Information Note on the Court’s case-law 222

October 2018

Pojatina v. Croatia - 18568/12

Judgment 4.10.2018 [Section I]

Article 8

Article 8-1

Respect for private life

Legislation preventing health professionals assisting with home births: no violation

Facts – The applicant had given birth at home with the assistance of a midwife from abroad. She complained that the Croatian law had dissuaded health professi onals from assisting her when giving birth at home in violation of her right to private life.

Law – Article 8: Issues related to giving birth, including the choice of the place of birth, were fundamentally linked to a woman’s private life and fell within t he scope of that concept for the purposes of Article 8.

Giving birth at home was not, as such, prohibited by the Croatian legal system. There were no provisions under domestic law criminalising the acts of women who had decided to give birth in that way a nd no one had ever been punished for such an action. Further, no health professional, including the foreign midwife who had assisted the applicant, had ever been prosecuted in a criminal case or sanctioned for assisting in a home birth. The Court accepted that there might have been some doubt as to whether a system for assisted home births had been set up and invited the authorities to consolidate the relevant legislation so that the matter was expressly and clearly regulated. However, the applicant had cle arly been made aware by the authorities, while still pregnant, that the relevant domestic law did not allow health professionals, including midwives, to assist with planned home births. The Court therefore accepted that the impugned interference had been f oreseeable for the applicant and in accordance with the law.

The interference served the legitimate aim of the protection of the health and rights of others. The question was whether the interference was necessary in a democratic society.

The risks for mot hers and new-borns were higher in the case of home births than in the case of births in maternity hospitals which were fully staffed and adequately equipped from a technical and material perspective. Even if a pregnancy had proceeded without any complicati ons and could therefore have been considered a “low-risk” pregnancy, unexpected difficulties could arise during the delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. While it was open to a respondent State to allow for planned home births, it was not a requirement under the Convention. There still remained a great disparity between the legal systems of the Contracting States on the matter.

In recent years various initiatives had been taken to ensure that the wishes of mothers-to-be were respected in maternity wards, however, the applicant’s concerns in that regard could not be disregarded when assessing whether the authorities had struck a f air balance between the competing interests at stake.

There was a requirement under domestic law obliging women giving birth at home to submit medical documents to prove their motherhood. Such a requirement was understandable and was clearly directed at a voiding possible abuses in situations where there was no official information on the birth of a child or its biological parents. The applicant’s complaint that she and her child had been denied postnatal care was unsubstantiated and in any event, it was un disputed that they had eventually received post-delivery medical care. While the applicant had complained that women giving birth at home experienced difficulties in registering their children in State registers, the Court noted that her child had been bor n on 15 February 2012 and that she had succeeded in registering the birth on 23 February 2012.

The interference with the applicant’s right to respect for her private life had not been disproportionate.

Conclusion : no violation (unanimously).

(See also Dubs ká and Krejzová v. the Czech Republic [GC], 28859/11 and 28473/12, 15 November 2016, Information Note 201 )

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

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