5.  The first applicant was born in 1983. She lives in Vilnius and has three children. The first time she gave birth was in 2009 in a public hospital in Vilnius. According to the applicant, the doctors therein were rude and rebuked her for her wish to give birth at home, and she felt humiliated and for a long time afterwards could not discuss her experience of giving birth at the hospital without tears coming to her eyes. For those reasons, in 2011 she gave birth to her second child at home, with the assistance of an unlicensed doula (pribuvėja), J.I.Š. That birth passed without complications and without the need for medical intervention.
6.  After falling pregnant for a third time, and with no possibility of giving birth at home owing to the fact that criminal charges had been brought in respect of the above-mentioned doula, J.I.Š. (see paragraphs 31‑35 below), on 9 May 2012 the first applicant asked two public hospitals – one in Vilnius and one in Kaunas – to provide her with medical assistance during the home birth that she was planning. Both hospitals refused on the grounds that providing such assistance was prohibited under Lithuanian law – namely, under Medical Regulation MN 40:2006 (see paragraph 44 below).
7.  On 13 June 2012 the first applicant asked the Ministry of Health to either guarantee the provision of such medical assistance during the birth of her third child or to amend the secondary legislation so that healthcare professionals could be allowed to provide such assistance. She considered that the participation of a healthcare professional in the birth was indispensable in order to guarantee the child’s and her safety. She indicated that she would give birth on 4-5 July 2012.
8.  By a letter of 5 July 2012 the Ministry of Health replied that it had already received proposals from several non-governmental organisations that births outside hospitals be regulated. The Ministry then consulted numerous medical organisations – including the Lithuanian Midwives Association (Lietuvos akušerių sąjunga), the Lithuanian Fellowship of Midwives and Gynaecologists (Lietuvos akušerių ir ginekologų draugija), the Lithuanian Doctors Association (Lietuvos gydytojų sąjunga), the obstetrics and midwifery clinics of both Vilnius University and the Lithuanian University of Health Sciences – for their views on home birth. However, the specialists were unanimous in the conclusion that it was safest for a woman to give birth on a maternity ward, even when there was little risk of complications. It was impossible to foresee that any birth would pass without complications, and it was always possible that a woman giving birth or a newborn baby might need urgent medical assistance that could be provided only on a maternity ward.
9.  The Ministry also pointed out that Lithuania had made great efforts to ensure that safe healthcare services were provided to women giving birth (gimdyvė), and that the conditions in maternity wards were designed to render them as close as possible to the home environment. For that purpose medical establishments were supplied with modern medical equipment; at the same time, a woman’s family members could be present during birth, and medical institutions were being encouraged to obtain the status of “newborn-friendly”. Over the previous twenty years Lithuania had achieved good results in significantly reducing the mortality rate of pregnant women, women giving birth and babies. To provide midwifery services at home, where there were not all the facilities necessary to be able to provide help to women giving birth and to the newborn, would constitute a step backwards. Similarly, to shift the legal and financial liability onto the healthcare specialist or healthcare institution in question would likewise not be acceptable. Moreover, the question of home birth concerned not only the woman’s, but also the State’s choice; at the same time, it was necessary to balance the interests of society and the rights of the individual. This view was supported by the Court’s judgment in Ternovszky v. Hungary, (no. 67545/09, § 24, 14 December 2010). Accordingly, the Ministry had no plans to initiate changes to secondary legislation that would regulate the provision of midwifery services at home.
10.  The first applicant states in her application that on 11 July 2012 she “[gave] birth at home without qualified healthcare assistance and risked her and the baby’s life and health”.
11.  The second applicant was born in 1979. She lives in Vilnius and has three children. She indicated in her application that she had given birth at home in 2006, 2008 and 2011, with the assistance of J.I.Š., the above‑mentioned doula. All three births had been “successful”.
12.  The second applicant submitted that after she had fallen pregnant for a fourth time, and “not being able to safely give birth at home” owing to criminal charges having been brought in respect of the above-mentioned doula, J.I.Š. (see paragraph 6 above and paragraphs 31-35 below), she in April 2012 asked two public hospitals – one in Trakai and one in Vilnius – to provide her with medical assistance during the home birth that she was planning. Both hospitals refused, on the same grounds as those given in the first applicant’s case (see paragraph 6 above). Afterwards, the Ministry of Health also refused a request lodged by the second applicant for changes to be made to the relevant legislation, for reasons identical to those cited in respect of the first applicant’s case (see paragraphs 8 and 9 above).
13.  In her application to the Court of 19 October 2012 the second applicant noted that she was “firmly resolved (tvirtai nusiteikusi) to give birth at home, irrespective of whether she would receive qualified assistance during the birth”. Her due date was 17 November 2012.
14.  The third applicant was born in 1982. She lives in Vilnius. She noted in her application that she had given birth at home in 2009 and 2010, with the assistance of the unlicensed doula, J.I.Š. Both births had been “without complications [and] successful, and the children [were] growing up and developing healthily”.
