TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Moreover, on the substituary level of governmental and ministerial decrees, the existence of midwife centers is in fact excluded too, due to the excessive requirements concerning the technical, material, and personal requirements, which may be in fact compiled with only in maternity hospitals.
AP2 (Applicant): Due to this restrictive regulation, in the Czech Republic there is neither a single midwife assistant at home births, nor there is a single midwife center.
AP2 (Applicant): By way of result, as the applicant was prevented from enjoying an assistance of a qualified medic at home, and at the same time she could not have delivered her child in a midwife center, she was forced to deliver her child in a maternity hospital.
AP2 (Applicant): Finally, the applicant is going to provide an overview of reasons supporting the conclusion that the state failed to comply with its negative obligations under Article 8, Subsection 2 of the Convention.
AP2 (Applicant): As already mentioned before, any justifiable intervention of the state in the applicant's rights for private and family life must comply with the requirements of legality, legitimacy, and proportionality.
AP2 (Applicant): The applicant believes that during her pregnancy before the adoption of the new legal regulation in April 2012, the prerequisites of legality and proportionality were not satisfied.
AP2 (Applicant): As the lack of satisfaction of these requirements were described in detail by Mr. Zalhansky,
AP2 (Applicant): the applicant will only refer to these.
AP2 (Applicant): That said, the lack of proportionality will be further addressed by the applicant when providing a reply to Query Number 6 of the Court.
AP2 (Applicant): By means of ending her comments to Query Number 2, the applicant summarizes that her complaints should be evaluated both under the positive obligations of the state, as she was forced to deliver her child in maternity hospital under the new legal regulation, clearly allowing only for maternity hospital births, and under the state's negative obligations, as during the major part of her pregnancy, the state in fact restricted her right on a qualified assistance at home birth by means of substituted real legal regulation and unforeseeable and arbitrary procedures of the health care public authorities.
AP2 (Applicant): The applicant has been further invited to provide the court with the information on whether any assistance of midwives at delivery at home is available on a private basis that is outside the public health insurance scheme.
AP2 (Applicant): First of all, the applicant indicates that there are two separate questions involved.
AP2 (Applicant): First, is there any possibility for expectant mothers to enjoy an assistance of a midwife at planned home delivery?
AP2 (Applicant): The second, if so, are expectant mothers entitled either to recover their costs for the midwife's assistance from the public insurance scheme or to fund such assistance on a private basis?
AP2 (Applicant): The answer to the first question undoubtedly answers also the other.
AP2 (Applicant): Expectant mothers in the Czech Republic are entirely prevented from delivering at home births with the assistance of midwives, and neither they can opt for a delivery in midwife centers.
AP2 (Applicant): The assistance home birth is directly banned by the Act on Health Care Services, while the assisted births in midwife centers is also obstructed and in fact banned by the excessive operational requirements of the substitute regulation.
AP2 (Applicant): There are no licensed midwives in the Czech Republic providing assistance at home births, and until now, there have been any midwife centers either.
AP2 (Applicant): In order to have the possibility to enjoy a qualified medical assistance at birth at all, expectant mothers are forced to give birth exclusively in maternity hospitals with absolutely no possibility of an opt-out.
AP2 (Applicant): These conclusions were also confirmed by the government in its previous observation submitted to the court.
AP2 (Applicant): Although it may be superfluous under the circumstances, the applicant will also address a short reply also to the query of funding the cost of home deliveries.
AP2 (Applicant): The legal regulation of recovery medical services in the Czech Republic is primarily based on a public health insurance scheme.
AP2 (Applicant): Notwithstanding the above, the scheme also allows that medical performances, mostly the above standard care, are also provided for remuneration paid directly by patients on a private basis.
AP2 (Applicant): In the end of the day, due to the current legal regulation, there is no assistance of a midwife that could be enjoyed by an expectant mother, neither on a basis of a public insurance scheme nor on a private basis.
AP2 (Applicant): Turning to query number six, as implied by the court's query, there are two separate fields of answers.
