DISSENTING OPINION OF JUDGES SAJÓ, KARAKAŞ, NICOLAOU, LAFFRANQUE AND KELLER

I. Introduction

1. To our regret, we are unable to share the view of the majority of the Grand Chamber that there has been no violation of Article 8 of the Convention in the present case. In our opinion, the relevant Czech legislation renders home births de facto impossible given that it creates excessively rigid requirements regarding the equipment needed for a birth, which can only be met in hospitals. This constitutes an interference with mothers ’ freedom of choice that is not proportionate in a democratic society. The system is also detrimental to the health of mothers and their newborns, as it deprives them of the possibility of receiving the indispensable assistance of a midwife during home births.

2. The majority correctly recognised that choosing the circumstances of how one gives birth falls within the scope of Article 8 of the Convention. We also share our colleagues ’ view that the Czech law in its current wording constitutes an interference with the applicants ’ right to benefit from the assistance of midwives when giving birth at home. Despite some hesitations, we can accept that this interference was in accordance with the law and, in theory, pursued a legitimate aim. However, we come to a different conclusion from the majority as regards the proportionality test.

3. We will begin by examining the general Convention framework that applies to a multipolar human rights context (II.). We will then analyse the Court ’ s previous case-law on home births (III.) and point out some particularities concerning obstetric services in the Czech Republic (IV.) and the risk involved in home births (V.). We will subsequently turn to the majority ’ s main arguments in finding no violation of Article 8 (VI.). Applying the relevant general principles in the applicants ’ concrete circumstances (VII.) leads us to the conclusion (VIII.) that the interference concerned was disproportionate.

II. General Convention framework

4. In the present case we are confronted with a clear example of a multipolar human rights situation: different rights are at stake here, namely expectant mothers ’ freedom to choose how they wish to give birth (which is covered by Article 8 of the Convention), on the one hand, and the mothers ’ and newborns ’ right to life under Article 2 of the Convention, on the other. The State has an obligation to provide the necessary framework to guarantee both aspects, that is, to respect the mothers ’ choice and to protect the mothers ’ and children ’ s right to life as well.

5 . The majority correctly state that the question of home births touches upon an important public interest in the area of public health (see para graph 182 of the judgment). The challenge is to strike a fair balance between the applicants ’ right to respect for their private life and the interest of the State in protecting the health and safety of new borns and of their mothers (see paragraph 180). In the case of competing Convention rights, the case-law of the Court explicitly recognises that the member States usually enjoy a certain margin of appreciation (see Odièvre v. France [GC], no. 42326/98 , §§ 40–49, ECHR 2003-III, and Dickson v. the United Kingdom [GC], no. 44362/04 , §§ 77–85, ECHR 2007-V).

6 . This margin of appreciation is also applicable, in particular, to the legislature. However, domestic legislation is not beyond the scrutiny of the Court, as the Convention imposes boundaries on the legal framework set by the State. The existence of a margin of appreciation should not be equated with any kind of “ carte blanche ” in favour of the national legislature. Otherwise, the rights guaranteed by the Convention would be devoid of any substance. In deciding any case under Article 8 of the Convention, a number of factors must be taken into account in order to determine the breadth of the margin of appreciation to be enjoyed by the State. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin granted to the State will normally be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011).

7 . We note, firstly, that the decision regarding how an expectant mother wishes to give birth constitutes a core issue under Article 8 of the Convention. Childbirth represents one of the most intimate aspects of a woman ’ s life. In this regard we agree with the majority, who describe birth as a unique and delicate moment in a woman ’ s life (see paragraph 163 of the judgment). Secondly, we would like to underscore that there is generally no conflict of interest between the mother and her child (see paragraph 185). In other words, under ordinary circumstances we trust that a mother will choose the best option for the birth of her child, taking into account her own health and the health of her baby. Thirdly, the Court must always submit absolute prohibitions or blanket bans to the closest scrutiny. In Costa and Pavan v. Italy ( no. 54270/10, § 68, 28 August 2012), concerning the Italian ban on the use of preimplantation genetic diagnosis (PGD), the Court reiterated that it had the power to examine the compatibility with the Convention of domestic measures even in areas in which the State enjoyed a wide margin of appreciation. In that case, the Court came to the conclusion that the measures taken had not been proportionate given that, although the applicants could opt for a termination of pregnancy on medical grounds, they did not have access to PGD (ibid., §§ 69–70). In other words, the Court has to be convinced that the national legislature has taken the different issues at stake into account (see S.H. and Others v. Austria , cited above, § 117) and that the final legislative framework does not lead to a paradoxical result.

