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Epistemic Blind Spots,
Misconceptions and Stereotypes:
The Home Birth Jurisprudence of
the European Court of Human
RightsFleur van Leeuwen*,
Abstract
This article offers a critical feminist reading of the home birth jurisprudence of the European
Court of Human Rights. The aim is to shed light on the gender sensitivity of the Court inits legal reasoning and knowledge production. Since its first decision on the permissibility ofa blanket de facto home birth ban in the case of Ternovszky v. Hungary in 2010, the Court
has given five judgments on the matter, including a Grand Chamber decision in the case of
Dubska and Krejzova v. Czech Republic. The author finds that the Court applies an overtly restrictive obstetric narrative of childbirth without situating its controversial epistemic basis.
In doing so, the Court reinforces a rationale that is linked to loss of agency and disempowerment of persons in childbirth and reproduces harmful stereotypes. The article highlights bias
in knowledge formation and (re)production at the Court in addressing cases of home birth.
The findings in this article add to feminist inquiries of international human rights adjudication, specifically in regard to knowledge formation, knowledge production and stereotyping aswell as to literature on the Court’s gender sensitivity.

1 Introduction
In 2010, the European Court of Human Rights (ECtHR) was the first international
human rights monitoring body to address the question of a right to give birth at home.
In Ternovszky v. Hungary, the Court found that the right to private life of the applicant had been violated as the laws and policies in regard to where and how she could*

Assistant professor, Department of Political Science and International Relations, Boğaziçi University,
Istanbul, Turkey; senior affiliated researcher, Atria: Institute for Gender Equality and Women’s History,
Amsterdam, The Netherlands. Email: vleeuwenfleur@gmail.com.

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give birth had been unclear. Since then, the Court has given four more judgments incases of de facto home birth bans, including a Grand Chamber judgment. In thesejudgments, the Court has ruled that the states in question were justified in making
home birth de facto unavailable with the aim of compelling women to give birth in
hospitals.1 This article provides a critical reading of these five judgments of the Court
from a feminist angle.2
This reading is conducted against the background of studies in the field of midwifery, medicine and (feminist) sociology that relate the medicalization of childbirthwith loss of agency and the disempowerment of the birthing person.3 The medicalization of childbirth is understood here as the move from a midwifery model of care,which considers pregnancy, childbirth and postpartum to be normal, physiologicallife events, to an ‘obstetric model of care’, which treats childbirth as inherently pathological and needing to be medically managed in specialized, centralized facilities.4
There is a significant body of work that relates the medicalization of childbirth with
controlling women and their bodies5 and that, for example, discusses how fear ofchildbirth is cultivated and how patriarchy has told the woman in labour that her
suffering is purposive.6
The reading itself is informed by feminist legal theory and feminist epistemology.
Both theoretical strands counteract misconceptions and stereotypes in law and

1

2

3

4

5

6

In this article, I use ‘women’, ‘persons in childbirth’ and ‘birthing persons’ interchangeably, recognizing that one does not have to identify as a woman in order to be able to give birth. Generally, whenreferring to the jurisprudence of the European Court of Human Rights (ECtHR), the word ‘woman’is used in line with the Court’s phrasing. When discussing the implications of the Court’s jurisprudence or discussing the topic of childbirth at large, ‘birthing persons’ or ‘persons in childbirth’ isused.
This article focuses on the jurisprudence of the Court regarding a right to choose to give birth at home.
It therefore does not address the judgments of the Court in Konovalova v. Russia and Hanzelkovi v. Czech
Republic, which respectively deal with the attendance of medical students during birth and a courtordered interim measure that required the immediate return to hospital of a newborn baby and its
mother. ECtHR, Konovalova v. Russia, Appl. no. 37873/04, Judgment of 9 October 2014; Hanzelkovi v.
Czech Republic, Appl. no. 43643/10, Judgment of 11 December 2014. All ECtHR decisions are available
at http://hudoc.echr.coe.int/.
For example, Kitzinger, ‘Rediscovering the Social Model of Childbirth’, 39 Birth: Issues in Perinatal Care(2012) 301; Johanson, Newburn and Macfarlane, ‘Has the Medicalisation of Childbirth Gone Too
Far?’, 324 British Medical Journal (BMJ) (2002) 892; Moore, ‘Reclaiming the Body, Birthing at Home:
Knowledge, Power, and Control in Childbirth’, 35 Humanity and Society (2011) 376; Miller et al., ‘Beyond
Too Little, Too Late, and Too Much, Too Soon: A Pathway towards Evidence-based, Respectful Maternity
Care Worldwide’, 388 The Lancet (2016) 2176; Nelson and Romanis, ‘The Medicalisation of Childbirthand Access to Homebirth in the UK: COVID-19 and Beyond’, 29 Medical Law Review (MLR) (2021) 661,
at 674–675; Martin, ‘Giving Birth Like a Girl’, 17 Gender and Society 1 (2003) 54, at 55.
Johanson, Newburn and Macfarlane, ‘Has the Medicalisation of Childbirth Gone Too Far?’, 324 BMJ(2002) 892.
Beckett, ‘Choosing Caesarean: Feminism and the Politics of Childbirth in the United States’, 6 Feminist
Theory (2005) 251, at 266; Nelson and Romanis, ‘The Medicalisation of Childbirth and Access to
Homebirth in the UK: COVID-19 and Beyond’, 29 MLR (2021) 661, at 674; Martin, ‘Giving Birth Like aGirl’, 17 Gender and Society (2003) 54, at 55.
A classic example is A. Rich, Of Woman Born: Motherhood as Experience and Institution (1976).

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adjudication and contest the notion of singular ‘truths’ and objective knowledge.7
Reading with and against the grain, the aim of this article is not to determine whether
the ECtHR recognizes a right to give birth at home or to analyse the legal rules as
such8 but, rather, to question the ways in which gender influences the Court’s conceptions of knowledge, knowers and practices of inquiry and justification. Hence, insteadof a doctrinal approach, this reading is informed by what is often called ‘asking thewoman question’.9 A method that consists of exploring absences, silence, difference,
oppression and the power of epistemology in (legal) texts with the understanding thatknowledge is produced within contexts in which meaning and experience cannot be
simply distinguished.10
Such a feminist lens is pertinent as feminist legal scholarship has convincingly
shown international law, including human rights law, to be androcentric.11 A deficiency of the legal system has been acknowledged by states and international organizations in numerous international fora.12 International human rights monitoring
bodies were accordingly called upon to ‘include the status and human rights ofwomen in their deliberations and findings’, to ‘integrate a gender perspective’ and to

