Δευτέρα 22 Ιουλίου 2013

PUBLIC LETTER-ANSWER TO THE PUBLIC LETTER OF THE GREEK OBSTETRIC AND GYNAECOLOGICAL ASSOCIATION TITLED "HOME BIRTH"



On June 11, 2013, the first day of the Greek Home Birth Trials (against 79 parents, midwives and doctors), the attached letter appeared on the Greek OBGYN and Midwifery Society, as a warning against home birth.
Through the Greek branch of ENCA (European Network of Childbirth Associations), “ENCA –Hellas”, doctors, midwives and lawyers are making a public reply to this letter (also attached). We are defending the mother’s basic right to choose the conditions of her child’s birth, a legally protected right which is recently being threatened, especially in Greece. According to this year’s CEDAW, The U.N.’s Committee on the Elimination of All Forms of Discrimination Against Women, Greece has the highest percentage of cesarean section in the world. Most of these cesareans are performed under general anesthesia.
The Hellenic Action for Human Rights - "pleiades" (NGO), that has been active in birthrights in Greece, co-signs the following letter.
We are sharing our reply with you, as a “heads-up” on some major legal battles to come, regarding the rights of women in childbirth, in our country and in the European courts.
For more information, ways you can help, or if you would also like to sign our reply,
please contact:

Dr. Roland Pavlou
E-mail: rpavlou63@gmail.com

OPEN LETTER
TO THE GREEK OBSTETRIC AND GYNECOLOGICAL ASSOCIATION

Dear Sirs,

With respect to your recent circular (see footnote 1) entitled 
“Home birth”  (http://www.hsog.gr/gr_upload/htmlarea/toketos%20sto%20spiti.pdf) 
we would like to underline the following:

