TrustHLT/LaCour huggingface dataset:
GR1 (Government): They did not make use of them and directly complained to the court about the very fact that the Czech legislation does not allow health professionals to assist at planned home births.
GR1 (Government): This important point determines the scope of the case.
GR1 (Government): The majority of the chamber, including Judge Villiger in his concurring opinion, rightly said that the court is confronted not with a concrete complaint about a particular birth, but with a general and abstract examination of the Czech legislation and health care policy.
GR1 (Government): Such an abstract examination comes with certain specificities.
GR1 (Government): For example, similarly to the recent Oliari case, it is for the court to determine whether the Czech Republic, at the date of this court's analysis, fails to comply with obligations stemming from Article 8 of the Convention.
GR1 (Government): This principle must certainly apply at least to applicant Krasovac because, similarly to the Oliari case, the relevant domestic legislation has remained unchanged since May 2012 when she gave birth.
GR1 (Government): The core question thus must be, and the court can hardly avoid it, whether the Czech health care system as it stands today, including its regulatory framework not allowing assistance at planned home birth, violates Article 8 in respect of mothers who prefer such an option.
GR1 (Government): The same question can be put differently, however.
GR1 (Government): Should Article 8 be interpreted so extensively as to oblige the state to change its existing, well-functioning health care system with the aim to put in place a regulatory framework allowing for the provision of health care at planned home births?
GR1 (Government): This already suggests my answer to the first question, whether the case should be examined under positive or negative obligations.
GR1 (Government): And my answer is under positive obligations.
GR1 (Government): I am in agreement here with applicant Krasovac.
GR1 (Government): Why positive obligations?
GR1 (Government): Judge Jutkiewska, in her concurring opinion to the chamber judgment, fittingly summarized that while the case can certainly be viewed as interference with midwives' professional lives, it has nothing to do with the state's negative obligations towards the applicants.
GR1 (Government): They are not forbidden to deliver at home, but they requested the state to organize the necessary facilities to enable them to give birth at home with qualified medical assistance.
GR1 (Government): Thus, they criticized not an action, but a lack of action.
GR1 (Government): In fact, nearly all separate opinions annexed to the chamber judgment and to the judgment in the Ternovsky versus Hungary case shared the same concern with the majority's approach favoring negative obligations.
GR1 (Government): There is no doubt that the state would have to broaden the current scope of health care and to put in place a legal framework specifying under what circumstances health care during home birth can be provided.
GR1 (Government): Nevertheless, if the court does not opt for positive obligations, it still does not necessarily have to determine whether the state's positive or negative obligations are at stake, since in both contexts, regard must be given for striking a fair balance between the competing interests.
GR1 (Government): The court then posed three questions, number two, four, and five on various aspects of the relevant legislative framework.
GR1 (Government): So what does the legislation say?
GR1 (Government): In summary, it clearly says that health professionals, including midwives, are allowed to assist at planned deliveries only in health care facilities, which are adequately equipped for this purpose.
GR1 (Government): Nowhere else, definitely not in mothers' private homes.
GR1 (Government): Health professionals cannot receive a license to provide such health care.
GR1 (Government): This has been repeatedly confirmed by domestic authorities, including courts, and even by applicant Kreuzerwein and submissions.
GR1 (Government): In fact, when both applicants were pregnant, they were informed by the regional authorities that the law does not allow assistance at planned home births.
GR1 (Government): It clearly was a foreseeable legislation for the applicants.
GR1 (Government): The following logical question arises.
GR1 (Government): What is an adequately equipped health care facility where health professionals can conduct deliveries?
GR1 (Government): The implementing secondary legislation in place since 2010 gives the answer.
GR1 (Government): There are two options, two types of health care facilities for conducting deliveries, maternity hospitals and midwife-led birth centers.
GR1 (Government): In other words, if a midwife wants to conduct deliveries outside maternity hospitals, the only other option is to set up her own birth center.
GR1 (Government): The secondary legislation sets out the minimum requirements for such a center, including the equipment needed to effectively monitor the child, time limits to reach higher level of health care, and hygienic requirements.
GR1 (Government): Details have been provided in writing.
GR1 (Government): There has not been a single attempt to a midwife to apply for license to run a birth center.
GR1 (Government): The real question, then, is the raison d'etre of a legal framework only allowing assistance at birth in health care facilities and not in women's private homes.
GR1 (Government): Let me make a few general remarks first.
GR1 (Government): In order to safeguard the public interest of the protection of health, the government have to ensure and maintain a certain standard and quality of health care, notwithstanding whether such care is provided on a public or private basis.
GR1 (Government): In other words, the state acts as a guarantor of a certain standard of health care by setting minimum requirements as to where and how health care can be provided.
GR1 (Government): This has not been questioned by the applicants.