7

8

9
10

11

12

Charlesworth, ‘Feminist Methods in International Law’, 93 American Journal of International Law (AJIL)(1999) 379; Davies, ‘Law’s Truths and the Truth About Law: Interdisciplinary Refractions’, in M. Davies
and V. Munro (eds), Feminist Legal Theory (2018) 65, at 73; Smart, ‘Law’s Truth/Women’s Experience’,in R. Graycar (ed.), Dissenting Opinions: Feminist Explorations in Law and Society (1990) 1; L. Hodson
and T. Lavers, Feminist Judgments in International Law (2019), at 5–6; Davies, ‘Knowledge, Identity, and
the Politics of Law’, 11 Hastings Women’s Law Journal (HWLJ) (2000) 259, at 260; Tuana, ‘Feminist
Epistemology: the Subject of Knowledge’, in I.J. Kidd, J. Medina and G. Pohlhaus, The Routledge Handbookof Epistemic Injustice (2017) 125, at 125; Fricker, Epistemic Injustice: Power and the Ethics of Knowing(2007), at 31.
Several scholars analysed the first and second judgments of the ECtHR with the question whether the
Court recognized a right to give birth at home under Article 8 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR) 1950, 213 UNTS 222. Some dubbed the rulingsof the Court paradoxical. Chen and Cheeseman, ‘European Court of Human Rights’ Rulings in Home
Birth Set to Cause Trouble for the Future: A Review of Two Cases’, 25 MLR (2017) 115; Chervenak
et al., ‘The European Court of Human Rights on Planned Homebirth: Resolution of a Paradoxical Ruling’,
124 British Journal of Obstetrics and Gynaecology (2017) 1472; McCartney, ‘Childbirth Rights: Legal
Uncertainties under the European Convention after Ternovsky v. Hungary’, 40 North Carolina Journal ofInternational Law and Commercial Regulation (2015) 543.
Bartlett, ‘Feminist Legal Methods’, 103 Harvard Law Review (1990) 829, at 837–849.
Davies, ‘Law’s Truths and the Truth About Law: Interdisciplinary, in M. Davies and V. Munro (eds),
Feminist Legal Theory (2018) 65, at 73; S. Kouvo and Z. Pearson, Feminist Perspectives on Contemporary
International Law: Between Resistance and Compliance? (2014), at 5.
See, e.g., R. Cook, Human Rights of Women: National and International Perspectives (1994), at 3–4;
Charlesworth, Chinkin and Wright, ‘Feminist Approaches to International Law’, 85 AJIL (1991) 613;
Binion, ‘Human Rights: A Feminist Perspective’, 17 Human Rights Quarterly (HRQ) (1995) 509; O’Hare,‘Realizing Human Rights for Women’, 21 HRQ (1999) 364; Bunch, ‘Women’s Rights as Human Rights:
Towards a Re-vision of Human Rights’, 12 HRQ (1990) 486.
See, e.g., Vienna Declaration and Programme of Action, Doc. A/CONF.157/23, 25 June 1993, part II, at
42; GA Res. 60/1, 24 October 2005; GA Res. 49/161, 23 December 1994; UN Commission on Human
Rights, The Elimination of Violence Against Women, Doc. E/CN.4/RES/1994/45, 4 March 1994; Expert
Group Meeting on the Development of Guidelines for the Integration of Gender Perspectives into Human
Rights Activities and Programmes, Doc. E/CN.4/1996/105, 20 November 1995, at 45.

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conduct ‘gender mainstreaming’.13 Scholarship has highlighted how, despite thesestrategies (or perhaps because of these strategies),14 international human rights practice remains male biased.15 This holds true not only for human rights mechanisms
established within the framework of the United Nations (UN) but also for regional
human rights bodies like the ECtHR. Although the Court has consistently held thatgender equality is one of the key underlying principles of the European Convention
on Human Rights (ECHR), scholars have, for example, highlighted how the Court incorporates a limited understanding of non-discrimination and has failed to conduct asystematic analysis of harmful gender stereotypes.16
In thus deconstructing the home birth jurisprudence of the ECtHR, this article aims
to provide further insight into the gender sensitivity of the Court and, in doing so, also
add to an understanding of ‘knowledge production in (international) legal processes’.
‘An expression’, as Andrea Bianchi and Moshe Hirsh explain, ‘that could turn into an
established term of art to connote the study of the mechanisms of producing knowledge in the field of international law, with due heed being paid to the forces at play
and the actors involved in such processes’.17 The findings in this article centre on the
obstetric narrative of the Court in addressing the topic of childbirth in its judgments.
As described in the following section on the Court’s homebirth jurisprudence, thecentral tenet to the Court’s reasoning is that childbirth is necessarily a medical eventas ‘unexpected difficulties may (always) arise’. Holding medical science to be the authority on childbirth, the Court finds that the hospital setting is always the best place
to give birth. Section 3 of this article discusses how this conception of the obstetricmodel of childbirth care as the best model of care is integral to the Court’s knowledge
formation on the topic of childbirth and its framing of the cases at hand as well as

13

14

15

16

17

See, e.g., Gallagher, ‘Ending the Marginalisation: Strategies for Incorporating Women into the United
Nations Human Rights System’, 19 HRQ (1997) 283; Johnstone, ‘Feminist Influences on the United
Nations Human Rights Treaty Bodies’, 28 HRQ (2006) 148; Charlesworth, ‘Not Waving but Drowning:
Gender Mainstreaming and Human Rights at the United Nations’, 18 Harvard Human Rights Journal(HHRJ) (2005) 1.
Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights at the United
Nations’, 18 HHRJ (2005) 1.
Otto, ‘Women’s Rights’, in D. Moeckli, S. Shah and S. Sivakumaran (eds), International Human Rights Law(2018) 309, at 324–325; F. van Leeuwen, Women’s Rights Are Human Rights: The Practice of the United
Nations UN Human Rights Committee and the Committee on Economic, Social and Cultural Rights (2009); Van
Leeuwen, ‘The United Nations and the Promotion and Protection of Women’s Human Rights: A Work in
Progress’, in I. Westendorp (ed.), The Women’s Convention Turned 30 (2012) 13, at 24–29.
ECHR, supra note 8; Fredman ‘Emerging from the Shadows: Substantive Equality and Article 14 of theEuropean Convention on Human Rights’, 16 Human Rights Law Review (HRLR) (2016) 273; Alkaviadou
and Manoli, ‘The European Court of Human Rights through the Looking Glass of Gender: An Evaluation’,
11 Goettingen Journal of International Law (2021) 191; Radacic, ‘Gender Equality Jurisprudence of theEuropean Court of Human Rights’, 19 European Journal of International Law (2008) 841; Oja and Yamin,‘“Woman” in the European Human Rights System: How Is the Reproductive Rights Jurisprudence of
the European Court of Human Rights Constructing Narratives of Women’s Citizenship?’, 32 Columbia
Journal of Gender and Law (2016) 52.
A. Bianchi and M. Hirsch (eds), International Law’s Invisible Frames: Social Cognition and Knowledge
Production in International Legal Processes (2021), at 3.

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its (approach to) stereotyping. The last section of the article relates these findings toclaims of androcentricity in the Court’s practice and biased knowledge production.

2 The Court’s Home Birth Jurisprudence
A Ternovszky v. Hungary
In 2010, in the case of Ternovszky v. Hungary, the ECtHR ruled for the first time that
persons have a right to choose the circumstances of giving birth.18 The case centred
on a pregnant woman who wanted to give birth at home but who argued that she
could not do so because she could not find a midwife willing to assist her. She was notable to find a midwife because of the regulations in place that dissuade health care
professionals from assisting in home births. In Hungary, home birth is not prohibited,
but the government restricts health professionals from assisting with them. Those
who ‘encourage unsafe home births overstep the limits of their licences and mightface administrative sanctions’.19 It is this issue of not being able to give birth at homebecause restrictions in place make it impossible to obtain skilled assistance duringchildbirth that lies at the heart of this case as well as the subsequent homebirth cases
discussed later in this article. Hence, in none of the cases is there a de jure prohibitionof giving birth at home. Rather, as the Court observes, there is a de facto ban in place‘as the choice of giving birth at home would normally entail the involvement of healthprofessionals’. Anna Ternovszky argued that this de facto ban constituted a violationof her rights under Article 8 of the ECHR, the right to private life, in conjunction with
Article 14, the right to non-discrimination.
The ECtHR considered that Ternovszky’s complaint must be considered under
Article 8 alone and, as is not uncommon, did not disclose its reasons for dismissing the
Article 14 complaint.20 Looking at the negative obligations of Hungary under Article
8 of the ECHR, it set out to determine whether the contested legislation constituted aninterference with Ternovszky’s right to private life. The question whether this de facto
home birth ban falls within the scope of Article 8 of the convention is answered in theaffirmative. The Court observed that: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 is satisfied
that the circumstances of giving birth incontestably form part of one’s private life for the purposes of this provision.21

It was the first time that the Court recognized a right to choose the circumstances ofgiving birth. In terms of whether there is an interference with this right, the framing of the regulations in place as a de facto ban is crucial. By law, Ternovszky could
have given birth at home as she was not prohibited from doing so. But, crucially, the
18
19
20
21

ECtHR, Ternovszky v. Hungary, Appl. no. 67545/09, Judgment of 14 December 2010.
Ibid., at 6.
Ibid, at 12.
Ibid., at 22.