1. Your claim that the rate of home births presents a downward tendency has no scientific basis. In the USA, for instance, following a gradual decrease during 1990-2004, the percentage of home births during 2004-2009 increased by 29% [1]. The same applies to your allegation that this “downward” tendency appears “after the initial enthusiasm”, implying (without evidence) that mothers tried and rejected this alternative. In the assessment of choice of birth environment by mothers many confounding factors come into play, such as the probably one-sided information without concrete comparative data supplied to the mother by her consulting obstetrician on the possible complications of home birth, the financial capacities of the parents, their nationality [2] etc.
2. Your statement that “the risks of perinatal death in home births is triple that in hospital births” is not an “indisputable fact” as you claim. The only study supporting it is that of Wax JR et al, 2010 [3]. We do not know why you avoided listing it in your document references, while you referred to the dialogue that followed. This study however was the object of intense criticism by a large number of researchers because of its arithmetic and calculation errors, because it selectively included only those studies that supported the desired outcome, because it defined perinatal death according to criteria different to those of the studies it relied on, because it excluded births with congenital anomalies while the studies it relied on did not [4] [5] [6] etc. The criticism was so intense that the editors of the American Journal of Obstetrics and Gynaecology, which accommodated the debate, concluded in the end that “it is clear that we need more rigorous and better designed research on this important safety issue of home birth, given the many confounding factors” [7]. The fact that in spite of all the criticism the American College of Obstetrics and Gynecology (ACOG) eventually adopted [8] the study by Wax JR et al does nothing to improve the credibility of the study, it serves rather to decrease the credibility of ACOG itself. However, contrary to the general tone of your document, the ACOG Committee of Opinion stated in its position that “the relative risk versus benefit of a planned home birth remains the subject of current debate. High-quality evidence to inform this debate is limited […] Although the Committee on Obstetric Practice believes that hospitals and birthing centers are the safest setting for birth, it respects the right of a woman to make a medically informed decision about delivery” [8].
We are obliged to refer to a number of studies around the world which prove that home births have similar or lower perinatal mortality, fewer complications, better APGAR scores, fewer medical interventions (epidural, induction, episiotomy, forceps, caesarian) and more infrequent need for subsequent neonatal intensive care [9-24]. Some of these studies involve large numbers of cases, even 700.000 [19].
3. Your statement that the selection of low-risk mothers as candidates for home birth can only be accomplished by an obstetrician – gynecologist is in contrast to international practice and attempts to exclude midwives from their vested professional duties and rights. The role of midwives is not restricted to supporting obstetricians and gynecologists. They have a vested right to practice their professional duties independently and guide a pregnant mother without complicating or high-risk factors to birth and refer according to their own professional judgment only cases calling for medical intervention to an obstetrician or a hospital. On the issue of inadequate training of the personnel involved in childbirth (you apparently refer to midwives) and the “lack” of supportive infrastructure for home births which you mention, we would expect that an association like yours would (as far as you feel there is such lack) use its outlook to appeal to the state to take all necessary measures to immediately upgrade and modernize training of the involved personnel and improve and integrate the necessary infrastructure. However, as you very well know, the lack of support for home births by nearby hospitals and clinics results not from lack of funds or training or organization, but from the reluctance of your colleagues to work together with health professionals handling home births. According to studies the correct selection of “low-risk” mothers as candidates for home birth leads to fewer complications and less need for emergency transfer to a hospital [25].
4. The mother, after the “detailed and documented information by the obstetrician” on the risk of complications you mention, does not “express an opinion”! She decides! This right (which includes her right to refuse medical interventions on her body) is an expression of the right of self-determination and is enshrined in the Greek Constitution, the European Convention of Human Rights, but also in the Greek Medical Code. In the case of Ternovszky vs
Hungary (14/2/2011) the European Court of Human Rights (ECHR) is very explicit on the protection of the right of choice of the circumstances of birth: “The notion of a freedom implies some measure of choice as to its exercise. Therefore the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent” [26]. We consider it self-evident that the choice of childbirth circumstances includes the choice of place, persons present and interventions in the natural process of labour. We would also point out that maternity does not limit the right to body self-determination. Additionally, the mother is by nature the most appropriate spokesperson for the rights of her unborn child.
5. The mother’s right to choose the circumstances of childbirth cannot be curtailed through indirect, administrative legal measures concerning the issuance of birth certificates etc, as implied in your document. Whichever administrative procedures are chosen, they will have to serve the constitutional human rights in childbirth to be legal.
6. The conditions in Greek hospitals and clinics are not as great as you describe. It is sufficient to mention the CEDAW report on Greece (March 2013), in which the Committee notes that Greece has the highest rates of caesarian sections in the world! Mrs. Katsaridou on behalf of the Greek delegation tried to justify the high rates by saying that: Caesarean sections had increased in Greece in recent years as more women gave birth at a later age than before, which carried higher medical risks” [28]. Mrs. Schulz on behalf of the Committee however “reiterated her previous question concerning caesarean deliveries, the prevalence of  which seemeto  be  inordinately higin  Greece, as  it  considerably surpassed the recommended threshold of 15 per cent established by the World Health Organization. She would appreciate clarification of the reasons for such a high prevalence” [29]. We however find the final periodical report submitted by the Greek delegation promising, as it mentions that “the Hellenic Ministry of Health and Social Solidarity has ordered the Inspection Corps for Health and Welfare Services (ICHWS) to conduct inspections of the proportion of normal deliveries out of total births at all obstetrics clinics of public and private hospitals in Greece. In parallel, the Health Central Council (HCC), within the framework of medical protocols and in cooperation with local medical boards of Greece, has been requested to determine the terms and conditions under which caesarean sections are established as the most  appropriate  medical  practice.  Finally,  as  soon  as  a  delivery  takes  place,  the obstetrician in charge shall describe in the Child’s Health Booklet the delivery procedure and the reasons why a caesarean section was carried out, so that competent agencies may make a control” [30]. We hope the Greek administration will take all necessary measures to reduce the national rate of caesarian sections, which undoubtedly in their vast majority have no medical indication.
In conclusion, we invite you to withdraw your document and contribute to a national campaign for unbiased coordination of all health professionals involved in childbirth (including obstetricians – gynecologists, midwives, neonatologists, emergency services personnel, neonatal intensive care units personnel) to ensure the best possible outcome for all childbirths, wherever the mothers decide to have them.

