Ban on Northern Irish Abortion Upheld

In a judgment published today, we were disappointed to learn that a Supreme Court appeal, challenging the government’s refusal to provide NHS-funded abortion care in England for women resident in Northern Ireland, has narrowly failed. Birthrights joined coalition of reproductive rights charities, Alliance for Choice, the British Pregnancy Advisory Service (bpas), the Family Planning Association (FPA), and the Abortion Support Network (ASN), to intervene in the case.

The court was divided 3-2 against the appeal and, in a sensitive and thoughtful judgment which made it clear that the levels of distress and hardship endured by vulnerable women were real and unacceptable, the Court ruled that they couldn’t force the Secretary of State to fund the abortions of Northern Irish women.

 

The case was brought by a young woman, A, who in 2012 as a pregnant 15-year-old girl travelled with her mother, B, from their home in Northern Ireland to Manchester for an abortion at a cost of £900. Abortion is effectively banned in all but the most severe of circumstances in Northern Ireland. Despite being UK tax-payers, women from Northern Ireland in need of abortion care have had to fund both their travel to England and their treatment.

The Court’s ruling stated that – as Secretary of State – Mr Hunt holds the legal authority to grant women resident in Northern Ireland NHS-funded abortion care in England, but had decided against doing so – not due to financial constraints – but out of “respect” for the democratic decisions of the Northern Ireland Assembly, in which the largest party is the DUP.

The Secretary of State had previously stated that the Government’s policy was that “in general, the NHS should not fund services for residents of Northern Ireland which the Northern Ireland Assembly has deliberately decided not to legislate to provide.”

The judges expressed a profound sympathy for the “plight” of women in Northern Ireland facing an unplanned pregnancy. Lord Wilson, who did not rule in favour of the appeal, stated that the “embarrassment, difficulty, and uncertainty attendant on the urgent need to raise the necessary funds” added significantly to mother and daughter’s “emotional strain.”

In a comment piece to be published later today, our CEO Rebecca Schiller, is expected to highlight that Lady Hale’s dissenting opinion reflected many of the points we made in our intervention. Lady Hale pointed to autonomy and equality as the “fundamental values underlying our legal system.” Underpinning all of that she invoked the profound legal and moral imperative given by the respect for human dignity. “The right of pregnant women to exercise autonomy in relation to treatment and care,” said Lady Hale, “has been hard won but it has been won.”

Rebecca is also expected to ask for assurance from the Prime Minister that women’s rights are not threatened by any future alliance between the Conservatives and the DUP. To that end she has written to the Prime Minister on behalf of Birthrights, in a joint letter which you can read in full here.

In a statement this morning our Chair, Elizabeth Prochaska, added, “the government’s tolerance of this affront to women’s dignity is deeply concerning. For very little cost to the NHS, women in Northern Ireland could be given access to abortion care in Britain. We need immediate clarity from the Prime Minister that any alliance with the hardline DUP will not be allowed to undermine our commitment to women’s equality and reproductive rights.”

A and B are now expected to take their case to the European Court of Human Rights and, if they do, our coalition of reproductive rights charities will be ready to intervene to help protect the vulnerable and ensure their voices are heard.

You can read the press release from the Interveners here.

Childbirth and the Court of Protection seminar

On 8th March, Birthrights, alongside Queen Mary’s School of Law and 39 Essex Chambers, will be putting on a seminar taking a critical look at the recent trend of forced caesarean decisions in the Court of Protection.

The seminar (17.00 – 19.00) will feature an impressive line up of panelists including: Professor Lesley Page CBE, President of The Royal College of Midwives, Dr Daghni Rajasingam, Consultant Obstetrician, Guys and St Thomas’s NHS Foundation Trust, Dr Jo Black, Consultant Psychiatrist and Clinical Director for Perinatal Mental Health at NHS England, Polly Sands, specialist perinatal mental health midwife at Guys and St Thomas’s NHS Trust, Seaneen Molloy-Vaughan, writer, mental health blogger, and mum of one, in addition to Elizabeth Prochaska, Matrix Chambers and Birthrights and Victoria Butler-Cole, 39 Essex Chambers.

The event is primarily aimed at lawyers, and judges working in the Court of Protection but healthcare professionals and anyone else with an interest are more than welcome.

To reserve a place please contact: Beth Williams (beth.williams@39essex.com) / 020 7832 1155

More information about the event can be found here.

