Gender Equality in Law Number 4 of 2019 Concerning Midwifery as a Fulfillment of Citizens' Constitutional Rights (Comparative Study of Indonesia and the Netherlands)

through interviews with several informants related to the problems in this study. The results show that the formation of Law Number 4 of 2019 concerning Midwifery is considered contrary to some of the contents of the articles contained in the 1945 Constitution of the Republic of Indonesia, and the development of midwifery regulations in Indonesia needs to follow the example of the Netherlands by continuing to make men able to work as midwives, provided that the patient's consent is obtained.

Legal protection of human rights (HAM) is sought to avoid discriminatory acts, especially the midwifery sector as the fulfillment of basic rights inherent and protected by the constitution as stipulated in article 27 paragraph (2) of the 1945 Constitution of the Republic of Indonesia which states that every citizen has the right to work and a decent living for humanity.Thus violating the right to obtain work between men and women is a violation of human rights.However, Law Number 4 of 2019 Concerning Midwifery contains elements of discrimination in the midwifery profession, where men cannot become midwives, only limited to becoming obstetricians.Meanwhile, women have the freedom to choose to become midwives or obstetricians.The discrimination contained in the Midwifery Law needs to be analyzed from the perspective of the 1945 Constitution, as well as comparing regulations with the Netherlands to be able to describe the problem in depth.This research uses a normative-empirical legal method, which is a research method that will be studied combining 2 elements, namely normative legal elements and empirical legal elements.Normative law is based on literature data such as books in legal science literature, doctrines or expert opinions, scientific papers, articles, and journals, legislation and internet pages related to the problems in this study with author that can be accounted for.Empirical law is carried out based on field data as the main data source, which is generated Submitted: Aug 15, 2023 ; Reviewed: Aug 24, 2023; Accepted: Dec 04, 2023  through interviews with several informants related to the problems in this study.The results show that the formation of Law Number 4 of 2019 concerning Midwifery is considered contrary to some of the contents of the articles contained in the 1945 Constitution of the Republic of Indonesia, and the development of midwifery regulations in Indonesia needs to follow the example of the Netherlands by continuing to make men able to work as midwives, provided that the patient's consent is obtained.

A. Introduction
The 1945 Constitution of the Republic of Indonesia has guaranteed every citizen the rights and position before the law and government, and guarantees the right of every citizen to protection and freedom from discriminatory treatment. 1Legal protection and human rights are sought to avoid discriminatory acts in the employment sector as the fulfillment of basic rights inherent and protected by the constitution as stipulated in article 27 paragraph (2) of the 1945 Constitution of the Republic of Indonesia which states that every citizen has the right to work and a decent livelihood for humanity, thus violation of the right to obtain employment between men and women is a violation of human rights. 2e of the problems in Indonesia is that there is still gender-based discrimination and gender inequality. 3Article 1 paragraph (3) of Law No. 39/1999 on Human Rights contains one of the definitions related to discrimination, which is any restriction that is directly or indirectly based on human distinction on the basis of sex which results in the reduction, deviation or elimination of recognition, implementation or use of human rights and basic freedoms in individual and collective life in the political, economic, legal, social, cultural and other aspects of life. 4e form of discrimination that we can encounter in everyday life is gender discrimination, this discrimination occurs due to differences in social roles formed by culture so that differences in attitudes and behaviors that differentiate between men and women appear. 5To end all forms of discrimination, gender equality is needed. 6Gender equality is an equal right to play a role and participate in political, legal, economic, socio-cultural, educational and defense activities, as well as national security between men and women. 7e profession of midwife can only be given to women, while men are limited to being obstetricians.This stems from the term "dukun beranak" which is given to someone who assists in the delivery of pregnant women, then becomes a deeply rooted culture in Indonesia.Unlike obstetricians who also have the expertise to perform surgery, midwives are generally limited to examining pregnancy and childbirth under normal conditions.If the pregnancy is experiencing problems, then the pregnant woman will be referred to an obstetrician.Judging from the job specifications, obstetricians and midwives both handle pregnant women.So actually men should also be able to become midwives, but because in Indonesia it has become a culture that midwives are women and the Permenkes also limits the midwifery profession to only women, men are not allowed to become midwives.The presence of male midwives provides benefits to the availability of health services and access to younger communities, especially in hard to reach areas.
