No breach of woman’s rights in home birth case, but Court calls on Croatia to regulate legislation more clearly
ΑΠΟΦΑΣΗ
Pojatina v. Croatia 04.10.2018 (no. 18568/12)
SUMMARY
The case concerned Croatian legislation on home births. The applicant in the case is a mother who gave birth to her fourth child at home with the help of a midwife from abroad. She alleged in particular that, although Croatian law allowed home births, women such as her could not make this choice in practice because they were not able to get professional help.
The Court accepted that at first there might have been some doubt as to whether a system for assisted home births had been set up in Croatia. It therefore called on the authorities to consolidate the relevant legislation so that the matter is expressly and clearly regulated.
However, it found that the applicant had clearly been made aware, through the letters from the Croatian Chamber of Midwives and the Ministry of Health which she had received while she had still been pregnant with her fourth child, that the domestic law did not allow assisted home births. It further found that the authorities had struck the right balance between the applicant’s right to respect for her private life and the State’s interest in protecting the health and safety of mothers and children. It pointed out in particular that Croatia was not currently required under the Convention to allow planned home births. There was still a great disparity between the legal systems of the Contracting States on home births and the Court was sensitive to the fact that the law developed gradually in this area
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Ivana Pojatina, is a Croatian national who was born in 1976 and lives in Zagreb.
She gave birth to her first three children in hospital. In 2011 she became pregnant with her fourth child and had a due date in February 2012. During her pregnancy she wrote to the Croatian Chamber of Midwives to enquire whether she could have professional help with a home birth.
The Chamber told her that under Croatian law, health professionals, including midwives, were unable to assist with home births. In particular, the setting up of private practices by midwives was not clearly regulated and thus no midwife officially assisted with home births. The Chamber also cited a statement by the Ministry of Health showing that there was no system for assisting home births in Croatia.
On 15 February 2012 the applicant gave birth to her fourth child at home, assisted by a midwife from abroad.
THE DECISION OF THE COURT
The Court found that the Croatian legislation had had a serious impact on Ms Pojatina’s freedom of choice when giving birth. She had either had to give birth in a hospital, or if she wished to give birth at home, it had to be without the assistance of a midwife, and therefore with risks to herself and her baby. In the end, she had given birth at home with the assistance of a midwife from abroad.
Issues related to giving birth, including the choice of the place of birth, were fundamentally linked to a woman’s private life and fell within the scope of that concept for the purposes of Article 8.
Giving birth at home was not, as such, prohibited by the Croatian legal system. There were no provisions under domestic law criminalising the acts of women who had decided to give birth in that way and no one had ever been punished for such an action. Further, no health professional, including the foreign midwife who had assisted the applicant, had ever been prosecuted in a criminal case or sanctioned for assisting in a home birth. The Court accepted that there might have been some doubt as to whether a system for assisted home births had been set up and invited the authorities to consolidate the relevant legislation so that the matter was expressly and clearly regulated. However, the applicant had clearly been made aware by the authorities, while still pregnant, that the relevant domestic law did not allow health professionals, including midwives, to assist with planned home births. The Court therefore accepted that the impugned interference had been foreseeable for the applicant and in accordance with the law.
The interference served the legitimate aim of the protection of the health and rights of others. The question was whether the interference was necessary in a democratic society.
The risks for mothers and new-borns were higher in the case of home births than in the case of births in maternity hospitals which were fully staffed and adequately equipped from a technical and material perspective. Even if a pregnancy had proceeded without any complications and could therefore have been considered a “low-risk” pregnancy, unexpected difficulties could arise during the delivery which would require immediate specialist medical intervention, such as a Caesarean section or special neonatal assistance. While it was open to a respondent State to allow for planned home births, it was not a requirement under the Convention. There still remained a great disparity between the legal systems of the Contracting States on the matter.
In recent years various initiatives had been taken to ensure that the wishes of mothers-to-be were respected in maternity wards, however, the applicant’s concerns in that regard could not be disregarded when assessing whether the authorities had struck a fair balance between the competing interests at stake.
There was a requirement under domestic law obliging women giving birth at home to submit medical documents to prove their motherhood. Such a requirement was understandable and was clearly directed at avoiding possible abuses in situations where there was no official information on the birth of a child or its biological parents. The applicant’s complaint that she and her child had been denied postnatal care was unsubstantiated and in any event, it was undisputed that they had eventually received post-delivery medical care. While the applicant had complained that women giving birth at home experienced difficulties in registering their children in State registers, the Court noted that her child had been born on 15 February 2012 and that she had succeeded in registering the birth on 23 February 2012.
The interference with the applicant’s right to respect for her private life had not been disproportionate.
Bearing in mind those circumstances, the Court held that there had been no violation of Article 8.
Separate opinions
Judge Koskelo expressed a concurring opinion, while Judge Wojtyczek expressed a dissenting opinion. These opinions are annexed to the judgment(echrcaselaw.com editing).
