November 23, 2015
By Fleur van Leeuwen, LL.M. Ph.D., Dutch human rights researcher, based in Istanbul Turkey.
On 29 September 2015 the international organisation Human Rights in Childbirth received a letter from the deputy registrar of the Grand Chamber of the European Court of Human Rights (ECtHR or Court). They were informed that the President of the Grand Chamber had decided to refuse their request to intervene as a third party in the Court’s proceedings in the case of Dubska and Krejzova v. the Czech Republic – a case regarding a de facto home birth ban currently at the Grand Chamber – as he considered ‘that the intervention requested (was) not necessary in the ‘interests of the proper administration of justice’. Human Rights in Childbirth, a non-governmental organisation (NGO) that aims to advance the rights of women in childbirth, was not the only organisation that was refused intervention; the Center for Reproductive Rights, the Bulgarian Helsinki Committee, and human rights experts Dr. Alicia Yamin (Harvard University) and Prof. Paul Hunt (Essex University, the first UN Special Rapporteur on the Right to Health) were some of the others that were denied leave. On the other hand, the International Study Group of the World Association of Perinatal Medicine (whose brief was written by home birth opponent Dr. Chervenak), the International Federation of Gynaecology and Obstetrics (FIGO), the Czech Ombudsperson: Ms Anna Sabotova, the Czech Union of Midwives (one of the official Czech midwifery organisations), the Croat-, and the Slovak governments were granted leave to intervene. The legal representatives of the applicants in the case were taken aback when they received the letter from the deputy registrar informing them of the accepted and refused amicus curiae briefs: was this not a very arbitrary selection?
The role of amici curiae
NGOs, as well as states and individuals, have been submitting amicus curiae briefs to the Court for over two decades. In accordance with article 36 of the European Convention on Human Rights and article 44 of the Rules of the Court, the President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings. Acceptance of such briefs is at the discretion of the President of the Court. Hennebel found that the Court draws from the briefs necessary elements to affirm the existence of a European or international consensus; that it draws inspiration from legal solutions adopted in other systems; and that it relies on the briefs to underscore the different interests at play in a case.
The different interests at play are not addressed in the selection of briefs in the Dubska and Krejzova case. Many of the selected amici are expected to present a one-sided, conservative view on home birth, namely that it should be banned for reasons of protecting the life and health of the unborn and – possibly – that of the pregnant woman. They will argue that they base their positions on data from medical studies. The governments of Slovakia and Croatia – like the Czech Republic, although not prohibiting pregnant women from giving birth at home – prosecute midwives or other health professionals who assist home births and thereby ban home birth de facto. Croatia has a case similar to the one of Dubska and Krejzova pending before the ECtHR. The brief of one of the other selected amici, the International Study Group of the World Association of Perinatal Medicine, was written by Dr. Chervenak who is well-known for his anti-home birth stance. Gynaecologists, obstetricians, and health professionals, alongside conservative governments, have thus been given the floor in Strasbourg, but the perspective of pregnant women – the ones giving birth – is missing. The international organisation that focuses specifically on the rights of women during childbirth – Human Rights in Childbirth – was not granted leave. Nor was the organisation that in the past frequently intervened in cases of the Court when it concerned reproductive rights of women: the Center for Reproductive Rights. Nor was the former United Nations Special Rapporteur on the Right to Health. It is remarkable that in its selection of amici, the Court did not grant leave to any of the organisations or experts with specific knowledge in the area of reproductive rights or human rights in childbirth.
The impact of the Court’s selection
The rejection of the briefs from reproductive rights and human rights in childbirth organisations and experts is also worrisome, because the previous home birth judgments of the Court show a lack of understanding of the gendered reality of childbirth, which makes an intervention by reproductive /childbirth rights experts or organisations all the more necessary. Previously, the Court made clear that it considers childbirth to be a medical event by definition, regarding which medical practitioners – notably gynaecologists and obstetricians – know best. (A notion that is reinforced by its current selection of amicus curiae briefs). Both in the 2010 case of Ternovszky versus Hungary and in the 2014 Chamber judgment in Dubska and Krejzova versus Czech Republic (the only cases thus far where the Court addressed the matter of home birth) the ECtHR emphasised the importance of medical data regarding the safety of home births in relation to the question whether states can completely ban home birth, but it ignored statements on the matter by for example the UN Committee on the Elimination of All Forms of Discrimination Against Women. The judgment in the Ternovszky case reads that the Court ‘is aware that, for want of conclusive evidence, it is debated in medical science whether, in statistical terms, home birth as such carries significantly higher risks than giving birth in hospital.’. Concurring judges Sajo and Tulkens repeat this understanding of childbirth as a medical event when they hold in their joint opinion that this decision cannot not be equated with liberalising home birth as such as the latter is ‘obviously a matter of balancing in view of available (currently disputed) medical knowledge, the health of the mother and the child, the structure of health care services’. The Court implies that if medical data would indicate that home birth is more dangerous (leaving aside more dangerous for whom: the pregnant woman, the unborn, or both) a ban would be justified, regardless the pregnant woman’s wishes and without validating the medical data. This understanding of the Ternovszky judgment was confirmed by the ECtHR chamber judgment in the case of Dubska and Krejzova, were it stated inter alia that
‘the majority of the research studies presented to it do not suggest that there is an increased risk for home births compared to births in a hospital, but only if certain preconditions are fulfilled. (…) Thus, a situation such as the one in the Czech Republic, where medical professionals are not allowed to assist mothers who wish to give birth at home and where no specialised emergency aid is available, may be said to increase rather than reduce the risk to the life and health of the mother and newborn.’
