Information Note on the Court’s case-law No. 136
December 2010
Ternovszky v. Hungary - 67545/09
Judgment 14.12.2010 [Section II]
Article 8
Article 8-1
Respect for private life
Liability of health professionals to prosecution effectively depriving expectant mothers of right to medical assistance for home births: violation
Facts – In her application to the European Court, the applicant, a pregnant mother who wished to give birth at home, complained that she was effectively prevented from obtaining adequate professional assistance if she exercised that choice by domestic legislation* which potentially rendered any health professional assisting a home birth liable to conviction and a fine.
Law – Article 8: “Private life” incorporated the right to respect for the decision to become a parent which in turn included the right to choose the circumstances in which one gave birth. Although the applicant was not prevented as such from giving birth at home, the legislation arguably dissuaded health professionals from providing the requisite assistance and thus constituted interference with the exercise of her right.
As to whether that interference was “in accordance with the law”, the Court considered that, where choices related to the exercise of the right to respect for private life occurred in a legally regulated area, the State should provide adequate legal protection to the right in the regulatory scheme, notably by ensuring that the law was accessible and foreseeable. While the State had a wide margin of appreciation, the regulation had to ensure a proper balance between societal interests and the right at stake. In the context of home birth, this implied the mother being entitled to a legal and institutional environment that enabled her choice to be fulfilled, except where other rights rendered restrictions necessary. Although the question whether home birth carried significantly higher risks than a hospital birth was a matter of debate in medical circles, the right to choice in matters of child delivery included the right to legal certainty that the choice was lawful and not subject to sanctions, directly or indirectly. In that connection, the domestic legislation could reasonably be seen as contradictory. While the Health Care Act 1997 recognised patients’ right to self-determination, section 101(2) of the Government Decree sanctioned health professionals who carried out activities within their qualifications in a manner incompatible with the law or their licence. In at least one case proceedings had been instituted against a health professional for having assisted home birth. Although the Government had recognised the need for regulations in this field, none had been introduced. The Court therefore concluded that the matter of health professionals assisting home births was surrounded by legal uncertainty prone to arbitrariness. Owing to the absence of specific and comprehensive legislation and to the permanent threat posed to health professionals inclined to assist home births, the applicant’s choices had been limited. That situation was incompatible with the notion of “foreseeability” so that the interference was not “in accordance with the law”.
Conclusion: violation (six votes to one).
Article 41: No claim made in respect of damage.
* Section 101(2) of Government Decree no. 218/1999 (XII.28).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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