GR1 (Government): In light of these underlying principles, the government put in place the legislation I have briefly described.
GR1 (Government): The aim was to ensure that the respective health care, meaning assistance at planned birth, is provided only in places where avoidable risks associated with childbirth are minimized.
GR1 (Government): There can, therefore, be no doubt that it pursues the legitimate aim of the protection of health and life in particular, but not exclusively, the health and safety of the newborn.
GR1 (Government): The discussed legislation regulating assistance at birth stands on three pillars.
GR1 (Government): First, it requires the presence of a trained health professional, a physician or a midwife.
GR1 (Government): Second, childbirth must be conducted in adequately equipped premises, maternity hospitals or birth centers.
GR1 (Government): And third, such premises must be in close proximity to a high level of health care.
GR1 (Government): If in turn, assistance at birth is provided in places that do not fulfill the latter two requirements, there will be unnecessary and avoidable risks for the child and the mother because sudden and unpredictable medical complications can easily occur.
GR1 (Government): In a few minutes, one of the leading Czech experts in obstetrics will describe these complications in more detail.
GR1 (Government): I draw the court's attention to the fact that the occurrence of such unexpected complications has been confirmed by professional associations, including the largest professional association of midwives in the Czech Republic, international organizations, in particular the WHO, and numerous experts in the field of obstetrics.
GR1 (Government): The described legislation regulating assistance at birth was indeed consulted with leading Czech experts in this field, as documented in the explanatory reports to the relevant secondary legislation.
GR1 (Government): There was and still is a wide consensus on the set of necessary requirements amongst national experts.
GR1 (Government): To sum up, a health professional, including a midwife, cannot effectively deal with acute complications in mother's private homes.
GR1 (Government): These premises lack adequate equipment to effectively monitor the fetus that allow complications to be detected in a timely fashion and also often lack the option of a quick transfer to a maternity hospital, where such complications could indeed be solved.
GR1 (Government): This is why the legislation I defend here today is in place.
GR1 (Government): Judge Lemans, in his dissenting opinion, considered the legislation somewhat illogical, as it does not prohibit home births as such.
GR1 (Government): I can assure you that it is not illogical.
GR1 (Government): The court should bear in mind that pregnancy and delivery are generally regarded as falling primarily under the responsibility of the mother.
GR1 (Government): Women are, for example, not sanctioned when they take drugs and drink alcohol throughout pregnancy.
GR1 (Government): Although it can severely harm the fetus, the same applies for choosing the place of delivery.
GR1 (Government): But what the state can and should regulate, on the other hand, is the provision of health care.
GR1 (Government): This is exactly the role of the legislation in question, to put in place a regulatory framework for health professionals to provide health care only in safe places for delivery, that is, in health care facilities, as already explained.
GR1 (Government): The legislation in question serves as a clear signal for women that the state assessed assistance at home births as an insufficiently safe possibility.
GR1 (Government): Mothers are indeed informed about it during their medical checks throughout pregnancy.
GR1 (Government): As a result, there have been some 200, 250 births outside health care facilities per year, out of which only a small proportion are planned home births.
GR1 (Government): The remaining questions posed by the court, namely questions three and six, relate mainly to proportionality and fair balance.
GR1 (Government): But what are the involved interests?
GR1 (Government): I already stressed that the legislation in question primarily aims to follow the interests of protection of life and health, life and health of newborns, as well as mothers.
GR1 (Government): And what do we have on the applicant's side?
GR1 (Government): They seek an assisted home birth for reasons such as, and I quote their submissions, protection of privacy, natural shyness, and freedom to act traditionally.
GR1 (Government): In other words, they wish to have a more fulfilling birth experience.
GR1 (Government): The starting point of the balancing exercise is that the case involves, and I borrow here the words of the court, a complex matter of health care policy.
GR1 (Government): It involves countless possibilities to be taken into account, including extremely technical questions primary for experts in medical science.
GR1 (Government): Citing Judge Filiger, the court is in fact called upon to act as the highest supervisory medical body in the field of obstetrical care in Europe, and to approve or not to approve a country's health care system, its specificities, and its regulation.
GR1 (Government): Should this really be the court's role?
GR1 (Government): To say the least, this per se calls for a wide margin of appreciation.
GR1 (Government): What should the court then take into account when searching for a fair balance?
GR1 (Government): First, the Czech health care system objectively exhibits one of the lowest rates of newborn mortality in the world.
GR1 (Government): WHO and Europe has statistics confirming it.
GR1 (Government): According to the latest source using undistorted data, the Czech Republic has the lowest newborn mortality rate in Europe.
GR1 (Government): These results not only show that the Czech health care system and its regulatory framework are functioning well, but also that they are clearly achieving the aims of the protection of health and life of newborns, as this case does not only concern the rights of mothers.
