Case 649

Decision No. 649 of 4 December 2008
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The petitioner claimed that the defendant hospital’s practice of only admitting mothers with sick children was discriminatory. In particular, the petitioners pointed to the defendant hospital’s notice board which read:  “children up to 3 years of age are admitted along with their mothers”, and “Mother – not relatives”.

However, the defendant hospital argued that this practice should be allowed because the hospitals had no separate facilities for mothers and fathers, it would be “immoral and embarrassing” for mothers to breastfeed in front of men, children would more willing accept medical procedures with their mothers present, the hospital staff was largely female, and other hospitals imposed similar restrictions.

The Steering Board of the National Council for Combating Discrimination (the “NCCD”) held that the defendant’s prohibition of hospitalization of any other attendant other than mothers constituted an act of discrimination under the Article 2, paragraph (1) and (4) of the Governmental Ordinance No. 137/2000, in conjunction with the Article 5 of G.O. No.137/2000. Taking note of, inter alia, the anti-discrimination provisions in the Romanian Constitution, the European Human Rights Convention, and the prior case law of the NCCD and the European Court of Human Rights, the NCCD emphasized that distinction based on gender between people in comparable situations was generally impermissible.  The NCCD also noted that the relevant Government Ordinances regarding hospital attendants did not differentiate between men and women and that there were no such distinctions in legally binding documents.

The NCCD held that a distinction based on a parent’s sex must be justifiable on objective grounds in pursuit of a legitimate aim and that such discriminatory means must be appropriate and necessary.  Here, the NCCD determined that the justifications set forth by the defendant hospital were largely not legitimate, nor were the means appropriate.

Ultimately, the NCCD found that the defendant’s prohibition of fathers from being hospitalized together with the children constituted an impermissible act of discrimination and violated the minor child’s right to access to health services.

“The Steering Board considers that generally, a distinction between parents based on sex (meaning that the father cannot be hospitalized along with the patient who is up to 3 years old, as opposed to the mother, who is admitted to the hospital), which can turn into an order, rule or provision governing the admission in medical units, has to be justifiable on objective and solid grounds for reaching a legitimate aim. Lacking these particular grounds, such a distinction might take the form of a differential treatment and, subsequently, of discrimination based on sex.” Section 6.2

“The statement that “there are medical procedures in which mothers are actively involved” does not stand as an objective justification, since fathers have the right to parental leave and, furthermore, there are cases of children with no mother. The relationship between mother and child cannot be privileged by any public authority or institution, as opposed to the relationship between father and child. The only persons able to decide who will provide the child with medical care are the parents or the legal guardian, but by no means a hospital. Stressing out “Mother - not relatives” shows that the claimant wrongly excludes the possibility that a child might be raised by other persons rather than the mother.” Section 6.4

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