Legal provisions regarding child birth in light of article 8 ECHR – Dubska and Krejova v. Czech Republic

In Dubska and Krejova v. Czech Republic, the European Court of Human Rights has dealt with the implications of article 8 ECHR for the legal framework governing medical assistance during births and home births. It held that legal provisions which made it nearly impossible for women to give birth at home did not infringe the right to private life.


The Court had joined two applications. The first one had been submitted by a mother of two, who in essence complained that Czech laws had made it impossible for her to give birth to a child at home. The applicant had given birth to her first child without any complications. Following the birth, medical personnel in the hospital had urged her to undergo medical treatment she considered unnecessary. Also, she had spent more time separated from her child than she wanted to and was not released from the hospital as early as she desired. Due to these difficulties, she decided to give birth at home when she was pregnant with her second child. However, she was unable to find any midwife willing to assist her; her health insurance informed her that assistance during a home birth would not be covered. The applicant gave birth to her child at home without any professional assistance.

The second applicant had already given birth to two children at home with the assistance of midwives. The midwives had worked without any authorization from the state. When the applicant was pregnant with her third child, she decided to deliver at home again. However, she was unable to find a midwife willing to assist her because of the heavy fines which could be imposed on persons providing medical assistance without authorization.

In the Czech Republic, only a very small number of women give birth at home. The Medical Chamber regards home births as risky and considers them not in line with professional standards. Recommendations issued by the Ministry of Health state that newborns should, as a rule, not be released from hospital sooner than 72 hours after birth. According to statistics, the Czech Republic is among the countries with the lowest mortality rate in Europe.


The applicants complained that the legal framework in Czech Republic prevented them from giving birth at home, which amounted to a violation of their right to private life under article 8 ECHR.

The European Court of Human Rights pointed out that the issue fell within the scope of article 8 ECHR. It clarified that the question at hand was not whether the right to private life embraced a right to give birth at home, but rather whether it encompassed a woman’s right to decide herself on the circumstances and way in which she wanted to give birth. The Court reiterated its jurisprudence that private life is a broad concept which covers personal autonomy. It stated that giving birth had implications for the mother’s physical and psychological integrity and constituted a very intimate aspect of her private life. Thus, legal provisions to the effect that the applicants could not give birth at home constituted an interference with their right to private life.

The European Court of Human Rights went on to examine whether this interference was justified pursuant to article 8 para 2 ECHR. It found that the legal provisions which stated that medical assistance could only be provided by persons with the appropriate license and in possession of the necessary equipment were a sufficient legal basis. It also accepted that they served a legitimate aim, namely the protection of the health and life of mother and children during and after birth.

The European Court of Human Rights then turned to the question whether the interference was necessary in a democratic society. It pointed out that there was no consensus among Council of Europe member states on questions of home birth and health care during and after delivery. Also, regulation in this field required a lot of scientific data and expert advice. Since member states were best placed to obtain these, they enjoyed a wide margin of appreciation in this area. It stated that legislation on health care related to births had to respect the rights of the mother while being mindful of the interests of the newborn children as well. The Court found that the Czech authorities had duly balanced the competing interests at stake and come to conclusions which were within the state’s margin of appreciation. Accordingly, the European Court of Human Rights did not find a violation of article 8 ECHR.


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