SIGNATURES:
Network for Respect in Childbirth – ENCA Hellas
Konstantinos Anagnostopoulos, orthopedic
Maria Gosma, midwife
Eleanna Ioannidou, lawyer
Vassiliki – Anna Kakkava, gymnastics teacher, midwife
Paschalina Kambouridou, midwife – IBCLC
Electra Koutra, lawyer
Cassiani Mihopoulou, lawyer
Rolandos Pavlou, doctor
Helen Serpetini, midwife
Spyridon Christopoulos, pediatrician
Hellenic Action for Human RIghts - "pleiades" (NGO)



REFERENCES:
1. MacDorman MF, Mathews TJ, Declercq E. Home Births in the United States 2000-2009. NCHS Data Brief 84;Jan 2012
2. MacDorman M, Declerq E, Menacker, Fay. Trends and characteristics of home births in the United States by race and ethnicity, 1990-2006. Birth 2011;38(1):1-7
3. Wax, J. R., F. L. Lucas, et al. (2010). “Maternal and newborn outcomes in planned home birth vs planned hospital births: a metaanalysis.” Am J Obstet Gynecol 203(3): 243 e241-24
4. Gyte G, Newburn M, Macfarlane A. Critique of a meta-analysis by Wax and colleagues which has claimed that there is a three-times greater risk of neonatal death among babies without congenital anomalies planned to be born at home. NCT 2010 (cited 2011 March 1:1-8)
5. Keirse MJ. Home birth: Gone away, gone astray, and here to stay. Birth 2010;37(4):341-46
6. Michal CA, Janssen PA, Vedam S,, Hutton EK, Jonge A, Planned Home vs Hospital Birth: A Meta-Analysis Gone Wrong. Medscape Ob/Gyn & Women's Health - http://www.medscape.com/viewarticle/739987
7. Editors’ Comment. Amer J Obstet Gynecol 2011;e20
8. ACOG Committee on Obstetric Practice. ACOG Committee Opinion No. 476: Planned home birth. Obstet Gynecol 2011; 117:425
9. de Jonge A, van der Goes BY, Ravelli AC, Amelink-Verburg MP, Mol BW, Nijhuis JG, Bennebroek Gravenhorst J, Buitendijk SE Perinatal mortality and morbidity in a nationwide cohort of 529,688 low-risk planned home and hospital births BJOG. 2009 Aug;116(9):1177-84
10. Olsen O, Jewell D, Home versus hospital birth, Cochrane Database of Systematic Reviews September 12, 2012
11. Leslie Ms, Romano A. Birth can safely take place at home and in birthing centers. J Perinat Educ 2007;16(Suppl1):81S-88S.16
12. Olsen O. Meta-analysis of the safety of home birth. Birth 1997 Mar;24(1):4-13;discussion 14-6
13. Janssen PA, Saxell L, Page LA, Klein MC, Liston RM, Lee SK. Outcomes of planned home births with registere midwife versus planned hospital birth with midwife or physician. CMAJ 2009;181(6):377-83
14. Hutton E, Reitsma A, Kaufman K. Outcomes associated with planned home and planned hospital births in low-risk women attended by midwives in Ontario, Canada, 2003-2006: A retrospective cohort study. Birth 2009;36(3):180-89
15. Janssen PA, Lee SK, Ryan EM, Etches DJ, Farquharson DF, Peacock D, Klein MC. Outcomes of planned home births versus planned hospital births after regulation of midwifery in British Columbia. CMAJ 2002;166(3):315-23
16. Johnson K, Daviss BA. Outcomes of planned home birth with certified professional midwives: large prospective study in North America. BMJ 2005;330;1416
17. Schlenzka PF. Safety of alternative approaches to childbirth. Palo Alto, CA: Department of Sociology, Stanford University 19999
18. Birthplace in England Collaborative Group. Perinatal and maternal outcomes by planned place of birth for healthy women with low risk pregnancies: the Birthplace in England national prospective cohort study. BMJ 2011;343:d7400
19. Van er Kooy J, Peoran J, de Graff JP, Birnie E, Denktas S, Steegers EAP, Gouke JB. Planned home compared with planned hospital births in the Netherlands: intrapartum and early neonatal death in low-risk pregnancies. Obstet Gynecol 2011;118:1037-46
20. Kennare R, Keirse MJ, Tucker GR, Chan AC. Planned home and hospital births in South Australia 1991-2006: differences in outcomes. Med J Aust 2009;192(2):76-80
21. Chamberlain G, Wraight A, Crowley P. Home births: Report of the 1994 confidential enquiry of the National Birthday Trust Fund. Cranforth, UK: Parthenon;1997
22. Ackermann-Liebrich U, Voegeli T, Gunter-Witt K, Kunz I, Zullig M, Schindler C, Maurer M. Home versus hospital deliveries: follow up study of matched pairs for procedures and outcome. Zurich Study Team. BMJ 1996;313(7068):1313-18
23. Wiegers TA, Keirse MJ, van der Zee J, Berghs GA. Outcome of planned home and planned hospital births in low risk pregnancies: prospective study in midwifery practices in the Netherlands. BMJ 1996;313(7068:1309-13
24. de Jonge A, Mesman J, Manniën J, Zwart J, van Dillen J, van Roosmalen J. Severe adverse maternal outcomes among low risk women with planned home versus hospital births in the Netherlands: nationwide cohort study.BMJ 2013;346:f3263
25. Amelink—Verburg MP, Verloove-Vanhorick SP, Hakkenberg RMA, Veldhuijzen IME, Bennebroek Gravenhorst J, Buitendijk SE. Evaluation of 280 000 cases in Dutch midwifery practices: A descriptive study. BJOG 2008;115:570-78
26. http://hudoc.echr.coe.int/webservices/content/pdf/003-3372071-3778873
27. CEDAW/C/GRC/7; CEDAW/C/GRC/Q/7;Summary record of the 1112th meeting, 28 Feb 2013;par.6
28. CEDAW/C/GRC/7; CEDAW/C/GRC/Q/7;Summary record of the 1112th meeting, 28 Feb 2013;par.12
29. CEDAW/C/GRC/7; CEDAW/C/GRC/Q/7;Summary record of the 1112th meeting, 28 Feb 2013;par.19
30. CEDAW/C/GRC/7; CEDAW/C/GRC/Q/7;Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, 14 Mar 2013; article 12; par 258


