By Laurens Lavrysen

In the case of Dubská and Krejzová v. Czech Republic, the Strasbourg Court had to pronounce itself on the regulation of home birth under Czech law. While on the one hand Czech law allowed for home births, on the other hand it prohibited midwives from assisting them. In its judgment of 11 December, the Court found no violation of the right to respect for private life (Article 8), mainly based on the increased risks to the lives and health of newborn and mother vis-à-vis a hospital birth in case of complications. The Court thereby endorsed the paradoxical Czech legal framework under which relatively safe home births with the assistance of a midwife are prohibited on health grounds, whereas unsafe home births without such assistance are allowed. It is argued that by constructing the case as one involving a narrow conception of ‘interference’, the Court failed to look at the broader picture of what it means to effectively secure a human right. Such a more holistic understanding requires an appreciation of both ‘negative’ and ‘positive’ aspects of Article 8 at stake in the present case.

Comparison with Ternovsky case

The present case is comparable with the case of Ternovszky v. Hungary. In that case, the Court recognized that Article 8 encompasses the ‘right of choosing the circumstances of becoming a parent’. The Court’s findings concerning the existence of an interference in the Ternovszky case, equally apply to the present case:

“The Court notes that the applicant was not prevented as such from giving birth at home. However, the choice of giving birth in one’s home would normally entail the involvement of health professionals, an assumption not disputed by the parties. For the Court, legislation which arguably dissuades such professionals who might otherwise be willing from providing the requisite assistance constitutes an interference with the exercise of the right to respect for private life by prospective mothers such as the applicant.”

The difference between both cases lies elsewhere. The crux of the Ternovszky case was the lack of legal certainty concerning assistance by midwives for home births in Hungary. While on the one hand, the right of patients to self-determination in the context of medical treatment was recognized by law, on the other hand, at least in one case proceedings had been instituted against a midwife for ‘having carried out activities within their qualifications in a manner which is incompatible with the law or their license’ because she had assisted a home birth. According to the Court, the relevant legal provisions could therefore reasonably be seen as contradictory in the context of assisting home births. The Court found this lack of legal certainty incompatible with the necessary ‘foreseeability’ required to fulfil the ‘lawfulness’ condition of Article 8 para. 2.

In Dubská and Krejzová, the Court however considered that the applicants were able to foresee to a degree that was reasonable in the circumstances that the assistance of a health professional at a home birth was not permitted by law:

“The Court notes that, while giving birth at home is not as such prohibited by the Czech legal system, the Medical Services Act in force at the relevant time stipulated that a person could provide medical care only if in possession of the appropriate licence, the conditions of which included a requirement that appropriate technical equipment as specified in a decree issued by the Ministry of Health was available on the premises where such services were to be provided. A person providing medical care otherwise than in accordance with the Act could be fined for violating the Act. It further notes that the relevant decree then in force specified the essential equipment which had to be available to midwives in any places where they were to assist with deliveries. It is clear from the list of such equipment specified in the decree that private homes were unable to satisfy this requirement.”

Since the prohibition on midwives assisting home births in Czech Republic was thus compatible with the ‘lawfulness’ condition – and contrary to the Ternovszky case – the Court continued its examination of the interference in the light of the other conditions of Article 8 § 2. Easily finding that the interference served the legitimate aim of the protection of health and the right of others, in particular of the newborn during and after delivery, the main focus of the Court’s analysis therefore lied on the question whether it was also necessary in a democratic society.

Necessary in a democratic society?

First of all, the Court consider the state’s margin of appreciation a wide one, taking into account the fact that there was no clear common ground amongst the Council of Europe member states in this respect, and because the case concerned the allocation of financial means, in particular related to the setting up of an adequate emergency system for home births.

On the other hand, the Court accepted that

“the situation in question had a serious impact on the freedom of choice of the applicants who were required, if they wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that this posed to themselves and to the newborns, or to give birth at hospital.”

