It has been over 12 years since a Hungarian national Anna Ternovszky won her case after taking the Hungarian government to the European Court of Human Rights (ECHR) because the laws in her country prevented her from having a healthcare professional at her homebirth. The court decided that her human right to a private life was violated. The ruling stated that women have the right to choose circumstances of birth and governments cannot prevent healthcare professionals from attending home births.
Since then, three more countries stood before the court in cases related to homebirth care provision, or rather the lack of: Czech Republic, Croatia and Lithuania. There is currently a new case in the making – Bosnia and Herzegovina, but so far no judgement has been made in the newest case.
In the three concluded cases that came after Ternovszky, the ECHR did not uphold the judgement from Ternovszky v. Hungary fully. Woman’s right to choose the circumstances of birth, including the place of birth, was confirmed, but in terms of legally limiting homebirth healthcare provision, ECHR ruled in favour of the three governments which at the time did not legally allow midwives to attend homebirths. ECHR judges were of the opinion that the governments pursued a legitimate aim of providing safety to women and babies by limiting birth care provision to hospitals only. The majority of judges believed that hospital birth is always safest, despite the plethora of evidence confirming homebirth safety. In the Czech case, 5 out of 17 judges (Sajo, Karakas, Nicolaou, Laffranque and Keller) issued a joint dissenting statement which acknowledged the evidence and supported women’s right to have a midwife assisting them in homebirth.
The ECHR repeatedly claims in the judgements that in no circumstances should a child be deprived of his or her right of access to healthcare services on the grounds that he or she was born outside of a medical facility. But of course they are deprived of that right when the law does not allow midwives to attend homebirths. Nobody can predict when a baby will be born, so it is impossible to arrive to the birth the second after the baby was born and start providing care. The care is a continuum.
In the countries mentioned (and many other places around the world), there are often various issues with birth registration and healthcare provision after a homebirth. This is part of the systemic discrimination of those who opt to birth at home. For example, in some places women are required to undergo a vaginal examination by a gynaecologist in order to obtain written confirmation that they gave birth, otherwise, the baby may be denied birth registration. In other places, community paediatricians refuse to take homeborn babies into care. In more extreme cases, when a mother chooses to homebirth or freebirth, children’s social services or even police might get involved.
Let’s have a closer look at the four countries that stood before the ECHR. Has anything changed since the ECHR judgements?
Hungary
Hungary started regulating homebirth and made it legal in 2011. Around the same time midwife and former obstetrician Agnes Gereb was arrested and investigated for providing homebirth care. More specifically, she was charged with negligence in cases with poor outcomes. She was deemed negligent for the fact that she provided care at homebirths – which goes against the medical paradigm in Hungary. This is a common theme in many other countries around the world. Although Agnes was eventually granted clemency, her 10 year practice ban was not lifted and her criminal record remains.
There are strict rules in Hungary under which homebirths can go ahead. There is a long list of disqualifying criteria (e.g. first time mothers over 40 years of age, IVF conception, gestation over 41+0, previous C-section, 12 hours after membranes rupture) as well as a list of intrapartum situations in which the mother has to be transferred to hospital. According to Hungarian law, if a woman is over 24 weeks pregnant and it is deemed that there is a potential serious risk to the unborn baby, the woman’s consent to intervention is not required.
A midwife or doctor can attend a homebirth in Hungary if they are registered and insured. There is a requirement for two healthcare professionals to be present at each homebirth. The place of birth must not be further than 20 minutes from a maternity hospital. The baby has to be examined by a paediatrician within 24 hours from birth. Unlike hospital intrapartum care, homebirth care is not covered by public insurance and has to be paid out of pocket.
Around 500 babies are born at home in Hungary every year, representing 0.5% of all births. However, there are no statistics collected to distinguish between planned and unplanned homebirths. There are 16 homebirth midwives in Hungary but it is not enough to cover the demand. High-risk women often choose to freebirth because they cannot legally have a midwife present according to the homebirth regulation.
