Existence of an interference
For the Court the notion of a freedom implies some measure of choice as to its exercise. The notion of personal autonomy is a fundamental principle underlying the interpretation of the guarantees of Article 8. Therefore the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent.
The Court noted that the applicant was not prevented as such from giving birth at home. However, the choice of giving birth in one's home would normally entail the involvement of health professionals, an assumption not disputed by the parties.
For the Court, legislation which arguably dissuades such professionals who might otherwise be willing from providing the requisite assistance constitutes an interference with the exercise of the right to respect for private life by prospective mothers such as the applicant.
The Court observed that sections 15 and 20 of the Health Care Act 1997 recognize patients' right to self-determination in the context of medical treatment, including the right to reject certain interventions. At the same time, section 101(2) of Government Decree no. 218/1999 sanctions health professionals who carry out activities within their qualifications in a manner which is incompatible with the law or their license. For the Court, these legal provisions may reasonably be seen as contradictory in the context of assisting home births, an issue otherwise unregulated under Hungarian law. The Court noted that the Government admitted that in at least one case proceeding were instituted against a health professional for having assisted home birth.
These considerations enabled the Court to conclude that the matter of health professionals assisting home births is surrounded by legal uncertainty prone to arbitrariness. Prospective mothers cannot therefore be considered as freely benefiting from such assistance, since a permanent threat is being posed to health professionals inclined to assist home births.
In Conclusion, for the Court, the lack of legal certainty and the threat to health professionals has limited the choices of the applicant considering home delivery. For the Court, this situation is incompatible with the notion of “foreseeability” and hence with that of “lawfulness”, considerations that are sufficient to enable the Court to find that there was a violation of Article 8 of the Convention.
In the present case, the increasing difficulty to find midwives and supportive obstetricians, troubles with the civil registration, etc. might result in an environment which is hostile to the freedom in question.
In conclusion, as the judgment underlines, the regulatory protection required in the present case means that the State is to provide adequate legal security which is needed for the exercise of a freedom. This cannot be equated with liberalizing home birth as such. The latter decision is obviously a matter of balancing in view of available (currently disputed) medical knowledge, the health of the mother and the child, the structure of health care services, etc. This is a matter where the State has a broad margin of appreciation, where the concerns of paragraph 2 of Article 8 apply, and where the burden on the mother's right to choose shall be limited only proportionally.