Case of Ternovszky v. Hungary

The applicant, Anna Ternovszky, a pregnant woman who intended to give birth at home, filed a complaint before the European Court of Human Rights., alleging that s. 101(2) of Government Decree no. 218/1999 (XII.28.) violated her rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Ternovszky claimed that health professionals were effectively dissuaded by law from assisting at home births because they risked being convicted for a regulatory offence under s. 101(2), which “provides that a health professional who carries out activities within his or her qualifications without a licence, or carries out such activities in a manner which is not in compliance with the law or the licence, is punishable with a fine of up to 100,000 Hungarian forints.” Ternovszky argued that since there is no comprehensive legislation regarding home births in Hungary, health professionals are effectively dissuaded from assisting people who wish to have home births, and that this constituted a discriminatory interference with her respect for her private life,  violating her right under Article 8 of the Convention (Right to Respect for Private and Family Life), when read in conjunction with Article 14 (Prohibition of Discrimination).

Under Article 8, s. 1 states that “everyone has the right to respect for his private … life…” and s. 2 states that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Ternovszky submitted that an informed choice of the conditions of one’s giving birth was a matter of self-determination and therefore a facet of an individual’s private life, and could not be overruled by considerations regarding protection of the She submitted that it did not fall under the ambit of s. 15(1) of the Health Care Act 1997 (“HCA”) which states that a patient’s right to self-determination can be restricted only as prescribed by law, and s. 20(1) which states that treatment cannot be rejected if it endangers the life of another person. Ternovszky also relied on the World Health Organization’s recommendation regarding place of birth, which found that because home birth was not substantially riskier than institutionalized birth, they were equal alternatives; accordingly, the mother’s informed choice regarding where to give birth should be respected. The purpose of Ternovszky’s application was not to create new infrastructure or place an unreasonable strain on the health care system, but to “obtain an unhampered right to home birth without the assisting professionals facing sanctions.”

The Government argued that the impugned legislation did not breach the applicant’s right to self-determination under Article 8. It submitted Article 8 did not impose a positive obligation to increase the choices available within the healthcare system. It further submitted that there was a professional consensus in Hungary that home birth was less safe than hospital birth and that, while it was not encouraged, neither was it prohibited. The Government argued that there was no proof the applicant was personally affected by the lack of regulations or sanctions and that the case would therefore be rendered actio popularis. It also submitted that it possessed a wider margin to restrict the right to self-determination where no consensus existed amongst the Member States regarding the importance of the interest at stake and their optimal means of protection, and where a balancing of competing interests or Convention rights was necessitated. The Government argued that such was the case here: home birth lacked regulation in many Member States and there was no consensus regarding a fair balance between the mother’s right to choose a home birth and the child’s right to life, health, and a safe birth. The Government also stated that there was no statistical evidence that the impugned provision dissuaded mothers from home births, impeded them from doing so, or prevented healthcare professionals from providing the necessary assistance. It argued that several recent incidents of death or serious injury of the baby during home births with health professional assistance required Parliament to begin the legislative process to pass specific legislation regulating the conditions of home births.

The Court first held that Ternovszky could claim to be a victim of an Article 8 violation because of the impugned legislation’s mere existence; consequently, the case was not act popularis. Ternovszky was directly affected by the impugned legislation because she was pregnant when the application was introduced and was seeking a home birth. The Court also felt that the complaint could be considered under Article 8 alone.

The Court then held that the contested legislation constituted an interference against the applicant’s right to respect for private life under Article 8. It found that ‘private life’ encompasses the right to personal autonomy, which involves decisions regarding becoming a parent, including choosing the circumstances under which one becomes a parent. Therefore, the decision of the place of birth forms part of one’s private life. The Court noted that the legislation did not prevent Ternovszky from giving birth at home. However, because home births presume the involvement of healthcare professionals, any legislation which dissuades them from providing assistance constitutes an interference of Article 8 rights for prospective mothers.

