Exactly one year ago today, a pregnant Hungarian woman applied to the European Court of Human Rights. In her claim, the complainant alleged that the Hungarian state had violated her right to the respect of her private life by threatening midwives with sanctions and thus effectively preventing her from choosing to give birth at home. The complainant was represented by the HCLU’s attorney, Dr. Tamás Fazekas.
In its decision announced on 14 December 2010, the Court, in a decision of 6 against 1, held that the failure of the Hungarian state to regulate the issue results in a violation of the right to privacy guaranteed by Article 8 of the European Convention on Human Rights. A joint concurring judgment was submitted by Judges Sajó and Tulkens, while Judge Popovic wrote a dissenting opinion.
(1) The Court held that the right to respect for private life includes the right to choose the circumstances of birth.
(2) The Judges argued that the section of the Government Decree that imposes fines on midwives assisting at home births constitutes an interference in the exercise of the rights of the complainant and of similarly situated pregnant mothers.
(3) According to the Court’s opinion, the threat of sanctions – along with the absence of a specialised, comprehensive regulation in this area – are detrimental to the complainant’s ability to choose home birth. This in turn constitutes a violation of the legal security for the exercise of privacy rights, and in particular, violates the principle of legal certainty.
“We find this judgment to be very important”, stated Dr. Tamás Fazekas, attorney for HCLU, “because this means that, so long as Hungary fails to enact legislation regulating home birth, and so long as professionals assisting at out-of-institution births are unable to obtain a license for their work, Hungary is in violation of the European Convention on Human Rights”.
You can find the documentation of the case here:
Application (translated by Sara Vitrai)
Answer from the Hungarian Government (translated by Sara Vitrai)
Answer by the attorney of the HCLU