ECtHR Allows Czech Law Prohibiting Midwife Assistance in Home Births
The Grand Chamber of the European Court of Human Rights (ECtHR) held on November 15 that a Czech law prohibiting the assistance of midwives during home births does not violate a mother’s right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR). See ECtHR, Dubská and Krejzová v. Czech Republic [GC], nos. 28859/11 and 28473/12, Judgment of 15 November 2016, para. 191. The applicants challenged the law, which the State argued was intended to protect the health and well-being of mothers and infants by encouraging hospital births, as unreasonable because it requires expectant mothers to give birth in a hospital in order to receive the assistance of a midwife. See id. at para. 96. The Grand Chamber, citing safety concerns and the State’s recent efforts to improve respect for mothers’ wishes in local hospitals, found that the law strikes a fair balance between the right to respect for private and family life and the goal of protecting mothers and children. See id. at paras. 189–91. The Grand Chamber’s judgment confirms a chamber’s 2014 holding.
This holding is in contrast to that of a previous decision in which a chamber of the European Court found an Article 8 violation when the uncertain state of Hungarian law on home births effectively dissuaded health professionals from assisting in home births for fear of prosecution. See ECtHR, Ternovszky v. Hungary, no. 67545/09, Judgment of 14 December 2010, para. 27. Two similar home birthing cases are currently pending before the Court – one against Lithuania and the other against Croatia. See ECtHR, Kosaitė-Čypienė and Others v. Lithuania, no. 69489/12, lodged on 19 October 2012; ECtHR, Pojatina v. Croatia, no. 18568/12, lodged on 9 February 2012.
The applicants in this case are two Czech nationals who wished to give birth at home with the assistance of midwives. The first applicant, after a particularly taxing experience giving birth to her first child in a hospital where staff did not respect her preferences, elected to have her second child at home. See Dubská and Krejzová v. Czech Republic [GC], Judgment of 15 November 2016, at paras. 9–10. However, she was unable to have a midwife present because the law only permitted such assistance at locations with certain technical equipment, and not at private homes. See id. at paras. 13–14.
The second applicant gave birth to her first two children in violation of Czech law – at home with the assistance of midwives – and planned to do the same with her third. See id. at paras. 17, 19. However, she was unable to secure a midwife because newly enacted legislation, which subjected midwives to the risk of large fines for working in violation of the law, had made them apprehensive of committing to assist in home births. See id. at para 19. The second applicant eventually gave birth to her third child in a hospital known for adhering to mothers’ delivery requests. See id. at para. 23.
The applicants’ respective cases before the European Court were consolidated, and in December 2014, a chamber held that the applicants’ rights under Article 8 had not been violated. See id. at paras. 4, 71. At the applicants’ request, the case was referred to the Grand Chamber in June 2015. See Dubská and Krejzová v. Czech Republic [GC], Judgment of 15 November 2016, at para. 4.
Analysis of the Grand Chamber
The Grand Chamber began with an assessment of Article 8, confirming its applicability in this case, as the choices surrounding a birthing plan are “fundamentally linked to the woman’s private life and fall within the scope of that concept” for Article 8 purposes. See id. at para. 163. Although a woman does not necessarily have a right to give birth at home under Article 8, the Court determined, the impossibility of giving birth at home implicates the right to private life. See id. The Court found that the law sanctioning midwives from assisting in home births, which has the effect of preventing home births, interfered with the applicants’ Article 8 rights and proceeded to analyze whether that interference was lawful in accordance with Article 8(2). See id. at paras. 164-66.
In order to determine whether the State’s interference with the applicants’ rights was justified, the Court had to decide whether it was “in accordance with the law” and “necessary in a democratic society” to achieve one of the “legitimate aims” listed in Article 8(2) of the ECHR. See id. at para. 166.
The legitimate aim of the law restricting midwives’ assistance in home births, as affirmed by the Court, was the “protection of health and of the rights of others” because the State’s ultimate goal in encouraging hospital births was to serve the health and safety interests of mothers and children during and after delivery. See Dubská and Krejzová v. Czech Republic [GC], Judgment of 15 November 2016, at paras. 172–73.