The Court held that the interference caused by the legislation of Article 8 was not “in accordance with the law” as required under Article 8, s. 2, which implies foreseeability and non-arbitrariness. The Government's regulation of home birth should create a legal and institutional environment of legal certainty in which mothers are entitled to make individual choices free from direct or indirect sanctions, except where other rights require restriction of choice. The Court acknowledged that ss. 15 and 20 of the HCA protects parents’ right to self determination regarding matters of medical treatment, including the right to reject certain interventions. The Court found that the sanctions imposed by s. 101(2) of the Government Decree on healthcare professionals carrying out activities within their qualifications in a manner incompatible with their licence or the law were contradictory to assisting home births because the Government had yet to otherwise enact comprehensive regulations in this context. The resultant legal uncertainty lead to arbitrariness and a lack of foreseeability, restricting the choices of those contemplating home birth. The impugned legislation was therefore incompatible with the concept of lawfulness required for it to be “in accordance with the law.”

The Court therefore held, 6-1, that the impugned legislation  violated Ternovszky's Article 8 rights and  that she be reimbursed for costs and expenses that were necessary and reasonable incurred, amounting to 1250 euros.

Judges Sajó and Tulkens wrote a concurring judgement clarifying why the right to parental choice requires positive regulation. Where, as in the context of medical treatment, regulation is the default, a lack of enabling regulation can make it more difficult for healthcare professionals such as midwives to be available to mothers seeking home births Therefore, even though the impugned legislation does not formally interfere with the mother’s choice to give birth at home, the absence of enabling regulation, coupled with the sanctions midwives may face if they participate in home births increases the difficulty surrounding this choice in a way that is detrimental to the exercise of one’s right to choose. Case law supports the notion that the State is under a positive obligation to ensure its citizens' right to respect for private life by enacting a regulatory framework that provides “adequate legal certainty”, which is necessary for its effective exercise.

In a dissenting opinion, Judge Popović declined to join his colleagues for four reasons. First, he felt that the applicant did not exhaust all domestic remedies because she did not have a claim at the national level, due to the permissive nature of national legislation, which provides for home birth. Second, the applicant had not proved a “reasonable likelihood” of interference with her rights, and therefore could not prove her victim status under Article 34 of the Convention during or after filing her application. Third, there was no interference with the applicant’s rights due to the permissive nature of the primary legislation; the non-existence of secondary legislation cannot be considered as constituting the reasonable likelihood of interference with rights. Fourth, due to her lack of an arguable claim at the domestic or national level and lack of victim status, she was not acting on her own behalf or in her own interest, such that her claim was actio popularis and therefore inadmissible.

“Therefore the right concerning the decision to become a parent includes the right of choosing the circumstances of becoming a parent. The Court is satisfied that the circumstances of giving birth incontestably form part of one's private life for the purposes of this provision; and the Government did not contest this issue. The Court notes that the applicant was not prevented as such from giving birth at home. However, the choice of giving birth in one's home would normally entail the involvement of health professionals, an assumption not disputed by the parties. For the Court, legislation which arguably dissuades such professionals who might otherwise be willing from providing the requisite assistance constitutes an interference with the exercise of the right to respect for private life by prospective mothers such as the applicant.” (para 22)

“In the context of home birth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof. For the Court, the right to choice in matters of child delivery includes the legal certainty that the choice is lawful and not subject to sanctions, directly or indirectly.” (para 24)

“In this welfare system practically everything is regulated; regulation is the default, and only what is regulated is considered safe and acceptable. Suddenly, in the absence of positive regulation, what was a matter of uncontested private choice becomes unusual and uncertain. In a very densely regulated world some disadvantages emerge for freedoms without regulatory endorsement. […] Where regulation is the default, as in the medical context, lack of enabling regulation may be detrimental to the exercise of the right, and traditional non-interference will not be sufficient. [...]It is this consideration that makes us believe that a freedom may necessitate a positive regulatory environment which will produce the legal certainty providing the right to choose with effectiveness. Without such legal certainty there is fear and secrecy, and in the present context this may result in fatal consequences for mother and child.” (Sajó and Tulkens concurrence)