Home birth in Croatia: Is midwifery assistance potential ‘quackery’?

The European Court of Human Rights (ECHR) recently heard a case brought by a mother who wanted to guarantee a legal right to a home birth in Croatia. She explained that her first three births in hospital had gone normally but had been stressful ‘as she had felt that her wishes had not been respected and that she had not had control over […] procedures' (Pojatina v. Croatia [2018], at paragraph 43). The mother believed that a planned home birth for her fourth child would give her this sense of autonomy and control, and so wrote to Hrvatska Komora Primalja, the Croatian Chamber of Midwives (CCM), asking if she could have professional assistance. The CCM's reply was that midwives, like other health professionals, were not able to assist at a home birth.

In 2011, the Croatian Ministry of Health stated that the law required babies to be delivered in medical facilities. Home births were not regulated by law, and medical assistance would be considered ‘quackery’ (Pojatina v. Croatia [2018], at paragraph 12). Section 184(1) of the Croatian criminal code defines quackery as a person providing ‘medical treatment or other medical assistance while lacking the necessary professional qualifications' and states that such persons ‘shall be punished by imprisonment of up to one year.’

That seems to rule out the possibility of planned home births, but the law, confusingly, appears inconsistent:

In essence, while a planned home birth is theoretically permitted in Croatia under the Act on Midwifery, in practice it is unavailable, since no suitably qualified practitioner can assist without fear of criminal prosecution. There are no data on the number of home births in Croatia, but it is certainly small. More than 99% of births take place in one of the country's 31 public maternity hospitals, and almost all the rest occur in a private licensed unit in the capital, Zagreb. The parents' advocacy group roditelji u akciji (RODA, or Parents in Action) notes that:

There are no birth centres in Croatia, and in effect, there are no legally sanctioned out-of-hospital births (RODA, 2015). For further information on violent treatment during childbirth in Croatia, see Vladisavljevic (2018).

The mother in the court case, Ivana Pojatina, brought an action against the Croatian government, arguing that her rights under the European Convention on Human Rights had been breached. Article 8 of the Convention states that:

Legal rulings generally set a precedent for future decisions. Pojatina's legal team relied heavily on the case of Ternovszky v. Hungary [2010] in which the ECHR held that home birth could be considered a human rights issue, since home birth is undeniably part of a person's private life. Pojatina's legal team also cited a minority opinion in Dubská and Krejzová v. The Czech Republic [2016]. Although the ECHR had held that the Czech law prohibiting health professional assistance at a planned home birth did not violate Article 8, five of the judges disagreed. Their dissenting judgement stated:

The crucial issue here is whether a woman has a legal right to a home birth. It is certainly within living memory that the Peel Report stated that all women should give birth in hospital (National Institute for Health and Care Excellence (NICE), 2014), and it can be argued that home birth still faces an uphill battle in terms of media profile (Walsh et al, 2014). Despite this, there is a strong evidence base—reflected in updated NICE guidelines (2017)—that planned home birth for low-risk parous women is safe, and even saves the health service money (Schroeder et al, 2012). There is no doubt that planned home birth is an option in the UK—but it is still the exception rather than the rule. The rate in England and Wales is just 2.1% (Office for National Statistics, 2017) and, despite some successful local initiatives, is less than 1% overall in Scotland (McArdle, 2018). Requests for home birth are not always granted, whether for clinical or logistical reasons, and even when the plan is for a home birth, the ‘transfer rate’(antenatally, in labour and sometimes after the birth) demonstrates that home births don't always go according to plan.

Nevertheless, what supports planned home birth in the UK is a maternity care system that aims to provide skilled midwives to assist in the home, and transfer facilities to a suitable unit for when things go wrong. European jurisdictions with less of a distinct midwifery tradition may not enjoy the same political or professional drive to see home birth as an option for pregnant women—as shown by RODA's (2015) comments above about midwives in Croatia being essentially ‘doctors' assistants’. As to the evidence base, the Croatian government argued in Pojatina that

The government's reasoning was that there was not a skilled cadre of midwives who could assist, and that transfer facilities were not in place. This is a chicken-and-egg argument: if midwives do not have the option of gaining the requisite experience, there will never be a cadre of skilled birth assistants, and anyone providing help at a home birth could theoretically be charged with the criminal offence of ‘quackery’. In the event, Ivana Pojatina gave birth at home but had to obtain the assistance of a midwife from another country, who was not prosecuted as a ‘quack’. Whether a Croatian midwife would have been prosecuted is open to conjecture.

Pojatina's legal claim failed, however: the ECHR did not follow the reasoning set out in Ternovsky v. Hungary [2010] and held that in this case there had been no violation of Article 8 of the European Convention of Human Rights. The judgement did, however, ‘find it appropriate to invite the Croatian authorities to make further progress’ in terms of complying with the Mother-Friendly Hospital Initiative (Coalition for Improving Maternity Services, 2016) and with the International Federation of Gynaecology and Obstetrics (FIGO), so there was some attempt to apply pressure on the Croatian government to improve the maternity care system.

Home birth is not for everyone; but at least in the UK it is an option because midwives are appropriately trained and the infrastructure is in place to deal with any problems that might arise. It is therefore difficult for readers in the UK to appreciate a context so different that midwifery assistance at a home birth could be construed as ‘quackery’.