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Court reasoned that the choice of giving birth at home normally entails the involvement of health professionals. Therefore, ‘legislation which arguably dissuades these
professionals from providing the requisite assistance constitutes an interference withthe exercise of the right to respect for private life by prospective mothers such as theapplicant’.22
Hungary defended its policy by noting that there is professional consensus in the
country that home birth is less safe than birth in a health care institution. The judgment did not testify to any statistics or other data to support its position. Paradoxically,
Hungary also submitted that its regulations do not dissuade mothers from giving birth
at home and that there is no evidence that birth care professionals were effectively discouraged by the legislation in place from providing assistance to those in need.23 The
ECtHR did not address this inconsistency. It found that the interference was not ‘inaccordance with the law’. Noting that ‘where choices related to the exercise of a rightto respect for private life occur in a legally regulated area, the state should provide adequate legal protection to the right in the regulatory scheme, notably by ensuring thatthe law is accessible and foreseeable, enabling individuals to regulate their conduct
accordingly’.24
In the context of home birth, it found that this implies that ‘the mother is entitledto a legal and institutional environment that enables her choice, except where otherrights render necessary the restriction thereof ’.25 The Court observed that the regulations in place are contradictory. On the one hand, the Health Care Act recognizes
patients’ right to self-determination, and, on the other hand, a government decree
sanctions health professionals who carry out activities within their qualifications ina manner that is incompatible with the law or their licence: ‘[T]he matter of healthprofessionals assisting home births is surrounded by legal uncertainty prone to arbitrariness.’26 The Court therefore found that there had been a violation of Ternovszky’s
right to private life.
Notably, the Court also observed here that it was aware, ‘for want of conclusive
evidence, that it is debated in medical science whether, in statistical terms, homebirth
as such carries significantly higher risks than giving birth in hospital’.27 It is an addendum that has no bearing on the conclusion that the situation in Hungary is incompatible with the notion of ‘lawfulness’ but that the Court evidently felt compelled
to make.28 It is a prelude to the obstetric rationale applied by the Court in its subsequent home birth cases where the issue is addressed as one of risk (of home birth, notof hospital birth) and where medical science is the epistemic authority.

22
23
24
25
26
27
28

Ibid.
Ibid., at 17.
Ibid, at 24.
Ibid.
Ibid., at 26.
Ibid., at 24.
Van Leeuwen, ‘Milestone or Stillbirth? An Analysis of the First Judgment of the European Court of
Human Rights on Home Birth’, in M. van den Brink, S. Burri and J. Goldschmidt (eds), Equality and
Human Rights: Nothing but Trouble? (2015) 197, at 207–208.

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B Dubska and Krejzova v. Czech Republic
Sarka Dubska and Alexandra Krejzova filed their applications shortly after the ECtHR’s
judgment in Ternovszky. Like Ternovszky, both women were pregnant at the time of
their application and wanted to give birth at home, but they could not find a midwife
willing to assist them. The Regional Office, the body responsible for registering andissuing authorizations to health professionals, informed them that midwives listed in
the register of health professionals are allowed to attend births only at premises possessing certain technical equipment, which excludes a private home. The applicants
complained of a violation of Article 8 of the ECHR.
In its judgment, the Court determined that it was appropriate to analyse the applicants’ complaints as concerning negative obligations as ‘their core argument beingthat midwives were prohibited from assisting them at home births under the threatof a sanction, which disproportionately restricted the applicants’ right to respect for
their private life’. Despite similarities with the legal situation in the Ternovszky case, theCourt found that the applicants ‘were able to foresee with a degree that was reasonable
in the circumstances that the assistance of a health professional at a home birth was
not permitted by law’.29 The Medical Services Act specified that a person could provide
medical care only if they were in possession of the appropriate licence, the conditionsof which included a requirement that appropriate technical equipment as specified
in a decree issued by the Ministry of Health was present. The Court noted that it was
clear that private homes did not satisfy this requirement.
It therefore turned to the question of the state’s legitimate aim and the necessityand proportionality of the interference in the cases at hand. The ECtHR consideredthat ‘there exist no grounds for doubting that the policy in issue was designed to protect the health and safety of the new-born during and after delivery and, at least indirectly, that of the mother’, but it did not elaborate on this finding.30 In doing so, itdismissed the arguments of the applicants who claimed that the aim was to ‘actively
prevent mothers-to-be from benefiting from healthcare provided by midwives, in orderto protect the financial and power monopoly of the incumbent providers of institutional health care’ and disregarded the paradox in the state’s reasoning. As Judge Paul
Lemmens remarks in his dissenting opinion, ‘it is … theoretically possible for mothers
to give birth at home. Should they choose to do so, however, they are unable to obtain
the assistance of a midwife. I cannot understand how such a system, taken as a whole,can be seen as compatible with the stated aim of protection of the health of the mothers and their children’.31
Notably, the ECtHR does recognize the risks that the de facto home birth ban creates. In its discussion on proportionality, it observes that ‘the situation in question
had a serious impact on the freedom of choice of the applicants, who were required,
if they wished to give birth at home, to do so without the assistance of a midwife and,
29

30
31

ECtHR, Dubska and Krejzova v. Czech Republic, Appl. no. 28859/11 and 28473/12, Judgment of 11
December 2014, at 82–83.
Ibid., at 86.
Ibid., at 3, Dissenting Opinion of Judge Lemmens.

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therefore, with the attendant risks that this posed to themselves and to the new-borns,
or to give birth at hospital’.32 And, subsequently, it states that ‘a situation such as
the one in the Czech Republic, where medical professionals are not allowed to assist
mothers who wish to give birth at home and where no specialised emergency aid isavailable, may be said to increase rather than reduce the risk to the life and health ofthe mother and new-born’.33 But these findings did not lead the Court to question thestate’s party’s legitimate aim or the proportionality of the interference.
The Court held that the state has a wide margin of appreciation in balancing theinterests at stake. In this regard, it observed that the case ‘involves a complex matterof healthcare policy requiring an assessment by the national authorities of expert andscientific data concerning the relative risks of hospital and home births’, and it referred to a lack of common ground in member states, the social and economic policy
considerations involved for the state and the fact that ‘besides their physical vulnerability, newborns are fully dependent on decisions made by others, which justifies astrong involvement on the part of the State’. In the same vein, the Court held that,‘while there is generally no conflict of interest between the mother and her child, certain choices made by the mother as to the place, circumstances or method of delivery
may be seen to give rise to an increased risk to the health and safety of the new-borns,
whose mortality rate, as shown in figures for perinatal and neonatal deaths, is not
negligible, despite all the advances in medical care’. Hence, strong state intervention
is justified in order to protect newborns from irresponsible decisions by the persons
that give birth to them.
The ECtHR’s conclusion regarding a lack of European consensus is remarkable. The
data presented to it show that in only a few states (Croatia, Lithuania and Ukraine)
can a health professional face a sanction for assisting with a planned home birthand that no state prohibits home birth.34 As Judges András Sajó, Işil Karakaş, George
Nicolaou, Julia Laffranque and Helen Keller underline in their dissenting opinion in
the Grand Chamber judgment, there is ‘a consensus in favour of not prohibiting homebirths among the member States’.35
Although the Court notes that the conditions in most local hospitals, in terms ofrespecting the choices of mothers, ‘were questionable’ and that the majority of theresearch studies presented to it showed that there was not an increased risk if certain
preconditions were met, it found that the state did not overstep its wide margin of appreciation. Crucial in this finding is the Court’s obstetric narrative:[E]ven if a pregnancy seems to be without any particular complications, unexpected difficulties
can arise during the delivery, such as an acute lack of oxygen supply to the foetus or profuse
bleeding, or events which require specialised medical intervention, such as a Caesarean sectionor the need to put a newborn on neonatal assistance. Moreover, in the course of a hospitalbirth, the institution can immediately provide the necessary care or intervention, which is not
32
33
34
35

Ibid., at 95.
Ibid., at 96.
Ibid., at 59–61.
Dubska and Krejzova 2014, supra note 29, at 28, Dissenting Opinion of Judges Sajó, Karakaş, Nicolaou,
Laffranque, and Keller.

