Ternovszky v. Hungary

Ms. Ternovszky, a Hungarian national, filed a complaint before the European Court of Human Rights alleging that as a result of Hungarian legislation she was effectively prevented from obtaining adequate professional assistance for a home birth due. She submitted that this amounted to discrimination in the enjoyment of her right to respect for private life (under Article 8 (Right to Respect for Private and Family Life) read in conjunction with Article 14 (Prohibition of Discrimination)). At the time of Ms. Ternovszky’s application, she was pregnant and wished to give birth at home. She claimed that she had not been able to obtain a midwife’s assistance because health professionals were effectively dissuaded by law from assisting at home births as they risked being convicted. It appeared that at least one such prosecution had taken place in recent years.

Under the wording of a Government Decree, any healthcare professional who assists a home birth ran the risk of conviction for a regulatory offence with the threat of a fine. Yet other legislation, including the Hungarian Constitution and the Health Care Act 1997, provided that a patient has self-determination and may choose to reject or accept certain treatments. Ms. Ternovszky claimed that the legal uncertainty created “ambiguous legislation” which had a negative impact on her ability to choose a home birth. This, she claimed, amounted to “a discriminatory interference with her right to respect for her private life.”

In its response, Hungary argued that Article 8 did not impose a positive obligation to increase the choices available within the healthcare system and that there was a professional consensus in Hungary that home birth was less safe than hospital birth and so, although it was not prohibited, it was not encouraged.