15.  In her application of 19 October 2012, the third applicant stated that – wishing to have more children and expecting to become pregnant as soon as possible, but also having learned of the criminal charges brought against the doula J.I.Š. – in spring 2012 she became an active member of the movement known as “gimimas.lt” (see paragraphs 26 and 31-35 below). The applicant stated to the Court that during her third pregnancy, having had positive experiences during the first two home births, she could not imagine herself giving birth outside her home, since this seemed to her “the safest, most tranquil [environment] ... for the most intimate of occasions”.
16.  In September 2012 she asked three public hospitals in Vilnius to provide her with medical assistance during her home birth. All the hospitals refused, on the grounds that in Lithuania there was no legal basis on which to provide medical assistance during a home birth. The head of the Maternity and Obstetrics Clinics at the Vilnius University Hospital (Vilniaus universiteto Akušerijos ir ginekologijos klinika) also indicated that she did not have the right to oblige medical personnel to provide medical services outside the hospital. Nevertheless, she invited the third applicant to visit the maternity ward of those clinics in order to “get acquainted with the environment, [which is] a cosy [one] for a woman giving birth”.
17.  On 21 September 2012 the third applicant then asked the Ministry of Health to either guarantee medical assistance at her home during the birth of her third child or to amend the relevant secondary legislation so that the healthcare professionals were permitted to provide such assistance. She also argued that if the two relevant pieces of secondary legislation were annulled by the Minister of Health (see paragraphs 42 and 44 below), there would remain no obstacles to women receiving medical assistance during home births.
18.  This request was refused by the Ministry on 16 October 2012 for the same reasons as those given to the first and second applicants (see paragraphs 8 and 9 above). Given that in her request the third applicant insisted on relying on the Court’s judgment in Ternovszky (cited above), the Ministry of Health consulted the Ministry of Justice on the matter. The Ministry of Justice noted that the Court had found a violation in the above‑mentioned case because of its very particular and specific circumstances, which had led the Court to conclude that the situation in Hungary, in as much as it related to healthcare professionals providing assistance during home births, was surrounded by legal uncertainty that gave rise to arbitrariness. Nonetheless, the Court had acknowledged that, as concerned the provision of healthcare services, the States had a wide margin of appreciation, and regulation had to ensure a proper balance between societal interests and the right at stake. The Ministry of Justice pointed out that the Court’s judgment did not mean that a State was under a general obligation to establish a regulatory framework that would allow healthcare specialists to provide services to women giving birth at home. Taking into account the above, and given that Lithuanian law did not contain provisions regarding the provision of healthcare services to women giving birth at home, the Ministry concluded that a pregnant woman could not require that, upon her request, a healthcare institution or a healthcare specialist provide her with childbirth-related healthcare services outside a healthcare institution. Similarly, a healthcare institution or a specialist had no obligation to provide such services, even if a pregnant woman so wished. That being so, the Ministry also emphasised that the third applicant was welcome to visit the maternity wards in Lithuania and to choose the one which had the environment that most suited her.
19.  In her application to the Court of 19 October 2012, the third applicant, like the second applicant, stated that she was “firmly resolved to give birth at home, irrespective of whether she would receive qualified assistance during the birth”. She was due to give birth in March 2013.
20.  After having lodged the instant application with the Court, the third applicant also started administrative court proceedings in respect of the Ministry’s refusal to grant her request for the changes in secondary legislation (see paragraphs 17 and 18 above).
21.  On 8 April 2013 the Vilnius Regional Administrative Court rejected the third applicant’s complaint. The court noted that there were no legal instruments explicitly regulating home births in Lithuania. Therefore, the third applicant’s assertion that the two legal instruments adopted by the Minister of Health (see paragraphs 42 and 44 below) directly prohibited home birth was erroneous and unsubstantiated. Those legal instruments only regulated birth in hospitals, not home births.
22.  On 22 January 2014 the Supreme Administrative Court upheld the first-instance court’s decision. It rejected the third applicant’s argument that the absence of any legal regulation allowing the provision of healthcare services during home births constituted a breach of the right to respect for one’s private life. The court referred to Article 52 of the Law on the Healthcare System (see paragraph 39 below), which guaranteed a patient’s right to privacy. For the court, such legal regulation thus empowered the third applicant to give birth in a specialised medical institution of her choice, which was equipped in accordance with the requirements for such institutions, so that the health of the mother and the newborn would be protected and they could receive immediate high-quality and effective help, should any danger arise to their health or lives during childbirth. The Supreme Administrative Court held that such legal regulation maintained a balance between two constitutional values: privacy and the protection of health.
23.  The Supreme Administrative Court also referred to the content of the Ministry of Health letter of 16 October 2012 (see paragraph 18 above), wherein that institution had reminded the third applicant that her family members could be present during the birth of her child and had offered her the opportunity to visit hospitals with maternity wards and to choose the most suitable one. Accordingly, the third applicant had the right and possibility, guaranteed by law, to choose the most suitable medical institution and to state her wishes regarding conditions of privacy and their scope (dėl privatumo sąlygų ir apimties). There was no information in the file to the effect that the third applicant had ever approached any of the maternity wards or that she had faced obstacles in choosing how to make use of that right to privacy (for example, by requesting certain services, such as a private room) and then instituted court proceedings. One also had to bear in mind the fact that privacy in respect of the third applicant’s personal life (which she had sought by demanding to be provided with medical assistance during her home birth) could not be seen as having a greater value than the health of her and the newborn child, for the purpose of which the State had established a system of personal healthcare and qualified medical assistance.