The novelty of this research is that the researchers conducted a comparative study between the Netherlands and Indonesia regarding midwifery practice.Unlike the Netherlands, which emphasizes the importance of equality in terms of decent work, men and women are actually allowed to become midwives with special training for men, although it also does not neglect the interests of patients by giving pregnant women the right to be able to choose male or female midwives, so gender equality also prioritizes the patient's right to approve or reject midwives from a gender perspective.8

Contradictions in Midwifery Gender Rights Equality in the Perspective of the 1945 Constitution of the Republic of Indonesia
Based on Article 1 paragraph (3) of Law Number 4 of 2019 concerning Midwifery, it states that a midwife is a woman who has completed a midwifery education program both domestically and abroad to practice midwifery. 9Then in the Decree of the Minister of Health of the Republic of Indonesia No. 369 / Menkes / SK / III / 2007 also states the same thing that an Indonesian midwife is a woman who graduated from a midwife education recognized by the government and professional organizations in the territory of the Republic of Indonesia and has the competence and qualifications to be registered, certified and or legally licensed to practice midwifery.
The definition of a midwife in Indonesia is slightly different from the opinion of the World Health Organization (WHO) which states that a midwife is someone who has been regularly recognized in a midwifery education program as juridically recognized, where he is placed and has completed midwifery education and has obtained qualifications and registered authorized and licensed to carry out midwifery practice.The exclusivity of women in the midwifery profession in Indonesia is closely related to our eastern culture which generally still feels taboo and embarrassed to be handled by men for pregnancy problems and matters related to womanhood.Even though men can also provide the same maternity care as women.This results in a gap in the rights and professions of men and women in the realm of midwifery and has an impact on several regions, especially those in remote areas, which still lack medical personnel, especially midwives.
In this case, the establishment of Law Number 4 of 2019 concerning Midwifery is considered contrary to several articles contained in the 1945 Constitution of the Republic of Indonesia, including Article 28C paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2).For example, Article 1 of the Midwifery Law states that a midwife is a woman, which means that only women can carry out midwifery education and become a midwife while men cannot carry out midwifery education and cannot become midwives.This makes men unable to develop themselves through midwifery education, makes men not get fair treatment and have equal rights in the eyes of the law and men cannot work according to their desires, talents and abilities. 10 in the 1945 Constitution of the Republic of Indonesia in article 28C paragraph (1) which states that every citizen has the right to be able to develop themselves and get education, which means that every citizen, both men and women, should have equal rights to develop their abilities and get education, one of which is midwifery education.However, none of the content of the article states that there is special training for male midwives, thus closing the potential for the fulfillment of the right to obtain decent work as women.
