the child (Rule 48). They establish the provision of resources for child development (Rule 49) and the search for alternatives to imprisonment for mothers with young children (Rule 64). They prohibit the use of shackles or instruments of restraint on pregnant or postpartum women (Rule 50).

Alternative Sentences: They promote the use of non-custodial measures for pregnant women or mothers with dependent children, seeking to avoid family separation (Rules 57-66).

The Bangkok Rules recognize that the imprisonment of a mother has a direct impact on her children and that prison policies should mitigate this harm, prioritizing the well-being of the child.

Developed by the Inter-American Commission on Human Rights (IACHR) in 2008, these principles, while not a treaty, offer authoritative guidance on the regional human rights standard for persons deprived of liberty in the Americas. They reinforce the need for differentiated treatment for women, recognizing their specific needs in prison. In particular, they highlight the importance of:

• Prohibition of cruel, inhuman, or degrading treatment (Principle II), which includes inappropriate conditions of confinement for pregnant women or mothers.
• Specialized Care: They emphasize the provision of adequate and specific medical care for women, including sexual and reproductive health (Principle XVIII).
• Separation and Alternatives: They emphasize the importance of not separating mothers from their young children, except in exceptional cases and always in the best interests of the child, and promoting alternative measures to imprisonment (Principles XX and XXI).

These principles seek to align prison practices in the region with the highest human rights standards, paying special attention to the vulnerability of mothers and their children.

Vélez Loor v. Panama (2010): Although not directly focused on motherhood, this case addressed conditions of detention and access to health care in prison. The Court reiterated the State's obligation to guarantee the right to health of all persons deprived of liberty, which is fundamental for pregnant and postpartum women.

Pacheco Tineo et al. v. Panama (2010) Bolivia (2013): This case addressed the lack of adequate medical care for an HIV-positive inmate. While not a maternity case, it reinforces the state's obligation to guarantee access to specialized and non-discriminatory medical treatment in prison, a principle applicable to maternal and child health.

IACHR Reports and Observations: The Inter-American Commission, through its country and thematic reports, has monitored and expressed deep concern about the situation of incarcerated women and their children in the region, emphasizing the need for alternatives to prison and decent conditions.

Hirst v. United Kingdom (2004) and other cases related to detention conditions: While not specifically related to maternity, these cases have established minimum standards for detention conditions under Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights. Unsanitary conditions, lack of medical care, or prolonged isolation affecting a mother or her child could be considered violations of this article.

S.F. et al. v. Belgium (2020): This case addressed the detention of asylum seekers with children. Although not directly criminal imprisonment, the ECHR reiterated that the detention of children should be a measure of last resort and as brief as possible, emphasizing the detrimental impact on their development, a principle that can be extrapolated to the detention of children in prisons with their mothers.

Wenner v. Germany (2009): This case, although concerning a father, addressed the limitation of a parent's contact with their child while in prison and how this affects the right to family life (Article 8 of the European Convention). The underlying principles apply to mothers and the need to facilitate the mother-child relationship.

Cases addressing the adequacy of medical conditions in prison: The ECtHR has consistently reiterated that States have an obligation to provide adequate medical care to prisoners, including the specific needs of pregnant and postpartum women.

This jurisprudence demonstrates that international courts have been sharpening the contours of State obligations, emphasizing human dignity, the best interests of the child, and the need for differential treatment of women, especially those who are mothers, within the prison system. These precedents serve as a fundamental guide for States in implementing their prison policies.

Access to adequate prenatal and postnatal health care: In many prison systems, medical care for pregnant women is poor or nonexistent. This includes a lack of regular prenatal checkups, ultrasounds, blood tests, and essential vitamin supplements. Women in labor often face births in inadequate safety conditions, sometimes handcuffed or in hostile environments, which directly violates the Bangkok Rules. Postnatal care is also often substandard, lacking adequate follow-up care for the mother or newborn, and with limited or no information on family planning or breastfeeding. A shortage of specialized gynecology and obstetrics medical personnel within prisons is a common problem.