AP2 (Applicant): While the first question targets the interests aimed by the current Czech legislation in the field of obstetrics, the other question focuses on whether there is, or whether there is not, a fair balance between the interests allegedly protected by the states through its regulation and the private interests of the applicant.
AP2 (Applicant): Answering the first question, the applicant would like to point out that it is rather the government to allege and prove the interests and rights protected by the said regulation.
AP2 (Applicant): From the applicant's point of view, the interests claimed by the government to be protected under the current legislation are of a virtual nature, generated by the recent historic experience and inertia.
AP2 (Applicant): The current legislation set up in the field of obstetrics is only a relic of a regime that was based on a disgrace to human rights, that was dependent on a society resigning on the elementary values of Western civilization, and that encouraged its citizens to refrain from showing any sign of individuality in order to keep the power over them.
AP2 (Applicant): These principles are inconsistent with the principles of a modern democratic legal state, which observes the elementary human rights and human dignity.
AP2 (Applicant): However, some of the said principles unfortunately still apply in the expectant mother-doctor relationship, which is characterized by the vulnerability of the expectant mother, and which tends to be based on a principle of subordination.
AP2 (Applicant): Moving forward to the issue of a fair balance between the applicant's private rights and public interests, the applicant holds as follows.
AP2 (Applicant): In order to determine a fair balance between concurrent private rights and public interests, there must be a real private right and a real public interest that are, at some point, concurrent.
AP2 (Applicant): In case where there is either no actual private right, which could be interfered or threatened by the state, or, respectively, there is no actual public interest that could be interfered or threatened by the exercise of the respective private right, there can be, ipso facto, no fair balance.
AP2 (Applicant): The appropriate private right for the appropriate public interest, as the case may be, shall then automatically apply.
AP2 (Applicant): In this regard, the court's practice has already established that finding such a fair balance, all rights coming to the test of proportionality must be real and effective rights, not only rights that are theoretically all illusionary.
AP2 (Applicant): Therefore, in the given case of the applicant, it is necessary, prior to assessing the individual concurrent rights and interests within the SAT test of proportionality, to determine first whether these concurrent rights and interests are indeed real and actual rights.
AP2 (Applicant): While the right of a woman to decide on the circumstances of her delivery has been already ruled by the court to be a real right, falling within the scope of the right for private and family life under the convention, the public interest on protection of health of mother and child, claimed by the government, is virtual only.
AP2 (Applicant): The applicant has presented numerous academic researches, analyses, and meta-analyses, which have proved, without reasonable doubt, that the levels of risk for newborns and mothers relating to spontaneous deliveries are fully comparable, both for the home deliveries and deliveries in medical hospitals.
AP2 (Applicant): Moreover, a home birth, surprisingly, represents even a safer option for mother.
AP2 (Applicant): Assuming that levels of risk at home births do not exceed the risks level of a delivery in maternity hospitals, a restriction of assisted home births cannot represent a legitimate protection of the health for mother and child at delivery.
AP2 (Applicant): Consequently, the public interest on health of mothers and child, alleged by the state, is virtual in this case, and as such, cannot serve as legitimate benchmark for the test of proportionality.
AP2 (Applicant): For sake of completeness, and on top of the above, the applicant believes that a test of proportionality could be carried out only if the risks level associated with home birth would be higher than the risks level of deliveries in maternity hospitals.
AP2 (Applicant): Only in such theoretical situation, it will be possible to assess whether the private right of the expected mother would or would not outweigh the high risk associated with the home births.
AP2 (Applicant): Given the above, the applicant is convinced that a current legal regulation, which is also applicable at the time of her delivery, unjustifiably strikes the fair balance of her private rights and public interests.
AP2 (Applicant): Dear Mr. President, honorable members of the court,
AP2 (Applicant): we have met in this institution that has been established as the ultimate beacon of human rights as a reaction to the world's greatest and global tragedies, since the applicants' human rights were interfered into by the high state of convention, by the state of the convention, which gave oath to respect these rights and to provide them with appropriate protection.
