CYIL vol. 11 (2020)

CYIL 11 (2020) BALANCING THE INTERESTS OF PREGNANT WOMAN AND CHILD… can be carried out without informed consent only in cases explicitly set by the law 8 . 9 The requirement of free and informed consent for an intervention in the health field is also set by Article 5 the Convention on Human Rights and Biomedicine 10 . The patient’s right to personal autonomy has become one of the most critical issues in health care-related cases before the European Court for Human Rights (hereinafter “ECtHR”) 11 . According to its case law, autonomy and the right to self-determination should be understood as the general framework also in the field of obstetrics 12 . The complainants in this context usually claim the violation of their right to respect for private and family life guaranteed by Article 8 of the European Convention on Human Rights 13 . In the Czech Republic, the woman in labour might claim before the Constitutional Court the violation of her right to inviolability of her person and privacy protected by Article 7 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter “Charter”), a human rights catalogue that is a part of Czech constitutional order. In the above-outlined case, the life and health of the child are endangered. It is not entirely clear, however, how exactly should the interests of the child be understood and protected by the law. The answer would be easier if foetuses had the right to life (protected by Article 2 of the European Convention on Human Rights). However, the ECtHR has repeatedly ruled that states enjoy a margin of appreciation regarding the issue of when the right to life begins. It has stressed that the consensus on the scientific and legal definition of the beginning of life has not been reached on the European level or even within the majority of the states. 14 The answer to the question of whether unborn children are considered persons needs to be looked for in national laws of individual Council of Europe member states. 8 One of these exceptions is procedure carried out in an emergency if the patient is not capable of granting consent (Section 38 (3) a) of Act No. 372/2011 Coll., on Health Services). Medical intervention without consent in emergency situations is also permitted in Article 8 of the Convention on Human Rights and Biomedicine. This regulation, however, cannot be applied to the above-described situation since the object of protection is not the life and health of the woman in labour but that of her child (Constitutional Court of the Czech Republic, no. I. ÚS 1565/14, decision of 2 March 2015, para. 78-79). The question that needs to be answered is, therefore, different: does the balancing of the interests of the pregnant woman and her child during the labour justify limiting the woman’s autonomy and her right to physical integrity and self-determination? 9 See HOLČAPEK, Tomáš. Informovaný souhlas. Základní principy [Informed Consent. The Basic Principles]. In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo [Health Law]. Wolters Kluwer, Praha 2016, pp. 232-234. For an analysis of the nature of informed consent in Czech law, see also DOLEŽAL, Tomáš. Právní povaha informovaného souhlasu a následky neúplného poučení z hlediska civilního práva [The legal nature of informed consent and the consequences of improper disclosure in terms of civil law]. Časopis zdravotnického práva a bioetiky. (2019, Vol. 9, No. 1), pp. 56-61. accessed 26 June 2020. 10 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine of 1997. 11 See MALÍŘ, Jan, DOLEŽAL, Tomáš. Evropská úmluva o ochraně lidských práv a základních svobod a zdravotnictví: současný stav a perspektivy [European Convention for the Protection of Human Rights and Fundamental Freedoms and Health Care: the Current Status and Perspectives]. Wolters Kluwer, Praha 2016, p. 70. 12 See ibid., p. 89. 13 See ECtHR, Konovalova v. Russia, app. no. 37873/04, First Section, Judgment of 9 October 2014 (the violation was seen in the presence of students of medicine in the delivery room against the explicit wishes of the mother). 14 See ECtHR, Vo v. France, app. no. 53924/00, Grand Chamber, Judgment of 8 July 2004, para. 82. See also, for example, ECtHR, Evans v. the United Kingdom, app. no. 6339/05, Grand Chamber, Judgment of 10 April 2007, para. 59. For a further analysis of ECtHR’s approach to the value of human embryo and foetus, see ŠOLC, Martin. Právo, etika a kmenové buňky [Law, Ethics, and Stem Cells]. Wolters Kluwer, Praha 2018, pp. 88-92.

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