8 . Since any pregnant women wishing to give birth at home in the Czech Republic in general, as in the case of the applicants, are forced to do so without any medical personnel present, the legal framework – which thus creates a de facto ban on home births – leads to a paradoxical und counterproductive outcome in practice in that the mother and child are put at risk if the mother chooses to give birth at home (this has ultimately also been acknowledged by the majority: see the last sentence of paragraph 187 of the judgment).

III. Ternovszky v. Hungary

9 . In Ternovszky v. Hungary ( no. 67545/09 , § 22, 14 December 2010) the Court stated for the first time that “the circumstances of giving birth incontestably form part of one ’ s private life”. The Court then declared that “where choices related to the exercise of a right to respect for private life occur in a legally regulated area, the State should provide adequate legal protection to the right in the regulatory scheme ... It is true that, in this regard, the State has a wide margin of appreciation; however, the regulation should ensure a proper balance between societal interests and the right at stake . In the context of home birth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice , except where other rights render necessary the restriction thereof” (ibid., § 24, emphasis added).

10 . We do not contest that the right to choose a home birth is never absolute. All countries examined in the Court ’ s comparative-law research (see paragraphs 67-68 of the judgment) specify some additional preconditions. However, it is not compatible with the Convention if midwives or health professionals run the risk of prosecution for assisting at a home birth in a manner consistent with the arte legis . The Court held in Ternovszky that there had been a violation of Article 8 of the Convention in this context. Consequently, a real choice for a home birth must exist; if not, Article 8 of the Convention will per se be violated.

11 . The legal framework in the two countries is slightly different. In the Czech Republic, no provision penalising midwives exists. However, the equipment required in the Medical Services Act and Decree no. 92/2012 makes it impossible for mothers to have a midwife assist them during a home birth. The law in the two countries – despite a different set of rules – renders assisted home births impossible in the case of Hungary and unsafe in the case of the Czech Republic. The parents concerned thus do not enjoy a real choice in the latter State, either, since a home birth without a midwife incontestably puts the lives of mother and child at risk. Czech law therefore prevents de facto home births and has a chilling effect on mothers wishing to give birth at home.

12 . Furthermore, some countries have, inspired by the relevant international documents and the Court ’ s case-law, recently changed their legislation in order to respect the right to choose the circumstances and place of delivery (for example, Estonia in 2014, which based its regulation on the WHO ’ s definition of a normal birth). The judgment in the present case, by watering down the principles developed in Ternovszky , may be adding a confusing signal to this trend. This is in conflict with the majority ’ s own views as expressed in paragraph 189 of the judgment, where the Court invites the Czech authorities to make further progress by keeping the relevant legal provisions under constant review so as to ensure that they reflect medical and scientific developments.

IV. Specificities of obstetric services in the Czech Republic

13 . Before examining the Court ’ s reasoning more thoroughly, we would like to analyse the broader context of the issue at hand. Two aspects are important: the widespread dissatisfaction with the failure to respect women ’ s choices during childbirth in Czech hospitals and the economic dimension of the obstetric services provided.

14 . Several complaints against the Czech Republic have been received by the Committee on the Elimination of Discrimination against Women about unnecessary medical intervention performed without women ’ s prior, informed and free consent, especially during birth. The Committee has recommended that women should have a choice of where to give birth and, in its observations on the Czech Republic of 14 March 2016 (CEDAW/C/CZE/CO/6), explicitly mentioned the disproportionate limitations on home births, as well as undue restrictions on the use of midwives in lieu of physicians in situations where such use did not pose a health risk (see p. 9 of the Committee ’ s observations, § 30).

15 . Patronising attitudes among health personnel should not be taken lightly, as they may constitute a violation of an individual ’ s right to self-determination under the Convention. [1] The Court has, in the past, explicitly recognised the duty to involve individuals in decisions relating to their medical treatment (see Glass v. United Kingdom , no. 61827/00 , §§ 70–83, ECHR 2004-II, and Tysiąc v. Poland , no. 5410/03 , §§ 114–130, ECHR 2007-I).

16 . In this connection, worrying signs can already be found in the case-law of the Court as far as developments in the Czech Republic are concerned. For example, the Court found a violation of Article 8 in a case which concerned a court-ordered interim measure requiring the return to hospital of a newborn baby and the mother, who had just given birth and had immediately gone home, and the lack of any remedy by which to complain about that interim measure (see Hanzelkovi v. the Czech Republic , no. 43643/10, 11 December 2014). The Court held, in particular, that the taking into care of a newborn baby at birth was an extremely harsh measure and that there usually had to be compelling reasons for a baby to be removed from the care of the mother against the latter ’ s will.

