CYIL vol. 11 (2020)

MONIKA FOREJTOVÁ – PAVLA BURIÁNOVÁ – VLADISLAV VNENK CYIL 11 (2020) the matter materially concerned issues of the so-called home births, when the ECtHR in fact did not declare any breach of the Convention, but still it provided absolutely clear statements in points 35 and 36 of its judgement as follows: “To conclude, we consider the single-option birth model envisaged by the Czech legislation at issue, which leaves expectant mothers a little choice but to give birth in hospital, to be per se problematic as regards Article 8 of the Convention. To prevent midwives from assisting the two applicants in giving birth in their homes – what is more, in circumstances concerning low- risk pregnancies in women who were not first-time mothers – was, in our view, not justified in a democratic society by any convincing public-health argument. For future cases, we can only underscore the Court’s invitation to the Czech legislature, namely “to make further progress by keeping the relevant legal provisions under constant review, so as to ensure that they reflect medical and scientific developments whilst fully respecting women’s rights in the field of reproductive health, notably by ensuring adequate conditions for both patients and medical staff in maternity hospitals across the country .” 2 In this decision, the Court also indicated that it consistently applies the principle of the margin of appreciation, it made a simple numerical operation regarding the number of the countries of the Council of Europe, which permit home births and which do not permit them, and accepted argumentation of the Czech Constitutional Court by stating: “Even assuming that the Court was called upon in the present case to examine whether a State consensus exists as regards home births, we disagree with the majority’s approach to this question. When nearly 50% of the Member States provide for and regulate home births (twenty out of the forty-three Member States surveyed) and home births are unregulated or under-regulated in twenty-three Member States, but no legislation prohibits the assistance of midwives at home births in any of these forty-three States (see paragraph 68 of the judgment), then there is a consensus in favour of not prohibiting home births among the Member States. Turning to the proportionality of a de facto ban on home births, we share the position of the Czech Constitutional Court that ‘ a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospital. ’ ”  3 In our opinion, the ECtHR has thus outlined a wide area for considerations of theMember States of the Council of Europe, which are only to expect future revolutionary changes in the fields of biomedicine and bioethics. That is why the aspects of the so-called surrogacy 4 are an issue which is still new, frequently discussed, dealt with by legislation at a minimum level, and yet now it is already a matter which has become a part of our western society, although still in a non-prevailing rate. This means that surrogacy comes under ethically, legally as 2 Points 34, 35, 36 of the Judgement of the Grand Chamber in the case Dubská and Krejzová v. the Czech Republic (Application no. 28859/11 and 28473/12). 3 Points 28, 29 of the Decision of the Grand Chamber in the case Dubská and Krejzová v. the Czech Republic (Application no. 28859/11 and 28473/12). 4 Known also as surrogate motherhood.


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