Birthrights Criticises NMC for Independent Midwives Decision

Birthrights strongly criticised today a decision by the Nursing and Midwifery Council (NMC) that prevents many independent midwives from caring for women in labour. The decision (which relates to the level of indemnity insurance arranged for many independent midwives by their umbrella body, IMUK) has resulted in the regulator instructing pregnant women to make immediate alternative arrangements for their birth care.
In an urgent letter to NMC chief executive Jackie Smith, Birthrights CEO Rebecca Schiller said that the NMC’s actions, “appear designed to cause maximum disruption and damage to independent midwives and the women they care for,” adding that, “we do not believe that these are the actions of a responsible regulator.”
Schiller adds that “the NMC has a key role to play in protecting public safety, yet this decision directly jeopardises the health and safety of the women it is supposed to safeguard. Beyond the very real physical health implications of this decision, it is causing emotional trauma to women and their families at an intensely vulnerable time. To date, it appears that the NMC has shown no concern for the physical and mental wellbeing of pregnant women who have booked with independent midwives.”
In the letter, Birthrights highlights the unnecessarily tight timescale imposed by the NMC and lack of attempt to communicate what constitutes adequate levels of insurance. Schiller expresses her concern that some women will now feel forced to give birth alone adding, “many women choose the care of an independent midwife because they are unwilling to access NHS services, often because of previous traumatic experiences. Without the support of their chosen independent midwife, women have already told us that they feel their only option will be to birth without any medical or midwifery assistance. We hope that you will share our urgent concern about the avoidable harm that could come to women and babies in this situation.”
Birthrights is urging the NMC to remedy the damage caused to date by taking urgent steps that include:
  1.  Guaranteeing that all women who are currently booked with independent midwives using the IMUK insurance scheme will be able to continue to access their services
  2.  Reassuring Birthrights, IMUK and the women who have already engaged the services of independent midwives that the midwives caring for them them will not face disciplinary action for fulfilling their midwifery role
  3. Urgently making a public recommendation on what constitutes adequate insurance.

Dubska ECHR judgment: disappointing but not the last word

The Grand Chamber of the European Court gave judgment today in Dubska v Czech Republic. We wrote about the earlier decision of Court here. The Court reaffirmed that women’s rights in childbirth are protected by Article 8 of the European Convention on Human Rights, further underlining the human rights protections that childbearing women should enjoy.

But in a disappointing and poorly reasoned judgment, the Court found that the Czech government was not obliged to regulate midwives to enable them to attend women at home births, despite the significant negative impact this may have on the safety and wellbeing of childbearing women. The Court accepted that care in Czech maternity hospitals was ‘questionable’ and expected the Czech government to keep its law and practice under “constant review so as to ensure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive health”.

Five of the judges dissented, expressing a joint opinion that disagrees with the Grand Chamber’s judgment. These judges found that the Czech system effectively forces women to give birth in hospital and could not be justified by any public health argument. They noted the observations of the CEDAW Committee on disrespectful and abusive practices in Czech hospitals. As they said, citing the UK Supreme Court’s decision in the Montgomery case,  ‘Patronising attitudes among health personnel should not be taken lightly, as they may constitute a violation of an individual’s right to self-determination under the Convention.’

This judgment is a missed opportunity to offer appropriate, safe and rights-respecting choices to Czech women. Women giving birth in obstetric units in the Czech Republic face a range of unsafe and rights-violating practices, meaning that for some choosing to birth at home is the only way of avoiding degrading, painful, lonely and de-humanised care. Routine practices in these units include: separation from their babies, a lack of access to facilities that support physiological birth, no involvement in decisions about their care, routine episiotomy, lack of pain-relief options, giving birth without a partner unless they pay an additional fee. Without regulated and state-supported access to out-of-hospital birth it is likely that some women will now feel forced to give birth without medical assistance. When hospital births that undermine a woman’s basic human dignity are the only option, there are significant safety issues at stake.

For women in England the judgment has no impact on their right to choose where to give birth. Choice of place of birth is enshrined in policy and practice, and underpinned by the recent report of the National Maternity Review. But for women in eastern Europe this will create a significant bend in the road that activists, mothers and health care professionals will need to navigate with clarity and purpose to minimise the damage.

Thankfully the clamour for childbirth rights, and a shared understanding of how to promote them, is growing across Europe. More cases on abuse during childbirth will undoubtedly reach the Court and other recent ECHR judgements (such as Konovalova v Russia) still stand; robustly upholding women’s rights to make decisions about childbirth.