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true of a home birth, even one attended by a midwife. The time spent getting to a hospitalshould such complications occur could indeed give rise to increased risks to the life and healthof the newborn or that of the mother.36

The Court ruled that, ‘having regard to all circumstances of the case and bearing
in mind that there is no European consensus in the matter’, there is no violation of
Article 8 of the Convention.

C Dubska and Krejzova at the Grand Chamber
Dubska and Krejzova requested referral of their cases to the Grand Chamber. In its
judgment, the Grand Chamber followed the chamber in most of its reasoning: it applied a negative obligations approach; held that the applicants were able to foresee to adegree that was reasonable that the provisions in question did not permit a health professional to assist with a planned home birth; and did not doubt that the Czech state’s
policy was designed to protect the health and safety of the mother and child.37 For reasons identical to those of the chamber, it also found that the margin of appreciationmust be a wide one.38 Although the Grand Chamber observed in regard to the pointof European consensus that no legislation had been found that explicitly prohibits theassistance of midwives at home births, it found that ‘the right to choose this mode ofdelivery is never absolute and is always dependent on certain medical conditions being
satisfied’ in the 20 member states in which planned home births are provided for indomestic law and regulated.39
In regard to the question whether the Czech Republic struck a fair balance, theGrand Chamber reiterated the main observations of the chamber. It echoed the chamber’s problematic observations that the policy in place gives women the choice to givebirth in a hospital or do so at home without the assistance of a midwife, ‘with the attendant risks that this posed to themselves and the newborns’ and that ‘a home birthwithout the assistance of medical professionals may increase the risk to the life andhealth of both the mother and the newborn child’.40 And it reiterated that certain
choices made by the mother as to the place, circumstances or method of delivery may
be seen to give rise to an increased risk to the health and safety of newborns.41 It also
repeated the chamber’s obstetric narrative, noting that, ‘even if a pregnancy proceeds
without any complications and can therefore be considered a “low-risk” pregnancy,
unexpected difficulties can arise during the delivery which would require immediate
specialist medical intervention, such as a Caesarean section or special neonatal assistance’.42 The Grand Chamber observed in this connection that the Czech Republic had
not set up a system of specialist emergency assistance for cases of home births, which
36
37

38
39
40
41
42

Dubska and Krejzova 2014, supra note 29, at 97.
ECtHR, Dubska and Krejzova v. Czech Republic, Appl. No. 28859/11 and 28473/12, Judgment of 15
November 2016, at 165, 171, 172.
Ibid., at 182–184.
Ibid., at 183.
Ibid., at 187.
Ibid., at 185.
Ibid., at 186.

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would likely be to increase the potential risks for women giving birth at home and theirbabies. It is a point that is contested by the applicants, who argued that emergency
services were already available to any woman in the Czech Republic.43
Although the reasoning of the Grand Chamber is on many fronts a repetition ofthat of the chamber, there are some novel aspects in the judgment. The first is thepresence of amicus curiae. Remarkably, in the selection of these third-party interveners, the president of the ECtHR denied leave to organizations with particular expertise in reproductive rights and rights in childbirth. These included the Center for
Reproductive Rights, Human Rights in Childbirth and Paul Hunt, the former UN special rapporteur on the right to health. Parties that represented medical professionals
as well as member states with similar home birth regulations in place were granted
leave.44 This selection is illustrative of the Court’s approach to childbirth, treating it asa medical event, a practice in which medical science is the epistemic authority and ultimate arbiter. The second aspect worth highlighting is the Grand Chamber’s observation that the applicants could have opted for a maternity hospital ‘where their wishes
would in principle have been satisfied’. Although, like the chamber, it was cognisantof the concerns expressed by the UN Committee on the Elimination of All Forms ofDiscrimination against Women on the conditions for childbirth and obstetric services
in the Czech Republic.45
The Grand Chamber found that the interference with the applicants’ right to respect
for their private life was not disproportionate. By 12 votes to five, it held that there had
been no violation of Article 8 of the ECHR. The Grand Chamber’s judgment in Dubska
and Krejzova cemented the Court’s approach to home birth cases. Judge Laffranqueobserves in her concurring opinion: ‘I voted with the majority: the judgment as suchcannot depart from the already established case law of the Court.’46

D Pojatina v. Croatia
Although the context in the case of Pojatina differs from that in Dubska and Krejzova,
the ECtHR reiterated its reasoning from its previous judgments. In Croatia, homebirths are not prohibited, and midwives are not expressly prevented from assistinghome births. Croatia, however, does not legally provide for assistance at home births
either. This was made clear to the applicant in a letter from the Croatian Chamberof Midwives as well as in a letter from the minister of health. The former noted that,
due to a lack of a clear legal framework, no midwife had set up a private practice orofficially assisted with home births. The latter, in response to an enquiry from theombudswoman for children, had stated that the question of home births had not been
43
44

45
46

Ibid., at 74.
Van Leeuwen, ‘The Missing Voice of Pregnant Women: Third Party Intervention in the Dubska andKrejzova Case’, Strasbourg Observers (23 November 2015), available at https://strasbourgobservers.
com/2015/11/23/the-missing-voice-of-pregnant-women-third-party-interventions-in-the-dubskaand-krejzova-case-2/.
Ibid., at 188.
ECtHR, Kosaite-Cypiene and Others v. Lithuania, Appl. no. 69489/12, Judgment of 4 June 2019, Concurring
Opinion of Judge Laffranque.

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regulated by law and that medical assistance in such procedures was considered to bequackery. It had also stated that home births were the personal responsibility of themother and the person assisting with the delivery.47 Ivana Pojatina therefore could
not obtain assistance for a home birth from a midwife registered with the CroatianChamber of Midwives. The latter had, however, informed the applicant that homebirths did occur in Croatia.48 Pojatina gave birth at home with a midwife from abroad.
She complained that Croatian law had dissuaded health professionals from assisting
her when giving birth at home and that she had not had an effective domestic remedy
at her disposal. This, she argued, constituted a violation of her rights under Articles 8
and 13 of the ECHR.49
Despite the fact that home birth was not prohibited and that midwives were notexplicitly prevented from assisting, the ECtHR addressed the case as one in which therelevant domestic law did not allow health professionals, including midwives, to assist with planned home births.50 In terms of applicability of Article 8 of the ECHR,
the Court reiterated that, ‘although Article 8 could not be interpreted as conferringa right to give birth at home as such, the fact that it was impossible in practice forwomen to be assisted when giving birth in their private home came within the scope of
their right to respect for their private life and accordingly of Article 8. It sees no reason
to depart from that view in the present case’.51 Turning to the question of the lawfulness of the interference, the Court ‘accepts that at first there might have been somedoubt as to whether a system for assisted home births had been set up in Croatia’ and‘invites the Croatian authorities to consolidate the relevant legislation so that the issue
is expressly and clearly regulated’. However, this did not lead the Court to find that thelaw was not foreseeable. It found that the applicant was clearly made aware, throughthe letters from the Croatian Chamber of Midwives and the Ministry of Health, thatthe relevant domestic law did not allow health professionals, including midwives, toassist with planned home births and that the impugned interference was therefore
foreseeable and in accordance with the law.52
In terms of a legitimate aim, the ECtHR echoed its judgments in Dubska and Krejzova.
It ‘considers that there are no grounds for doubting that the Croatian State’s policy of
47
48
49
50
51