Article 28D paragraph (1) also states that every citizen has equal rights in the eyes of the law, which should mean that male citizens also have the same opportunities both in the fields of education and employment.Article 28I paragraph (2) states that every citizen should not receive discriminatory treatment.However, the Midwifery Law has indirectly prohibited men from becoming midwives so that men have the potential to experience discriminatory treatment, even though it is the state that is responsible for the protection of its citizens, including in terms of discriminatory treatment.Based on the Midwifery Law, it has been emphasized that midwives are required to be women, while men are only limited to becoming obstetricians. 11 should be noted that functionally midwives will be tasked with assisting childbirth and a consultation forum for pregnant women or those related to child growth and development, but cannot perform cesarean sections or related medical practices. 12Meanwhile, obstetricians tend to be able to perform cesarean sections with a higher position than midwives.In fact, men can also become nurses with several specialists such as maternity and pediatric specialists.Maternity specialist nurses can play a role in assisting before and during pregnancy, labor and after childbirth and can assist, direct, and improve the health of new families planning pregnancy, childbirth, postpartum, and postpartum. 13Pediatric specialist nurses are nurses who can provide care and counseling to children and can provide education related to children's problems such as nutrition and diseases that are being felt by children. 14e Midwifery Law actually creates the potential for discrimination for men to obtain equal employment with women, the content of the articles contained is certainly considered contrary to the 1945 Constitution, whereas the Midwifery Law as a lex specialis must be based on the basic norms in the 1945 Constitution in order to guarantee legal certainty for every citizen.Constitutional rights in midwifery need to be upheld through judicial review in the Constitutional Court to materially test the conflicting articles, so that it can be decided in a final and binding manner on the basis of the judge's consideration. 15n and women must have equal rights under the midwifery law.where males are equally entitled to receive a midwifery education and work as one.Considering that male obstetricians can assist in the labor and delivery process.Which indicates that in order to assist in the birthing process, one must be based on one's competence and not on one's gender.Additionally, the government must be able to enact just laws for all Indonesian people and examine a variety of factors to determine which current cultural practices it should maintain and which it should be able to change if they are likely to lead to discrimination in the future.The community must also be more aware that men also have the same rights to obtain midwifery education and employment, as men should be able to do, because the government enacts regulations that support this culture rather than ensuring that men receive the rights they are entitled to.Government and society must understand that midwives should be evaluated on their skills, not on the basis of their gender.

Comparative Study of Midwifery Regulations Between Indonesia and the Netherlands
The Netherlands initially referred to an 1818 law that referred to three groups of midwifery practitioners, namely obstetricians (who also qualified as medical doctors), traditional birth attendants, and midwives.First, it emphasized the priority of national over local regulation and control, which was established during the French period.Second, the division within the medical profession between academic and non-academic, or university-educated and nonuniversity-educated, practitioners was clearer.University-trained doctors would receive largely theoretical training, while non-university graduates were trained by way of apprenticeship. 16he two groups are licensed separately, medical doctors by universities, and non-academic groups by provincial committees.However, both groups are under the control of thirteen provincial medical committees.Third, the scope of practice of medical doctors, surgeons, and obstetric practitioners is defined, the law also distinguishes between urban and rural medical practitioners.Male obstetricians and midwives differ in training and examination methods compared to women.With respect to their practice, obstetricians must follow the instructions set out for male midwives. 17 After 1818, midwives were mostly involved in normal childbirth.According to the 1818 law, a midwife had to be examined by a provincial committee before being able to practice, and had to limit her practice to births that were a natural process or could be performed manually.Both male and female midwives were instructed to treat women with gentleness and care, and especially a male obstetrician or midwife would handle difficult or dangerous cases; and he was required annually to report to the provincial committee on the complicated deliveries he had handled. 18e 1865 Act instituted a system whereby entry into the medical profession could only be achieved through passing the state examination for artsen, which consisted of theoretical and clinical sections.This authorized successful candidates to practice all branches of medicine. 19lthough those who had qualified as midwifery doctors could continue practicing midwifery after 1865, the title of midwifery doctor that could still be earned became irrelevant.Likewise, those who qualified as male midwives could also continue to practice.However, provincial 16 (Routledge, New York, 1995), 178-86. 