In theory, homebirth became legal in Hungary so that is a step forward. However, the abundance of risking-out rules together with a shortage of homebirth midwives and the disregard for women’s right to decline intervention make it still very difficult for women to actually choose homebirth. There are many issues with the care provided in maternity hospitals. Bribes are often expected and the standard of care can be low if no side payment is given to staff. As in other countries, there is obstetric violence in healthcare institutions. The demand for respectful maternity services is on the rise.
https://hudoc.echr.coe.int/eng?i=001-102254
https://net.jogtar.hu/jogszabaly?docid=A1100035.KOR
https://net.jogtar.hu/jogszabaly?docid=99700154.tv
https://pubmed.ncbi.nlm.nih.gov/28787630/
https://www.theguardian.com/world/2010/oct/22/hungary-midwife-agnes-gereb-home-birth
https://www.theguardian.com/world/2011/mar/25/midwife-agnes-gereb-home-births-jailed
https://www.frontlinedefenders.org/en/case/agnes-gereb-persecuted-midwifery
Czech Republic
Two Czech women, Sarka Dubska and Alexandra Krejzova complained that Czech law did not allow health professionals to attend home births. ECHR did not uphold the previous decision that states must not prevent professionals willing to attend homebirth from doing so. Instead, the judgement concluded that there is a fair balance in the Czech Republic between women’s choices in childbirth and the requirement of safety. The right of the woman to choose place of birth as part of her private life was confirmed.
The judgement came with many recommendations for the Czech Republic, in line with previous recommendations by the Committee on the Elimination of Discrimination against Women (CEDAW), among others: to review legislation relating to birth in light of developing science and evidence, to educate healthcare professionals in human rights and ensure women’s choices are respected. Five judges out of 17 jointly disagreed with the decision of the court and concluded that the human right to a private life of the two applicants was violated by preventing midwives from attending their homebirths. They highlighted the paradoxical practical consequence of legally preventing midwives from attending homebirths – making homebirth less safe.
Homebirth had been in the grey zone and remained there after the ECHR judgement. Whilst formally legal for women, midwives are still not allowed to attend. A decree issued by the Ministry of Health sets rules for intrapartum care provision and these rules include a requirement for an obstetrician to be available within five minutes and a C-section to be performed within 15 minutes if needed. These rules are incompatible with birth care outside of a hospital.
Another way of blocking homebirth midwifery care provision is restricting midwifery licences. Local authorities in charge of issuing licenses strike out intrapartum care. They do so under instruction from the Ministry of Health, however the legal basis for this is at least questionable. This practice is being challenged in courts, one midwife in the Moravian region Jana Riedlova recently won her case and the local authority had to grant her a full licence.
But even when a midwife has a full licence, she is still at risk of being investigated and fined by the Ministry of Health (up to 1 000 000 CZK ~ £35000) if she attends a homebirth. Two midwives were fined in recent years, Johanka Kubanova and Lucie Kasova. In March 2023 a regional court in Pilsen decided in the case of midwife Lucie Kasova, that the Ministry of Health cannot treat assistance at a homebirth as a breach of law per se and cannot issue fines solely on this basis. This is a small victory but a very symbolic one as the judgement was published on the International Woman’s Day. Johanka’s case was eventually dropped.
Two midwives, Zuzana Stromerova and Ivana Konigsmarkova were charged with negligence in the last decade because they worked as homebirth midwives. Poor outcome cases were highlighted and used as evidence of homebirth being dangerous. The quality of the care provided was not in question, attending homebirth was seen and treated as negligent practice per se. Both Zuzana and Ivana were eventually acquitted but the legal battles went on for many years. Ivana continues her legal battle for damages.
Poor outcomes from hospitals and medical birth care remain mostly unchallenged in courts and so does abusive behaviour in maternity hospitals. Recently a woman sued a hospital for carrying out interventions during her birth against her will (injecting oxytocin, performing an episiotomy and early cord clamping) and refusing to let her take her placenta home. However, the courts rejected her complaint repeatedly. She will now take her case to the UN CEDAW. There was also a case of a baby being forcibly taken back to the hospital because the mother discharged herself and her healthy baby a few hours after the birth. Czech courts rejected the case, so the Hanzelka family took the Czech Republic to the ECHR and won. There are numerous other cases of violation of women’s rights, babies and families within the system. A recent study showed that the most significant reason for Czech women to have a homebirth were violations of their rights and dignity in hospitals.