52

ECtHR, Pojatina v. Croatia, Appl. no. 18568/12, Judgment of 4 October 2018, at 12.
Ibid., at 8.
Ibid., at 3.
Ibid., at 72.
Ibid., at 44. Judge Wojtyczek criticizes this observation in his partly dissenting opinion. He argues that,‘[i]f – as the majority allege – Article 8 could not be interpreted as conferring a right to give birth at homeas such, then it is difficult to understand why the fact that it was impossible in practice for women to beassisted when giving birth in their private home can still come within the scope of their right to respect for
their private life and accordingly of Article 8’ (at 5, Partly Dissenting Opinion Judge Wojtyczek; emphasis
in original).
Pojatina, supra note 47, at 72. As Judge Wojtyczek also stresses in his partly dissenting opinion, this is aremarkable conclusion as assistance is permitted but not officially provided due to a lacuna in the law. He
therefore finds that the information provided to the applicant was not accurate. He notes that the Court’s
approach ‘is highly problematic. In my opinion, the legal situation was sufficiently clear, not becauseof but in spite of the information provided in the above-mentioned documents’ (at 3, Partly Dissenting
Opinion Judge Wojtyczek; emphasis in original).

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encouraging hospital births … was designed to protect the health and safety of mothers and children during and after delivery’.53 And, although it observed that ‘[i]n theend, she gave birth at home with a midwife from abroad’,54 it reiterated that, ‘as aconsequence of the legislative provisions in force at the relevant time, the applicant
was put in a situation which had a serious impact on her freedom of choice: she was
required either to give birth in a hospital, or, if she wished to give birth at home, to do
so without the assistance of a midwife and, therefore, with the attendant risks that
posed to herself and her baby’.
Similar to the previous cases, this judgment does not testify to any statistics on risks ofhome birth versus hospital birth. Instead, the Court observed that the Commission for
Perinatal Medicine of the Ministry of Health was of the view that hospitals were the safest places for performing deliveries, providing the best guarantees for the preservation of
the health and life of both mothers and newborns. The Court reiterated its obstetric narrative and echoed the sentiments expressed by the Grand Chamber regarding maternity
hospitals, noting that the applicant could have opted to give birth in a maternity hospital ‘which [was] fully staffed and adequately equipped from a technical and material
perspective’. Similar to the Grand Chamber, it also acknowledged that the wishes ofmothers-to-be do not seem to be fully respected in maternity wards. But although ‘thoseconcerns cannot be disregarded’, the Court recognized that in recent years various initiatives to improve the situation have been taken. On that note, the Court invited Croatia
to keep ‘the relevant legal provisions under constant review so as to ensure that theyreflect medical and scientific developments while fully respecting women’s rights in thefield of reproductive health, notably by ensuring adequate conditions for both patientsand medical staff in maternity hospitals across the country’. In doing so, the Court echoed the recommendation of the Grand Chamber to the Czech Republic but overlooked
the fact that Croatian law does not regulate assistance during home birth. The Court
found that the interference was not disproportionate and held unanimously that there
had been no violation of Article 8 of the ECHR.55

E Kosaite-Cypiene and Others v. Lithuania
The last home birth judgment of the ECtHR to date centres on the cases of four
women who had all previously given birth at home with the assistance of J.I.S., an
unlicensed doula. As criminal charges had been brought against J.I.S., they could not
rely upon her services for their upcoming births.56 The women could also not obtain
53
54
55
56

Ibid., at 74.
Ibid., at 79.
The Court rules that the complaint regarding Article 13 of the ECHR is manifestly ill-founded.
The fourth applicant was not pregnant at the time of application. The Court, however, held that ‘[a]lthough it has not been asserted that the fourth applicant in this case was pregnant when lodging thisapplication, it is not disputed that she belonged to a category of women – namely, those of child-bearing
age – that may be adversely affected by the restrictions imposed by the prohibition on the provision of
medical assistance during home births. She was not seeking to challenge in abstracto the compatibilityof Lithuanian law with the Convention, since she ran a risk of being directly prejudiced by the measurecomplained of. The fourth applicant can thus claim to be a “victim” within the meaning of Article 34 of
the Convention’. Kosaite-Cypiene, supra note 46, at 70.

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the assistance of other health care professionals as the public hospitals to whom thewomen had turned for help had told them that such assistance was prohibited under
Lithuanian law. The Ministry of Health had informed the first three applicants, in response to their requests, that the specialists were unanimous in the conclusion that it
was safest for a woman to give birth in a maternity ward, even when there was little
risk of complications, and that the question of home birth concerned not only the
woman’s choice but also the state’s.57
The applicants argued that Lithuanian law dissuaded health care professionals fromassisting them when giving birth at home, in violation of their right to private life.
Although home birth is not as such prohibited, qualified medical assistance, under domestic regulations, can only be offered in hospitals. In its response, Lithuania stressed
the necessity of state intervention, arguing that obstetrics is ‘the only area of healthcare practice where assistance is provided to two human beings at the same time. In
order to ensure that they stayed alive, both human beings had to be monitored during
labour’.58 Echoing the reasoning of the Grand Chamber, the Court examined the casesof these four women from the standpoint of the state’s negative obligations; reiterated that, ‘contrary to the applicants’ arguments, the Court considered that there are
no grounds for doubting that the Lithuanian State’s policy of encouraging hospitalbirths, as reflected in the relevant national legislation, was designed to protect thehealth and safety of mothers and children during and after delivery;59 and ruled thatthe impugned interference was foreseeable and in accordance with the law.60 In discussing whether the interference is necessary in a democratic society, the Court reiterated its obstetric narrative and indicated that this was an issue of comfort over safety:‘[It] takes note of the Government’s argument that for objective and quantifiable reasons, and even though home delivery might be more pleasant for some m­ others-to-be,
it still represented an option that was not as safe as a full hospital delivery, which provided the best guarantees for the preservation of the health and life of both mothers
and newborns.’61
Lithuania had argued that, in situations when women were in labour, the state’s
primary responsibility was to protect the health and life of human beings. It therefore
limited the places in which labour could take place, whereas ‘if it allowed women theunrestricted right to choose the most emotionally comfortable place in which to givebirth, it would not be able to secure its primary goal – preserving the health and life of
the mother and of the newborn’.62 In this context, Lithuania also pointed to the first
applicant’s submission that she had given birth to her last child at home, ‘which for
the Government showed that this applicant thus failed to act in a manner ensuringthat the life of a future human being would not be placed in danger’.63 The Court
57
58
59
60
61
62
63

Ibid., at 8–9.
Ibid., at 81.
Ibid., at 98.
Ibid., at 97.
Ibid., at 104.
Ibid., at 85.
Ibid.

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did not question Lithuania’s observations in this respect. It reiterated its observationthat maternity hospitals are ‘fully staffed and adequately equipped from a technicaland material perspective’ and ‘able to provide all the necessary urgent medical care,
whereas this would not be possible in the case of a home birth, even with a midwife
attending’.64 Furthermore, it added that it:
cannot but note that all four applicants could have opted to give birth in any maternity ward in
Lithuania that they considered likely to respect their wishes in principle. … In fact, in reply to
her demand that she be provided with medical assistance during her home birth, the third applicant was explicitly invited to visit one of those hospitals in order to become acquainted withthe environment therein. ... However, as pointed out by the Supreme Administrative Court, shenever approached any of the maternity wards about arrangements that they could make toensure her privacy, as she saw it.65

On the basis of the foregoing, noting that the Grand Chamber had decided in the casesof Dubska and Krejzova that the margin of appreciation to be afforded had to be wide,
and acknowledging that specific steps had been taken to ensure home-like conditions
for women giving birth at the majority of maternity wards, the Court found unanimously that there had been no violation of Article 8 of the ECHR.