GR1 (Government): Maternal mortality at childbirth has become an extremely rare phenomenon with a very limited statistical value anyway, while newborn mortality is, alas, much more common.
GR1 (Government): Second, Czech professional medical societies, including, importantly, even the Czech Association of Midwives, officially stated that based on their expertise, they do not recommend any legislative changes that would favor assisted home births.
GR1 (Government): Because in private homes, acute complications, which midwife is not able to solve, can occur.
GR1 (Government): The legislation in question thus reflects expert opinion of the overwhelming maturity of Czech obstetricians and midwives.
GR1 (Government): Relevant documentary evidence has been made available to you.
GR1 (Government): Third, mothers can freely choose a maternity hospital where they wish to give birth, as explicitly stipulated by law.
GR1 (Government): Mothers can make an informed choice on the basis of an evaluation of maternity hospitals, their services, and respect for women's wishes on various independent websites, including some supported by public authorities.
GR1 (Government): Giving birth in maternity hospitals is covered by public health insurance.
GR1 (Government): Fourth, midwives commonly conduct deliveries without additional professional supervision in Czech maternity hospitals, as provided for in the legislation.
GR1 (Government): The applicants criticize hospital births and allege the existence of obstetric violence inflicted by doctors.
GR1 (Government): They call for midwife-based care.
GR1 (Government): This is, in fact, in line with the state's policy, since they can give birth in a maternity hospital solely with assistance of a midwife.
GR1 (Government): It is covered by health insurance in the same amount as deliveries conducted by doctors.
GR1 (Government): There are nearly 3,000 midwives employed in Czech maternity hospitals annually, conducting without additional supervision around 20% of all deliveries.
GR1 (Government): A childbearing woman can usually choose between midwives employed in a maternity hospital.
GR1 (Government): In fact, some women choose a maternity hospital because of a particular recommended midwife employed there.
GR1 (Government): And there is yet another alternative.
GR1 (Government): Some maternity hospitals have contracts with private midwives and allow them to conduct deliveries in the hospital's premises.
GR1 (Government): It depends on the interest from private midwives, the maternity hospital's agreement, and of course, on the demand of pregnant women.
GR1 (Government): Fifth, it is possible to satisfy the wishes and interests that the applicants call for in the environment of maternity hospitals.
GR1 (Government): It might be recalled that these interests include refusal of unnecessary interventions and separation of the mother from the child, the presence of relatives during delivery, privacy, and a home-like environment.
GR1 (Government): While the government has taken numerous steps to make this a reality, the relevant legislation, in particular, the 2011 Medical Services Act, explicitly provides for guarantees in the form of enforceable rights, which must be, and I highlight this, guaranteed in all maternity hospitals.
GR1 (Government): These rights explicitly include the right to privacy, dignity, and respectful treatment, the right to the presence of a close person or a relative, and free and informed consent for every intervention made.
GR1 (Government): In advance of their delivery, women can submit a birth plan with their wishes and preferences to be consulted with a maternity hospital.
GR1 (Government): Such birth plans can be particularly useful for the enforcement of the listed rights and can, for example, include consent with or denial of certain interventions if no complications during delivery occur.
GR1 (Government): If any of these rights is not respected, a woman can resort to available domestic remedies, in particular, the action for the protection of personality rights or the complaint to regional authorities.
GR1 (Government): Although the former was recommended even by the Constitutional Court, these remedies have very rarely been used so far.
GR1 (Government): According to the latest research of the Ministry of Health, the regional authorities acting as supervisory bodies of maternity hospitals registered hardly any complaints about the circumstances of giving birth.
GR1 (Government): The same applies for regional courts with jurisdiction over the actions for the protection of personality rights.
GR1 (Government): I, therefore, have to strongly reject the applicants' unsubstantiated allegations that there exists widespread obstetric violence in Czech maternity hospitals.
GR1 (Government): The applicants submitted some critical affidavits of women who gave birth in maternity hospitals, but frankly speaking, if the court relies on them, the principle of subsidiarity will be entirely left out since such information has not been reviewed by domestic courts at all.
GR1 (Government): My government, on the other hand, submitted to the court evidence to substantiate that the mother's wishes concerning circumstances of giving birth are largely respected in maternity hospitals and that the government's efforts in this regard have intensified in recent years.
GR1 (Government): To name a few, 70% of Czech maternity hospitals have already received the UNICEF WHO baby-friendly hospital status.
GR1 (Government): Furthermore, three years ago, a new project called Natural Birth in a Maternity Hospital was launched with the support of the Ministry of Health.
GR1 (Government): According to its latest results, 75% of mothers stressed that hospital personnel respected all their wishes concerning delivery, and another 22% declared that almost all of their wishes were respected.
GR1 (Government): Also, the Ministry of Health officially introduced guidelines facilitating the possibility to leave maternity hospitals soon after delivery, if mothers so wish.