Leaving aside the subsequent topsy turvy reasoning of the Court (does the aforementioned not show that prosecuting midwives is contrary to the life and health of women and newborns?) and the fact that the Court does not question the validity of the data presented, it shows the importance the Court attaches to the opinion of the ‘medical world’ on home birth – allowing it to overrule the wishes of the pregnant woman (without exception). In Dubska and Krejzova the aforementioned reasoning led the Court to rule that a complete ban on home births was proportional. It noted that ‘the mothers concerned, including the applicants, did not have to bear a disproportionate and excessive burden.’
By assuming that childbirth is a medical issue and that medical practitioners, notably gynaecologists and obstetricians, possess the knowledge that justifies states’ decisions on the subject, the Court not only rigidly restricts women’s rights to autonomy and self-determination (amongst others), but also ignores the gendered reality of childbirth. There is a bulk of feminist literature on childbirth which discusses inter alia the role of the medical profession in the relocation and transformation of childbirth; the monopoly of the medical establishment over medical data and statistics; the highly selective ways in which medical research is reinterpreted in order to support current obstetrical dogma; and the role of reproductive technologies in reviving and strengthening the conception of women’s role in the reproductive process, and the related notion that the primary threat to foetal health comes from its ‘maternal environment.’.
Childbirth is not a gender-neutral issue. It is therefore to be pitied that the Court in its home birth judgements ignores the role of gender, accepts medical data as facts, and gives no leave to experts to explain the case from the angle of the rights of the pregnant woman. If the Court has previously not shown itself to be gender sensitive in matters of childbirth and if no amicus curiae briefs are selected that do shine a light on the perspective of the pregnant women that wish to give birth at home, then what is to be expected from the outcome of the current case pending before the Grand Chamber?
Naturally acceptance of amici is at the discretion of the President of the Court. But if the selection is limited to conservative voices wishing to keep childbirth within the realm of the hospital, then what is gained from their briefs? Will they help the Court in their overall aim of promoting and protecting human rights of individuals? Mahoney, a previous registrar of the Court (and currently a ECtHR Judge) has stated that reasons for not granting leave (once procedural requirements are fulfilled) seem to fall into three categories: ‘either the information sought to be provided concerns states other than the defendant state; the issues do not present a sufficiently proximate connection with the case before the Court; or the intervention is not seen as necessary by the Court’. I would dearly like to know in which category the briefs of the reproductive/childbirth rights organisations and experts fall and what the reason for the Court was for not granting them leave to intervene in the Dubska and Krejzova case.
 ECtHR, Dubska and Krejzova v. the Czech Republic, applications nos. 28859/11 and 28473/12.
 The case concerns a prohibition for midwives and other health personnel to assist home births, thereby banning home births de facto.
 Just after they submitted their leave to intervene FIGO decided that they would not be participating further in the cases as they did not obtain the go-ahead to that end from their Czech members.
 L. Van den Eynde, ‘ An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights’, (2013) Netherlands Quarterly of Human Rights 31 (3), 272.
 L. Hennebel, ‘Le role des amici curiae devant la Cour européenne des droits de l’homme’ cited by L. Van den Eynde, ‘An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights’, (2013) 31 (3) Netherlands Quarterly of Human Rights 31 (3), 275.
 ECtHR, Pojatina v. Croatia, application number 18568/12.
 In its concluding observations on the Czech Republic of 22 October 2010, the UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) takes note of reports of interference with women’s reproductive health in the Czech Republic and about women’s limited options for delivering their babies outside hospitals. It recommended the state party to consider taking steps to make midwife-assisted childbirth outside hospitals a safe and affordable option for women. The comments of the CEDAW are mentioned in the ‘international law’ section of the judgment but are not referred to by the Court in their decision.
 Para. 24.
 para. 96.
 See for example A. Rich, Of woman born – Motherhood as experience and institution, Bantam Books, New York 1976; J.W. Leavittt, ‘Science enters the birthing room: obstetrics in America since the Eighteenth century’, (1983) The Journal of American History 70 (2), 281 – 304; K. Beckett, ‘Choosing cesarean – Feminism and the politics of childbirth in the United States’, (2005) Feminist Theory 6 (3), 253 – 266; K. Beckett and B. Hoffman, ‘Challenging Medicine: Law, resistance, and the cultural politics of childbirth’, (2005) Law and Society Review 39 (1), 138; H. Goer, Obstetric myths versus research realities: a guide to medical literature, Bergin and Garvey, Wesport, 1995.
L. Van den Eynde, ‘ An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights’, (2013) Netherlands Quarterly of Human Rights, 31 (3), 281. Eynde notes that one NGO that she interviewed for her study on the amicus curiae briefs held a that a not clearly defined political reason had to be added to this list.