In the case of Ternovszky v. Hungary (Application no. 67545/09) the European Court of Human Rights (ECtHR) found that the
legal uncertainties related to the regulation of home birth in Hungary
constituted a violation of the applicant’s right to private life as provided by
Article 8 of the European Convention of Human Rights (ECHR).Home birth was not prohibited in general in Hungary. Relevant sections of the Health Care Act 1997 provided patient's right to self-determination which can be restricted only as prescribed by law. Furthermore a competent patient could reject medical treatment unless such rejection endangers the life or limb of another person and therefore one could choose home birth instead of labour in a hospital. However, according to section 101(2) of Government Decree no. 218/1999 (XII.28.), "any health professional assisting a home birth runs the risk of conviction for a regulatory offence". See for instance: midwife has been sentenced to imprisonment.
The applicant in the case was a Hungarian citizen who – at the time of introduction of the application – was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. She lodged a submission to the European Court of Human Rights because the relevant Hungarian regulation posed an unjustified restriction on her right to private life provided by Article 8 of the ECHR. In the applicant's view, while there was no comprehensive legislation on home birth in force in Hungary, the provision of the Government Decree effectively dissuaded health professionals from assisting those wishing home birth. The applicant further stated that
“[t]he purpose of the application was to obtain an unhampered right to home birth without the assisting professionals facing sanctions but with access to an institution in case of complications, rather than to require additional infrastructure or alternative medical services or to impose an unreasonable financial burden on the health care system.”She argued that it had not been proven that home birth was riskier than birth in an institution and therefore the informed choice of the conditions of one's giving birth could not be categorically overruled by considerations aiming at protecting the child. This choice belonged to the hard core of self-determination rather than to obstetrics alone. She further stated that
On the other hand the Government argued that the lack of regulations on home birth in the relevant period did not amount to a breach of the applicant's right to self-determination under Article 8 of the ECHR. The right to self-determination did not pose any obligation on the state to provide a wide range of choices available within the health care system. The right to self-determination might be restricted by the state within due to the so-called margin of appreciation, which is wide where a balance between competing private and public interests or rights is required. The Government emphasized in this relation that
"[h]ome birth was not supported or regulated in many Member States and there was no consensus as to how to strike a fair balance between the mother's right to give birth at home and the child's right to life and health and, in particular, to a safe birth."
In the Government's view a professional consensus existed as well to the
effect that home birth was less safe than birth in a health care institution.
There had been several instances in recent years where home births assisted by
health professionals had ended in hospitals or resulted in the death or serious
injury of the baby. However, since a change in legislation in 1997, it was no
longer prohibited, regard being had to the mother's right to self-determination
but it was not encouraged or supported either, because of the inherent risks.
In 2008 and 2009, around 150 planned home births had taken place annually
whereas only one single administrative procedure had been instituted in
connection with home birth. Nevertheless, the Parliament had adopted an act
authorising the Government to regulate the conditions of birth outside an
institution.
In its judgment the Court held that personal autonomy
"is a fundamental principle underlying the interpretation of the guarantees of Article 8 (cf. Pretty, loc. cit.). Therefore the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent. The Court is satisfied that the circumstances of giving birth incontestably form part of one's private life for the purposes of this provision [...]".The Court also noted that the applicant had not been prevented from giving birth at home. However, home birth normally entails the involvement of health professionals, therefore the Hungarian legislation which arguably dissuades such doctors "constitutes an interference with the exercise of the right to respect for private life by prospective mothers such as the applicant".