According to the Czech healthcare statistics, there are 200 homebirths per year. However, there is a discrepancy of around 2000 births a year when healthcare statistics are matched with the birth register records. The birth register records include babies born to Czech mothers abroad and homebirths which were not registered for healthcare statistics. Accurate numbers are not available, the Ministry of Health shows no interest in finding out exactly how many women are affected by their homebirth hostile policies. The Czech Union of Midwives estimates that there are 1000 homebirths a year – around 1% of all births.
There have been some very slow changes in the Czech Republic since the ECHR judgement but overall, homebirth remains in the grey zone. Over the last few years, maternity hospitals started to open midwifery-led units, which is also a step forward. Some of these MLUs are progressive and resemble MLUs that can be found in the UK. In other places, women are charged for using the MLU and it can be more of a money making scheme where the MLU is a hotel-style private birthing room.
https://hudoc.echr.coe.int/fre?i=001-148632
https://hudoc.echr.coe.int/eng?i=001-168066
https://www.zakonyprolidi.cz/cs/2012-99
llp.cz/blog/zdravotnici-nerespektovali-rodicku-a-provedli-zakroky-bez-jejiho-souhlasu/
llp.cz/blog/za-privolani-policie-na-domaci-rodicku-museli-zdravotnici-zaplatit-100-tisic-korun/
www.pdcap.cz/Texty/PDF/Pripad.pdf
www.pdcap.cz/Texty/PDF/Usneseni.pdf
www.uzis.cz/res/f/008423/rodnov2016-2021.pdf
https://www.czso.cz/csu/stoletistatistiky/pocet-zive-narozenych-v-ceske-republice
http://www.biostatisticka.cz/deti-ktere-pro-stat-neexistuji/
http://www.biostatisticka.cz/datove-zdroje-o-porodech-co-je-noveho/
Croatia
Croatian citizen Ivana Pojatina took her country to ECHR after she had been pregnant with her fourth child and had unsuccessfully requested the Croatian Chamber of Midwives to provide assistance with her homebirth. Due to the lack of regulation of homebirth in Croatia, no midwives officially assisted homebirths. She therefore hired a midwife from abroad for her birth. She complained that Croatian law had dissuaded health professionals from assisting her when giving birth at home.
Croatian legislation relating to homebirth provision is contradictory. Midwives are allowed to open independent practices to provide all midwifery care (although no such practices exist). But at the same time, according to specific bylaws, there are certain preconditions for facilities, equipment and staffing which have to be available where birth happens and those can only be met inside hospitals.
The court decided that while Croatia could regulate and provide homebirth services, it is under no obligation to do so. As in the Czech and Lithuanian cases, ECHR judges were of the opinion that there was a legitimate aim of safety for mothers and babies for which only hospital births were supported. In other words, again, the court accepted the false premise that hospital is always the safest place for giving birth.
“In that regard, the Court takes note of the Government’s argument that in the light of all the scientific findings known to them, and even though home delivery might be more pleasant for mothers-to-be, it still represented an option that was not as safe as a full hospital delivery.”
Despite the assertion that the provision of homebirth midwifery care is not legal, no midwife in Croatia has ever been prosecuted for providing homebirth care. The numbers of homebirths in Croatia in recent years (2018 – 2021) were 52, 69, 97 and 94 per year. These numbers represent between 0.14% to 0.27% of all births. However, the figures are not reliable because the statistics are not gathered correctly and may be incomplete.
All homebirth midwives who work in Croatia do so unofficially, outside of the system. Some women hire midwives from abroad, mainly from neighbouring Slovenia. Some women choose to freebirth, some see no other choice than to freebirth if they wish to birth outside of hospital, and some women rely on doulas.
In order to register the birth, woman who gives birth at home has to obtain a document from a gynaecologist confirming that she gave birth and the baby has to be examined by a paediatrician.
