HUMAN RIGHTS – BIRTH

Home Birth And The European Court of Human Rights

Toni Harman, Co-founder of One World Birth

15th November 2016

On the face of it, some disappointing news just in from the European Court of Human Rights about home birth.

The ECHR Grand Chamber gave a judgement on Dubská and Krejzová v. the Czech Republic. Application nos. 28859/11 and 28473/12. The Grand Chamber held by twelve votes to five, that there has been no violation of Article 8 of the European Convention on Human Rights.

The court decided that the Czech Republic can use its own “margin of appreciation” when it comes to home birth. That means European countries don’t have to fully support home births.

European Court of Human Rights

Photo of Grand Chamber, European Court of Human Rights

Copyright © ECHR-CEDH

Here’s the details of the case:

With the Dubská and Krejzová v. the Czech Republic case, two Czech mothers appealed to the European Court of Human Rights claiming that they had no choice in their births; that if they wanted to be supported by a midwife, they had to give birth in hospital. The mothers claimed that this was a violation of Article 8 of the European Convention of Human Rights, the right to respect for private and family life.

Sounds fair to me. But the Grand Chamber of the ECHR did not agree. As stated in the ruling:

“No. 73. The Chamber held that the respondent State was entitled to a wide margin of appreciation on account of the need for an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births, the need for strong State involvement because of newborn children’s vulnerability and dependence on others, the lack of any clear common ground among the member States on the question of home births and, lastly, general social and economic policy considerations, such as the allocation of resources to set up an adequate emergency system for home births.”

In other words, as there was no consensus about home births across Europe, and that home births might involve additional financial expenditure, for example in providing adequate emergency support for home births, the Chamber concluded that countries in Europe had room for manoeuvre (“wide margin of appreciation”) on this issue.

Not every mother would choose home birth with a midwife, but surely it should be a fully supported choice across Europe, as it is in the UK. Under current NICE guidelines, home birth and birth at a midwifery-led birth centre are both recommended choices for mothers with healthy, uncomplicated low-risk pregnancies. So even with its very limited funds, the NHS fully supports home births. Round of applause to the NHS.

It’s time for other countries to catch up with the UK with regards to supporting women’s choices in childbirth.  It’s time for the majority of the Grand Chamber of the ECHR to catch up.

Indeed five members of the Grand Chamber have already caught up. They voted against today’s judgement – their words at the end of judgement are very powerful and fill me with hope.

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

“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.”

UK barrister Elizabeth Prochaska, chair of the legal organisation Birthrights (who was featured in our FREEDOM FOR BIRTH film) takes some positives from the ruling, “This is deeply disappointing. But we need to focus on the positives: the court affirmed that women’s rights in childbirth are protected by Article 8. It also expected the Czech Republic to keep its law and practice under review. Given the powerful dissent by a sizeable minority of the Court, we can expect the issue to be revisited in the future.” (Here’s a link to a legal view of the judgement published on the Birthrights website.)

This ECHR judgement has fired me up.

It’s time for all women to have fully informed choice in childbirth in every country, and this includes full support for home birth. It’s time for all choices to be fully respected and fully supported by every health professional and every maternity system. In a democratic society, all mothers should have full freedom of choice.

It feels as though right now is a moment to seize.

Professor of Midwifery, Hannah Dahlen says, “Human rights is defined by the ‘right now’. If we do not address it ‘right now’ we do not resolve it. If we do not resolve the abuse we are part of the abuse. The abuse is ‘right now’ and so our response to it must be ‘right now’. #Enough.”

I agree with Professor Dahlen. #Enough

It’s time for action.

Find out about Stage One of what we intend to do here: https://www.oneworldbirth.net/birth/freedom-for-birth-unleashed/

 

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