Given the forceful dissent, and the Court’s demand that the government keep pace with change, this is unlikely to be the last word on homebirth in the Czech Republic.

UK Supreme Court upholds women’s autonomy in childbirth: Montgomery v Lanarkshire Health Board

The UK Supreme Court powerfully affirmed women’s right to autonomy in childbirth yesterday in the case of Montgomery v Lanarkshire Health Board. Allowing the appeal from the Scottish courts by a woman whose baby suffered shoulder dystocia in labour, the Supreme Court held that women have a right to information about ‘any material risk‘ in order to make autonomous decisions about how to give birth.

Mrs Montgomery, a pregnant diabetic woman with a large baby, was not informed by her obstetrician of the chance of shoulder dystocia. Although she had repeatedly expressed concerns about giving birth vaginally, the obstetrician said that she routinely chose not to explain the risk of shoulder dystocia to diabetic women because the risk of serious injury to the baby was very small and that if she did explain it, ‘then everyone would ask for a caesarean section‘. For diabetic women, the risk of the occurence of shoulder dystocia is about 9-10% and the consequent risk of serious injury to the baby is less than 1%. However, shoulder dystocia poses a variety of serious risks to the woman’s health, including post-partum hemorrhage (11%) and 4th degree perineal tear (3.8%). The doctor apparently did not consider that these risks were worth explaining to women.

The arrogance of the doctor’s assumptions clearly disturbed the Court. As Lady Hale said (para 111): ‘In this day and age, we are not only concerned about risks to the baby. We are equally, if not more, concerned about risks to the mother. And those include the risks associated with giving birth, as well as any after-effects. One of the problems in this case was that for too long the focus was on the risks to the baby, without also taking into account what the mother might face in the process of giving birth.’

Baroness_Brenda_Hale

Supreme Court Justice Brenda Hale: ‘Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being.’

The law

From a legal perspective, the decision brings English and Scottish law into line with that of the United States and other common law jurisdictions by separating the question of informed consent from the traditional test for clinical negligence. The Court expressed the legal duty on doctors as follows (para 87):

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

It is therefore no longer appropriate to assess the adequacy of the doctor’s information sharing by reference to the standards of a reasonable medical professional; instead the relevant standard is whether the patient would attach significance to the risk. In its explicit recognition of patients’ rights to autonomy and informed choice, Montgomery hammers the final nail in the coffin of medical paternalism.

What are the implications for healthcare professionals?

Doctors will already be well-acquainted with the GMC guidance on consent, which was quoted with approval in Montgomery, and the case is a reminder of the importance of this guidance. The Court highlighted the following aspects of the process of informed consent that all healthcare professionals (and hospital managers) should take on board:

(i) Dialogue: in order for a patient to make an informed decision, there must be a conversation between doctor and patient. The doctor must ‘ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision.’ The information cannot flow one way and the doctor’s advice must be ‘sensitive to the characteristics of the patient‘ (Montgomery, para 89). Hospitals cannot rely on printed information leaflets to provide information; there should always be a personal discussion.
(ii) Material risks: a material risk is one to which a reasonable patient would attach significance. Statistics alone will not determine whether a risk is significant for a particular patient. For example, the risk of complications for future pregnancies after a c-section might be statistically small, but it would be more significant for a woman who wished to have multiple children than for a woman who did not.
(iii) Consent forms: the Court emphasised that the doctor’s obligation will only be discharged if the information is imparted in a way that the patient can understand. ‘The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form‘ (Montgomery, para 90). This is important guidance. Hospitals cannot rely simply on a completed consent form as evidence that a clinician has fully appraised a patient of the risks of a procedure.

More litigation?

Maternity care is already infamously litigious and accounts for nearly 50% of the value of all NHS negligence claims (see NHS Litigation Authority, ’10 Years of Maternity Claims’). The Supreme Court recognised that there is a risk that the Montgomery decision will increase litigation by women who claim that they were not adequately informed of risks. The Court gave an interesting response to this (para 93):

‘…in so far as the law contributes to the incidence of litigation, an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, in the event of an adverse outcome, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred.’

Far from threatening doctors with more claims, proper disclosure of risks should protect the medical profession from litigation and lead to patients bearing responsibility for their own decisions. Respect for patient autonomy means that patients take responsibility.

An example: post-dates induction

Post-dates induction provides a useful example of how informed consent ought to work in practice.