17 . By indirectly preventing midwives from assisting during home births by law – via the excessively rigorous requirements placed on the available equipment – the State health sector and hospitals are awarded a de facto monopoly position in this field. If such a State monopoly goes hand in hand with a severe restriction of a core Article 8 right, it deserves thorough scrutiny by the Court. This is due to the fact that, in the creation of the State ’ s legislative framework, economic interests might have played a more decisive role than the protection of the newborn child.

18 . The Committee on the Elimination of Discrimination against Women invited the Czech Republic to become active on the legislative level in order to make midwife-assisted childbirth outside hospitals a safe and affordable option for women (CEDAW/C/CZE/CO/6, p. 9, § 31). As will be explored below, less intrusive measures than those currently imposed by the domestic legislative framework are certainly available in this regard without sacrificing the interest of the State in protecting mothers and their newborn children.

V. Risks associated with home births

19 . With regard to the risks associated with home births, the public-health argument put forward by the Government is not, contrary to the opinion of the majority (see paragraph 186 of the judgment), convincing in itself.

20 . As pointed out by the Royal College of Midwives, giving birth at home without the help of a midwife raises the risks for mother and child, and women might be hesitant to be transferred to hospital if complications arise during an unassisted home birth, owing to the stigmatisation faced by those who choose to give birth in this way (see paragraph 138 of the judgment).

21 . What is more, the statistical data provided by the Czech Government allow for a different argument if compared with the information available regarding other countries. Even though the Czech Republic has one of the lowest perinatal mortality rates, at 0.17% for newborns in the first twenty-seven days, this rate is lower or only insignificantly higher in a number of countries which allow home births. [2] For example, the rate is 0.16% in Sweden and 0.12% in Iceland, where planned and assisted home deliveries take place.

22 . Furthermore, the Court did not consider the international trends towards assisted home births and the efforts made to regulate midwifery. A report issued by the WHO as far back as 1996 (WHO/FRH/MSM/96.24) stated:

“The Netherlands is a developed country with an official home birth system. The incidence of home deliveries differs considerably between regions, and even between large cities. A study of perinatal mortality showed no correlation between regional hospitalisation at delivery and regional perinatal mortality (Treffers and Laan 1986). A study conducted in the province of Gelderland, compared the ‘ obstetric result ’ of home births and hospital births. The results suggested that for primiparous women with a low-risk pregnancy a home birth was as safe as a hospital birth. For low-risk multiparous women the result of a home birth was significantly better than the result of a hospital birth (Wiegers et al 1996). There was no evidence that this system of care for pregnant women can be improved by increasing medicalization of birth (Buitendijk 1993).” (p. 12) ”

23 . In its report on “Legislation and Regulation of Midwifery – Making Safe Motherhood Possible”, issued in 2011, the WHO even stated that “there is now strong evidence that underpins the recent recommendation that all women should have a skilled attendan t during pregnancy, childbirth ... , in order to advance the goal of making pregnancy safer” (p. 7).

24 . For all these reasons, we are of the opinion that an informed, healthy mother-to-be who is carrying a low-risk pregnancy can reasonably opt for a home birth assisted by a midwife and that this choice is not associated with an excessive risk, either for the mother or for the baby.

VI. Margin of appreciation and consensus on non-prohibition of home births

25 . Turning now to the Court ’ s line of argument, we would like to address the margin of appreciation available to the State in this particular case (see paragraphs 178 et seq. of the judgment). While we concur with the majority of the Court that according to the case-law, the margin of appreciation afforded to the national authorities should be a wide one, we come to this conclusion through slightly different reasoning, which leads us to reach the conclusion that the interference at issue is unnecessary in a democratic society.

26 . As mentioned above (see paragraph 5), States will usually enjoy a wide margin of appreciation where competing private and public interests or several Convention rights are concerned. As this is the case here, it is – contrary to the majority ’ s approach – thus not necessary to determine whether there is a consensus between the member States regarding home births in order to establish the width of the State ’ s margin of appreciation.

