TrustHLT/LaCour huggingface dataset:
GR1 (Government): Either the court should examine the present applications from the perspective of positive obligations, or alternatively, the court should not find it necessary to determine whether the state's positive or negative obligations are at stake, since in both contexts, regard must be had to a fair balance to be struck between the competing interests.
GR1 (Government): These cases are clearly distinguishable from the court's judgment in Ternovsky.
GR1 (Government): Unlike the Czech Republic, Hungary had legislation in place that, in principle, allowed for assisted home birth and set a legal basis for the provision of health care at home birth.
GR1 (Government): By doing so, the Hungarian government themselves defined the extent of health care they would provide, which, in their view, included home birth.
GR1 (Government): In that case, one could have indeed taken the interference approach, because it addressed the state's need to refrain from interfering with the exercise of a protected choice.
GR1 (Government): Such a scenario is, however, very different from the situation in the Czech Republic.
GR1 (Government): The extent of health care provided in the Czech Republic does not include assistance at home birth.
GR1 (Government): The Czech Republic has in place regulations it finds necessary for the protection of both the child's and mother's life and health.
GR1 (Government): The cases, therefore, concern the issue of the extent to which the state is obliged to alter its obligations, its regulations, and provide health care that it finds force within the standard necessary, primarily for the protection of the life and health of the child.
GR1 (Government): This is, therefore, clearly a question of the state's positive obligations.
GR1 (Government): Also based on the court's case law, such as Evans v. UK and SH v. Austria,
GR1 (Government): in which the applicant sought to secure increased positive involvement by the authorities, in particular the enactment of new legislation, the court should look at the present cases from the perspective of positive obligations.
GR1 (Government): In other words, since the applicants claim that the state should broaden the extent of health care provided in the Czech Republic, the application should not be examined from the perspective of negative obligations.
GR1 (Government): As regards question three of the court on the tension between the right claimed by the applicants and other international human rights obligations of the Czech Republic, my government are convinced, in light of Article 53 of the convention and the court's case law, that since other international commitments are at stake here, they must be taken into account when striking a fair balance under Article 8 of the convention.
GR1 (Government): In fact, the state must coordinate and harmonize the effects of its various obligations stemming from international human rights instruments.
GR1 (Government): The government crafted the birth policy in an effort to ensure an appropriate balance of all its obligations under international law towards both the child and the mother.
GR1 (Government): This morning, the court considers a rather unique situation from the perspective of the provision of health care, because the process of giving birth involves two human beings at the same time, who both have fundamental human rights, the child and the mother.
GR1 (Government): The child, who is, pardon my French, halfway through, is more than a fetus or an unborn child, according to the court's case law.
GR1 (Government): States have a wide margin of appreciation in determining the question of whether or when an unborn child is a person protected by fundamental human rights.
GR1 (Government): The Czech constitutional order provides that human life is worthy of protection even before birth.
GR1 (Government): And importantly, the Czech criminal law defines a newborn as a child not only immediately after, but also during birth.
GR1 (Government): From the perspective of international human rights law, the Committee on the Rights of the Child stated in general comment number seven that children at birth shall be covered by the definition of early childhood when considering the rights of the child.
GR1 (Government): The court should take into consideration the fact highlighted by UN treaty bodies that a child is during and immediately after birth extremely vulnerable and not capable of protecting themselves.
GR1 (Government): The Committee on the Rights of the Child underscored that the child's rights to health is central in assessing the best interest of the child, and that, I quote, an adult's judgment of a child's best interests cannot override the obligation to respect all the child's rights under the Convention on the Rights of the Child, unquote.
GR1 (Government): When sudden pathological progress of delivery occurs, assistance of a midwife at home birth may be insufficient.
GR1 (Government): In such cases, complications must be recognized by a midwife in time, and an immediate intervention by a qualified obstetrician must be ensured.
GR1 (Government): According to experts in obstetrics, the home environment is not an appropriate environment for such purposes, since adequate equipment is missing, and a midwife is not qualified to deal with consequences of acute complications.
GR1 (Government): This may similarly happen immediately after birth.
GR1 (Government): That is, when the newborn is entirely outside mother's body.
GR1 (Government): In such cases, the denial of adequate medical assistance to a newborn could be imminent at mother's home, and the presence of a midwife would not substitute an appropriate response to possible acute complications.
GR1 (Government): The right to health under the Convention on the Rights of the Child and the International Covenant on Economic, Social, and Cultural Rights includes obligations, and here I quote from the text of the conventions and from the relevant general comments of the respective treaty bodies.