  •  The obstetrician must make time for a genuine dialogue with the woman. Hospital information sheets on induction are not a sufficient basis for making informed decisions. During the dialogue, the doctor cannot not simply impart facts or hospital policy without taking account of the woman’s particular situation and wishes for the birth.
  • The conversation must be personalised – it would differ between a first-time mother and a woman who has already had children; or between a woman who wants to give birth vaginally and a woman who is concerned about vaginal birth.
  • The obstetrician should explain the risks of exceeding her due date using accurate and comprehensible information that does not put undue pressure on the woman (stating only that ‘your baby might die‘ would not be considered sufficient information).
  • She should then be told of ‘any material risks‘ of induction to both herself and her baby. It is obvious that most women would wish to know the likelihood of success and failure of induction in that clinician’s experience at the hospital in question, and the risks should induction fail. These will include fetal distress, assisted birth, with consequent potential for perineal trauma, and emergency c-section.
  • The obstetrician should suggest alternative courses of action, including waiting for natural labour to begin and elective c-section.

Elective c-section

The Court in Montgomery made it clear that not only should the doctor have explained the risks of shoulder dystocia, but that she should have offered Mrs Montgomery an elective c-section. Lady Hale stated (para 111) that doctors should volunteer the pros and cons of vaginal birth and elective c-section ‘in any case where either the mother or the child is at heightened risk from a vaginal delivery.’ Following these comments, failure to offer an elective c-section where there are heightened risks to vaginal delivery may lead to legal liability for negligence.

 

Elizabeth Prochaska, Birthrights

Birthrights Condemns Guilty Verdict in Purvi Patel Case

Press Release 4 February 2015

Women’s charity condemns guilty verdict as Indiana woman is charged with ‘feticide’ and child neglect.

The jury in a landmark case in Indiana has found Purvi Patel guilty of two contradictory charges of ‘feticide’ and child neglect. Despite widespread condemnation of the case by legal experts, health organisations and human rights activists, Patel faces up to 70 years in prison after giving birth to a stillborn baby.
 
Rebecca Schiller, co-chair of Birthrights (the UK-based human rights in childbirth charity), said:
 
“This is the second case of Indiana’s feticide laws being used against the vulnerable pregnant women they theoretically seek to protect. It is a worrying demonstration of what happens when the outcome of individual pregnancies is made political and subject to criminal sanctions. In addition, women in Indiana (and a rising number of US states) struggle to access free, safe abortion and are forced to see ultrasound images of their foetus before an abortion will be performed.” 
 
“The health and wellbeing of women and babies is being jeopardised by attempts to undermine women’s rights to access abortion, make decisions about their pregnancies and the way they wish to give birth. Despite all major US health organisations opposing criminalising pregnant women for the outcomes of their pregnancies, an epidemic of strategic prosecutions is the reality for women in America. Women from ethnic minorities and those at the lowest end of the socio-economic spectrum are most frequently targeted in these cases.”
 
“It is essential that women feel able to access unbiased support services and antenatal care without fear of a prison sentence. Legal systems should assert that women need to be trusted to make decisions about their pregnancies and draconian restrictions on abortions only serve to penalise the most vulnerable women. 
 
“We need to remain vigilant about attempts to undermine women’s reproductive rights in the UK, while raising awareness of the hostile climate in the USA and supporting those American advocates seeking to protect women from these harmful laws.”

For more information please contact press@birthrights.org.uk and 07793084945.

 

Dubska v Czech Republic: A blow to women’s reproductive rights in Europe

The European Court of Human Rights gave judgment in Dubská v Czech Republic last week. The Court found that Czech legislation prohibiting midwives attendance at home births did not interfere with women’s right to private life under Article 8 of the European Convention.European-Court-of-Human-Rights

The decision came as a surprise to maternity professionals and campaigners across Europe, who had welcomed the Court’s previous decision in Ternovszky v Hungary which enshrined an obligation on the state to respect women’s choice of place of birth. In the wake of recent advances in women’s reproductive rights (including the Court’s recent judgment in Konovalova v Russia), the Dubská judgment represents a regressive step in protection for women’s autonomy. The Court appeared to believe that it was safeguarding the safety of mothers and babies. The decision will achieve quite the reverse. Prohibiting midwives from attending women at home poses a grave threat to the health and well-being of women and babies.

