Both applicants in the case wished to give birth at home. However as a result of Czech policies which did not permit health professionals to attend home births, they were unable to obtain a midwife to assist them. As a result, the first applicant, Ms. Dubská, gave birth at home alone, while the second applicant, Ms. Krejsová, gave birth in a maternity hospital. The applicants alleged that by preventing them from giving birth at home in the presence of a skilled birth attendant the Czech Republic had violated their rights to private life under Article 8 of the European Convention on Human Rights.
The Grand Chamber of the European Court of Human Rights, held that there had been no violation. A group of five judges issued a strongly worded joint dissenting opinion.
The Court acknowledged that the circumstances of giving birth fall within the sphere of Article 8 and that the state party’s laws amounted to an interference with the applicants’ right to avail themselves of the assistance of midwives when giving birth at home. However the Court held that the interference met the criteria necessary for a permissible interference under Article 8(2) and that therefore no violation of the Convention had occurred.
First the Court considered that the law allowed the applicants to foresee with reasonable certainty that assisted home birth was not permitted by the law. The Court ruled that the interference had been in accordance with the law, the aim of which was to protect “the health and safety of the mother and the child during and after delivery.” It could therefore be said to serve “the legitimate aim of the protection of health and of the rights of others within the meaning of Article 8 § 2 of the Convention.”
Secondly, with regard to the question of whether the interference was necessary and proportionate in a democratic society, the Court noted that the case “involves a complex matter of health-care policy requiring an assessment by the national authorities of expert and scientific data concerning the risks of hospital and home births.” It recognized that the law “had a serious impact on [the women’s] freedom of choice: they were required, if they wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that this posed to themselves and their newborns, or to give birth at hospital.” It also acknowledged that in a number of hospitals “the conditions in which pregnant women are admitted and provided with medical treatment and medication would appear to be questionable, and in several local hospitals the wishes of mothers-to-be do not seem to be fully respected.” However, the Court found that there is no common approach within Council of Europe member states regarding the regulation of home birth and that the matter “involves general social and economic policy considerations.” As a result the Court granted the state a wide margin of appreciation in determining the proportionality of the interference with the applicants’ rights and it concluded that “the interference with the applicants’ right to respect for their private life was not disproportionate.” The state had therefore not exceeded the margin of appreciation afforded to it, and the Court found no violation of Article 8.