Nothing has changed since the ECHR judgement, homebirth remains in the grey zone. Croatia has a noticeably bad reputation in terms of obstetric violence. In 2018 a female MP Ivana Nincevic Lesandric spoke in Parliament about her own experience of having surgical treatment for miscarriage done without any anaesthetic, 400 more women spoke up and recorded their own horrifying experiences of having reproductive health procedures done without anaesthesia but there were thousands more as this has sadly been happening to women in Croatia for many generations.
https://hudoc.echr.coe.int/eng/?i=001-186446
https://www.zakon.hr/z/397/Zakon-o-primaljstvu
https://www.zakon.hr/z/190/Zakon-o-zdravstvenoj-za%C5%A1titi
https://www.roda.hr/portal/porod/kako-radamo/porod-kod-kuce-u-hrvatskoj.html
https://www.roda.hr/en/news/womens-reproductive-health-in-croatian-parliament.html
https://hrcak.srce.hr/file/400397
Lithuania
In 2012, four applicants lodged the case with ECHR, complaining that Lithuanian law did not allow them to have a midwife at their homebirth. Each of them had given birth at home before with the presence of the same traditional midwife, Jurgita Inga Svediene, who at the time was being prosecuted under criminal law together with another midwife Dalia Jakaite, for having assisted homebirths between 1999-2011. In the end, Dalia’s case was dropped and Jurgita was acquitted.
Lithuania legalised homebirth during the ECHR case. The legislation approved was designed by a work group formed of various stakeholders including representatives of the local homebirth movement. The group also included one of the litigants, Elena Kosaite-Cypiene.
The homebirth regulation came into effect in 2019. Similarly to the situation in Hungary, there are numerous restrictions. Although the legislation has been effective for over four years, no healthcare provider was registered to provide homebirth care until one midwife finally registered a practice at the end of 2022. That of course does not mean that there were no homebirths in the meantime.
There are two types of midwives in Lithuania – traditional midwives who learn their art and skills via an apprenticeship with experienced traditional midwives and midwives trained within the healthcare system. There are also a couple of midwives who are both traditional and healthcare-system-trained. Homebirth care is provided by the traditional midwives. None of them holds a formal homebirth license.
The number of homebirths in Lithuania is not known. The estimate from those familiar with the situation is around 1,5% or 300 of all births. When asked, the Statistics Lithuania Office reported that there are no planned homebirths in Lithuania, only unplanned ones. The numbers provided for the last 11 years counted between 21 and 65 unplanned homebirths every year (0.09 – 0.23 % of all births). There are several possible explanations for the discrepancy but I was not able to confirm any one particular. All women have to go to a healthcare facility after the birth of their baby in order to have the baby registered and to receive the birth certificate. And Lithuania reports that 100% of all births are registered.
There are certain preconditions a midwife has to fulfil to be able to apply for a homebirth licence. One of the preconditions is having worked at a healthcare institution for 2 years. During the 2 years she has to attend 50 births, perform 20 perineal suturings and examine 100 postnatal mothers and newborns. This is proving very difficult. There is only one hospital in Lithuania (in Kaunas) where midwives attend births autonomously. In all other hospitals, it is the doctor who attends the birth as the primary healthcare professional. Midwives are also rotated through departments and they may be rotated to a different ward prior to achieving the skills required for independent practice.
Only women who live within 30 minutes from a hospital can give birth at home. Some of the reasons for having to organise transfer are: thick meconium, latent phase longer than 24 hours, slow progress (defined as less than 0.5cm dilation per hour), placenta not delivered within 1 hour. The regulation mentions that transfer has to happen if the mother wishes to be transferred but fails to mention what happens if she declines to be transferred. Only “low risk” women are allowed to give birth at home. There is a very long list of risk factors for which a midwife has to refer the woman to an obstetrician. The presence of these risk factors means that a licensed midwife is not allowed to attend the homebirth. That’s why women either freebirth or have a traditional midwife helping them.
There are around 5 midwives who attend homebirths in Lithuania. Their care is not very accessible, because they do not advertise what they do. The only way to arrange a midwife for a homebirth is to know someone who had a homebirth with a midwife. If a woman cannot find a midwife, she is likely to freebirth. Some women also hire a doula for support. Freestanding birth centres are banned, so this option is unavailable to women.
There are two professional midwifery organisations in Lithuania: Lithuanian Midwives’ Union and Lithuania Midwives’ Association. Lithuanian Midwives’ Union signed a memorandum with the Ministry of Health in 2020 about only promoting hospital birth as the safest birth option. The president of the other midwifery organisation – Lithuania Midwives’ Association – is Violeta Staniuleviciene, the first midwife to obtain a legal homebirth licence.