The mothers’ interest in having assisted home births was not weakened by their free choice of the hospital in which to give birth, since the conditions in most local hospitals, as far as respecting the choices of mothers, were questionable.

As regards the safety of home births, the Court recognized the paradoxical situation under which, based on health care considerations, women wishing to deliver at home could only choose for an unsafe home birth instead of for a safe one attended by a midwife:

“The Court further observes, on the one hand, that the majority of the research studies presented to it do not suggest that there is an increased risk for home births, when compared to births in a hospital, but only if certain preconditions are fulfilled. First, home births would be acceptable only in case of “low-risk” pregnancies. Second, the home birth has to be attended by a qualified midwife who is able to detect any complications during a delivery and to refer a woman in labour to a hospital if necessary. Third, the transfer of mother and child to the hospital should be secured within a very short period of time. Thus, a situation such as the one in the Czech Republic in which medical professionals are not allowed to assist mothers who wish to give birth at home and where no specialised emergency aid is available, may be said to increase rather than reduce the risk to the life and health of the mother and newborn.”

The Court nonetheless continued to find that the mothers concerned did not have to bear a disproportionate and excessive burden, agreeing with the Government’s argument that

“the risk for newborns is higher in respect of home births than in respect of deliveries in fully staffed and equipped maternity hospitals, is aware that, even if a pregnancy seems to be without any particular complications, there can arise unexpected difficulties during the delivery, such as the acute lack of oxygen supply to the foetus or profuse bleedings, or events which require specialised medical intervention, such as a caesarean section or the need to put a newborn on neonatal assistance. Moreover, in the course of a hospital birth, the institution can immediately provide the necessary care or intervention, which is not true of a home birth, even one attended by a midwife. The time spent getting to a hospital should such complications occur could indeed give rise to increased risks to the life and health of the newborn or of that of the mother.”

Dissenting opinion Judge Lemmens

In a strong dissenting opinion, Judge Lemmens held that the paradoxical situation concerning home births in the Czech Republic, and in particular the absence of a prohibition on home births, “says something about the validity of the public-health reasons invoked to justify the present system.” Lemmens continued, holding that:

“the law does not prohibit mothers from giving birth in a place of their choice. It is therefore theoretically possible for mothers to give birth at home. Should they choose to do so, however, they are unable to obtain the assistance of a midwife. I cannot understand how such a system, taken as a whole, can be seen as compatible with the stated aim of protection of the health of the mothers and their children. Even the majority acknowledges that, on this point, there is something strange about the Czech system.”

In this respect, Lemmens argued that, while health considerations may not be totally absent, there clearly were other considerations that also came into play. The main reason for the prohibition rather seemed to lie with some form of power struggle between doctors and midwives, successfully won by the former ones.

Lemmens continued “in a spirit of subsidiarity” to endorse the findings of the Czech Constitutional Court, quashing the criminal conviction of a midwife for negligently causing bodily harm in the case of baby whose home birth she had attended and who had stopped breathing during the delivery and died several days later:

“a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of persons to a free choice of the place and mode of a delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospitals.”

Negative vs. positive obligations

One remarkable aspect of the case is the classification of the case as one involving negative obligations by the majority, and as one involving positive obligations, by Judge Lemmens in his dissenting and by Judge Yudkivska in her concurring opinion. One could argue that this doesn’t really matter, since the Court has repeatedly (e.g. recently Jeunesse v. the Netherlands) held that:

“While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.”

On closer examination, however, the way the issue is framed did seem to matter in the case at hand. The majority chose to construct the case as one involving a narrow conception of ‘interference’, i.e. a question of negative obligations. The Court restricted its examination of the interference to the mere fact of the state prohibiting midwives assisting home births, instead of focusing on the broader picture of how the legal framework at place in the Czech Republic limited women in genuinely exercising their choice as to the circumstances of giving birth. Respecting the ‘right of choosing the circumstances of becoming a parent’ requires more than absence of such direct state interference: instead of focusing at what the state should not do (the ‘negative’ aspect of this right), a more ‘positive’ interpretation of this right also requires us to look at what the state should in fact do to facilitate this genuine choice.