GR1 (Government): First, to take all possible measures to reduce infant mortality with particular attention to neonatal mortality.
GR1 (Government): Second, to intervene to ensure safe delivery services and good quality health services.
GR1 (Government): Third, to regulate the quality of the provision of health care, also of private health service providers, so that children's rights are protected.
GR1 (Government): And fourth, to ensure in the area of health that the institution, services, and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities.
GR1 (Government): Unquote.
GR1 (Government): The current legal framework regulating the provision of assistance at birth in the Czech Republic guarantees the observance of all these obligations.
GR1 (Government): Let me also underline that both the UN Child Rights and Economic, Social, and Cultural Rights committees in their general comments on the right to health made clear that retrogressive measures taken in relation to the right to health are not permissible.
GR1 (Government): If my government are forced to take steps to allow assistance of midwives at home birth, such steps will lead to a decrease in the high standard of health care provided in the Czech Republic, because the existing necessary requirements for the provision of such care will have to be lowered.
GR1 (Government): Such steps will clearly be retrogressive, and therefore in breach of the right to health obligations.
GR1 (Government): All these obligations must be seen in light of paragraph 53 of the general comment number 14 of the UN Committee on Economic, Social, and Cultural Rights, according to which, and I quote again, the most appropriate feasible measures to implement the right to health will vary significantly from one state to another, while every state has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances, unquote.
GR1 (Government): To sum up, strong tensions between the right claimed by the applicants and the mentioned obligations of the Czech Republic under the right to health needs to be reflected in the Court's assessment of a fair balance in the present cases.
GR1 (Government): Those are other possible tensions described in the initial observations of my government, such as those between the right claimed by the applicants and positive obligations under the right to life.
GR1 (Government): All these tensions undoubtedly support my government's view that the right to respect for private life cannot be so extensively interpreted as to require the state to establish a framework to allow the provision of health care at home birth, when it has determined, bearing in mind the wide margin of appreciation the state should enjoy, that the best policy for the state is to provide free, accessible care for birthing in places with adequate medical equipment and an ability to respond to emergencies.
GR1 (Government): With regard to question four, I have decided for the sake of clarity and comprehensiveness to group this question in the first three portions of question five.
GR1 (Government): There should be no doubt that the state is guarantor of the level and quality of health care.
GR1 (Government): The state shall set out the requirements where and how health care can be provided, including health care of private nature.
GR1 (Government): Neither an obstetrician nor a midwife can provide health care just anywhere.
GR1 (Government): It must be, by its very nature, regulated by the state, including in respect to the premises where various types of health care can be provided.
GR1 (Government): Czech legislation makes entirely clear that a health professional, that is, an obstetrician or a midwife, regardless of whether they provide health care on a private or public basis, cannot assist at planned home birth.
GR1 (Government): A relevant point to be made is not whether a health professional works in a state hospital or on a private basis, but rather that the current legislation on health care, that is, the 2011 Act on Health Services, and similarly, also its predecessor, the amended 1966 Act on Public Health Care, clearly and foreseeably provide that health care, including assistance at birth, can be provided only in health care facilities which must be materially and technically equipped for the respective type and scope of health care.
GR1 (Government): There are certain exceptions to this rule, such as emergency care and care in the patient's own social environment.
GR1 (Government): However, the Act on Health Services clearly stipulates that health care in one's own social environment, that is at home, can only be provided when the legislation does not require the respective type of care to be provided in adequately equipped premises.
GR1 (Government): As explicitly required by the two mentioned acts, the relevant decrees of the Ministry of Health, indeed, specify the necessary requirements, including those for the minimum equipment, which must be fulfilled so that the respective authorization can be issued to a midwife.
GR1 (Government): Only after that, and in such adequately equipped premises, a midwife is allowed to assist at planned birth.
GR1 (Government): These requirements cannot be fulfilled at someone's home, and no authorization has therefore been issued to a midwife to allow her to assist at planned home birth.
GR1 (Government): Concerning the second part of question five on the criminal and administrative proceedings against midwives, to the knowledge of my government, two midwives have been tried in criminal proceedings and have been found guilty of errors made prior to and during delivery.
GR1 (Government): I emphasize that these two midwives were not convicted on the basis of the fact that they had conducted birth at home, but for the errors which had led to the deaths of the two newborns.
GR1 (Government): The proceedings in neither of the two criminal cases have come to an end as of yet.
GR1 (Government): The case of midwife Susanna Stromerova is pending before the Supreme Court.
GR1 (Government): As regards midwife Ivana Konigsmarkova, the Constitutional Court has recently quashed all three criminal court decisions in her case, but only for procedural shortcomings.
