CASE OF TERNOVSZKY v. HUNGARY
Violation of Art. 8
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1979 and lives in Budapest. 6. At the time of introduction of the application the applicant was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. However, in view of section 101(2) of Government Decree no. 218/1999 (XII.28.), any health professional assisting a home birth runs the risk of conviction for a regulatory offence and, indeed, at least one such prosecution has taken place in recent years. In the applicant's view, while there is no comprehensive legislation on home birth in force in Hungary, this provision effectively dissuades health professionals from assisting those wishing home birth. 7. The Constitution provides as follows: “(1) Everyone living in the territory of the Republic of Hungary has the right to the highest possible level of physical and mental health. (2) The Republic of Hungary shall implement this right through institutions of labour safety and health care, through the organization of medical care and the opportunities for regular physical activity, as well as through the protection of the urban and natural environment.” “(2) The Republic of Hungary shall implement the right to social support through the social security system and the system of social institutions.” 8. Section 15(1) of the Health Care Act 1997 provides that a patient's right to self-determination can be restricted only as prescribed by law. According to section 15(2), it is the free choice of a patient to accept or reject certain treatments. Under section 20(1), a competent patient may reject medical treatment unless this endangers the life or limb of another person. 9. Section 101(2) of Government Decree no. 218/1999 (XII.28.), as in force in the relevant period, 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. 10. Act no. CLIV of 2009 (adopted on 14 December 2009) on the Amendment of Certain Health-Related Acts provides as follows: “Section 247(1) of the Health Care Act [1997] shall be completed with [the following provision]: « (v) [The Government shall] determine [in a decree] the professional rules and conditions governing birth outside an institution and the causes excluding the possibility of such birth. »” “... Although risk assessment may be appropriately performed by trained birth attendants their advice about the place of birth, made on the basis of such assessment, is not always followed. Many factors keep women away from higher level health facilities. These include the cost of a hospital delivery, unfamiliar practices, inappropriate staff attitudes, restrictions with regard to the attendance of family members at the birth and the frequent need to obtain permission from other (usually male) family members before seeking institutional care ... Often, high and very high risk women do not feel ill or show signs of disease, so they give birth at home, attended by a family member, by a neighbour or by a TBA ... However, a properly attended home birth does require a few essential preparations ... [T]ransport facilities to a referral centre must be available if needed. In practical terms this means that community participation and revolving funds are necessary to enable transport to be arranged for emergencies in areas where transportation is a problem. In some developed countries birth centres in and outside hospitals have been established where low-risk women can give birth in a home-like atmosphere, under primary care, usually attended by midwives. In most such centres electronic fetal monitoring and augmentation of labour are not used and there is a minimum use of analgesics. An extensive report about birth centre care in the USA described care in alternative birth centres in and outside hospitals ... Experiments with midwife-managed care in hospitals in Britain, Australia and Sweden showed that women's satisfaction with such care was much higher than with standard care. The number of interventions was generally lower, especially obstetric analgesia, induction and augmentation of labour. The obstetric outcome did not significantly differ from consultant-led care, though in some trials perinatal mortality tended to be slightly higher in the midwife-led models of care ... In a number of developed countries dissatisfaction with hospital care led small groups of women and caregivers to the practice of home birth in an alternative setting, often more or less in confrontation with the official system of care. Statistical data about these home births are scarce. In an Australian study data were collected which suggested that the selection of low-risk pregnancies was only moderately successful. In planned home deliveries the number of transfers to hospital and the rate of obstetric interventions was low. Perinatal mortality and neonatal morbidity figures were also relatively low, but data about preventable factors were not provided ... The Netherlands is a developed country with an official home birth system. The incidence of home deliveries differs considerably between regions, and even between large cities. A study of perinatal mortality showed no correlation between regional hospitalisation at delivery and regional perinatal mortality ... A study conducted in the province of Gelderland, compared the “obstetric result” of home births and hospital births. The results suggested that for primiparous women with a low-risk pregnancy a home birth was as safe as a hospital birth. For low-risk multiparous women the result of a home birth was significantly better than the result of a hospital birth ... There was no evidence that this system of care for pregnant women can be improved by increasing medicalization of birth ... So where then should a woman give birth? It is safe to say that a woman should give birth in a place she feels is safe, and at the most peripheral level at which appropriate care is feasible and safe ... For a low-risk pregnant woman this can be at home, at a small maternity clinic or birth centre in town or perhaps at the maternity unit of a larger hospital. However, it must be a place where all the attention and care are focused on her needs and safety, as close to home and her own culture as possible. If birth does take place at home or in a small peripheral birth centre, contingency plans for access to a properly-staffed referral centre should form part of the antenatal preparations.”