Nutrition and food in prison: Food in prisons is often generic, monotonous, and, most critically, nutritionally insufficient for the demands of a pregnant or breastfeeding woman. Diets often lack fresh fruits, vegetables, quality proteins, and dairy products, which are essential for fetal development and maternal health. This nutritional deficiency can lead to anemia, low birth weight, complications during pregnancy and childbirth, and a negative impact on breast milk production, directly affecting the health of the newborn.

Hygiene and Sanitation: Hygiene conditions in many prisons are deplorable. Limited access to hot water, personal hygiene products (such as soap, sanitary pads, or diapers), clean and functional toilets, and the presence of pests (insects and rodents) are common problems. For pregnant women, this increases the risk of urinary tract infections, vaginal infections, and other diseases that can endanger the pregnancy. For mothers with babies, the lack of adequate sanitation creates an unhealthy environment and a high risk of infection for infants, who are particularly vulnerable to infectious diseases due to their immature immune systems.

Adequate spaces for living with babies and young children: Most prisons lack specialized mother-child units or spaces designed for living with children. If children remain with their mothers, they often share the same small, overcrowded cells, without play areas, natural light, adequate ventilation, or child-friendly furniture. The lack of a stimulating and safe environment severely impacts children's physical, cognitive, and emotional development. Furthermore, the lack of trained childcare staff or those assisting mothers in this task is a constant, leaving women with an even greater burden in an already oppressive environment. The failure to adequately separate prison spaces from the child's environment means that infants are exposed to violence, noise, lack of privacy, and the prison subculture from their first days of life.

Child Health and Development in the Prison Setting: Infants and young children in prison are at high risk for health problems. Unsanitary conditions, lack of adequate nutrition (for both the nursing mother and the child), exposure to infectious diseases, and limited access to specialized pediatric care and vaccinations are common. The constant stress of the prison environment also affects their mental and emotional health from an early age. Developmentally, the lack of appropriate sensory stimulation, toys, safe spaces for exploration, and limited interaction with other children or adults other than prison caregivers can lead to delays in cognitive, motor, and language development. Children need a rich and predictable environment to grow up in, something that prison can rarely provide.

Mother-child bonding and its impact on prison: The relationship between a mother and her child is fundamental to the development of a secure attachment and the child's emotional stability. In prison, this bond is constantly threatened. Space restrictions, lack of privacy, maternal stress, limited visits, and, in many cases, eventual forced separation, erode the quality and continuity of this vital relationship. Mothers may feel unable to fulfill their parental roles due to prison regulations, lack of resources, or their own deteriorating mental health. This can generate feelings of guilt, anxiety, and depression in both mother and child, impairing the formation of a secure and lasting attachment.

Stigmatization and discrimination: Children who live or have lived with their mothers in prison face a double stigma: that associated with their parent's criminality and that of having been born or raised in a prison environment. This "mark" can follow them throughout their lives, affecting their educational, social, and employment opportunities. They are often subject to discrimination and prejudice from society, their peers, and sometimes even institutions. This stigmatization can lead to self-esteem issues, social isolation, and difficulties fully integrating once the mother is released or the child is separated.

Access to education and social development: The prison environment is inherently restrictive and not conducive to early learning and socialization. Children in prison have limited or no access to preschool programs or essential social development activities. They do not interact with other children in a regular and structured manner, missing out on crucial opportunities to learn social skills, conflict resolution, and empathy. Lack of contact with the outside world, exposure to prison-specific language and behaviors, and the absence of diverse attachment figures can limit their worldview and ability to adapt to environments outside the prison. Once released, they may face enormous difficulties integrating into schools or community settings due to a lack of basic experiences and skills.

Physical and mental health (depression, anxiety, post-traumatic stress): Women in prison already face a higher prevalence of mental and physical health problems before entering the penal system. Childbearing in this setting exacerbates these conditions. Lack of adequate prenatal and postnatal care contributes to physical health problems. However, the impact on mental health is even more pronounced. Forced separation from their children (when it occurs), guilt, uncertainty about the child's future, chronic stress in the prison environment, and a lack of emotional support can trigger or exacerbate conditions such as postpartum depression, severe anxiety, and post-traumatic stress disorder (PTSD). Women may feel overwhelmed, powerless, and hopeless, affecting their ability to function and care for themselves and their children.