GR1 (Government): This recent judgment of the Constitutional Court does not provide any legal basis for the right to give birth at home with assistance.
GR1 (Government): It is only an individual decision regarding the question of certain specific fair trial guarantees in criminal proceedings.
GR1 (Government): I should say on a side note that the alleged differences in criminal liability of midwives as compared to obstetricians are simply inaccurate.
GR1 (Government): The criminal code does not differentiate between professions.
GR1 (Government): Criminal liability for an erroneous course of action is the same for all health professionals.
GR1 (Government): There have been several cases of obstetricians convicted for errors made during and prior to hospital delivery who were subjected to similar penalties as the two midwives.
GR1 (Government): Furthermore, to my government's knowledge, no midwife has been subjected to any administrative sanctions to date.
GR1 (Government): In the margins, I should recall that the potential of a fine under the Act on Health Services being imposed on a midwife who provides health service without authorization or with a limited authorization excluding assistance at home birth is only a logical and necessary element of guaranteeing the required standard of health care.
GR1 (Government): It is not a measure directed against midwives, but a systemic measure targeted at anyone who provides health services without the necessary authorization.
GR1 (Government): Answering the first part of question six, I must say that the Czech Republic pursues legitimate aims of the protection of health and of the rights of others.
GR1 (Government): The mentioned key regulations serve the purpose of setting minimum standards for health professionals, including midwives, and aim to ensure an adequate safety and quality health care for the child and for the mother, particularly when unpredictable complications occur during delivery.
GR1 (Government): As I said earlier, these regulations also reflect international human rights obligations, particularly those related to the right to health.
GR1 (Government): My government are of the view that setting the appropriate regulations regarding requirements for the provision of specific health care, this being assistance at birth, is not an issue for this court to examine.
GR1 (Government): These are extremely technical questions for experts in the field of obstetrics.
GR1 (Government): It is therefore for the states to set up the necessary requirements for the provision of health care in consultation with these experts.
GR1 (Government): The legislation regulating assistance at birth was indeed consulted with leading experts in the field of obstetrics.
GR1 (Government): And there is a wide consensus on the set necessary requirements among them.
GR1 (Government): One of them, Dr. Vellabil, will present the reasons
GR1 (Government): for such requirements shortly.
GR1 (Government): He will show that the risks for the child are real and not only illusory.
GR1 (Government): The results of the Czech Republic in international statistics also confirm the legitimacy of the existing regulatory framework.
GR1 (Government): Leaving aside the hotly debated issue of statistics comparing the safety of home births with births in health care facilities, my government wished to highlight that according to widely recognized Europe HISTAT and WHO statistics, the Czech Republic has conclusively one of the lowest perinatal mortality rates in the world.
GR1 (Government): There is no doubt that the reason for such a result lies primarily in the top quality of Czech obstetrics.
GR1 (Government): As regards the second part of question six, let me repeat that the salient issue in this case is precisely whether a fair balance has been struck regarding head to the state's wide margin of appreciation.
GR1 (Government): If the applicants request assistance provided by a midwife or another health professional, and considering that in the medical context, the regulation of the state is the default, the choice of the place of birth must certainly be limited.
GR1 (Government): As I have already explained, in the Czech Republic, assistance of a midwife or other health professionals during delivery is limited to places adequately equipped in line with the relevant legislation.
GR1 (Government): It is certainly not reasonable to request the state to guarantee medical care anywhere.
GR1 (Government): The court has, in fact, confirmed such view in Tarnowski when it stated that the choice of giving birth at a particular location would normally entail the involvement of health professionals.
GR1 (Government): The word normally is not absolute, and leaves the state discretion as to whether the provision of such care will be allowed.
GR1 (Government): There are certainly various places where the state cannot secure professional assistance during delivery, such which the court certainly did not have in mind when examining the choice of the place of birth in Tarnowski, such as buildings difficult to reach or buildings with inadequate hygiene conditions.
GR1 (Government): Where is then the balance?
GR1 (Government): What place is safe and what already crosses the line?
GR1 (Government): By the very nature of this issue, there must be a wide margin of appreciation afforded to the state.
GR1 (Government): My government believe that a fair balance can be achieved when the state allows assistance in planned birth to be provided only in premises adequately equipped for such purpose.
GR1 (Government): That is in health care facilities broadly defined, including, for example, birth centers.
GR1 (Government): And of course, upon the condition that privacy and the possibilities to choose various individual circumstances of giving birth are guaranteed there.
GR1 (Government): My government have documented to the court that privacy and possibilities to choose various circumstances of giving birth are indeed secured in numerous maternity hospitals in the Czech Republic.