AP2 (Applicant): The state has deliberately prevented the applicants from exercising their choice on the circumstances of delivery by preventing them to enjoy the care of the midwives.
AP2 (Applicant): Midwives in the Czech Republic are subject to continuous repression by the state, which has been happening in the level of legislation and administrative practices.
AP2 (Applicant): As a leading principle, the respective international treaties observe the premise that it is parents who know the best the needs and welfare of their child.
AP2 (Applicant): It is certainly the parents who respect such needs and welfare, also in a delicate period of pregnancy and birth.
AP2 (Applicant): On the contrary, the government dares to deny this principle and to introduce an argumentation based on the assumption that a woman opting for home birth acts in a contrary to the needs and benefits of her child.
AP2 (Applicant): The applicants feel this underlying argumentation as highly offensive.
AP2 (Applicant): In a situation in which a woman intends to exercise her right, which should be protected by the state, putting a woman against her child represents a pure perversion of a post-tolerance state.
AP2 (Applicant): Similarly, the state enterprises the right of an expectant mother to choose the circumstances of her delivery, i.e. as a right that is contravented.
Mark Villiger (JudgeP): Excuse me, Mr. Hořejší, could you please round off your submissions?
AP2 (Applicant): Mr. President, Honourable Members of the Court,
AP2 (Applicant): Once a catalogue of human rights was established as the fundament of a legal state and was summarized in the proclamation of liberty, equality and brotherhood. After more than
AP2 (Applicant): two centuries of rapid development, human rights have firmly established as leading principles of modern democracies. There are only a few areas in which the content of human
AP2 (Applicant): rights has not yet been fully accomplished. Therefore, I stand here right before you at
AP2 (Applicant): this very moment with a kind but urgent request to satisfy the modern-wide proclamation, liberty, equality and brotherhood. Thank you.
Mark Villiger (JudgeP): Thank you Mr. Hořejší.
Mark Villiger (JudgeP): Do judges have any questions for the parties?
Mark Villiger (JudgeP): Judge Nußberger please.
Angelika Nußberger (Judge): Yes, please.
Angelika Nußberger (Judge): The government has mentioned the recently published judgment of the Czech Constitutional Court.
Angelika Nußberger (Judge): And actually, you said that it's more a procedural violation that was found.
Angelika Nußberger (Judge): I just want to quote a small paragraph out of this judgment and ask the government to comment on it.
Angelika Nußberger (Judge): I quote, 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.
Angelika Nußberger (Judge): That freedom, which includes freedom to personal activities, is accompanied by a certain degree of acceptable risk.
Angelika Nußberger (Judge): The right of parents to a free choice of place and mode of a delivery is limited only by the interest of safe delivery and health of the child.
Angelika Nußberger (Judge): That interest cannot be, however, interpreted as an ambiguous preference for deliveries in hospital.
Angelika Nußberger (Judge): So please, I would like to ask you to comment on this part of the judgment.
Angelika Nußberger (Judge): And my second question would be also to the government.
Angelika Nußberger (Judge): Are there any secondary aims of the legislation in protecting especially vulnerable women who might not be able to arrange safe birth at home properly?
Angelika Nußberger (Judge): And in this regard, I would also like to know from the applicants why they emphasized that the women were highly educated.
Angelika Nußberger (Judge): So is there a risk for women who are not that highly educated?
Angelika Nußberger (Judge): And my last question would concern the statistics.
Angelika Nußberger (Judge): The expert of the government has mentioned the risks that can occur, even if there was no risk visible in advance.
Angelika Nußberger (Judge): So I would like to know, if you have any data, how often a normal birth has to be interrupted and the mother or the child given emergency aid in cases where no such risk was visible before.
Mark Villiger (JudgeP): Thank you, Judge Nußberger.
Mark Villiger (JudgeP): Judge Power, please.
Ann Power-Forde (Judge): Thank you. We heard evidence today from the government, from an expert obstetrician, gynecologist,
Ann Power-Forde (Judge): and I would be interested in hearing the applicant's response to the evidence that was produced today.
