Information Note on the Court’s case-law 201

November 2016

Dubská and Krejzová v. the Czech Republic [GC] - 28859/11 and 28473/12

Judgment 15.11.2016 [GC]

Article 8

Article 8-1

Respect for private life

Legislation preventing health professionals assisting with home births: no violation

Facts – The applicants wished to give birth at home with the assistance of a midwife. However, under Czech law, health profe ssionals assisting with home births ran the risk of disciplinary and criminal penalties. In practice, therefore, the applicants had the choice between giving birth at home unassisted or delivering in hospital. The first applicant gave birth to her child at home unaided while the second applicant delivered her child in a maternity hospital.

In their applications to the European Court, the applicants complained of a violation of Article 8 in that Czech law did not allow health professionals to assist them wit h giving birth at home.

In a judgment of 11 December 2014 (see Information Note 180 ), a Chamber of the Court, by six votes to one, found that there had been no violation of Article 8 of the Conventi on. On 1 June 2015 the case was referred to the Grand Chamber at the applicants’ request.

Law – Article 8: Giving birth was a unique and delicate moment in a woman’s life, encompassing issues of physical and moral integrity, medical care, reproductive heal th and the protection of health-related information. These issues, including the choice of the place of birth, were therefore fundamentally linked to a woman’s private life and fell within the scope of that concept for the purposes of Article 8.

The applic ants’ case had involved an interference with their right to avail themselves of the assistance of midwives when giving birth at home, owing to the threat of sanctions for midwives, who in practice were prevented from assisting the applicants by the operati on of the law. That interference was in accordance with the law and, since it was designed to protect the health and safety of the mother and the child during and after delivery, pursued the legitimate aims of protecting health and the rights of others. Th e Court went on to consider whether the interference had been necessary in a democratic society.

In that connection, it found that the respondent State had to be afforded a wide margin of appreciation as (a) the case involved a complex matter of health-care policy requiring an assessment by the national authorities of expert and scientific data concer ning the risks of hospital and home births; (b) general social and economic policy considerations came into play, including the allocation of financial means, since budgetary resources may need to be shifted from the general system of maternity hospitals t o the provision of a framework for home births; and (c) there was no consensus among the member States of the Council of Europe capable of narrowing the State’s margin of appreciation in favour of allowing home births.

The Court found that, having regard to that wide margin of appreciation, the interference with the applicants’ right to respect for their private life had not been disproportionate. The risk for mothers and newborn babies was higher in the case of home births than in the case of births in ma ternity hospitals which were fully staffed and adequately equipped from a technical and material perspective, and even if a pregnancy proceeded without any complications and could therefore be considered “low-risk”, unexpected difficulties could arise duri ng delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. Moreover, maternity hospitals could provide all the necessary urgent medical care, which was not possible in the case of home births, even with a midwife attending (the Czech Republic had not set up a system of specialist emergency assistance for home births).

While the Court could not disregard the fact that conditions in a number of Czech maternity hospitals appeared to be questionable, it nevertheless acknowledged that since 2014 the Government had taken initiatives with a view to improving the situation. It invited the Czech authorities to make further progress by keeping the relevant legal provisions under constant revie w, so as to ensure that they reflected medical and scientific developments whilst fully respecting women’s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country.

Conclusion : no violation (twelve votes to five).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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