Ternovszky v. Hungary
Hungary, European Court of Human Rights

Ternovszky v. Hungary

DATE 02-02-2013DOWNLOAD LEGAL DECISION

Judges:

Françoise Tulkens

Françoise Tulkens

Danut? Jo?ien?

Danut? Jo?ien?

Dragoljub Popovi

Dragoljub Popovi

András Sajó

András Sajó

Nona Tsotsoria

Nona Tsotsoria

Kristina Pardalos

Kristina Pardalos

Guido Raimondi

Guido Raimondi

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Topics:

Maternal Health

Related standards:

European Convention on Human Rights Article 8

RELATED STANDARDS

European Convention on Human Rights Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

WHY IT MATTERS:

The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. The decisions of the European Court of Human Rights are binding on the Member States, which must comply with the decisions handed down by the Court.

This case is particularly important because it recognizes the obligation of States to guarantee, not only the proper measures for a safe motherhood in the health system, but also the abidance to the prohibition of interfering in the women right to decide by her own means the most proper way to give birth under the right of privacy of the European Convention of Human Rights.

At the time of introduction of the application the applicant was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. However, in view of a Government Decree any health professional assisting a home birth runs the risk of conviction for a regulatory offence and, indeed, at least one such prosecution has taken place in recent years. The Court observed that child delivery is regulated not only as a matter of public health but also as one falling within the ambit of social security. According to the Constitution, public health and social security is provided by institutional services. For the Court, a constitutional obligation of this kind warrants regulation which should take into proper consideration the right of choice of the mother. 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 the right to privacy protected by Article 8 of the European Convention.
The case originated in an application against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Hungarian national, Ms Anna Ternovszky, on 15 December 2009. The applicant was born in 1979 and lives in Budapest. At the time of introduction of the application the applicant was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. However, in view of section 101(2) of Government Decree no. 218/1999 (XII.28.), any health professional assisting a home birth runs the risk of conviction for a regulatory offence and, indeed, at least one such prosecution has taken place in recent years. In the applicant's view, while there is no comprehensive legislation on home birth in force in Hungary, this provision effectively dissuades health professionals from assisting those wishing home birth.

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.

Violation of the right to respect for private and family life (article 8)
The Court observed that child delivery is regulated not only as a matter of public health but also as one falling within the ambit of social security. According to the Constitution of Hungary, public health and social security is provided by institutional services. For the Court, a constitutional obligation of this kind warrants regulation which should take into proper consideration the right of choice of the mother.

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.

Joint concurring opinion of judges Sajó and Tulkens
For the judges, background assumption of classical liberalism does not necessarily work in the contemporary welfare State, especially in the medical environment. In this welfare system practically everything is regulated; regulation is the default, and only what is regulated is considered safe and acceptable. Suddenly, in the absence of positive regulation, what was a matter of uncontested private choice becomes unusual and uncertain. In a very densely regulated world some disadvantages emerge for freedoms without regulatory endorsement.

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.

Dissenting opinion of judge Popovic
For this judge there has been no exhaustion of domestic remedies in the case, the applicant could not prove a victim status and furthermore and there was no interference with the applicant's rights.

The Court hold by six votes to one that there was a violation of Article 8 of the Convention. In this sense, it hold that the respondent State is to pay the applicant 1,250 euros plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Hungarian forints at the rate applicable at the date of settlement.

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