Ann Power-Forde (Judge): The evidence was, if I understood it correctly, that at times an unanticipated risk can occur, such as an abruption during pregnancy, which requires delivery of the baby within minutes, if I understood correctly. For example, I think the example given was where there was
Ann Power-Forde (Judge): a lack of oxygen to the baby, and perhaps in circumstances a baby may need to be delivered by a caesarean section. I would be interested in hearing the applicant's response to such
Ann Power-Forde (Judge): evidence through the prism of a question, how would the best interests of the child be weighed in circumstances where such an emergency occurred, even where midwifery or medical care had been afforded by a state, but where such care was inadequate because, for example, it would take too long to get the baby to a hospital, the baby could suffer, I think it was either catastrophic or devastating consequences, if delivery was not effected within minutes. Thank you. How would the best interests of the child be served in the balance
Ann Power-Forde (Judge): in those circumstances?
Mark Villiger (JudgeP): Thank you, Judge Power.
Mark Villiger (JudgeP): Judge Lemmens.
Paul Lemmens (Judge): Actually, I would like to continue somewhat on that question, but then more a question to the government, also focusing on the public interest that it is invoking.
Paul Lemmens (Judge): And I indeed heard Mr. Velebil referring to the need for urgent action
Paul Lemmens (Judge): in life-threatening situations.
Paul Lemmens (Judge): But my question is, having regard to that aim of the legislation, which arguably is a very legitimate one, why then does the law not go so far as to prohibit altogether deliveries at home?
Paul Lemmens (Judge): Why are mothers still allowed to give birth at home?
Paul Lemmens (Judge): And in the present situation, that means allowed and obliged to give birth at home in an unassistant way.
Paul Lemmens (Judge): In other words, why doesn't the state bring its reasoning to its logical end?
Paul Lemmens (Judge): Why does it stop somewhere before getting to that point?
Mark Villiger (JudgeP): Thank you, Judge Lemmens.
Mark Villiger (JudgeP): Judge Potocki, please.
André Potocki (Judge): Ma question est dirigée vers le gouvernement.
André Potocki (Judge): Je comprends bien sûr toute l'importance que représente l'objectif de la santé de l'enfant.
André Potocki (Judge): Le gouvernement a choisi la voie d'une prohibition indirecte, mais presque absolue.
André Potocki (Judge): Certains Etats, à l'inverse, ont préféré la régulation à la prohibition.
André Potocki (Judge): Cela signifie concrètement qu'ils ont établi une liste de conditions matérielles et médicales pour autoriser l'accouchement à domicile.
André Potocki (Judge): Quelles observations le gouvernement fait-il à l'égard de tel système de régulation, d'une part au regard de l'objectif de l'intérêt de l'enfant, de la santé de l'enfant, et d'autre part au regard du principe de proportionnalité?
Mark Villiger (JudgeP): Thank you, Judge Potocki.
Mark Villiger (JudgeP): Nobody else?
Mark Villiger (JudgeP): The court will now rise.
Mark Villiger (JudgeP): Proceedings will resume in 15 minutes, when the parties will return for a second round of short pleadings to respond to the submissions in the first round and to judges' questions.
Mark Villiger (JudgeP): Thank you.
GR1 (Government): I would comment very briefly to the speech of the other party and try to answer some of the questions.
GR1 (Government): And then I would once more ask you to pass the floor to Dr. Bellabile
GR1 (Government): in order to complement my remarks.
GR1 (Government): As to individual circumstances of deliveries of the applicants, I would like to point out that should there be any discontent with the way this was conducted in a maternity hospital, there should have been civil proceedings against the hospital in order to establish the facts.
GR1 (Government): Because otherwise, these are only information provided by one party and not verified.
GR1 (Government): As far as the ideas that in some countries there is a violation of human rights obligations, for example, in Germany, the UK, the Netherlands, or Austria, because of allowing home deliveries, I think it's a sophisticated argument.
GR1 (Government): And the same is valid for the supposedly unprotected children who are born at home when there is prohibition to pay assistance to women in labor.