19 Thomas M Schneidhofer, Stephanie Kainrath, and Katrin Preuner, "'You Will Never Be Able to Be as Good as We Are': Male Midwives' Career Boundaries, Condition, and Chronology," in Pierre Bourdieu in Studies of Organization and  Management (Routledge, 2021), 217-37.medical committees ceased to function as examining bodies in 1865, and the qualification of birth attendants was abolished; consequently, the number of birth attendants declined. 20e 1865 law restated the clause in the 1818 law that midwives "may only assist in labor that is natural, or that can be performed by hand".This nineteenth-century law applied throughout the Netherlands and prohibited midwives from assisting in labor that was considered abnormal.If complications occurred during labor, the midwife was to call an obstetrician or medical doctor, a male midwife, or an expert.If none were available in the neighborhood, she had to call in the help of a second midwife. 21Obviously, in some situations, a midwife, either unable or unwilling to ask for help, will decide to proceed with the delivery herself, but the extent to which this happens is uncertain. 22ucation at government schools for midwives lasted only one year, but graduates were required to practice for several years as midwives to the poor.The number of students admitted each year is limited, with 26 in Amsterdam and 32 in Rotterdam.Each Dutch province could send two women each year to train as midwives for free; the selection of candidates was left to the provincial inspectors of public health.Private students are also accepted.Those admitted to the course had to be between twenty and thirty-five years old, preferably unmarried or widowed women, and as far as possible "respectable citizens, and endowed with the knowledge and reason necessary for thorough scientific training.The course lasted two years, during which the students lived at the school, under the supervision of a "lady midwife".Training included general anatomy and physiology, specialized knowledge of parts of the female body, care of infants and sick women, and theoretical and practical midwifery.Student midwives attend births at the relevant clinics.Training in government schools is recognized as being of a high standard, with a greater theoretical component than clinic schools, but the general education of the students is still poor.To address this, a teacher, who also served as a foster mother and supervisor of the students, was appointed to teach the "three R's".Finally, in 1902, an entrance examination was instituted.
In 1861 the total number of pupils trained in Amsterdam's public schools was 1,143 (an average of 29 per year); in Rotterdam, in 1882 and 1900, 628 (or 35 per year).These figures represent a huge increase on the number graduating from the six clinic schools, which between 1824 and 1867 together trained only 416 women (about 10 per year).However, while most of those trained in the clinical schools passed the final examination (almost 80%), less than half of the women educated in the public schools passed at the end of the course.
Today's midwives in the Netherlands have a position of autonomy relative to obstetricians.They perform and supervise most births themselves, including many home births, which shows that this specialty evolved in a very different way from many other European countries and America.In 1910, around 60% of all deliveries in the Netherlands were performed by midwives.This percentage gradually dropped to 48% in 1940, 41% in 1950, 37% in 1960, and  36.7% in 1970.In 1977 there was a slight increase: of the 175,000 babies born, 37.8% were delivered by midwives (an average of 84 per midwife per year, and 66,000 births in total).In 20 Hilary Marland and M. J Van Lieburg, "Midwife Regulation , Education , And Practice In The Netherlands During The  Nineteenth Century," Medical History 33, no. 3 (1989): 296-317, https://doi.org/https://doi.org/10.1017/S0025727300049577. 21 Sannomiya Masana, Kaori Yonezawa, and Megumi Haruna, "The Proportions , Regulations , and Training Plans of Male Midwives Worldwide : A Descriptive Study of 77 Countries," no.March (2019), https://doi.org/10.1891/2156-5287.9.1.5. 22Hugh P N R G N McKenna, "The Developments and Trends in Relaation to Men Practising Midwifery: A Review of the Literatur," Jurnal of Advanced Nursing 16, no. 4 (1991): 480-89, https://doi.org/https://doi.org/10.1111/j.1365-2648.1991.tb03439.x.1983, the proportion of births attended by midwives increased again.57.7% of the 171,000 deliveries in the Netherlands in 1983 were attended by doctors, and 41.6% by midwives. 23dwifery practice in the Netherlands incorporates a number of provisions that distinguish it from other European countries and the United States, including Indonesia.The most striking difference is the early introduction of legislative control and licensing for both male and female midwifery practitioners, the institutionalization of midwife training, so that the potential incidence of failed hospital births is very low.Male midwives, both obstetric specialists and general practitioners, are not eliminated by regulation with the aim of improving the status and practice opportunities of midwives. 24The Netherlands continues to allow men to work as midwives, provided that the patient agrees or refuses. 25 contrast to the development of regulations in Indonesia, that before the formation of Law Number 4 of 2019 concerning Midwifery there was a ministerial regulation that became the legal umbrella of the midwifery profession, namely the Minister of Health Regulation no 5380/IX/1980 concerning limited independent delivery assistance. of 2019 concerning Midwifery.The development of midwifery regulations in Indonesia actually does not mention the phrase "male" at all to be able to work as a midwife, this is due to the inherent culture that traditional birth attendants in the past were held by women, thus men cannot have the opportunity at all to become midwives, but instead are limited to becoming obstetricians.The human rights implications lead to potential discrimination in the scope of work, which results in a shortage of midwives in some areas.