In a similar vein, Judge Yudkivska seemed to be more concerned with the ‘positive’ aspect of the case in her concurring opinion:

“they requested the State to organise the necessary facilities to enable them to give birth at home with minimal risk, that is, in conditions similar to those in maternity hospitals. Thus they criticised not an action but a lack of action where they were concerned, and the issue at stake clearly concerns positive obligations.”

Similarly, also Judge Lemmens in his dissenting opinion pointed out that

“not only is there no prohibition imposed on mothers, but also that the applicants themselves do not complain about such a prohibition. They complain about the fact that Czech law forbids a health professional from assisting with a home birth. As a result, the applicants argue that Czech law does not make it possible for them to have a safe birth at home. The question therefore is whether the State fails to protect their right to respect for their private life, understood as including the right to define the circumstances in which one gives birth.”

One could also ask the question whether, by allowing home births as such in the first place, the state does not simultaneously becomes responsible for facilitating the safety of such lawful home births, by providing access to the necessary medical assistance. By only looking at the ‘state action’ dimension of the case, the majority allows for a kind of ‘hands-off approach’ by the state: mothers are allowed to have a home birth but since state involvement is not required at all, regardless of the risks involved, these risks are entirely privatized. Thereby the majority’s construction of the case fails to fully place women’s genuine choice at the centre of the inquiry.

On the other hand, by constructing the case as merely involving positive obligations, another dimension of the case is lost. By only looking at how the state has failed to protect or facilitate the right to define the circumstances in which one gives birth, one misses the point that was exactly an active decision by state to prohibited midwives from assisting in home births which has restricted the freedom of women to genuinely choose between home birth and birth in a hospital. Theoretically the option to choose is preserved by this state decision, whereas in practice the possibility to choose for a risky homebirth without assistance is qualitatively different than the possibility to choose for a relatively safe home birth with the assistance of a midwife. Indeed, one cannot pretend that ‘nothing is lost’ in the field of choice by way of this active decision by the state.

Rather than constructing the case as either entirely concerning state action or entirely concerning state inaction, a more holistic interpretation of Article 8 placing women’s genuine choice at the centre of the inquiry would require to look at both ‘negative’ and ‘positive’ aspects of the case. In this respect, a line of legal reasoning from the area of the right to property (Article 1 Protocol 1) could be illuminating. In many of these cases (e.g. recently Szkórits v. Hungary), the court has held that:

“The facts of the case, therefore, may well be examined in terms of a hindrance to the effective exercise of the right protected by Article 1 of Protocol No. 1 or in terms of a failure to secure the implementation of that right.”

Instead of struggling with characterizing these cases in terms of state action or state inactions, the Court moves forward by – “regardless of whether the conduct may be characterised as an interference or as a failure to act, or a combination of both” – focusing on the question “if the prejudice sustained by the applicant was justifiable in the light of the relevant principles”, and in particular “whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate burden.”

On the one hand, under such a more holistic approach, the level of protection does not qualitatively differ depending on formalistic interpretations of hard to define and to distinguish concepts as ‘state action’ or ‘state inaction’. Indeed, while the Court often holds the applicable principles to be similar with respect to negative and positive obligations, in practice a qualitative difference in protection level depending on the construction of the case remains – the former being considered stronger than the latter. Judge Yudkivska’s concurring opinion is illustrative in this respect:

“whilst negative obligations prohibit interference with a right or interest unless the impugned interference is definitely justified, any positive obligation is less demanding. Thus, in order to secure a woman’s right to deliver in a preferable environment, a State is required to do only what can be reasonably expected in the circumstances (…).”

One the one hand, this more holistic approach would have better allowed to grasp the interlinked nature of ‘negative’ and ‘positive’ aspects of the present case.