Czech maternity care

Before analysing the decision, we first need to appreciate the context in which the case was brought. Maternity care in eastern Europe is provided almost exclusively in hospital. There are very few birth centres. The quality of care has been widely condemned by international organisations as disrespectful and over-medicalised, and the cause of serious physical and psychological harm to women and babies. The Court recorded “testimonies from numerous mothers” describing a plethora of human rights violations, including forced medical procedures, unnecessary separation of mother and baby and mandatory monitoring in hospital for 72 hours after birth. The medical staff were described as “arrogant, intimidating, disrespectful and patronising“.

In Hanzelkovi v Czech Republic, a judgment given by the Court on the same day as Dubská, the forcible return of a healthy baby to a Czech hospital for the mandatory 72 hour period post-birth was found to constitute a violation of Article 8. The Court in Dubská did not connect the dots: women faced with hospital care that violates their rights will seek alternative maternity care that safeguards their dignity. The law must support them in that choice.

Ms Dubská and Ms Krejzová

In 2011, two Czech women, Ms Dubská and Ms Krejzová, sought midwives to support them to give birth at home. Czech law regulating the provision of maternity care stipulates that intrapartum care can only be provided in a medical institution which has to meet minimum requirements relating to the provision of technical equipment. Providing care outside such a setting is unlawful. As the Court recognised, the law effectively amounted to a ban on midwives attending women at home.

Unable to obtain midwifery support at home, Ms Dubská gave birth alone without any professional assistance. As her decision to freebirth illustrates, women will continue to choose to exercise their basic reproductive autonomy and give birth outside medical institutions regardless of whether the state gives them its blessing.

Ms Krejzová gave birth at the closest hospital where she believed she could access respectful care. It was 140km away from her home. Even at this “respectful hospital”, her healthy child was separated from her at birth for routine monitoring despite her objections. 

Ternovszky v Hungary

The question for the Court in Dubská was whether the Czech law prohibiting midwifery support at home constituted a lawful restriction on women’s right to private life. The answer to this question ought already to have been apparent from the decision of the Court in Ternovszky v Hungary. In that case the Court considered the Hungarian government’s failure to regulate home birth, which left midwives susceptible to disciplinary and criminal sanctions. The Court held that:

(i) Women’s decisions about childbirth were an expression of physical autonomy that were protected by the right to private life in Article 8.

(ii) Any legislation that dissuaded health professionals from attending a woman at home represented an interference with her private life.

(iii) Women were entitled to “a legal and institutional environment that enables their choice“.

(iv) Regulation of midwives was essential to ensure that women’s choices could be respected.

The only difference between Ternovszky and Dubská was that Hungarian law did not ban home birth, instead the lack of regulation made it effectively impossible. There is no doubt that if the Court in Ternovszky had been considering a legislative prohibition on midwifery assistance, it would have reached the same conclusion – the right to choose where to give birth requires legal and institutional support from the state. Without such support, the right is eviscerated.

Remarkably, the Court in Dubská made no effort to explain its departure from the reasoning in Ternovszky.  The two cases were decided by different sections of the Court (Ternovszky by the second section, Dubská by the fifth) and none of the same judges were involved in the decision. The sections cannot overrule one another and their judgments ought to be informed by earlier decisions of the Court. The Dubská decision does not overrule Ternovszky, but the incoherence between them creates confusion and ambiguity. Dubská renders European state’s obligations towards pregnant women uncertain. In response to the decision in Ternovszky the Hungarian government has regulated to permit midwives to attend births outside hospital in certain circumstances. On the basis of the Dubská decision, would Hungary now be justified in reversing that regulation and banning home birth? The credibility of the European Court is undermined by inconsistencies like this.

Is banning home birth really about safety?

The Court in Dubská accepted that the prohibition on midwifery support at home birth pursued the legitimate aim of protecting the safety of mothers and babies. This assertion should have been more carefully scrutinised.

The dissenting judge, Judge Lemmens from Belgium, astutely pointed out that there is no prohibition on mothers from giving birth at home, only on midwives from assisting them. As he said: “I cannot understand how such a system, taken as a whole, can be seen as compatible with the stated aim of protection of the health of the mothers and their children.” If the aim of the Czech system is to protect health, and the government accepts that some women will choose to give birth at home (as Ms Dubská did), the system should enable the assistance of a midwife to ensure the safety of women and babies at home.