GR1 (Government): And as far as the CEDAWs comments, there was never a comment saying that mothers should be allowed to be born at home.
GR1 (Government): We do not believe that the maternity centers or birth centers, which do not exist in the Czech Republic but which may exist, are subjected to requirements which are higher or significantly higher than in other countries.
GR1 (Government): As far as the foreseeability of legal regulation, I think one has to place the two cases in the relevant period.
GR1 (Government): If there was a decree of the Ministry of Health specifying exactly the requirement for equipment in September 2010, then it was clear from then on what the requirements are.
GR1 (Government): So it should have not had a bearing on the applicant's choices.
GR1 (Government): We believe that the fetus has also some rights and that these children to be born needs to be protected as well.
GR1 (Government): I would also like to point out that these two cases are not about persecution of midwives.
GR1 (Government): This is something completely different.
GR1 (Government): As far as your respective questions are concerned, I would say first in response to Judge Nussberger that certainly the Constitutional Court has commented very recently upon the issue which we are discussing today.
GR1 (Government): But it was an obiter dictum clearly in proceedings whose core of discussion was not precisely whether to permit or not home births.
GR1 (Government): And it's also taken out of a context if we just point out, single out this particular paragraph from the Constitutional Court's judgment.
GR1 (Government): In our opinion, should there be any decision of the Constitutional Court, and the Constitutional Court did have an opportunity to do so at its plenary level, should there be any Constitutional Court decision at the domestic level?
GR1 (Government): Obviously, there is Article 53 of the Convention allowing for high level of respect for human rights.
GR1 (Government): But such a decision should be taken after a thorough discussion of all the arguments, which was not the case in Mrs. Klinic's Markova
GR1 (Government): particular affair.
GR1 (Government): As far as vulnerable women, I would say that there is a large net of gynecological practices, and that there is care in order to avoid various risks any vulnerable women can face.
GR1 (Government): And this is obviously paid by public health insurance.
GR1 (Government): Obviously, if there is any problem, there is still the possibility to call for emergency.
GR1 (Government): And the woman could be either secured in an emergency situation in place or taken to hospital, or both, finally.
GR1 (Government): As far as Judge Lemens' question, it concerns, in reality, the ban on mothers to deliver anywhere else than in hospital.
GR1 (Government): Well, there are obviously always emergency situations.
GR1 (Government): Some children are born at a filling station at the highway.
GR1 (Government): And we cannot rule out these situations.
GR1 (Government): But the core of the question is whether we should really go so far to criminalize mothers.
GR1 (Government): Because it's about that if we introduce a prohibition that there should be a sanction.
GR1 (Government): We do not believe that it is necessary.
GR1 (Government): And we also believe in a sense of responsibility of the mother and of parents.
GR1 (Government): As far as Judge Potocki's question about the possibility to introduce regulation by, let's say, requirements attached to an individual case, we simply think that it's not sufficient.
GR1 (Government): And we believe that it's within the margin of appreciation of the state to make a general prohibition of this kind.
GR1 (Government): And we also find a certain support for that in the court's case law.
GR1 (Government): For example, it was mentioned in the Grand Chamber's judgment in SH versus Austria that there is still the possibility to decide a question of proportionality at the level of legislation.
GR1 (Government): And the legislator, in the broader sense of the term, decided that.
GR1 (Government): So we simply believe that for the sake of every life, it is good, it is imperative to minimize the risks.
GR1 (Government): And this level of sensitivity to this issue might be different in the Czech Republic, or in Germany, or in Ireland, or in other countries, in the Netherlands, for example, which is known for a higher rate of home deliveries.
GR1 (Government): But this rate is very sharply decreasing during the last years.
GR1 (Government): I would now, with your permission, ask Dr. Pellebiel to supplement information provided by myself.
Mark Villiger (JudgeP): Thank you, Mr Schorm. Mr Velebil, please.
GR2 (Government): I was asked to give some information about the data, how frequently the normal birth could turn into something which is not normal or something which would require an emergency attention.