3 Epistemic Blind Spots, (Mis)conceptions and Stereotypes
A Introduction to the Findings
A critical reading is necessarily subjective. This reading was situated in the context
of the work of scholars in the social sciences, midwifery and medicine that relates
the medicalization of childbirth with loss of agency and the disempowerment of thebirthing person. It was informed by feminist epistemology and critical feminist approaches to international (human rights) law. Reading with and against the grain,
there were several issues that drew my attention. These concern the ECtHR’s knowledge formation on the topic under consideration, its framing of childbirth as a medical event and the related epistemic authority of medical science and its allusion tostereotypes of the woman in childbirth. These three issues are interwoven, meaningthat the ways in which one acquires knowledge, consciously or unconsciously, are,amongst other things, informed by one’s prejudices and presumptions.66 In the samevein, knowledge formation is informed by, and informs, one’s framing of the issue athand, which, in turn, is related to those stereotypes that lie at the root of one’s framing and the ways in which one acquires knowledge. To illustrate, in its judgments,
the Court framed childbirth as a medical event. In terms of knowledge formation, it
pointed, therefore, to the opinions of medical ‘experts’ and portrayed the person inchildbirth as a threat to the life of their baby when they refuse to abide by medical

64
65
66

Ibid., at 104.
Ibid., at 106.
Davies, ‘Knowledge, Identity, and the Politics of Law’, 11 HWLJ (2000) 259, at 260.

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opinion. Although interwoven, these three issues and their implications for agency
and rights in childbirth will be addressed here separately.

B Questions of Knowledge Formation
Knowledge formation – the ways in which one gathers information in order to obtainknowledge on a particular issue – is a subjective process that includes the questionof who or what is considered ‘a knower’ or the epistemic authority. The rules of procedure of the ECtHR do not specify how knowledge on a particular issue must be acquired, interpreted or applied or who must be heard as an expert. Nor does the Court
have to substantiate in its reasoning (or elsewhere) how it acquired knowledge on aparticular matter. Rule 74 of the Rules of Court,67 which lays down the requirements
in regard to the content of judgments, refers to practical matters like the names of theparties, the names of their agents and the facts of the case. But, in terms of legal reasoning, it only mentions that the judgment must contain the reasons ‘in point of law’.
This lack of guidance, or requirement of transparency, in knowledge formation is
also present in terms of the selection of amicus curiae who may be granted leave by
the president of the Court to intervene in proceedings as a third party. It is found thatthese third parties are granted leave to intervene in order to affirm the existence of aEuropean or international consensus, to draw inspiration from legal solutions adopted
in other systems and to underscore the different interests at play in a case.68 Although
the Rules of the Court lay down certain requirements for these requests for leave tointervene, the discretion to grant leave is left up to the president of the Court, who does
not need to elaborate on their decision.69 In the case at hand, the medical profession
was granted a monopoly over the production of what gets recognized as knowledge
about women’s bodies. Illustratively, the president of the Court did not grant leave tointervene to those organizations and individuals that represented the perspective of
persons in childbirth but accepted the briefs of medical professionals as well as thoseof the states with similar restrictive home birth policies in place.70
Similarly, in its reasoning, the ECtHR relied on statements from the defendantstates, holding that obstetricians in the state concerned argued that home birth carries greater risks than hospital births, notably without requiring data to support theirposition. The Court ignored the data that had been presented to it that contradicted
the position proffered by the defendant states. These included various meta studies
and a World Health Organization report that stipulates that:[t]here is a temptation to treat all births routinely with the same high level of intervention required by those who experience complications. This, unfortunately, has a wide range of negative effects, some of them with serious implications. … [N]ormal birth, provided it is low-risk,
67
68

69

70

European Court of Human Rights, Rules of Court, 30 October 2023.
Van den Eynde, ‘An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before theEuropean Court of Human Rights’, 31 Netherlands Quarterly of Human Rights (NQHR) (2013) 271, at
275.
European Court of Human Rights, Rules of Court, 30 October 2023, https://www.echr.coe.int/
documents/d/echr/rules_court_eng, Rule 44(3).
Van Leeuwen, supra note 44.

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only needs close observation by a trained and skilled birth attendant in order to detect earlysigns of complications.71

Reiterating in each judgment that ‘the risk for mothers and newborns was higher inthe case of home births’, without pointing to any evidence that supports this position,
the Court displayed an unfounded adherence to the epistemic authority of obstetricscience in matters of childbirth. Illustrative is also the Court’s unsubstantiated observation that ‘certain choices made by the mother as to the place, circumstances or
method of delivery may be seen to give rise to an increased risk’, thereby invalidating
the embodied knowledge of the birthing person on issues of childbirth.72 In doing so,
the Court bolstered the doctor–patient hierarchy in which the professional appropriates the place of knowledge and, thereby, of power.
The Court acknowledged that its position on childbirth practices differs from thedata that had been presented to it by the parties, but it failed to explain or substantiate
why it chose to adopt an alternative narrative. The notion that something may always
go wrong and that, therefore, the hospital is always the safest place to give birth appears for the Court to be a self-evident ‘truth’.

C The Obstetric Narrative and Risk Management
Framing denotes the way in which information is presented – to the placing of emphasis onparticular aspects of the object of interest.73 In doing so, framing has the potential to affectdecision-making, including in the field of (international) adjudication.74 Typically, in thelegal interpretation of the issue at hand, adjudicatory bodies make one issue salient while
under-emphasizing other important aspects.75 They thereby create a narrative that justifies adjudicatory decision-making.76 Framing theory and the study of framing effects thus
suggest that decision-making, including (international) adjudicatory decision-making, issubjective and dependent on the frame(s) applied to the issue at hand.77
71
72

73

74

75
76

77

Dubska and Krejzova 2014, supra note 29, at 57.
This practice of invalidating experiences and knowledges of those not in privileged positions has
been dubbed ‘gaslighting’, a form of epistemic harm. Tuana, ‘Feminist Epistemology: The Subject ofKnowledge’, in I.J. Kidd, J. Medina and G. Pohlhaus, The Routledge Handbook of Epistemic Injustice (2017)125, at 127.
Merilainen and Vos, ‘Framing Issues in the Public Debate: The Case of Human Rights’, 18 Corporate
Communications (2013) 119, at 120; Chong and Druckman, ‘A Theory of Framing and Opinion
Formation in Competitive Elite Environments’, 57 Journal of Communication (2007) 99, at 100–101.
Van Aaken and Elm, ‘Framing in and through Public International Law’, in A. Bianchi and M. Hirsch(eds), International Law’s Invisible Frames: Social Cognition and Knowledge Production in International Legal
Processes (2021) 35, at 36–37.
Ibid., at 47.
Cusato, ‘Beyond War Narratives: Laying Bare the Structural Violence of the Pandemic’, in M.M. Mbengue
and J. D’Aspremont (eds), Crisis Narratives in International Law (2021) 109.
Feminist judgment writing projects have highlighted, for example, how by paying specific attention to
the voices and experiences of the individuals involved in the cases, particularly those traditionally marginalized and silenced in law; telling the story differently; renaming and reframing; and contextualizing,
judgments can be rewritten within the boundaries of the law with different outcomes. L. Hodson and T.
Lavers, Feminist Judgements in International Law (2019), at viii, ix; R. Hunter, C. McGlynn and E. Rackley,
Feminist Judgments: From Theory to Practice (2010); M. Enright and J. McCandless, Northern/Irish Feminist
Judgments: Judges’ Troubles and the Gendered Politics of Identity (2017).