Why then would the state outlaw midwifery support for home birth? The answer is obvious to those who appreciate the history of professional rivalry between midwives and obstetricians and the role that eastern European governments have played in ensuring obstetric monopoly. Judge Lemmens summed it up:

Without suggesting that health considerations are totally absent, I think that it is clear that other considerations also come into play. As in other countries, the issue of home births seems to be the object of a form of power struggle between doctors and midwives. … When the issue of home births came up for examination in 2012, the Ministry of Health set up an expert committee composed of representatives of care recipients, midwives, physicians’ associations, the Ministry itself, the Commissioner for Human Rights and public-health insurance companies. However, the representatives of the physicians’ associations boycotted the meeting, arguing that there was no need to change the existing legal framework. Subsequently, no doubt after some efficient lobbying, they managed to obtain from the Ministry that it removed from the committee the representatives of care recipients, midwives and the Commissioner for Human Rights, with the argument that only with the remaining composition would it be possible for the committee to agree on certain conclusions. I am not aware whether, once the committee had been cleansed, it was capable of making any suggestion at all. Having regard to the foregoing, I believe that the public-health argument put forward by the Government should not be overestimated.

In its uncritical acceptance of the government’s “safety” argument, the Court failed to appreciate the risk that is created by refusing to support home birth. Women cannot be compelled to attend hospital. Some will decide to give birth at home without assistance, as Ms Dubská did. Thankfully, no harm came to her and her baby. If she had experienced complications during labour and she or her baby had died, wouldn’t the Czech state bear responsibility for failing to enable professional support to be provided to her during birth? It would certainly be arguable that the state would have breached its positive obligation under Article 2 to prevent foreseeable risk to life.

Far from safeguarding health, prohibiting trained, professional caregivers from attending women during birth displays a cavalier attitude to the safety of women and babies.

Unexpected difficulties”

A curious feature of the Court’s decision is its conclusion on the risk of home birth. The parties presented the Court with the latest evidence on the safety of giving birth at home. As the Court accepted, the studies showed that for many women the home is a safe environment in which to give birth. More than that, the Birthplace Study (cited by the Court) showed that home is actually safer for multiparous women and their babies because it avoids the risks for the health of mother and baby created by unnecessary treatment in hospital. The modern conflation of safety with hospital-based care has been conclusively debunked by recent research, which shows that continuity of care throughout pregnancy and birth with a midwife who builds a relationship with the woman is by far the safest model of care. In the Czech context, giving birth at home with a trusted midwife offers women the chance to avoid the abusive treatment meted out by hospitals (Judge Villiger’s claim that home birth is merely about “comfort” suggests that he needs to meet a woman who has had her perineum forcibly cut).

Despite apparently appreciating that there is now a scientific consensus on the safety home birth, the Court raised the spectre of “unexpected difficulties” that could occur at home (“acute lack of oxygen supply to the foetus or profuse bleedings, or events which require specialised medical intervention, such as a caesarean section or the need to put a newborn on neonatal assistance“). They had been told of these difficulties by a Czech obstetrician, who gave oral evidence to the Court during the hearing. The purpose of the large-scale studies cited by the Court is to objectively examine whether or not unexpected difficulties that arise during birth at home in fact lead to maternal or neo-natal injury or death. The conclusion that home birth is safe takes into account these unexpected difficulties and as the studies show, they do not lead to greater incidence of neonatal morbidity than birth in hospital. The Cochrane Review on Planned Hospital Birth Versus Planned Home Birth (made available to the court, but not cited by it) considered the incidence of unforeseen complications at home birth in depth, concluding that the risks of complications in low-risk pregnancies were fractional (equivalent to the risk of being killed in a traffic accident during any one year), many such complications could in fact be managed at home and medical interventions could themselves lead to complications during birth that could cause injury and death to mother and baby.

In its focus on the potential complications, the Court fell into the age-old mistake of preferring a personal account (by a doctor implicated in the “power struggle” described by Judge Lemmens) over tested evidence of risk.

European consensus

The Court accepted that the Czech prohibition interfered with women’s right to choose where to give birth. The real question was whether the interference was “necessary in a democratic society” – was it justified? In answering this question, the Court chose to invoke “the margin of appreciation”. This doctrine offers the Court a means of respecting individual state’s decision-making when a case raises particularly sensitive political or social issues (it has been used to avoid determining abortion rights case, for example). The Court surveys European practice and determines whether or not there is a European consensus on an issue. (It did not do this in Ternovszky because it determined that the lack of regulation violated the principle of legality, which is not subject to the margin of appreciation.)