Impact on the relationship with the child and extended family: Incarceration creates significant barriers to maintaining and nurturing the mother-child bond. Visitation restrictions, lack of adequate spaces for interaction, and limited contact time prevent the development of a healthy and deep relationship. When children are separated from their mothers and placed in the care of relatives or protective services, the relationship becomes even more fragmented. The mother may feel profound loss and constant grief due to the distance. Furthermore, the situation also strains relationships with extended family members, who bear the burden of caring for the child and often face financial hardship and stigmatization. Communication becomes sporadic, and family support may diminish over time, leaving both mother and child in a situation of greater vulnerability.

Difficulties in rehabilitation and social reintegration: Motherhood in prison, paradoxically, can be a factor that hinders rehabilitation. Constant worry about the well-being of their children and uncertainty about their future can divert a mother's energy and focus from available rehabilitation programs. Furthermore, the lack of specific programs for mothers that address their unique parenting needs, develop parenting skills, and prepare for family reunification limits their ability to successfully reintegrate into society. Upon release from prison, these women face the dual challenge of rebuilding their lives and assuming their role as mothers, often with limited resources, stigma, and a history of trauma. The difficulty in finding housing, employment, and access to adequate social services is compounded when they have children in their care.

Additional burdens of motherhood in a restrictive environment: Being a mother in prison entails additional responsibilities not faced by other inmates. This includes the need to care for an infant or toddler in a confined space with limited resources, the constant effort to protect the child from the harshest aspects of the prison environment, and the concern for their development. Mothers may be forced to rely on other inmates or prison staff for childcare, which can create new vulnerabilities. Furthermore, motherhood can involve difficult and painful decisions, such as whether the child should remain with her in prison or be placed with a relative—decisions that have lasting consequences for both mothers. These burdens, coupled with the already difficult conditions of incarceration, create a level of stress and exhaustion that is almost unsustainable.

Forced separation of children: This is perhaps one of the most painful and damaging challenges. In many countries, prison laws or policies set strict limits on the age until which a child can remain with their mother in prison (often between 1 and 3 years of age, or even younger). Upon reaching this age, the child is separated from their mother against their will, usually handed over to relatives or, in their absence, to child protection institutions. This early and forced separation has a traumatic impact on both mother and child, disrupting the vital attachment bond and generating profound emotional pain. For the child, it represents an abrupt break from their familiar environment and primary caregiver, with lasting consequences for their socio-emotional development. For the mother, it exacerbates anguish, guilt, and despair, hampering their rehabilitation process.

Lack of Maternity Support Programs: Most prisons lack comprehensive and specialized programs that address the unique needs of mothers and their children. This includes a lack of parenting education, psychological support to manage the stress of parenting in prison, workshops on child development, or caregiving skills. Mothers often lack access to basic resources such as children's books, educational toys, or adequate spaces for play and interaction. The lack of these programs not only limits the child's development but also deprives the mother of the tools and support necessary to effectively exercise her parental role in such a restrictive context. This perpetuates a cycle of disempowerment and hinders her preparation for life outside of prison with her children.

Gender-based violence in prison: Women in prison are particularly vulnerable to violence, whether from prison staff or other inmates. This violence can manifest itself in various forms: verbal, psychological, sexual, or physical abuse. For pregnant women or mothers with children, this vulnerability is heightened. The lack of effective reporting and protection mechanisms means that many of these situations go unpunished. Exposure to violence creates an environment of fear and insecurity that is deeply detrimental to the mental health of the mother and the psychosocial development of the child living in that environment. Furthermore, prison practices that do not consider gender needs (such as invasive body searches) can be perceived as humiliating and degrading.

Barriers to Access to Justice and Legal Remedies: Women in prison, especially mothers, often face significant challenges in accessing justice and effective legal remedies. This can include a lack of clear information about their rights, difficulties communicating with their lawyers, or the absence of free and specialized legal assistance. In cases involving child custody, the ability to challenge separation decisions or ensure adequate visitation may be very limited. The complexity of legal procedures, coupled with a lack of connectivity with the outside world and dependence on the goodwill of prison staff, prevents them from fully exercising their rights. This lack of access to justice leaves them in a position of greater defenselessness against potential violations of their rights and those of their children.

These specific challenges illustrate how motherhood in prison is an intersection of multiple vulnerabilities that demand a differentiated response and a firm commitment to human rights.

