CYIL vol. 11 (2020)

CYIL 11 (2020)

BALANCING THE INTERESTS OF PREGNANT WOMAN AND CHILD…

4. Recent case law In recent years, both the Czech Constitutional Court and the ECtHR have issued important decisions in cases regarding the balance between the interests of the woman in labour and her child. It might be interesting to verify whether these rulings can be aligned with the above-outlined gradualist approach. The Constitutional Court dealt with the balancing of the woman’s and the unborn child’s interests in its decision no. I. ÚS 1565/14 of 2 March 2015. The complainant claimed that during labour, medical personnel subjected her to unwanted interventions that resulted in life-threatening haemorrhage and amounted to the criminal offences of cruel and inhumane treatment, bodily harm, and illegal restraint of personal freedom. According to the hospital, the care was provided in accordance with relevant standards, the mother was not compliant, and the child had a low heart rate during the labour. In its assessment of the case, the Constitutional Court stressed that the right to the inviolability of physical integrity (as it is guaranteed by Article 7 (1) of the Charter and Article 8 of the European Convention on Human Rights) can be subjected to limitations. These limitations, nevertheless, need to be based on law and to be proportional to the legitimate aim of the protection of another fundamental right or constitutionally protected interest 35 . Even if the unborn child were not capable of bearing rights, it would be unacceptable to the Constitutional Court if she or he was left with no legal protection during the labour. The protection of the child’s life and health during labour represents a constitutionally protected interest. 36 The mother’s right to the inviolability of her integrity can be limited if the limitation passes the test of proportionality. In practice, it means that the life or health of the foetus must be realistically (at least very likely) immediately threatened and the interventions must be necessary and proportional to the aim of saving the child’s life or health. 37 It can be noted that the interests of the child were also seriously taken into account by the Constitutional Court in several decisions on home births 38 . In the case of Dubská and Krejzová v. the Czech Republic , the ECtHR ruled that a restrictive approach of Czech law to home births does not represent a violation of the European Convention on Human Rights. The Strasbourg court stated that protecting the best interests of the child (during childbirth) is a legitimate aim 39 . Moreover, “[d]epending on their nature and seriousness, the child’s interests could override those of the parent, who was not entitled under Article 8 of the Convention to take measures that would harm the child’s health and development. While there was generally no conflict of interest between mother and child, certain choices as to the place, circumstances or method of delivery could give rise to an increased risk to the health and safety of the newborn child, as the figures for perinatal and neonatal deaths attested.”  40 The national authorities have even been granted a wide margin of appreciation regarding 35 See Constitutional Court of the Czech Republic, no. I. ÚS 1565/14, decision of 2 March 2015, para. 73. 36 See ibid., para. 80. 37 See ibid., paras. 83-84. 38 See Constitutional Court of the Czech Republic, no. Pl. ÚS 26/11, decision of 28 February 2012, or Constitutional Court of the Czech Republic, no. I. ÚS 4457/12, decision of 24 July 2013. 39 See ECtHR, Dubská and Krejzová v. the Czech Republic, app. nos. 28859/11 and 28473/12, Grand Chamber, Judgment of 15 November 2016, para. 74. 40 Ibid., para. 74.

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