FOOTNOTE 1.-

1.GREEK OBSTETRIC AND GYNAECOLOGICAL ASSOCIATION
Member of FIGO & EBCOG
ALKAEOU 10  · ATHENS 11528 · TEL:0030 2107774607 & FAX: 2107774609 e-mail: helobgyn@otenet.gr  www.hsog.gr


HOME BIRTH
chairman
V. TARLATZIS Professor, Thessaloniki University

Deputy Chairman
I. E. MESSINIS
Professor, 
Thessalia University

Gen. Secretary
A. LOUFOPOULOS Professor,Thessaloniki University

Spec. SecretaryD. CASSANOS
Professor,
Athens University

Treasurer
N. VRACHNIS
Lecturer
Athens University

MembersG. Galazios
Professor
Thrace University

G. Gribizis
Assoc. Professor
Thessaloniki University

TH. STEFOS
Professor,Ioannina University

G. FARMAKIDES
NHS Manager
Former Assoc. Prof.

Crete University


 Home birth has in recent years been an option for a small number of women in some countries. England and Netherlands are countries with long experience in home birth implementation. After the initial enthusiasm, however, a decline is currently observed.
It is an undisputable fact that resent studies have shown that mortality rates in home births are triple those in hospital births [1], leading to a dramatic revision of this practice. There are now particularly strict guidelines for characterizing pregnancies as “low risk”, limited to multiparous and excluding nulliparous pregnancies [2-3].
Furthermore, it is common knowledge that a pregnancy free of any risk factors and a normally progressing labor can at any moment present serious and sometimes even lethal complications, such as maternal heavy hemorrhage, fetal shoulder dystocia or fetal cardiopulmonary resuscitation. It is imperative that such complications should be treated in an organized location with strict specifications, by multi-person and well-trained groups, capable of addressing any rapidly aggravating incident.
The choice of cases characterized as “low risk” is also of critical importance. This cannot be accomplished with a superficial approach. It can only be achieved through an integrated assessment by a suitably trained Obstetrician – Gynaecologist.
The need for immediate transfer [to a nearby medical centre] is emphasized in all countries with experience in home births [4]. A functioning national health system would ensure a fast and safe transfer to an organized hospital. The question is therefore how feasible is the immediate transfer (in a short time) to an organized unit under the present conditions of the country.
We believe that in respect to home birth we are at a very early stage in Greece and the education, training and knowledge of all those who would participate in such a project should be clearly elaborated. Moreover, it is necessary to further clarify the legal framework for birth certificate issuance and


parent and child identification in home births. The state should work on extended legal framework concerning the protection of women and accountability.
Every woman is indeed entitled to express her opinion on the method and place of birth, after a detailed and evidence-based information by the attending obstetrician on the risks and possible complications based on international resources and practice, in a decision on which two lives depend: her own and that of her fetus. In conclusion, we feel the need to refer to the extremely high quality of services provided by Greek birth centers (public and private), with the lowest complication rates in Europe, which has often been highlighted by international press, describing Greece as the safest country for births.