GR1 (Government): In addition, a new governmental expert committee on the issues of obstetrics, midwifery, and related women's rights was set up in 2014.
GR1 (Government): It is composed of a wide range of involved actors from different fields, including the legal representatives of both applicants.
GR1 (Government): Throughout the entire proceedings before this court, the applicants have made a considerable effort to criticize the conditions in Czech maternity hospitals.
GR1 (Government): This is one of the core arguments on which, without making use of domestic remedies, they base their claim to assisted home birth.
GR1 (Government): However, if this is indeed the real problem that, in the applicant's view, lies behind the case at hand, let us concentrate on solving this issue, and not on legalizing assisted home birth instead.
GR1 (Government): Let us work together, the applicants, the state, and all other interested parties, to further enhance the conditions in Czech maternity hospitals.
GR1 (Government): And six, due regard should be given to the state's margin of appreciation, as the court consistently holds matters of health care fall within this margin.
GR1 (Government): The case raises sensitive moral and ethical issues including scenarios that the child may die during home birth, even if the mother had a low-risk pregnancy.
GR1 (Government): The case also concerns economic policy considerations, including a relocation of resources to satisfy applicants' interests.
GR1 (Government): As the court itself has suggested in question three, the number of women wishing to give birth at home is indeed very low in the Czech Republic.
GR1 (Government): Thus, the legalization of assisted home birth can hardly serve an important social need.
GR1 (Government): Conversely, in the Oliari case, the court stressed that in central Italy alone, there have been around 1 million of potential addressees of the legislation sought by the applicants.
GR1 (Government): At the same time, the necessary changes in the Czech health care system would be very costly in proportion to the small number of recipients.
GR1 (Government): This was explicitly confirmed, for example, by Professor Pisser, a leading Dutch obstetrician.
GR1 (Government): Although a home birth itself could indeed be cheaper, one of the main problems lies with the need for special and expensive equipment in ambulances to solve acute complications, as well as for specially trained health professionals available for the emergency work in ambulances.
GR1 (Government): Today, Czech ambulances only have a small medical pack with basic items for deliveries.
GR1 (Government): Manifestly insufficient for dealing with any complications and used primarily for rare cases when a woman does not manage to reach maternity hospital.
GR1 (Government): And it is necessary to deliver the child on the way there.
GR1 (Government): Then there is an obvious lack of European consensus, even an emerging one, on the issue of home births.
GR1 (Government): A prevailing majority of member states of the Council of Europe either do not expressly regulate the matter or impose sanctions on health professionals for assisting with a planned home birth.
GR1 (Government): Importantly, the former category of states cannot be automatically considered as supporting it, since there are considerable differences in their practical approaches towards the issue of home birth.
GR1 (Government): The lack of European consensus was recently confirmed by the European Professional Society of Obstetricians, which recognized the diversity of national practices in Europe.
GR1 (Government): It stressed that it cannot and should not adopt an official position on the issue of home birth, since each country has to decide how to utilize their limited financial and workforce resources in developing their safe local service delivery models.
GR1 (Government): Honorable judges, when even the relevant European Professional Society does not have a clear answer to the issue of home birth, is it really the court's role to find one?
GR1 (Government): Let me conclude by assuring you that my government do not question the fact that birth is a natural and spontaneous process.
GR1 (Government): My government indeed strives to ensure that the individual circumstances of giving birth be respected to the fullest extent possible in maternity hospitals in the Czech Republic.
GR1 (Government): But let me pose the following question.
GR1 (Government): What was natural birth historically?
GR1 (Government): Was it not a process free of any regulation where a significant proportion of children died during deliveries in private homes, even when mothers were assisted by midwives or doulas?
GR1 (Government): That is why society invented maternity hospitals to avoid such scenarios, since birth can unexpectedly turn into a fight for the survival of the child.
GR1 (Government): In addition, according to the Czech Health Statistical Office, in some 9% of low-risk pregnancies, sudden complications requiring immediate surgical intervention occur.
GR1 (Government): What would happen to those newborns had they been born at home?
GR1 (Government): The government of the Czech Republic took a path of legislation according to which assistance of midwives or other health professionals during planned deliveries is limited to places adequately equipped for such purpose.
GR1 (Government): That is health care facilities.
GR1 (Government): At the same time, the government strives to ensure that in such facilities, privacy and the option to choose various circumstances of giving birth are guaranteed.
GR1 (Government): This satisfies both sides of the coin.
GR1 (Government): Safety for the child and the mother, as well as respect for their privacy rights.
GR1 (Government): Honorable judges, this is a fair balance and a way forward in the Czech Republic.
GR1 (Government): As the court noted in the Christos versus Bulgaria case, there might arguably be a fairer one.