The Court found the State’s interference to be “in accordance with the law” due to the fact that its policies were rooted in domestic law, which was accessible to the applicants. See id. at paras. 167–68. Although there may “have been doubts about the clarity of certain legislative provisions,” the two women, the Court determined, were able to foresee that they would not legally be allowed to have a home birth with midwife services because their homes lacked the necessary equipment for a medical professional to attend to the birth as stated under the domestic law. See id. at paras. 169-71.
The Court found the interference to be “necessary in a democratic society” to achieve its legitimate aim because it served a “pressing social need” and was proportionate to the goal of protecting the health of mothers and children. See id. at paras. 174, 190. While the applicants argued that the law could put women’s lives at risk by reducing the safety of home births and that women’s autonomy during childbirth was already restricted by the physical demands of labor, the State argued that it had significant leeway in regulating home births. See id. at para. 181. The Court gave deference to national authorities’ decisions regarding necessary measures, finding a wide “margin of appreciation” based in part on the lack of consensus among Member States of the Council of Europe on home birth regulations. See id. at paras. 183–84. Additionally, the Court noted that regulating home births involves public health concerns and “a complex matter of health-care policy requiring an assessment by the national authorities of expert and scientific data concerning the risks.” See id. at para. 182. Taking this into consideration, the Court found that the State did not overstep its margin of appreciation in balancing women’s rights and the State’s interests. See id. at paras. 180, 184, 190.
In finding the State’s policy proportionate, the Court considered a number of factors. See id. at paras. 180–90. For one, it found that mothers and infants face greater risks during home births than they do in hospitals. See Dubská and Krejzová v. Czech Republic [GC], Judgment of 15 November 2016, at para. 186. Notably, the Grand Chamber also weighed the interests of the child, stating that a mother’s choices around delivery “may be seen to give rise to an increased risk to the health and safety of newborns.” See id. at para. 185. However, the Court noted the applicants’ argument that the treatment received by expectant mothers is undesirable in that many local hospitals do not completely respect the mothers’ wishes. See id. at para. 188. The Court did not take this assertion lightly, but noted that the State had recently taken steps to improve those conditions, most notably establishing a committee of experts on “obstetrics, midwifery, and related women’s rights.” See id. at para.189.
Based on this information and given the latitude afforded to national authorities, the Court held that the State’s interference with the applicants’ rights was not disproportionate. See id. at para. 190. However, it invited the State “to make further progress by keeping the relevant legal provisions under constant review, so as to ensure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive health.” See id. at para. 189.
This decision appears to depart from the Court’s prior jurisprudence on this matter. A chamber of the European Court held in 2010 that an Article 8 violation existed where health professionals in Hungary were effectively discouraged from participating in home births for fear of prosecution, which severely limited expectant mothers’ ability to choose a home birth. See Ternovszky v. Hungary, 14 December 2010, at paras. 26–27.
Under Hungarian law at the time, home births were permitted but not yet regulated, and although health professionals were not banned outright from assisting in home births, they faced the possibility of legal repercussions for engaging in activities “not in compliance with the law.” See id. at paras. 9, 17–19. At least one prosecution of this kind had occurred in preceding years, indicating, according to the applicant, an “unjustified yet real threat to health professionals inclined to assist home births.” See id. at paras. 6, 19. The European Court agreed with the applicant, finding that the lack of clarity in this area of law had unjustly hindered her right to private life. See id. at paras. 26–27.
Although the outcomes of the Hungarian and Czech cases appear contradictory, the law in question was characterized by ambiguity in the former case and clarity in the latter. See id. at para. 26; Dubská and Krejzová v. Czech Republic [GC], Judgment of 15 November 2016, at para. 167.
Two similar cases concerning the implications of Article 8 in home births are currently pending before the Court. One is against Lithuania, which has actively tried to eliminate the practice of home birthing by criminally investigating both doctors and midwives who provide such services. See Kosaitė-Čypienė and Others v. Lithuania, lodged on 19 October 2012. The other is against Croatia, whose current regulatory scheme surrounding home births is unclear, thus discouraging midwife participation in home births. See Pojatina v. Croatia, no. 18568/12, lodged on 9 February 2012.
For a summary of the European Court’s jurisprudence on reproductive rights, see its factsheet.