1.   Kirby, R.S. and J. Frost, Maternal and newborn outcomes in planned home birth vs planned hospital births: a metaanalysis. Am J Obstet Gynecol, 2011. 204(4): p. e16; author reply e18-20, discussion e20.
2.   Brocklehurst, P., et al., Perinatal and maternal outcomes by planned place of birth for healthy women with low risk pregnancies: the Birthplace in England national prospectivcohort study. BMJ, 2011. 343: p. d7400.
3.   Buekens, P. and M.J. Keirse, In the literature: home birth: safe enough, but not for the first babyBirth, 2012. 39(2): p. 165-7.
4.   Rowe, R.E., et al., Transfers of women planning birth in midwifery units: data from the birthplace prospective cohort study. BJOG, 2012. 119(9): p. 1081-90.

Τετάρτη 10 Ιουλίου 2013

Human Rights in Childbirth - From Niche Cause to a Global Movement


Toni Harman




Over the past year, I've become a champion of a niche cause. Few people have heard of it. But it's a cause that directly affects the health and well-being of millions of women around the world. That cause is human rights in childbirth.
In Europe, a landmark European Court of Human Rights ruling (Ternovszky vs Hungary 14th Dec 2010) means that every woman now has the human right to choose the circumstances of her birth. It means that all expectant women have autonomy over their own bodies - women can choose how and where they give birth.
Despite this ruling, in many places around Europe, the basic rights of birthing women to make decisions about childbirth are not assumed. In Ireland, earlier this year, a court order was sought to force a woman to have a caesarean. In Italy, a woman recently took her doctors to court to argue they performed an episiotomy despite her forcibly and repeatedly denying consent.
2013-06-21-agnesgerebwithfreedomofbirth.jpg

Across Europe, midwives are being criminally prosecuted for supporting women giving birth outside the hospital. In Hungary, the midwife Agnes Gereb has been been criminally prosecuted, imprisoned and for the past two years, held under house arrest. The prosecution recently added another four charges and her trial is anticipated to last throughout 2013. In Lithuania, a midwife called Jurgita Svedienne is also facing criminal charges and has also been the subject of repeated home raids by the police. In Greece, 79 people (health professionals and parents) are currently on trial for choices relating to their home births - they are accused of environmental pollution for burying their placentas. The Greek organization of obstetrician-gynecologists recently published a statement on their website against home birth in which they stated that a birthing woman is "entitled to express her opinion on the method and place of birth." Meanwhile, the caesarean section rate in private hospitals in Greece is over 50%.
In the US, women's rights in childbirth do not seem to be formally recognised. In Florida as in other states, women have had forced caesareans. The legal status of home birth and midwifery is a patchwork across American states, but in no state are they fully secure and legitimate healthcare choices. In the past year, midwives in California, North Carolina, Indiana and in Oregon have all faced criminal prosecution.
Back here in the UK, new research by Dr Angela Davis from the University of Warwick'Choice, Policy and Practice in Maternity Care since 1948' claims that despite over fifty years of campaigning, women's choices about birth are still being widely ignored by healthcare providers. According to Dr Davis, "Women are primarily critical of a lack of information, lack of choice in their care and dissatisfaction with their caregivers, rather than the procedures themselves." She goes on to say, "While chiefly framed as a debate about reconciling women's choice over how and where to give birth on the one hand, with the fate of their babies on the other, this more often comes down to cost and control. Women's choice is characterised as an expensive, and possibly dangerous, luxury."
But things are changing. Awareness is growing. There is hope.
Last year in May, the first Human Right in Childbirth conference took place at the Hague attended by hundreds of academics, lawyers, midwives, obstetricians, campaigners (and us as filmmakers). Other HRiC conferences modelled on the Hague conference have happened since in the US, Finland, Australia, Ecuador, Israel and Croatia with another HriC conference taking place later this year in Blanckenberge, Belgium

