A conference was organized in the Hague at the end of May around the home birth case that HCLU won in Strasbourg. HCLU’s attorney dr. Tamás Fazekas represented Anna Ternovszky, in who’s case at the end of 2010 the European Court of Human Rights established that the State of Hungary has violated the applicant’s right to respect for private and family life, when in the absence of legislation it threatened (and still threatens) health care workers who assist at home births.
The title of the conference was Human rights in childbirth; on the first day questions were discussed stemming from the Ternovszky vs. Hungary decision and how this decision affects the regulation of birthing and women’s right to self-determination in several countries. Apart from several world renowned professionals – such as Ina May Gaskin and Michael Odent – those also spoke and equally participated, who are at the center of the question: women, who told the story of their births. During the discussions the following questions were raised by the speakers who represented the professions concerned:
• What are the rights and responsibility of a mother giving birth?
• Who is responsible for the birth and its outcome?
• What are the rights of the doctor, the midwife and other birth assisting professionals and what are they responsible for?
• Does the fetus have rights?
• What is in the interest of the fetus? How can these interests be represented?
The Hungarian situation
In the first panel only the Hungarian situation was discussed, the speakers were: Anna Ternovszky, Stefánia Kapronczay, the Head of Patients’ Rights Program at HCLU, Imre Szebik bioethicist, one of the founders of the Doctors for Free and Safe Birth, István Marton obstetrician and gynecologist and Elizabeth Prochaska a human rights lawyer from London.
The speakers among other issues discussed that, although legislation has been brought into practice, but the free choice of women and the equal recognition of the midwife profession are still not given. We have already pointed out the problems with the legislation in our previous opinions, now we would like to highlight that the midwife professional college has still not been founded. This is of importance because without it, there is no professional protocol for out of hospital birth, and so if there is a problem during a home birth, the work of the assisting medical workers will be judged – and probably condemned – according to hospital birth protocols. Despite the fact that during the lawsuit against Ágnes Geréb and four other midwifes, we could see that this leads to double standards on the expense of the home birth assisting medical professionals. We are still waiting for the decision concerning the presidential pardon in the case of Ágnes Geréb which is the last possible opportunity to right the unjust verdict; Ágnes Geréb was sentenced to two years in prison and was banned from her profession for 10 years. Several international and Hungarian petitions from professionals, parents and citizens were written in favor of Ágnes Geréb, and many supporters also sent messages to her from the conference:
Today Ágnes Geréb is still in house arrest in connection with another prosecution against her. Taking into account the current situation it is likely that again, the court will judge her case according to the rules of hospital birth – which apart from house arrest could lead to further decisions of offense.
The shortcomings and the absence of equal treatment in the legislation is clear if we take into account that although the legislation has been in place for more then a year, only one midwife acquired all the required documents, and,since then we only know of one planned home birth; in contrast, before the legislation a few hundred planned home births took place per year.
Should we follow the example of the Netherlands?
On the second day of the conference the participants discussed in detail the questions given above through the Dutch model. The number of home births in the Netherlands are traditionally high (20-30%), the obstetricians and midwifes are not dealt with differently as in Hungary, and women can indeed practice their right to self-determination concerning the place and conditions of birth. But this situation is changing, the number of hospital births and the proportion of cesareans are rising, for which largely the changing Dutch society is responsible. Namely that where before women typically hadn’t taken a job besides raising children, now more and more of them are working – as Raymond de Vries sociology professor has pointed out. And these lifestyle changes effect not only how we think about family, raising children and giving birth, but the needs of women as well. The changing of the situation is also indicated by the expanding list of reasons when home birth is not recommended. The worsening of the situation is shown by that we gained knowledge of recent cases where home births which had no complications became official cases and the midwifes were subjected to inspection.
After several lectures and comments, and taking a look at the systems of various countries we can conclude that although the decision of the Strasbourg Court is a big step in the practice of women’s right to self-determination, but still we are far from having this right prevailing in connection with giving birth, and from the equal recognition of the midwife profession.
Today, the European Court of Human Rights in Strasbourg handed down a judgment in which it holds that the Hungarian state has violated the “right to respect for private life” guaranteed by the European Convention on Human Rights.
“My son was placed in a hospital ward of about 10 square metres in size, with four cribs in it, all of them occupied. Consequently, mothers had only chairs left to sit on. My partner’s idea was putting a foam rubber mat under the crib and sleeping there, huddled up. A couple of other mothers followed her lead.
When the Fundamental Law came into force, HCLU publicly voiced its worries about the constitutional clause on the protection of the fetus which could lead to restrictions on abortion. The Fundamental Law states that along with the right to life and human dignity the fetus shall be protected from conception. The law on abortion has not been changed, however, the government has, through legal and non-legal means, tried to influence pregnant women which has come to undermine the right to self-determination. HCLU calls attention to the emerging problem with the following summary.