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In the judgments discussed here, the Court framed childbirth as a medical event.
It perceived home birth as a deviation from the ‘normal’ approach to childbirth andaddressed these cases from an angle of risk management rather than from the angle,
for example, of individual autonomy or reproductive justice. The Court’s reasoning
emphasizes the alleged risks involved in home birth and highlights that the state mustnecessarily take steps to mitigate those risks. Illustratively, Judge Villiger remarks in
his concurring opinion that the Court is here ‘called upon to examine the dangers
of home birth for new born babies’.78 Notably, this notion of risk focuses exclusively
on risks of home birth (and not of births in medical settings) and, foremost, on therisk of death of the newborn. For example, the risks of neonatal morbidity in hospitalbirths, concerns about unnecessary obstetric interventions and associated mental
and physical health consequences both for the person giving birth in a medical institution as well as for the child that is born and the health benefits for mother and childof planned home births for uncomplicated pregnancies are not taken into account in
the Court’s reasoning.
Following this emphasis on risk management, any perceived risk of (neonatal)
death justifies an absolute ban on home births. Illustratively, there is no discussion by
the ECtHR on whether a risk of neonatal death in home births, even when very small,would justify an interference of the autonomy, and of the physical and mental integrity, of the person in childbirth. The Court does not engage in any discussion as to atwhat level of risk such an interference with the right to choose the circumstances inwhich one wants to give birth would be acceptable. In fact, even when states do not
produce evidence that supports the notion that home births carry more risks thanhospital births, absolute bans are justified as, in the Court’s words ‘unexpected difficulties can arise’. Had the Court adopted a frame that emphasized, for example, theautonomy of persons in childbirth or had it framed this as an issue of reproductive
justice, the absolute ban would likely have been subjected to more stringent scrutiny.
An example of such an alternative approach is offered by Judge Lemmens in his dissenting opinion. He stresses the applicants’ freedom of choice and underlines the observations of the Czech Constitutional Court, which had held that:a modern democratic State founded on the rule of law is based on the protection of individual
and inalienable freedoms, the delimitation of which closely relates to human dignity. That
freedom, which includes freedom in personal activities, is accompanied by a certain degree of
acceptable risk. The right of persons to a free choice of the place and mode of delivery is limited
only by the interest in the safe delivery and health of the child; that interest cannot, however,be interpreted as an unambiguous preference for deliveries in hospital.79

Following this line of reasoning, the de facto ban would have been subjected to morestrict scrutiny, which, without evidence to support such a complete ban, would arguably have led to a different outcome in the cases at hand.

78
79

Dubska and Krejzova 2014, supra note 29, Concurring Opinion of Judge Villiger.
Dubska and Krejzova 2014, supra note 29, Dissenting Opinion of Judge Lemmens, at 5.

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D Selfish and Unreliable Mothers
A corollary to the rationale of the defendant states as well as that of the ECtHR in thesejudgments is the notion that the person giving birth cannot necessarily be trusted toknowledgeable decision-making in matters of birth.80 Illustratively, the Court foundthat, ‘besides their physical vulnerability, newborns are fully dependent on decisions
made by others, which justifies a strong involvement on the part of the state’ andthat ‘the parent … cannot … be entitled under Article 8 to have measures taken thatwould harm the child’s health and development’.81 In addition, it states that, as mentioned previously, ‘certain choices made by the mother as to the place, circumstancesor method of delivery may be seen to give rise to an increased risk to the health andsafety of newborns’.82
Notably, the ECtHR signals in several judgments that individuals who opt for homebirth over birth in a medical setting choose personal comfort over the safety of theirbaby.83 Markedly, in her concurring opinion, Judge Ganna Yudkivska finds that notall ‘particular aspects of giving birth’ engage the protection of the convention: ‘Iunderstand perfectly that for many women home delivery is preferable because theyfind it far more comfortable psychologically. However, I believe that the Convention
is aimed at safeguarding fundamental human rights. ... It cannot be interpreted as
requiring the State to guarantee the level of comfort an individual seeks, even at the
crucial moment of giving birth’.84 By alluding to the behaviour of those that want
to give birth at home as reckless or selfish, the Court plays into various well-known
stereotypes.85 These include that of the mother and the maternal environment as representing the primary threat to foetal health and that of women as irrational and incompetent ­decision-makers, who are incapable of reaching difficult and painful moral
decisions.86
Stereotyping, the process of ascribing to an individual general attributes, characteristics or roles by reason of their apparent membership in a particular group, may
have a positive or negative valence or both. Many of the stereotypes attached to individuals at the subordinate end of power structures, however, often carry negative
connotations.87 Various scholars therefore highlight the role that courts can play in

80
81
82
83

84
85

86

87

See, e.g., Kosaite-Cypiene, supra note 46, at 85; Pojatina, supra note 47, at 40.
Dubska and Krejzova 2014, supra note 29, at 93–94.
Ibid.; Dubska and Krejzova 2016, supra note 37, at 185.
Kosaite-Cypiene, supra note 46, at 104; Pojatina, supra note 47, at 58, 80; Dubska and Krejzova 2016, supranote 37, at 188.
Dubska and Krejzova 2014, supra note 29, Concurring Opinion Judge Yudkivska.
Ehrenreich, ‘The Colonization of the Womb’, in N. Ehrenreich (ed.), The Reproductive Rights Reader: Law,
Medicine and the Construction of Motherhood (2008) 391, at 393–394.
Cook, Cusack and Dickens, ‘Unethical Female Stereotyping in Reproductive Health’, 109 International
Journal of Gynecology and Obstetrics (2010) 255, at 256; Villarmea, ‘When a Uterus Enters the Room,Reason Goes Out the Window’, in C. Pickles and J. Herring (eds), Women’s Birthing Bodies and the Law:
Unauthorised Intimate Examinations, Power and Vulnerability (2020) 63, at 69; Zampas, ‘Human Rights
and Gender Stereotypes in Childbirth’, in Pickles and Herring, ibid., 79.
M. Fricker, Epistemic Injustice: Power and the Ethics of Knowing (2007); R. Cook and S. Cusack, Gender
Stereotyping: Transnational Legal Perspectives (2010), at 1.

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naming, exposing and contesting such stereotypes.88 Law, it is argued, ‘is an effective
tool for naming because it can publicly and authoritatively proclaim and transform anunacknowledged harmful experience into an experience … that is recognized at law as
one that is harmful and that requires legal redress’.89 In doing so, this practice of naming and contesting stereotypes also underlines the systemic nature of the wrong; it
relates this individual experience to a broader, collective form of subordination. Suchan approach – also called an anti-stereotyping approach or the anti-stereotyping principle – would thus befit a gender-sensitive practice at the Court.
Commentators have underlined how the Court’s general approach to stereotyping
is piecemeal90 and often silent on the issue91 and that, when it does name stereotypes,
it focuses on stereotyping by domestic courts (judicial stereotyping) rather than on theway in which stereotypes are ingrained in the (domestic) system as a whole – that is,in law, policy and practice.92 In the cases presented here, the Court not only omits toaddress the stereotypes of the woman in childbirth, referred to in the responses of the
defendant states, but also alludes to these harmful notions itself. Thereby, it reinforces
those harmful understandings of birthing persons that are said to lie at the root of theover-medicalization of childbirth, mistreatment in childbirth and obstetric violence:93
human rights concerns that are recognized to be widespread and systemic in nature.94

4 Androcentric Human Rights: Some Final Reflections
In 1993, the World Conference on Human Rights acknowledged that international
human rights law and practice was androcentric and requested change. Mainstream