2013-06-21-FFB_LOGO1.jpg

Inspired by these events, together with my partner Alex Wakeford, we made a documentary film called Freedom For Birth about Human Rights in Childbirth that was seen by over 100,000 people in 1,100 grass-roots screenings in 50 countries in 17 languages - all on one day, 20th September 2012.
Our Freedom For Birth screenings gained worldwide press and media coverage. Hundreds more screenings are planned this September in a simultaneous global screening event designed to propel Human Rights in Childbirth even further into the mainstream.
2013-06-21-ffbpressclippings2.jpg
In the past year, many campaign groups have been taking direct action. Improving Birthorganised hundreds of rallies across the US to campaign for evidence based maternity careThe Positive Birth Movement was founded linking social media with a network of free Positive Birth groups. The Freedom For Agnes Gereb action group is currently running a #waitingforagnes Twitter and Facebook campaign in support of Agnes Gereb.
A legal advocacy group, Birthrights was launched in January this year offering legal advice and free downloadable materials to inform expectant women about their human rights in birth. Across North America and Europe, legal defence networks have formed to educate the public and collaborate for legislative action. The organisers of the Human Rights in Childbirth Hague conference have moved from a grass-roots network of international volunteers to become a politically active NGO with a foundation in The Hague to advance the rights of birthing women.
So much has happened in the past year but there is so much more still to do. My hope is that by next year, human rights in childbirth isn't a niche cause any more. In fact, my hope is that it is a mainstream legal and political movement. Then the birthing revolution will have well and truly begun.
For more information about our global screening of FREEDOM FOR BIRTH event, please go to: http://www.freedomforbirth.com/2013-screenings


Follow Toni Harman on Twitter: www.twitter.com/oneworldbirth

Δευτέρα 1 Ιουλίου 2013

Elena KOSAITĖ - ČYPIENĖ and others against Lithuania (Communicated to the Lithuanian Government)

