Case of Dubská and Krejzová v. The Czech Republic

Applications nos. 28859/11 and 28473/12
Download Judgment: English

Ms. Šárka Dubská and Ms. Alexandra Krejzová brought an action against the Czech Republic, claiming that Czech legislation violated the right to private life provided by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms by effectively prohibiting health professionals, including midwifes, from assisting in home births.

Czech legislation required that midwives apply for government issue operational licenses, and only attend births at premises with listed technical equipment, which would not be present in a home. Because of this legislation, Ms. Dubská and Ms. Krejzová could not find midwives to assist their home births.

The European Court of Human Rights held that Article 8 had not been violated, reasoning that the applicants could foresee that Czech law prohibited home births and that the interference with Article 8 rights served the legitimate aim of protecting the child and mother’s health and safety.

The Court acknowledged that decisions regarding giving birth are fundamentally linked to a woman’s private life, and thus, the Czech legislation, effectively prohibiting home birth assistance, interfered with Article 8 rights. However, this interference was found to be permissible as it was in accordance with law, necessary in a democratic society and furthered an aim of Article 8. The Court showed deference to the government’s reasoning as there was no consensus in the member states of the Council of Europe on the issue, and because the case involved a public health system, a social and economic matter.

The Court held that the interference was in accordance with the law. The Court also held that the interference was in the pursuit of the protection of the health and rights of others, a legitimate aim set out in Article 8. The Court further held that this legitimate aim, specifically the health of the child and the mother during and after delivery.

Finally, the Court held that the government’s interference was both proportionate to the legitimate aim pursued, and justified by relevant and sufficient reasons, including the increased risk of home births, resulting in a conflict of interest between mother and child, the absence of a specialist emergency assistance system to reduce home birth risk, the presence of local maternity hospitals and Czech government initiatives to improve conditions in maternity hospitals. These reasons were balanced against mothers’ freedom to choose how they give birth, the risk decreasing effect of medical assistance in home births, and the questionable conditions in Czech maternity hospitals.

The dissent disagreed on the proportionality analysis, arguing that Czech legislation was not a proportional response to the social issue as the legislation paradoxically made home births more dangerous, statistical data showed that home births do not necessarily increase infant mortality rates and the increased risk in home birth is acceptable in certain circumstances

“Indeed, giving birth is a unique and delicate moment in a woman’s life. It encompasses issues of physical and moral integrity, medical care, reproductive health and the protection of health-related information. These issues, including the choice of the place of birth, are therefore fundamentally linked to the woman’s private life and fall within the scope of that concept for the purposes of Article 8 of the Convention.” (Para. 163.)

“While the question of home birth does not as such raise acutely sensitive moral and ethical issues . . ., it can be said to touch upon an important public interest in the area of public health. Moreover, the responsibility of the State in this field necessarily implies a broader boundary for the State’s power to lay down rules for the functioning of the health-care system, incorporating both State and private health-care institutions.” (Para. 182.)

“[T]he Court finds it appropriate to invite 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 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.” (Para. 189.)