This week, human rights judges will listen to a complaint against the Czech Republic, concerning the right to home births.
The 2 December Grand Chamber case of Dubská and Krejzová v. the Czech Republic (application nos. 28859/11 and 28473/12) centres on the legal impossibility, under Czech law, for pregnant women to give birth at home with the assistance of a midwife.
The applicants, Šárka Dubská and Alexandra Krejzová, are Czech nationals who were born in 1985 and 1980 and live in Jilemnice and Prague (the Czech Republic) respectively. Both applicants wished to give birth at home. However, under Czech law health professionals are not allowed to assist with home births.
When pregnant with her second child in 2010, Ms Dubská decided to give birth at home, given her experience during the birth of her first child in 2007 in a hospital when she had been urged to have various medical interventions against her wishes and had been ordered to stay in hospital longer than she wished.
On her enquiries, she was informed that Czech legislation did not provide for the possibility of a public health insurance to cover the costs of a birth at home and that midwives were allowed to assist at births only in premises with the technical equipment required by law.
Dubská eventually gave birth to her second child at home alone in May 2011. In February 2012, the Czech Constitutional Court dismissed her complaint about being denied the possibility of giving birth at home with the assistance of a health professional.
Krejzová gave birth to her first two children at home, in 2008 and 2010 respectively, with midwives who assisted her without any authorisation from the State. At the time of lodging her application with the European Court of Human Rights, she was pregnant with her third child but unable to find a midwife, because under new legislation, in force from 1 April 2012, midwives risked heavy fines for providing medical services without authorisation.
She ended up giving birth in May 2012, 140 km from Prague in a hospital with a reputation for respecting the wishes of mothers during delivery.
Relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, both applicants complain that mothers have no choice but to give birth in a hospital if they wish to be assisted by a health professional.
The application was lodged with the European Court of Human Rights on 4 May 2011.
In its Chamber judgment of 11 December 2014, the European Court of Human Rights held, by six votes to one, that there had been no violation of Article 8 of the Convention. It took into consideration, in particular, that there was no European consensus on whether or not to allow home births, and that this question involved the allocation of financial resources, for example for an adequate emergency system for home births.
The chamber concluded that States had a lot of room for manoeuvre (“margin of appreciation”) in regulating this issue. Moreover, the applicants did not have to bear a disproportionate burden on account of the fact that they could only be assisted by a medical professional if giving birth in a hospital.
On 1 June 2015 the case was referred to the Grand Chamber at the request of the applicants.