Unsanitary living conditions: Overcrowding, lack of hygiene, poor ventilation, and inadequate nutrition are common in many prisons. These conditions pose a direct danger to the health of pregnant women, nursing mothers, and their children, increasing the risk of disease and infection.

Risks of violence and abuse: Women in prison are particularly vulnerable to violence, including physical, psychological, and sexual abuse, from both other inmates and prison staff. The presence of children in this environment further aggravates their situation and the safety of children.

Discrimination based on gender and maternity status: Prison policies and practices are often not adapted to the specific needs of women, much less those of mothers. This can lead to the denial of basic rights, such as access to feminine hygiene products, appropriate maternity clothing, or private spaces for breastfeeding. Motherhood in prison may even be viewed as a burden, exacerbating discrimination.

Discrimination based on ethnic or socioeconomic origin: Women from ethnic minorities or those with low economic resources often face double discrimination. They may be subject to racial or socioeconomic biases that further limit their access to essential services, legal representation, and their ability to maintain ties with their children and family members outside of prison.

Restrictions on visits and contact with children: Prison regulations often impose strict limitations on the frequency, duration, and type of visits, making it difficult to maintain a strong emotional bond between mothers and their children living outside of prison. In many cases, visits take place in environments unconducive to family interaction.

Decisions regarding child custody and well-being: The mother's incarceration can lead to hasty or inappropriate decisions regarding child custody, without always considering the child's best interests. This can result in the separation of children from their mothers without adequate family or community care options.

Lack of specific programs for mothers: Prisons often lack rehabilitation and job training programs tailored to the needs of mothers, which consider their parental responsibilities and allow them to acquire skills for their future reentry into society. The absence of these programs limits their opportunities for personal and professional development.

Barriers to accessing employment and housing after release: Once released, ex-inmate mothers face enormous obstacles in finding employment and decent housing due to the stigma associated with prison and the lack of support networks. This hampers their economic stability and the ability to rebuild a life with their children outside the penal system, increasing the risk of reoffending.

House arrest: Allows the mother to serve her sentence at home, under supervision, enabling her to care for her children in a stable family environment. This measure helps maintain emotional ties and minimizes disruption to the child's life.

Parole: Offers the possibility of the mother being released before serving her entire prison sentence, under certain conditions. This option may include follow-up and support programs that allow mothers to reintegrate into society and fully assume their maternal role.

Restorative justice programs: Focused on repairing harm and reconciliation, these programs can offer alternatives to prison that allow mothers to assume their responsibilities without separating them from their children, promoting community reintegration and social support.

Specialized mother-child units: These are spaces within prisons specifically designed for mothers and their babies, offering adequate living conditions, hygiene, nutrition, and safety. These units seek to recreate an environment as similar as possible to a home, away from the general prison environment.

Early stimulation programs: Crucial for the development of babies who remain with their mothers in prison. These programs provide recreational and educational activities that foster the child's cognitive, motor, and emotional development, partially compensating for the limitations of the environment.

Psychological and social support for mothers and children: Providing psychological care to mothers helps manage the stress, anxiety, and guilt associated with incarceration and motherhood in prison. For children, this support can mitigate trauma resulting from the environment and separation, if it occurs. Social support, through connections with family members and external networks, is also vital.

Training and education for mothers: Offering workshops and courses on parenting, child health, nutrition, and parenting skills empowers mothers, preparing them to better care for their children both inside and outside of prison. In addition, formal education and job training programs can facilitate their future social reintegration.

Political Advocacy and Rights Advocacy: Non-governmental organizations, human rights groups, and lawyers are actively involved in denouncing violations, preparing reports, and promoting legislative and public policy changes. Their work is key to pressuring governments to comply with their international human rights obligations.

Provision of support services: Many civil society organizations offer direct services to mothers and children affected by incarceration, such as legal counseling, psychological support, early stimulation programs, assistance with social reintegration, and maintenance of family ties.

Research and monitoring: Data collection, research, and monitoring of the conditions of mothers in prison are essential to document the reality, identify needs, and evaluate the effectiveness of existing policies. International organizations, such as the United Nations, through its rapporteurs and committees, monitor compliance with human rights treaties and issue recommendations to States.