January 13, 2011
In the end of last year the Court delivered a judgment in the case of Ternovszky v. Hungary. In this judgment the Court created a new right – the right to choose the circumstances of becoming a parent. I will not focus on the discussion about the safety of the mother and the child that is part of the factual part of the judgment but solely on the creation of the new right.
The applicant, Ms Ternovszky, intended to give birth at her home, rather than in a hospital or a birth home, but alleged she had not been able to do so because health professionals were effectively dissuaded by law from assisting her as they risked being convicted.
The Court reasoned that “[t]he notion of personal autonomy is a fundamental principle underlying the interpretation of the guarantees of Article 8. 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”.
I was satisfied too, but soon realized that my general respect towards the whole process of giving birth could have blurred my abilities to assess the issue fully (as a male person without children I am basically just scared and aware of my limited competences in “all that”. In other words, my attitude could be described as: “Give everything they need, THEY ARE GIVING BIRTH, for God’s sake!”) I started to pay attention only when a female person of our team who had given birth to several kids raised a question whether all aspects of giving birth should be protected by human rights.
From the classical human rights theory, human rights protect issues of paramount importance. There is no doubt that several aspects of becoming a parent are very important – e.g., the right to respect for both the decisions to become and not to become a parent (Evans v. the United Kingdom), but that is not at stake in this case. In this case it is about preferences of circumstances of giving birth. There is a possibility to give birth at the hospital. But as shown by the World Health Organization recommendation that is included in the judgment, not all women are satisfied with the hospitals’ environment, attitudes they receive, and so they decide to form other establishments or give birth at home. In other words, it is nicer to give birth at home rather than in the hospital.
My answer would thus be – human rights should not be about matters that concern divisions between “nice and less nice” situations.
 See inter alia: Cranston, M., 1967. “Human Rights, Real and Supposed,” in D. D. Raphael (ed.), Political Theory and the Rights of Man, London: Macmillan. Griffin, J., 2001. “First Steps in an Account of Human Rights” European Journal of Philosophy, 9: 306–327.
 RECOMMENDATION OF THE WORLD HEALTH ORGANIZATION (WHO/FRH/MSM/96.24)
Dear Mr. Burbergs,
in my opinion your merely theoretical answer replies to question what never existed.
This is not the question answered by the WHO. There’s no new right created by the Court.
I believe that it is not “nice” at all from state to force the families into institutions built for curing diseases (hospitals) without any serious reasons.
attorney of the applicant
Your opinion shows your (accepted and stated) lack of understanding of the issue. Home birth is a safer option for many women and their babies than hospital birth, and as such it’s not about “nice to have”, but about the long term harmful effects to many of birthing in hospital. Forcing someone to do so is therefore clearly in breach of their human rights.