88

89
90

91
92

93

94

Cook and Cusack, supra note 87; Timmer, ‘Toward an Anti-Stereotyping Approach for the European
Convention of Human Rights’, 11 HRLR (2011) 707; E. Brems and A. Timmer, Stereotypes and Human
Rights Law (2017); Peroni and Timmer, ‘Gender Stereotyping in Domestic Violence Cases: An Analysis of
the European Court of Human Rights Jurisprudence’, in Brems and Timmer, ibid., 39; Henningsen, ‘The
Emerging Anti-Stereotyping Principle under Article 14 ECHR: A Multidimensional and Intersectional
Approach to Equality’, 3 European Convention on Human Rights Law Review (2022) 185.
Cook and Cusack, supra note 87, at 39.
Timmer, ‘Toward an Anti-Stereotyping Approach for the European Convention of Human Rights’, 11
HRLR (2011) 707, at 709; Renzulli, ‘Discrimination and Gender Stereotypes in Judicial Decisions: The
Jurisprudence of the European Court of Human Rights in Light of JL v Italy: A Retreat into the Shadows?’,
41 NQHR 155.
Peroni and Timmer, supra note 88, at 65.
Durmas, “Judicial Stereotypes on Female Sexuality and Reproduction: Nucan Bayraktar v Türkiye”, 2November 2023, available at https://strasbourgobservers.com/2023/11/02/judicial-stereotypes-onfemale-sexuality-and-reproduction-nurcan-bayraktar-v-turkiye/.
UN Special Rapporteur on Violence against Women, A Human Rights-Based Approach to Mistreatment
and Violence against Women in Reproductive Health Services with a Focus on. Childbirth and Obstetric
Violence, UN Doc. A/74/137, 11 July 2019, at 9; Perrotte, Chaudhary and Goodman, ‘“At Least Your
Baby Is Healthy” Obstetric Violence or Disrespect and Abuse in Childbirth Occurrence Worldwide:
A Literature Review’, 10 Open Journal of Obstetrics and Gynecology (2020) 1544; Villarmea and Kelly,‘Barriers to Establishing Shared Decision-Making in Childbirth: Unveiling Epistemic Stereotypes
About Women in Labour’, 26 Journal of Evaluation in Clinical Practice (2020) 515; Shabot and Korem,‘Domesticating Bodies: the Role of Shame in Obstetric Violence’, 33 Hypathia (2018) 384.
UN Special Rapporteur on Violence Against Women, supra note 93, at 4.

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human rights mechanisms had to ‘include the status and human rights of women in
their deliberations and findings’. This ‘gender mainstreaming strategy’, as it is often
called, has been featured in the policies of the Council of Europe since the 1990s.
Despite these initiatives (or perhaps because of these strategies),95 human rights practice remains male biased.96 Commentators note, for example, that there is still ‘a needfor judicial proactivity in bringing a gender perspective and gender mainstreaming tocases brought before the Court’;97 that the Court’s approach and findings are marredby its own stereotypes, patriarchal influences, misconceptions and preconceptions
about what gender equality actually is and how it should be pursued;98 and that its
conceptualization of gender equality is limited.99
The present reading ties in with and adds to these critiques, highlighting that the
Court’s practice does not necessarily work towards the advancement of women’s
rights. It underlines that gender bias may not only play a role in regard to the Court’sinterpretation of human rights norms and its conceptualization of equality, as foundin the aforementioned studies, but that it can also affect knowledge formation andproduction in the process of adjudication. The present study of the Court’s home birthjurisprudence points to epistemic blind spots in the Court’s knowledge formation,
which are related to a (mis)conception that hospitals are, under all circumstances,
the safest place for childbirth and an understanding of the birthing person as posing
a risk to the life and safety of their newborn. It also points to a challenge in identifying
problematic stereotypes that are often deeply ingrained in our subconscious minds
and frequently accepted as a culturally ‘normal’ aspect of our lives.100
The aim of this study has not been to look for a right to give birth at home or to analyse the interpretation of the legal rules as such101 but, rather, to question the ways inwhich gender influences the ECtHR’s conceptions of knowledge, knowers and practices of inquiry and justification. Importantly, in these judgments, the Court adhered
to a narrative of childbirth that was not supported by the documents that had beenpresented to it by the parties in the cases before it. The Court also did not refer to otherstudies or documents that would support its adherence to this obstetric narrative inits judgments. Instead, it stated that it was aware that its narrative differed from theCharlesworth, ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights at the United
Nations’, 18 HHRJ (2005) 1.
96
Otto, ‘Women’s Rights’, in D. Moeckli, S. Shah and S. Sivakumaran (eds), International Human Rights Law(2018) 309, at 324–325; F. van Leeuwen, Women’s Rights, supra note 15; Van Leeuwen, ‘United Nations’,supra note 15, at 24–29.
97
Evans, ‘Gender Mainstreaming at the European Court of Human Rights: The Need for A Coherent
Strategy in Approaching Cases of Violence against Women and Domestic Violence’, 54 University ofMiami Inter-American Law Review (2023) 1.
98
Alkaviadou and Manoli, supra note 16.
99
Hennette-Vauchez, ‘Gender Equality in the European Court of Human Rights’, in R. Cook (ed.), Frontiersof Gender Equality: Transnational Legal Perspectives (2023).
100
On this point, see also Cook and Cusack, supra note 87, at 41.
101
Several scholars analysed the first and second judgments of the Court with the question whether the
Court recognized a right to give birth at home under Article 8 of the ECHR. Some dubbed the rulings of
the Court paradoxical. Chen and Cheeseman, supra note 8; Chervenak et al., supra note 8; McCartney,
supra note 8.
95

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studies that had been presented to it. Bias, or blind spots, in knowledge formation andproduction may necessarily affect the outcome of a case. In the home birth cases discussed in this article, the obstetric narrative applied by the Court works to the detriment not only of the applicants in these cases but also of persons in childbirth at large.
The Court adhered to a socially constructed association of medicine with reason, facts
and objectivity and portrayed those who opt for home birth as selfish and unreliable.
In doing so, it purports to a vision of childbirth that has been found to legitimize restrictions of autonomy of birthing persons and the control of third parties over the
reproductive process.102
Homebirth remains a contentious issue in many jurisdictions as it deviates fromthe societal (mis)conception that hospitals are necessarily the safest place to givebirth. It is therefore not said that biased knowledge formation and production affects
cases of a different nature in a similar manner. The attention for agency in childbirth
as a human rights concern is, moreover, relatively new. Those human rights monitoring bodies that focus on matters of childbirth typically do so from the angle of maternal mortality and access to maternal health care.103 The question of acceptabilityof health care or what ‘good-quality’ health care entails is generally not asked. The
Court therefore did not have a wealth of precedent to draw from. At the same time,it should be noted that issues that characteristically concern the autonomy of thoseat the subordinate end of power relations – issues that affect women because of theirgender – are often considered controversial and do not necessarily feature prominently in international human rights practice. Hence, rather than absolving the Court,
these considerations potentially underscore that its approach to childbirth aligns withan androcentric human rights system.
The findings of this reading, together with other studies that point to a male-biased
practice at the Court, demonstrate a need to reconsider the strategies in place to ensure a gender-sensitive, inclusive practice of human rights adjudication. In this regard, attention may be drawn to a possible need for reflexivity of judges in knowledge
formation and production: an examination of one’s own beliefs, judgments and practices and how these may influence legal reasoning as well as a need for transparency
in decision-making.104 These are matters that require further attention and debate.

Ehrenreich, supra note 85, at 394–400; see also C. Pickles and J. Herring (eds), Childbirth, Vulnerability
and Law: Exploring Issues of Violence and Control (2020).
103
Lokumagage and Pathberiye, ‘Human Rights in Childbirth, Narratives and Restorative Justice: A
Review’, 14 Reproductive Health (2017) 17; UN Special Rapporteur on Violence Against Women, supranote 93; van Leeuwen, Women’s Rights, supra note 15, at 150. There are some recent examples of United
Nations human rights bodies tackling questions of agency in childbirth. See, e.g., UN Committee on the
Elimination of All Forms of Discrimination against Women (CEDAW), S.F.M. v. Spain, decision of 28
February 2020; CEDAW, N.A.E. v. Spain, decision of 13 July 2022.
104
Finlay, ‘Reflexivity: An Essential Component for All Research?’, 61 British Journal of Occupational Therapy(1998) 453; K. Lamsden, Reflexivity: Theory, Method, and Practice (2019).
102