24.  The fourth applicant was born in 1975. She lives in Vilnius. The fourth applicant stated that she had given birth at home in 2001, 2003 and 2011, with the assistance of doula J.I.Š.
25.  In her application to the Court the fourth applicant also stated that even though she was of “reproductive age”, she did not dare to become pregnant for the fourth time, owing to the charges pending in respect of J.I.Š., “while the issue of giving birth at home remained legally unregulated in Lithuania” (kol Lietuvoje nėra teisiškai sureguliuotas gimdymo namuose klausimas).
26.  In 2012 a non-governmental organisation for promoting childbirth at home, “gimimas.lt”, was established. In April 2012 it published an Internet press release calling on society and the State authorities, including the Ministry of Health, to discuss the question of home birth. The third and fourth applicants were among those who initiated that NGO and were its active participants.
27.  In April 2012 the Association of Lithuanian Psychologists (Lietuvos psichologų sąjunga) asked the Ministry of Health to initiate changes in legislation to permit midwives and obstetrician-gynaecologists to provide medical assistance to women choosing to give birth outside hospital.
28.  On 26 April 2012, at the Seimas, the Minister of Health was asked to comment about the possibility of providing medical assistance during home births. He replied that his opinion was categorical and negative; he also asked the non-governmental organisations that promoted that issue to be cautious and responsible. The Minister noted that at that time there were criminal investigations pending concerning “impostors” (apsišaukėliai) who had assisted with home births at which babies had died and mothers had suffered serious injuries. He pointed out that it was precisely owing to those criminal investigations that various requests concerning assistance for home births had started reaching the Ministry.
29.  In April and May 2012 a group of non-governmental organisations asked the Lithuanian Midwives Association and the Lithuanian Fellowship of Midwives and Gynaecologists for their views on home birth.  In its written reply of 17 May 2012, the Lithuanian Midwives Association stated its disapproval of the prospect of midwives assisting with home births. On 19 June 2012 the Lithuanian Fellowship of Midwives and Gynaecologists replied that despite significant worldwide changes in the sphere of maternity care, the question of planned home births remained sensitive and controversial.
30.  According to publicly available information, after the death of a baby born at home in June 2011, the police started a criminal investigation. Eventually, the authorities started examining the legality of the actions of a number of persons assisting with home births. The Government were informed by the police that in respect of those criminal proceedings the applicants only had the status of witnesses.
31.  On an unspecified date the prosecutors started criminal proceedings under Article 202 of the Criminal Code (Unauthorised Engagement in an Economic Activity, see paragraph 48 below) in respect of doula J.I.Š., who, despite having no medical training whatsoever, between 1999 and 2011 on thirty-six occasions had assisted at home births. The scope of her actions at those home births had varied between merely examining newborn babies to performing certain childbirth-related actions.
32.  By a judgment of 23 December 2016, the Vilnius City District Court acquitted J.I.Š., holding that she had revived the old profession of doula, which although not regulated in Lithuania, was also not forbidden by law. The court considered that since J.I.Š. had had no medical training and had not acted as an obstetrician-gynaecologist or as a midwife, or as a medical professional in general, she could not be liable under Article 202 § 2 of the Criminal Code.
33.  On 19 July 2017 the Vilnius Regional Court overturned the lower court’s judgment and convicted J.I.Š. under Article 202 § 2 of the Criminal Code. The appellate court held that while taking part in home births J.I.Š. had been providing healthcare services that fell within the competence of an obstetrician-gynaecologist or a midwife, whereas J.I.Š. had neither a medical education nor a licence to provide such services. By acting in such a manner J.I.Š. had acted in breach of the existing legal regulations, under which the only specialists who could assist with births were obstetrician‑gynaecologists and midwives and birth with such assistance could take place (gimdymai priimami) only in a maternity ward. It followed that J.I.Š. had been engaged in prohibited medical activities. She was sentenced to six months of deprivation of liberty, suspended for one year.
34.  J.I.Š. lodged an appeal on points of law.
35.  By a ruling of 12 June 2018, an enlarged chamber (seven judges) of the Supreme Court noted that activities relating to home births, as a phenomenon, had been neither criminalised nor forbidden by law in Lithuania. Accordingly, the appellate court had erred in holding that J.I.Š. had been engaged in unauthorised professional activity, as understood under Article 202 § 2 of the Criminal Code. That notwithstanding, J.I.Š.’s activity, although it had not been prohibited (jos vykdyta veikla nėra uždrausta), had been unlawful (neteisėta). However, the Supreme Court found that the bill of indictment had failed to establish the precise amount of income that J.I.Š. had received for her activities. It was therefore impossible to establish the element of entrepreneurship, which was necessary in order to hold a person criminally liable under Article 202 § 1 of the Criminal Code. She therefore had to be acquitted.