I. ÚS 2746/23
For the first time, the Constitutional Court addressed the issue of whether midwives can oversee so-called home births. Previous case law had agreed that home births are not prohibited by legal regulations. However, the regulations permitted midwives to provide services only in professional hospital settings. Although the Constitutional Court ultimately rejected the claim of the complainants, it criticised the current situation, which has led to absurd consequences. According to the Constitutional Court, women can use the services of an expert educated in obstetrics (including midwives) during a home birth, but under current regulations, this would not constitute healthcare.
Two complainants – a midwife and a woman seeking to use the services of this midwife – brought the case to the Constitutional Court. They argued that authorities had denied the midwife the right to expand her authorisation to include the possibility of attending births in women’s own social environments. Current administrative and judicial practice was based on the premise that while home births are not prohibited by law, midwives are only authorised to oversee births in locations that meet the requirements stipulated in the Ministry of Health’s decree on the equipment of healthcare facilities. It was practically impossible to meet such requirements in a home setting.
This practice led to a situation where, while women could give birth at home, they could not have midwives oversee their births. Midwives who attended home births would be committing an infraction by providing healthcare services without authorisation and could face fines of up to one million CZK. Consequently, women who chose to give birth at home could seek help from doulas or other non-regulated individuals but could not avail themselves of the assistance of a professionally trained midwife. The legislation and related administrative and judicial decisions, according to the complainants, violated women’s rights to privacy and family life, health protection, and the midwife’s right to engage in enterprise.
The First Panel of the Constitutional Court (Justice Rapporteur Jan Wintr) rejected the complaint. While it examined the objections in detail, it did not consider them justified. Nevertheless, the Constitutional Court made significant future statements regarding home births and the professionals assisting them, thereby correcting the previous decision making of courts and authorities.
The Constitutional Court rejected the complaint because the current legal framework does not consider home birth oversight as healthcare. Therefore, this service cannot be provided within the framework of healthcare services. Courts and authorities had thus ruled correctly in terms of outcome. According to the Constitutional Court, it is up to the legislature (not the court) to decide whether certain activities are to be classified as healthcare services – in other words, whether to ensure that such services are carried out with the necessary professional, personnel, technical, and material standards. By defining what constitutes healthcare, the legislature serves an important public interest in providing quality and safe healthcare services. Czech law does not recognise home birth oversight as healthcare, nor does the Ministry of Health’s decree on healthcare facility equipment impose requirements on the equipment that midwives must carry when attending home births.
Nonetheless, the Constitutional Court stressed that current legal provisions should be interpreted differently than they have been by authorities and courts thus far. The previous interpretation led to absurd consequences – it allowed women to give birth at home but only on their own, or with someone other than a healthcare provider present. If a woman can decide to give birth at home and receive assistance from a doula or other person without any regulatory demands for expertise, there is no reasonable justification – provided she assumes all associated health and legal risks – for denying her the assistance of a professionally trained midwife, even if it does not constitute healthcare. This is a result of the legislature’s decision: Czech law does not prohibit home births but simply does not provide them with the guarantee of healthcare services.
The Constitutional Court considered several key points in its ruling. Firstly, childbirth is a unique and sensitive event in a woman’s life, and the choice of the place and circumstances of birth falls under the protection of her physical and mental integrity, personal autonomy, and related reproductive rights. Secondly, legal cases of this nature must consider not only the rights of the mother but also the protection of the child’s life and health and the public interest in providing safe and quality healthcare services.
Thirdly, childbirth is a natural process, not an illness, and assistance with a physiological birth is not care for the sick. Childbirth is also a process that occurs more or less spontaneously, with healthcare professionals playing a supportive role rather than driving the entire process under normal circumstances. This distinguishes childbirth from other forms of healthcare, which are primarily focused on preventing, diagnosing, or treating illness, where the healthcare professional is the primary agent of care. Finally, the State’s policy of encouraging hospital births, while not supporting home births, is a matter for the legislature and pertains to a significant public interest in public health.
Therefore, the Constitutional Court appealed to legislative and executive bodies not to ignore the problems that current legal regulations create in the area of home births, to respect the principles of legal clarity and predictability, and to consider future developments in the fields of obstetrics and reproductive rights. Current regulation of midwives by laws and statutes are complex, difficult to understand for those affected, and – especially with regard to potential sanctions – relatively unpredictable. Such a situation is undesirable in a state governed by the rule of law. This is even more critical when so many constitutionally protected interests are at stake, as in this case.