As for the ECHR judgement in the case of Lithuania, it repeated the same as in the Czech and Croatian case – that Lithuania was not under any obligation to regulate homebirths. The court however commended that during the process, the law was changed to explicitly allow them.
Also in Lithuania, homebirth remains in the grey zone despite formally having legislation which permits homebirth. This illustrates that change can be a slow and long process.
Judge Lafranque’s opinion from ECHR judgement: There should be no room in a democratic society for any interference with mothers’ freedom of choice which is not proportionate and which deprives them of the possibility of receiving the indispensable assistance of a midwife during home births, assuming that the preconditions for home birth are met. This is also detrimental to the health of mothers and of course to their newborns.
https://hudoc.echr.coe.int/fre?i=001-193452
https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/a3e200d1102611e9b79ed4f43836384a?jfwid=32wfbk9i
https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.143997?jfwid=32wfbk9i
https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.456692/dkznEpKqPh
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akuseriusajunga.com/sam-ir-lietuvos-akuseriu-sajunga-skatins-rinktis-saugu-gimdyma/
https://lsveikata.lt/aktualijos/gimdymo-paradoksai-namie-leidziama-bet-negalima-10905
https://sam.lrv.lt/lt/naujienos/oficialu-isigaliojo-taisykles-kuriu-privalu-laikytis-gimdant-namuose
https://www.tevu-darzelis.lt/gimdymas-namuose-privalumai-ir-rizikos/
https://www.baltictimes.com/lithuania_s_top_court_acquits_two_women_in_home_birth_case/
Bosnia and Herzegovina
The newest case originates with Amira Cerimagic, an immunologist from Sarajevo. She decided to have her fourth baby at home but none of the healthcare institutions responsible for providing healthcare were able to provide a midwife to assist. All levels of Bosnian courts rejected Amira’s case, therefore she lodged her case with ECHR.
Although homebirths are not prohibited by law, women and midwives live in fear of persecution, should any complications at birth arise.
There is very little transparency in Bosnian maternity hospitals in terms of outcomes and throughout the country, corruption in hospitals is a major problem. Thousands of women shared their experience of being expected to pay bribes to maternity staff. In many places it is the norm to punish women by degrading care for not giving out side payments. As in Croatia, women suffer a lot of obstetric violence in hospitals, for example being sutured without anaesthetic.
Amira, like some other women who birth at home in Bosnia and Herzegovina, hired a midwife from abroad. Many women who do not wish to go to hospital freebirth.
Amira gave birth during the Covid-19 pandemic. At the time, as in a lot of hospitals around the world, quality of care in maternity hospitals dropped. Women were not allowed to have their birth partners with them, and of course as everywhere else in the world, women were worried about contracting covid in hospitals.
I wrote a support letter for Amira and sent it to ECHR. I would encourage others to also support her case. Every new case gives us hope that ECHR will again fully recognise our human right to choose where and with whom we give birth to our children. You can read my support letter here: https://docs.google.com/document/d/1BisH6OuutCx3IbjdGvgQkBIQrnfAW6WHW_JuRMGFTZQ/edit?usp=sharing
https://www.rferl.org/a/bosnia-bribes-births-corruption/31616121.html
https://www.bbc.co.uk/programmes/m000vsc6
https://www.bbc.com/serbian/lat/balkan-57582370
https://radiosarajevo.ba/metromahala/lica/borba-za-kucne-porode-u-bih/423366
https://gogetfunding.com/legal-action-for-home-births-in-bosnia-and-herzegovina/
http://www.babysteps.ba/borba-protiv-korupcije-u-porodilistima/
I would like to thank to the people who kindly talked to me about the issues above, gave me contacts and signposted me to further documents and information. Ivana Konigsmarkova, Amira Cerimagic, Paul Golden, Agnes Gereb, Martina Sebajl, Daniela Drandic, Gintare Balcytyte, Nandu Noll, Rita Gaidelyte, Daiva Mikalopiene, Jurgita Svediene, Violeta Staniuleviciene, Adam Remport, Kamila Sinova and all the others who in some way contributed.
Lenka Pazdera
I am a midwife, I was born in Brno, Czech Republic, I’ve lived in London for the last decade. My children were born at home, with the support of my husband and my midwife Evelyn.
Midwifery by Lenka 
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