Communicated on 7 March 2017

FOURTH SECTION

Application no. 42594/14 Sînziana IONIȚĂ-CIUREZ against Romania lodged on 29 May 2014

STATEMENT OF FACTS

The applicant, Ms Sânziana Ionita-Ciurez , is a Romanian national who was born in 1982 and lives in Bucharest. She is represented before the Court by Mrs R.I. Ionescu , a lawyer practising in Bucharest.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the time of application to the Court, the applicant was pregnant with her second child. She had had a low-risk pregnancy with no complications and was being monitored by a certified midwife and an obstetrician.

The applicant wished to give birth to the child at home, with the support of her husband and a medical professional, either a certified midwife or obstetrician. However, no medical professional agreed to assist at a home birth. She was therefore forced to give birth in a public hospital, where she was subjected to a series of medical procedures she did not find necessary. Notably, during labour she was separated from her husband, kept immobilised in a wheelchair for about an hour after arriving at the hospital, and had three consecutive pelvic examinations by three different individuals.

The applicant is pregnant with her third child and fears the stress of giving birth in hospital. However, she submits that she cannot opt for a home birth because of legislative uncertainty.

B. Relevant domestic law

According to Article 26 of the Romanian Constitution, individuals have the right to self-determination. Article 34 of the Constitution states that it is incumbent on the State to organise medical care and social insurance by adopting protection measures, in particular when it comes to maternity.

Under Romanian law home birth is neither expressly prohibited nor allowed.

Law no. 307/2004 on the exercise of the profession of medical assistant and midwife allowed midwives to assist in home births (Article 6 (g)). That Act was replaced by Government Emergency Ordinance no. 144/2008, which removed assisting in home births from the attributes of midwives (Article 7). In addition, Article 7 (e) generally states that midwives can assist a mother during labour and monitor the state of the foetus via appropriate clinical and technical means.

Article 48 of the Code of Ethics and Deontology of medical assistants and midwives of 9 July 2009 (published in the Official Gazette, no. 560 of 12 August 2009), which is not legally binding, states that midwives can provide medical assistance at home. There is no mention of assisting with home births.

The Ministry of Health has adopted Regulations concerning the private practice of medical assistants and midwives (Order no. 1454/2014). It expressly allows midwives to monitor pregnancies and provide health services related to birth and postpartum care autonomously (Article 4.1 (h) of Appendix No. 1). However, assistance with normal births may only occur in the presence of a medical doctor (Article 4.4 (e) of Appendix No. 1).

COMPLAINTS

The applicant complains under Article 8 of the Convention that the lack of regulation regarding home births and the uncertainty of the penalties faced by medical professionals for assisting with home births affect her capacity to choose the circumstances of becoming a parent and expose her to the risk of giving birth without any professional help.

Relying on Article 1 of Protocol No. 12 and Article 14 in conjunction with Article 8 of the Convention, the applicant complains that the lack of regulation of home births amounts to discrimination against her on the grounds of sex and pregnancy, without any reasonable justification, in so far as she cannot freely and responsibly exercise her right to choose in what circumstances she becomes a parent, as opposed to women wishing to give birth in a hospital.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Has there been a violation of the applicant ’ s right to respect for her private life, contrary to Article 8 of the Convention? In particular, has the State complied with its obligation to create a comprehensive legislative framework in the matter of home birth?

3. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 8, and contrary to Article 1 of Protocol No. 12 to the Convention?