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Publication:[not yet received]
Title:Ternovszky v. Hungary
Application No:67545/09
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:14-12-2010
Conclusion:Violation of article 8
Compensation awarded for costs and expenses

(Press release)
Legal uncertainty prevented mother from giving birth at home

The applicant is a Hungarian national who was born in 1979 and lives in Budapest. She was pregnant when she lodged her application with the Court. She 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. It appeared that at least one such prosecution had taken place in recent years.

Relying, in particular, on Article 8 (right to respect for private and family life), the applicant alleged that the fact that she had not been able to benefit from adequate professional assistance for a home birth in view of the relevant Hungarian legislation - and as opposed to those wishing to give birth in a health institution - had amounted to discrimination in the enjoyment of her right to respect for her private life.

Article 8
The Court observed that "private life" incorporated aspects of an individual's physical and social identity including the right to respect for both the decisions to become and not to become a parent, hence the right of choosing the circumstances of becoming a parent. Although Ms Ternovszky had not been prevented as such from giving birth at home, there had been an interference with the exercise of the right to respect for her private life given that legislation arguably dissuaded health professionals from providing the requisite assistance.

The relevant legislation might reasonably be seen as contradictory. While the Health Care Act 1997 recognised patients' right to self-determination, including the right to reject certain interventions, a Government decree sanctioned health professionals carrying out activities within their qualifications in a manner incompatible with the law or their licence.

The Hungarian Government recognised the necessity of regulating this matter; however no specific decree to that end had been enacted yet. It had moreover not been disputed that, in at least one case, proceedings had been instituted against a health professional for home birth assistance.

The Court therefore concluded that the matter of health professionals assisting home births was surrounded by legal uncertainty prone to arbitrariness. Because of the absence of specific and comprehensive legislation and of the permanent threat posed to health professionals inclined to assist them, the applicant was effectively not free to choose to deliver at home. Consequently, there had been a violation of Article 8.

Article 41
Under Article 41 (just satisfaction) of the Convention, the Court held that Hungary was to pay the applicant 1,250 euros (EUR) in respect of costs and expenses.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)