DISSENTING OPINION OF JUDGE LEMMENS

1. To my regret, I am unable to agree with the majority that there has been no violation of Article 8 of the Convention. I will try to explain the reasons for my dissent.

2. First of all, I would prefer to have had the applicants ’ complaint examined from the point of view of the positive obligation on the State, not of its negative obligation.

Czech law does not prohibit mothers from giving birth at home. The Czech authorities do not apparently believe that such a drastic step should be taken. As I will try to explain below, this absence of a prohibition says something about the validity of the public-health reasons invoked to justify the present system.

At this point, I should like to point 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 to assist 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 (see paragraphs 74-75 of the judgment).

However, this point of disagreement is not of decisive importance. As the Court has repeatedly stated, “the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation” (see, for a recent confirmation, Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts)).

3. Was a fair balance struck in the present case between the general interest and the interests of the applicants, taking into account the margin of appreciation enjoyed by the States in matters of public health?

According to the Government, the general interest pursued by the State lies in protecting the health of mothers and their children. However, as I noted above, 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 (see paragraph 96 of the judgment).

Without suggesting that health considerations are totally absent, I think that it is clear that other considerations also come into play. As in other countries, the issue of home births seems to be the object of a form of power struggle between doctors and midwives. Paragraph 26 of the judgment gives an idea of how this struggle is fought out. When the issue of home births came up for examination in 2012, the Ministry of Health set up an expert committee composed of representatives of care recipients, midwives, physicians ’ associations, the Ministry itself, the Commissioner for Human Rights and public health - insurance companies. However, the representatives of the physicians ’ associations boycotted the meeting, arguing that there was no need to change the existing legal framework. Subsequently, no doubt after some efficient lobbying, they managed to obtain from the Ministry that it removed from the committee the representatives of care recipients, midwives and the Commissioner for Human Rights, with the argument that only with the remaining composition would it be possible for the committee to agree on certain conclusions. I am not aware whether, once the committee had been cleansed, it was capable of making any suggestion at all.

Having regard to the foregoing, I believe that the public-health argument put forward by the Government should not be overestimated.

4. As far as the interests of the applicants are concerned, I fully agree with what is written in paragraph 95 of the judgment. The impugned legislation has 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 a hospital”. While only relatively few mothers might prefer to give birth at home, I have no reason to doubt that for these women this is a very important matter of personal choice. To some extent this is also confirmed in the 2010 observations on the Czech Republic, adopted by the Committee on the Elimination of Discrimination against Women. That Committee took up the issue and recommended that the State “consider taking steps to make midwife-assisted childbirth outside hospitals a safe and affordable option for women” (see § 37 of the observations, quoted in paragraph 56 of the judgment).

5. It is of course true that delivery at home, even with the assistance of a midwife, would not be fully without risk. The majority rightly points out that there could be unexpected complications which would require a specialised medical intervention, and which could give rise to a life- or health-threatening delay before the mother could avail herself of the necessary care in a hospital (see paragraph 97 of the judgment).

However, with respect to this aspect of the issue, I think we should, in a spirit of subsidiarity, take due account of what the Czech Constitutional Court held in its judgment of 24 July 2013 (see paragraph 36 of the judgment):

“... 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 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 hospital.”

6. Having regard to all the above, I find that it has not been shown that the present situation in the Czech Republic strikes a fair balance between the competing interests at stake. I therefore find that there has been a violation of Article 8 of the Convention.

[1] J . R . Wax, F . L . Lucas, M. Lamont et al., “ Maternal and newborn outcomes in planned home birth vs planned hospital births: a meta - analysis ”, American Journal of Obstetrics & Gynecology , 2010 ;203:243.e1 -8.

[2] Carl A. Michal, Patricia A. Janssen, Saraswathi Vedam , Eileen K. Hutton and Ank de Jonge , “ Planned Home vs Hospital Birth: A Meta-Analysis Gone Wrong ”, http://www.medscape.com/viewarticle/739987 ; Gill Gyte , Mary Newburn and Alison Macfarlane , “ Critique of a meta-analysis by Wax and colleagues which has claimed that there is a three-times greater risk of neonatal death among babies without congenital anomalies planned to be born at home ”, National Childbirth Trust. http://fr.scribd.com/doc/34065092/Critique-of-a-meta-analysis-by-Wax

[3] Yvonne W. Cheng, Jonathan Snowden and Aaron Caughey , “ Neonatal Outcomes Associated with Intended Place of Birth: Birth Centers and Home Birth Compared to Hospitals ”, American Journal of Obstetrics & Gynecology , Supplement at 42, January 2012.

[4] P.A. Janssen, L. Saxell , L.A. Page, M.C. Klein, R.M. Liston, S.K. Lee, “ Outcomes of planned home birth with registered midwife versus planned hospital birth with midwife or physician ”, Canadian Medical Association Journal , 2009 Sep 15;181(6-7):377-83.

[5] O. Olsen, M.D. Jewell , “ Planned hospital birth versus planned home birth ”, Cochrane Database of Systematic Revues 2012 Sep 12 ;9:CD000352 .

[6] M. Hatem, J. Sandall , D. Devane , H. Soltani , S. Gates, “Midwife-led versus other models of care for childbearing women”, Cochrane Database of Systematic Reviews 2008, Issue 4. Art. No.: CD004667. DOI: 10.1002/14651858.CD004667.pub2.

[7] A. de Jonge , B.Y. van der Goes, A.C. Ravelli , M.P. Amelink-Verburg , B.W. Mol, J . G . Nijhuis , J. Bennebroek Gravenhorst , S.E. Buitendijk , “ Perinatal mortality and morbidity in a nationwide cohort of 529,688 low-risk planned home and hospital births ”, An International Journal of Obstetrics & Gynaecology 2009 Aug;116(9):1177-84.

[8] Annemieke C . C . Evers, Hens A . A . Brouwers , Chantal W . P . M . Hukkelhoven , Peter G . J . Nikkels , Janine Boon, Anneke van Egmond -Linden, Jacqueline Hillegersberg , Yvette S . Snuif , Sietske Sterken-Hooisma , Hein W . Bruinse , Anneke Kwee , “ Perinatal mortality and severe morbidity in low and high risk term pregnancies in the Netherlands: prospective cohort study ”, BMJ 2010;341:c5639 doi:10.1136/bmj.c5639.

[9] U. Ackermann- Liebrich , T. Voegeli , K. Günter-Witt, I. Kunz, M. Züllig , C. Schindler, M. Maurer , “ Home versus hospital deliveries: follow up study of matched pairs for procedures and outcome ,” BMJ , 1996 Nov 23;313(7068):1313-8.

[10] “ Perinatal and maternal outcomes by planned place of birth for healthy women with low - risk pregnancies: the Birthplace in England national prospective cohort study ”, BMJ , 2011;343:d7400

[11] R. Mori, M. Dougherty, M. Whittle , “ An estimation of intrapartum-related perinatal mortality rates for booked home births in England and Wales between 1994 and 2003 ”, BJOG 2008;115:554–559.