The government should be more aware that men also have the same rights as women to obtain midwifery education and work as midwives, where there should be gender equality in every regulation made and passed considering that every citizen has the same rights in the eyes of the law and these rights have been guaranteed by the state.The guarantee of this right by the state in the Indonesian constitution, makes this right a constitutional right which should, in its fulfillment, be supported by the state.The government needs to provide access to men to become midwives through a revision of the law.
The House of Representatives and the Government made the Midwifery Law which states that a midwife is a woman, because of the history that exists in Indonesia.In addition, people in Indonesia also see eastern culture, where the way of life, way of thinking, and outlook on life is different from western culture.People still think that it is suitable to be a midwife because childbirth is related to the vital organs, which are sensitive parts.

C. Conclusion
Law Number 4 of 2019 concerning Midwifery is considered contrary to several articles contained in the 1945 Constitution of the Republic of Indonesia, including Article 28C paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2).For example, Article 1 of the Midwifery Law states that a midwife is a woman, which means that only women can carry out midwifery education and become a midwife while men cannot carry out midwifery education and cannot become midwives.The practice of midwifery in the Netherlands under the 1865 Act incorporates a number of provisions that distinguish it from Indonesia.The most striking difference is the early introduction of legislative control and licensing for male and female midwifery practitioners, the institutionalization of midwife training, so that the potential incidence of failed hospital births is very low.male midwives, both midwifery specialists and general practitioners, were not eliminated by regulation with the aim of improving the status and opportunities for midwifery practice.The Netherlands continues to allow men to practice as midwives, provided that the patient agrees or refuses.
The Midwifery Law actually creates the potential for discrimination for men to obtain equal employment with women, the content of the articles contained is certainly considered contrary to the 1945 Constitution of the Republic of Indonesia, whereas the Midwifery Law as a lex specialis must be based on the basic norms in the 1945 Constitution of the Republic of Indonesia in order to guarantee legal certainty for every citizen.Constitutional rights in midwifery need to be upheld through judicial review in the Constitutional Court to materially test the conflicting articles, so that it can be decided in a final and binding manner on the basis of the judge's consideration.
Lianne Holten, Martine Hollander, and Esteriek de Miranda, "When the Hospital Is No Longer an Option: A Multiple Case Study of Defining Moments for Women Choosing Home Birth in High-Risk Pregnancies in the Netherlands," Qualitative Health Research 28, no. 12 (2018): 1883-96, https://doi.org/https://doi.org/10.1177/1049732318791535. 17 RitaMJ Schepers and HEGM Hermans, "The Medical Profession and Alternative Medicine in the Netherlands: Van Teijlingen and L A M Van der Hulst, "Midwifery in the Netherlands," in Health Professions and State in Europe Then in 1989 it was amended to Regulation of the Minister of Health no 623/1989 regarding the authority of midwives which was divided into two, namely general and special.Then in 1996 a new regulation was issued to replace the previous regulation, namely the issuance of Minister of Health Regulation no 572/VI/1996 regulating the registration of midwife practice.Then in 2002 the regulation was amended to become Regulation of the Minister of Health no 900/Menkes/VII/2002 concerning registration and practice of midwives.In 2007 a new regulation was issued, namely Minister of Health Regulation No. 369/Menkes/SK/III/2007 concerning professional standards for midwives.In 2015 a new Minister of Health Regulation was issued and finally in 2019 the DPR and the Government made and passed Law Number 4