CYIL vol. 11 (2020)

CYIL 11 (2020) BALANCING THE INTERESTS OF PREGNANT WOMAN AND CHILD… Criminal liability of individual health professional (and even the provider of health services 47 ) is also possible, even though a criminal conviction is not very likely. The Constitutional Court has clarified that in case of medical procedures that are not intended to harm the patient, the constitutional order does not require the criminal protection of the patient unless the procedure interferes with her or his right to life 48 . We believe that carrying out the caesarean section without the mother’s consent, should it be necessary to save the child’s life or to prevent her or his severe disability, can be justified from the criminal law perspective 49 . On the other hand, if the wishes of the woman in labour were respected, the provider could be held liable for crimes against the mother’s life or health 50 (if the harm to the child occurred before the moment of birth, it would still be considered a part of mother’s body). 51 Therefore, it might be riskier for the health professional to respect the wishes of the woman in labour than to carry out the procedure. However, we need to stress that this conclusion only applies to situations when the conditions set by the Constitutional Court are fulfilled, i.e. when the danger to the life or health of the child is very likely and immediate, and the intervention is necessary and proportional to the aim of saving the child’s life or health. 52 Conclusion In the paper, we analysed maternal-foetal conflict of interests in the situation when there is a medical indication to an intervention to childbirth (e.g. caesarean section), but the woman in labour refuses to grant her consent. Carrying out the intervention against the woman’s wishes would interfere with her right to autonomy, physical integrity, and self- determination, as protected by the European Convention on Human Rights and the Charter of Fundamental Rights and Freedoms. On the other hand, it might be necessary to save the child’s life or to prevent severe disability. The European Court for Human Rights (ECtHR) has granted to the national authorities a margin of appreciation regarding the issue of when the right to life begins. Under Czech Health in the Light of the Case-Law of the Czech Constitutional Court and the ECtHR]. Jurisprudence. (2017, Vol. 26, No. 5), pp. 25-26. 47 Based on Act No. 418/2011 Coll., on Criminal Liability of Legal Entities, legal entities can be under certain conditions held liable for crimes against life and health. See ŠUSTEK, Petr. Trestní odpovědnost právnických osob ve zdravotnictví [Criminal Liability of Legal Entities in Health Care]. In ŠUSTEK, Petr, HOLČAPEK, Tomáš (eds.). Zdravotnické právo [Health Law]. Wolters Kluwer, Praha 2016, pp. 371-387. 48 See Constitutional Court of the Czech Republic, no. I. ÚS 1565/14, decision of 2 March 2015, para. 39. 49 See the same conclusion in ŠIROKÁ, Lucie, POVOLNÁ, Michaela. Právo rodící ženy odmítnout péči versus právo dítěte na život a zdraví ve světle judikatury Ústavního soudu a Evropského soudu pro lidská práva [The Right of a Woman in Labour to Refuse Treatment versus the Child’s Right to Life and Health in the Light of the Case-Law of the Czech Constitutional Court and the ECtHR]. Jurisprudence. (2017, Vol. 26, No. 5), p. 27. 50 Killing by negligence (Section 143 of the Criminal Code), grievous bodily harm (Section 145 of the Criminal Code), or bodily harm (Section 146 of the Criminal Code). 51 For criminal aspects of the analysed situation, see ŠIROKÁ, Lucie, POVOLNÁ, Michaela. Právo rodící ženy odmítnout péči versus právo dítěte na život a zdraví ve světle judikatury Ústavního soudu a Evropského soudu pro lidská práva [The Right of a Woman in Labour to Refuse Treatment versus the Child’s Right to Life and Health in the Light of the Case-Law of the Czech Constitutional Court and the ECtHR]. Jurisprudence. (2017, Vol. 26, No. 5), pp. 26-27. 52 See footnote 37.

387