Midwives will now be permitted to conduct home births, according to a landmark ruling by the Constitutional Court yesterday. However, the court added that from the point of view of the law, this will not be considered as the provision of health care, unlike midwife-assisted birth in a medical facility.
Home births with an assistant are thus not covered by the guarantees associated with hospital births, and the risks are borne by the mother or those who assist her.
The court appealed to the Ministry of Health to clarify the legal regulation of childbirth. The ministry told CTK that it respected the Constitutional Court’s ruling, but did not elaborate further.
Human Rights League lawyer Zuzana Candigliota welcomed the ruling. “The goal was for women not to be criminalised and midwives not to be fined,” she said.
The authorities and courts in the Czech Republic have until now mostly ruled that midwife services in the home environment are limited to preparing women for childbirth and care in the postpartum period, while births can be conducted by midwives only in equipped workplaces.
The previous interpretation of the legislation had led to absurd consequences, the court stressed. It allowed women to give birth at home, but only alone or in the presence of someone else than a health professional.
“If a woman can decide to give birth at home with the assistance of other people, without the legislation prohibiting this in any way, there is no good reason why she cannot use the services of a person professionally trained in obstetrics (e.g. a midwife), even if this is not health care,” read the ruling of judge rapporteur Jan Wintr.
The court specifically addressed the complaint of a midwife and her potential client. The midwife had unsuccessfully sought to extend her licence to include the management of home births. However, according to the prevailing legal precedent in the Czech Republic to date, assistants could not conduct home births. While the Constitutional Court rejected the complaint, it also ruled on a different interpretation of the legislation and clarified the issue for the future.
The court pointed out that the legal regulation of midwives’ activities is “very complex to the point of being unclear, difficult for the addressees to understand, and, especially as regards potential sanctions, also relatively unpredictable”.
Such a situation is undesirable in a state governed by the rule of law, the court said in its ruling, urging the state authorities to address the problems caused by the current regulation of home births and open the door to future developments in the field of obstetrics and reproductive rights.
“The Constitutional Court’s ruling ends with an appeal to the legislator to clarify the legislation,” said Wintr. “We have tried to interpret it as best we can, but it is very complicated and therefore it would certainly be worthwhile for the legislator to be clear about the conducting of home births, to make it clearer for all involved what is allowed and what is not allowed.”
One option, according to Wintr, might be direct regulation of home births as practised in some Western countries, including defining equipment requirements or driving distances to the hospital in case of complications.
Planned home births are relatively common in some European countries, but in the Czech Republic they are controversial. Some mothers support them as an alternative to maternity hospitals, while a majority of the Czech medical community rejects them as dangerous. Hospitals that give midwives more autonomy are gradually increasing in number.
