In this column I have discussed legal cases presented to the European Court of Human Rights (ECHR) that are concerned with whether having a home birth can be considered a human right (Symon, 2018). The case of Pojatina v Croatia [2018] relied on a finding from a Hungarian case, Ternovsky v Hungary [2010]. The same reasoning has now been heard in a similar case involving four women from Lithuania whose judgement has just been handed down (Kosaitè-Cypienè and Others v Lithuania [2019]).
These cases all assert that a woman has a legal right to have a home birth if she chooses. They rely on an interpretation of Article 8 of the European Convention on Human Rights which states that
‘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 … for the protection of health or morals, or for the protection of the rights and freedoms of others.’
In the Hungarian case (Ternovsky v Hungary [2010]), the ECHR had held that home birth could be considered a human rights issue, since home birth is undeniably part of a person's private life. This approach, however, was not followed in the Croatian case (Pojatina v Croatia [2018]). The most recent case was brought by four women who wanted the ECHR to instruct the Ministry of Health in Lithuania to make provisions for home birth.
These cases all originate in countries where, among other things, there has not been the same tradition of a midwifery profession as has existed in the UK. As I noted in last year's article, the drive to provide home birth in the UK has had only limited success, but is at least a feasible option in some cases because midwives are appropriately trained and there is an infrastructure that should deal with problems if and when they arise (Symon, 2018). In many other countries this situation does not apply.
The most recent case submitted to the ECHR involved four women, all of whom had had home births. However, being unable to secure the services of a health professional, all had employed a woman referred to as JIŠ, who was described as either an unlicensed midwife (pribuvèja) or a doula. Although all four women said that the home births had gone well, JIŠ was charged under the criminal law for assisting at home births. At JIŠ's initial trial in 2016, the district court in Vilnius acquitted her, holding that she had:
‘Revived the old profession of doula which, although not regulated in Lithuania, was also not forbidden by law.’
However, a regional court overturned this judgement and convicted JIŠ of a criminal offence: providing healthcare services ‘that fell within the competence of an obstetrician-gynaecologist or a midwife’ (per Spano at paragraph 32). This is very similar to the argument used in the Croatian case—that someone offering services for which they are not qualified is committing an offence.
The fourth applicant in the Lithuanian case, who had been assisted by JIŠ at three home births, stated that:
‘Even though she was of “reproductive age”, she did not dare to become pregnant for the fourth time, owing to the charges pending in respect of JIŠ, ‘while the issue of giving birth at home remained legally unregulated in Lithuania.’’’
The legal situation in Lithuania, as in Croatia, appears to be that the medical authorities, including the Lithuanian Midwives Association, the Lithuanian Fellowship of Midwives and Gynaecologists and the Lithuanian Doctors Association, do not condone home birth, believing it to be unsafe. The Ministry of Health also asserted that hospital environments had also been made much more ‘home-like’. In addition,
‘Family members [can] be present during birth, and medical institutions [are] being encouraged to obtain the status of “newborn-friendly.”’
In 2012, a group called ‘Gimimas.lt’ (roughly ‘Birth Lithuania’) was set up to advocate for home birth, but the various appeals to the medical authorities to change their stance have not been effective.
In the ECHR case, the four woman argued that forbidding health practitioners to assist at a home birth on ‘public health’ grounds was disproportionate: careful protocols and guidelines, applied by health professionals who know what they are doing and want to help, is enough. The Ministry of Health's response was that:
‘The protection of people's health was to be treated as a State function, and served the public interest.’
The Ministry refuted the claim that it was denying women the right to choose: while not extending to being able to choose to give birth at home, women were free to choose a healthcare institution for the birth, as well as the professionals to assist. The arguments were very much as set out in the Pojatina v Croatia case and, as in that case, the ECHR found that the actions of the Lithuanian Ministry of Health did not deny the women their human rights. The court felt that a fair balance had been struck between the State's interest in health and safety and the women's right to respect for their private lives.
On one level these legal cases make for sombre reading. A situation that many women in the UK can view as being a matter of choice is not available to other women in Europe. But, as I noted earlier (Symon, 2018), the battle for home birth in the UK has been an uphill one. The development of local workforces with the requisite skills and infrastructure to provide home birth did not happen overnight, and only came about because of concerted and persistent efforts by many who were, in their time, often seen as extremist. It is to be noted that opposition to home birth is still commonly expressed. Notable examples are seen in the US, where a prominent obstetrician-gynaecologist has claimed that those advocating (and attending) home births have ‘blood on their hands’ and are ‘ignoring the growing pile of tiny bodies’ (Tuteur, 2012). Such emotive language betrays an ignorance of recent evidence on well-managed home births (Zielinski et al 2015).
Things change slowly. What was once the norm in the UK, and then considered outlandish and dangerous, is now broadly accepted again, even if only a small minority of pregnant women choose it. In time it is to be hoped that the situation will improve in European countries where home birth is still viewed as outlandish and dangerous. In that event, the women who challenged their own governments will be seen as pioneers, not as extremists.