In Dubská, the Court set out practice of 32 states in the Council of Europe (relying on material presented by the parties, which omitted a number of states, including Denmark, Norway, Iceland, Portugal and Bulgaria). It noted that “Only in a handful of States can a health professional face a sanction for the simple fact of having assisted with a planned home birth (Croatia, Lithuania and Ukraine).” The other states listed by the Court either expressly regulate home birth, are on the verge of doing so, or tolerate it without imposing sanctions on midwives. The Czech system belonged in the handful of states that sanction midwives who attend out of hospital births. On the Court’s own analysis, the Czech system is an outlier.  But most importantly, the Czech Supreme Court had itself suggested that the Czech prohibition violated Article 8 in its judgment quashing criminal charges brought against a home birth midwife. It is troubling to see the margin of appreciation being used to adopt a more restrictive view of human rights than the court of the respondent state.

Bearing burdens

The Court concluded that in light of the public health concerns of the Czech government, and the “unexpected difficulties” of home birth, expecting Czech women to give birth in hospital did not cause them to bear “a disproportionate and excessive burden“. The language of excessive burden is more commonly used in cases involving the right to property and expropriation of land by the state. It is peculiar to see it deployed in a case such at this, which involves fundamental rights to physical autonomy and integrity. The Court’s conclusion is also dubious in light of the facts of Ms Dubská and Ms Krejzová cases. Giving birth alone and travelling 140km to give birth in hospital seem like considerable burdens to bear, to say nothing of the burdens borne by Czech women who are subjected to the catalogue of degrading procedures practiced in Czech maternity hospitals.

What next for reproductive rights in the European Court?

All is not lost! There are several other cases from other eastern European states that are awaiting determination. Kosaite-Cypiene v Lithuania will be decided by the second section, the same section that determined the Ternovszky case. In the meantime, the Dubska judgment will be appealed to the Grand Chamber. There is no guarantee that the Grand Chamber will choose to hear the appeal, but the general importance of the issue, the inconsistency with Ternovszky, and the upcoming cases from other countries, all suggest that there is a good chance that the appeal will be heard. If it is, the Grand Chamber will face a choice: to support women’s right to choose where they give birth and in so doing to safeguard their health, or to condemn them to choose between the risks of a hospital birth or the risks of birthing alone.

Elizabeth Prochaska, Birthrights

Court of Appeal rules that drinking in pregnancy is not a crime

The Court of Appeal has ruled that the mother of a girl born with Foetal Alcohol Syndrome did not commit a crime under the Offences Against the Person Act 1861 by drinking during pregnancy.  A council in the North West of England had hoped to prove that a crime had been committed in order to claim criminal injuries compensation for the child.

The Court stated: “the role of the state in these circumstances should be to provide care and support for the child who has suffered harm to the extent that this is necessary. It should not be to pay compensation on the basis that the child is the victim of a crime by her mother.”

Birthrights and the British Pregnancy Advisory Service (bpas) intervened in the case because they believed it would establish a legal precedent which could be used to prosecute women who drink while pregnant and would do nothing for the health of alcoholic mothers and their babies.You can read our intervention here: BPAS-Birthrights CP v CICA Intervention.

We welcome the ruling today. Rebecca Schiller, co-chair of Birthrights and Ann Furedi, chief executive of the British Pregnancy Advisory Service explain:

“This is an extremely important ruling for women everywhere. The UK’s courts have recognised that women must be able to make their own decisions about their pregnancies.

“Both the immediate and broader implications of the case were troubling. In seeking to establish that the damage caused to a foetus through heavy drinking was a criminal offence, the case called into question women’s legal status while pregnant, and right to make their own decisions. Any ruling which found that drinking while pregnant constituted a ‘crime of violence’ could have paved the way to the criminalisation of pregnant women’s behaviour – an alarming prospect given the ever expanding list of activities women are warned may pose a risk to the health of their baby.

“A small number of women drink very heavily throughout their pregnancy. Their problems will not be helped either by the threat of prosecution – making them even less likely to seek help – or through ever more warnings about the dangers of ‎drinking while pregnant. Women in this situation need rapid access to specialist help and support, as do children born with disability caused by alcohol abuse. This case was brought by the council in order to win compensation for a child born with Foetal Alcohol Syndrome, which could be used to fund her care. We must find a way to ensure that the small number of children born with this condition have the resources they need to live their lives to the full without resorting to criminalising their mothers.”