SECOND SECTION
Application no. 69489/12
Elena KOSAITĖ - ČYPIENĖ and others against Lithuania
lodged on 19 October 2012
STATEMENT OF FACTS
The applicants, Ms I. Rinkevičienė (“the first applicant”), Ms E. Zakarevičienė (“the second applicant”), Ms O. Valaitienė (“the third applicant”) and Ms E. Kosaitė-Čypienė (“the fourth applicant”), are Lithuanian nationals who were born in 1983, 1979, 1982 and 1975, respectively. They all live in Vilnius.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2012 a non-governmental organisation for promoting child birth at home, “Gimimas LT”, was established. The third and the fourth applicants are active members.
The first applicant attempted to give birth at home in 2009. However, because of complications she had to give birth in a public hospital. She states that doctors there were critical of her attempt to give birth at home. Therefore, in 2011 she gave birth to her second child at home, assisted by an unlicensed midwife (pribuvėja), J.I.Š. The birth went well. In 2012 the first applicant asked the health care authorities, including public hospitals and the Ministry of Health Care, that a doctor could assist her during home birth. She claims that at that time J.I.Š. and B.K., a gynaecologist and an active member of “Gimimas LT”, were under [criminal] investigation and thus could not assist her. The authorities refused the first applicant’s request on the ground that, should any complications arise, it was safer both for the woman and for the child that the birth took place at a hospital and not at home. Therefore, the State could not assume responsibility by allowing a doctor to assist home birth where the conditions were not as safe as those in a hospital. The first applicant states that she gave birth at home on 11 July 2012 without appropriate medical assistance, thus putting at risk her and her child’s health and life.
The second applicant gave birth at home in 2006, 2008 and 2011, with the help of unlicensed midwife J.I.Š. All the births were without complications. When she was expecting her fourth child, and J.I.Š. and B.K. were under [criminal] investigation, the second applicant asked public hospitals and the Ministry of Health Care to provide her with medical assistance at home during the birth. This was refused for the same reasons as for the first applicant. The second applicant was due to give birth on 17 November 2012.
The third applicant gave birth at home in 2009 and 2010. She was assisted by unlicensed midwife J.I.Š. The third applicant gave birth without complications. She states that the two children are healthy. When she was expecting her third child and J.I.Š. and B.K. were under [criminal] investigation, the third applicant asked public hospitals and the Ministry of Health to provide her with medical assistance at home during the birth. This was refused for the same reasons as for the first and the second applicants. Given that in her requests the third applicant relied on the Court’s judgment in Ternovszky v. Hungary (no. 67545/0914 December 2010), the Ministry of Health Care consulted the Ministry of Justice on the matter. The Ministry of Justice noted that the Court had found a violation in the above case because the Hungarian Government had not enacted regulations on assisted home birth even though it had to do so under the domestic law. Moreover, under the Hungarian legislation health care professionals could be held liable for having assisted the home birth. Those considerations led the Court to conclude that the situation in Hungary, inasmuch as it related to health care professionals’ assistance during home births, was surrounded by legal uncertainty prone to arbitrariness. Nonetheless, the Court had acknowledged that, as concerned provision of health care 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 noted that even though the Court had emphasised the importance of legal certainty when regulating such matters, it had not analysed whether prohibition on health care specialists assisting home births was proportionate in a democratic society. Accordingly, the Court’s judgment did not mean that a State was under a general obligation to establish such a regulatory framework which would allow health care specialists to provide services to women who gave birth at home. Taking into account the above, and given that the Lithuanian law did not provide for the provision of health care services when giving birth at home, the Ministry of Health Care concluded that a pregnant woman could not require that, upon her wish, a health care institution or a health care specialist would provide birth-related health care services outside the health care institution. Similarly, a health care institution or a specialist had no obligation to provide such services even if a pregnant woman so wished.
The third applicant was due to give birth on 11 March 2013. She states that she intends to do so at home, notwithstanding whether she is to receive qualified medical assistance or not.
The fourth applicant gave birth at home in 2001, 2003 and 2011; midwife J.I.Š. assisted her. The fourth applicant states that even though she is of “reproductive age”, she does not dare to become pregnant for the fourth time, because of the charges pending in respect of J.I.Š. and B.K. and the lack of an appropriate legislative framework in Lithuania as regards giving birth at home.
B.  Relevant domestic law
The Law on Health Care System provides that health care services provided to pregnant women are paid by the State (Article 47 § 2 (7)).
On 3 April 2006 the Minister of Health Care has issued decision 
no. V-245, approving the medical norm MN 40:2006 on the rights and responsibilities of a gynaecologist. The norm provides that a gynaecologist may practise at a health care institution which has a licence to provide gynaecological services. A gynaecologist may provide certain services at a patient’s home, except for assisting birth.
COMPLAINTS
The applicants complain under Articles 2 and 8 of the Convention of the fact that they cannot benefit from adequate professional assistance for a home birth in view of the domestic legislation. The applicants argue that the State thus puts at risk the health and even the lives of future mothers and babies. They also maintain that from the moment the State started pre-trial investigations in respect of J.I.Š. and B.K., pregnant women are left on their own, which will have tragic consequences sooner or later. On this point they rely on the joined concurring opinion of Judges Sajó and Tulkens in Ternovszky, arguing that “without ... legal certainty there is fear and secrecy, and in the present context this may result in fatal consequences for mother and child”. The applicants specify that they do not require that the State should assist them in giving birth by “keeping the operation rooms at the ready and sending health care specialists to their homes”. They merely ask that the State would not prohibit and obstruct the health care specialists who want to help pregnant women in providing those women with assistance during home birth.


QUESTIONS TO THE PARTIES

1.  Can each of the four applicants claim to be a victim within the meaning of Article 34 of the Convention (see Ternovszky v. Hungary, no. 67545/09§ 21, 14 December 2010)?

2.  Have the applicants exhausted the available domestic remedies, as regards their complaints under Article 8 of the Convention?

3.  Has there been an interference with the applicants’ private life? If so, was the interference in accordance with the law? Did the interference have a legitimate aim?

Given the need to ensure a proper balance between societal interests and the applicants’ rights (see Ternovszky, cited above, § 24), was the interference necessary and proportionate? On this point, the Court also notes the applicants’ argument that the existing rules allegedly dissuade health care professionals from assisting women who choose to give birth at home.