GR1 (Government): This is clear not only from the extensive list of rights enshrined in the Act on Health Services and programs aimed at arranging the home-like environment in maternity hospitals, but also from the concrete information on the choices of circumstances of giving birth in maternity hospitals in close proximity to the applicants' permanent residencies.
GR1 (Government): The government recall having also submitted pictures of the home-like environment in these maternity hospitals.
GR1 (Government): Very briefly, individual circumstances of giving birth secured in a variety of Czech maternity hospitals, including those in close proximity to the applicants' permanent residencies, including, for example, the choice of a method of delivery and of a position during delivery, refusal of interventions during the childbirth process based on the woman's free and informed consent enshrined in the national legislation, avoiding unnecessary separation of the mother from the child, grooming in, presence of relatives during delivery, and also having a midwife-led delivery in maternity hospitals.
GR1 (Government): It is worth noting that the UNICEF WHO baby-friendly hospital status has already been granted to nearly 70 maternity hospitals in the Czech Republic.
GR1 (Government): In this regard, I should reiterate that mothers have no restrictions in choosing which maternity hospital they wish to give birth in.
GR1 (Government): In fact, mothers who wish to give birth at home call precisely for the choices just listed.
GR1 (Government): If the state can arrange for a home-like environment in a health care facility, the differences between such environment and home are simply blurring.
GR1 (Government): By doing so, the government managed to satisfy both sides of the coin.
GR1 (Government): That is privacy for the mother and safety for both the child and the mother.
GR1 (Government): My government believes that this constitutes a fair balance in the Czech Republic, as required by the court.
GR1 (Government): Should some of the mentioned individual circumstances of giving birth not be provided in health care facilities, their lack in an individual case could raise issues under Article 8 of the Convention.
GR1 (Government): The applicant's core complaint is, however, different, namely whether the state is under an obligation to provide assistance at home birth or to establish a framework allowing for such assistance to be provided by midwives at home birth.
GR1 (Government): Let me conclude by assuring you that my government do not question the fact that birth is a natural process.
GR1 (Government): To the contrary, my government strive to ensure that the individual circumstances of giving birth be respected in health care facilities in the Czech Republic.
GR1 (Government): However, birth can unexpectedly turn into a fight for the rescue of the child.
GR1 (Government): In order to minimize the inherent risks, and based on the level of development of European states, assisting at birth has become the provision of health care regulated by the state.
GR1 (Government): European states have undertaken the obligation to put in place security mechanisms to control the practice of assistance at birth so as to meet the public interest regarding safety.
GR1 (Government): Such regulation varies considerably among European states without any existing consensus on this issue.
GR1 (Government): The present cases raise sensitive moral and ethical issues with various entirely contradictory opinions on the correct answer, if such correct answer ever exists.
GR1 (Government): It is thus up to the state to decide on requirements for the provision of such specific health care in a developed European state and to find a fair balance.
GR1 (Government): The court consistently holds that matters of health care are within the margin of appreciation of the domestic authorities who are best placed to assess priorities, use of resources, and social needs.
GR1 (Government): For all these reasons, my government are convinced that a fair balance has been struck in the cases at hand.
GR1 (Government): And as the court noted in the Hristosov case and other case law in Article 8, although a fair balance might have been arguably struck, the Czech authorities are of the view that they did not exceed the wide margin of appreciation and that there was thus no violation of Article 8 of the Convention.
GR1 (Government): Mr. President, honorable judges, thank you for your attention.
GR1 (Government): And let me, with your permission, now introduce Dr. Veladiel, one of the leading experts
GR1 (Government): in Czech obstetrics, who will briefly present you the reasons for the existing legal framework.
Mark Villiger (JudgeP): I call Mr. Velebil.
GR2 (Government): Mr. President, Honorable Judges,
GR2 (Government): in the previous presentations we've heard that when sudden change in delivery occurs and turns into pathological progress, an assistance of a midwife at home birth may be insufficient.
GR2 (Government): I would go even further.
GR2 (Government): I would say that assistance of any health care provider may be insufficient, just because of the fact that their tools and measures are insufficient in that particular environment.
GR2 (Government): In life-threatening situation, threatening to either or both mother and child, happen, the proximity of adequately equipped facility and proximity of other trained health care workers could make a difference between death and life.
GR2 (Government): The imperative requirement for safer environment cannot be downplayed by the fact that we do provide thorough prenatal care or excellent screening of risk, simply because certain acute situations may occur, and they do occur, without any previously identifiable risk signs or symptoms, which would normally allow us to timely react.