27 . Where States have a broad margin of appreciation under Article 8 of the Convention, an interference with the rights enshrined in that provision can only be justified if “relevant and sufficient reasons” are present (see ZaieÅ£ v. Romania , no. 44958/05, § 50, 24 March 2015; Hanzelkovi , cited above, § 72; Winterstein and Others v. France , no. 27013/07, §§ 75-76, 17 October 2013; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR 2008-V). In its examination of a case, the Court therefore has to accord due weight to the interests of the individual (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 99, ECHR 2003 ‑ VIII). In our opinion, the Court did not proceed carefully enough in this regard in the present case (see below, paragraphs 29 et seq.).

28 . Even assuming that the Court was called upon in the present case to examine whether a State consensus exists as regards home births, we disagree with the majority ’ s approach to this question. When nearly 50% of the member States provide for and regulate home births (twenty out of the forty-three member States surveyed) and home births are unregulated or under-regulated in twenty-three member States, but no legislation prohibits the assistance of midwives at home births in any of these forty-three States (see paragraph 68 of the judgment), then there is a consensus in favour of not prohibiting home births among the member States.

29 . Turning to the proportionality of a de facto ban on home births, we share the position of the Czech Constitutional Court that

“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 parents 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.” (decision no. I. Ú S 4457/12, cited in paragraph 34 of the judgment)

30 . Thus, despite the wide margin of appreciation available to the State, a legislative framework providing for only one option for giving birth, namely in hospital, cannot be viewed as proportionate and constitutes, in our view, an unnecessary interference with women ’ s rights under Article 8 of the Convention by the State. In addition, we note – as the majority refused to recognise – that, until the present date, no birth centres have been established in the Czech Republic owing to the extensive requirements imposed on such centres in terms of technical, material and human resources (see paragraph 149 of the judgment).

VII. The circumstances of Ms Dubsk á ’ s and Ms Krejzov á ’ s cases

31 . We turn now to the specific circumstances concerning the two applicants in this case. Having suffered an unpleasant experience during her first delivery in hospital, Ms Dubská decided to give birth to her second child at home, alone. Her second pregnancy, until she delivered her son in May 2011, was free of any complications (see paragraph 10 of the judgment). Nonetheless, she was unable to find a midwife to assist her.

32 . Ms Krejzová gave birth to her first two children at home in 2008 and 2010, with the assistance of a midwife. However, the midwife attended the births without any authorisation from the State. When Ms Krejzová became pregnant again in 2011, she was unable to find a midwife willing to assist her because of the risk of a heavy fine (see paragraph 19 of the judgment). The national authorities contacted were unwilling to provide a solution. She was therefore obliged to give birth in hospital. These two examples are a perfect illustration of the chilling effect on home births provoked by the Czech legislation.

33 . In both cases, no risks or complications associated with the applicants ’ pregnancies demanded that they should give birth in hospital. While it might be true that even “low-risk” pregnancies may be faced with unexpected difficulties during delivery, the Government ’ s argument, as summarised in paragraph 186 of the judgment, cannot by itself justify an absolute de facto ban in such circumstances. The argument itself is questionable given that the perinatal mortality rate in countries where home births with the assistance of a midwife are permitted is sometimes even lower or only insignificantly higher than the Czech rate (see above, paragraph 21 ). Moreover, the Czech Constitutional Court has itself stated that there is a certain degree of acceptable risk in these matters (see above, paragraph 29 ).

34 . We therefore argue that, as far as “low-risk” pregnancies are concerned, it is possible and reasonable to allow parents to choose the circumstances of the birth while protecting the interests of the child as covered by Article 2 of the Convention at the same time. However, this requires the State to ensure that midwives can assist during delivery, or at least means that it should not prevent them from doing so.

VIII. Conclusions

35 . To conclude, we consider the single-option birth model envisaged by the Czech legislation at issue, which leaves expectant mothers little choice but to give birth in hospital, to be per se problematic as regards Article 8 of the Convention. To prevent midwives from assisting the two applicants in giving birth in their homes – what is more, in circumstances concerning low-risk pregnancies in women who were not first-time mothers – was, in our view, not justified in a democratic society by any convincing public-health argument.

36 . For future cases, we can only underscore the Court ’ s invitation to the Czech legislature, namely “to make further progress by keeping the relevant legal provisions under constant review, so as to ensure that they reflect 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” (see the last sentence of paragraph 189, emphasis added).

[1] See, to similar effect , Lord Kerr and Lord Reed (with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hodge agree d ) in Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 (11 March 2015) , para graph 81: “The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.”

[2] See Annex C2 , “Neonatal Mo rtality Rate for annual deaths [ numbers and rates per 1000 live births] ” of the European Perinatal Health Report : The H ealth and C are of P regnant W omen and B abies in Europe in 2010 , May 2013 .