Gender sensitivity and its influence on the ECtHR’s legal reasoning

While the  undeniable medicalization  of  birth is  based  on  the  technocratic  childbirth  model  , planned  birth  in  a home  setting  or  outside  an  institutional  healthcare  facility, supervised by a midwife, follows the holistic childbirth model.

To achieve the objectives of the Convention on the elimination of all forms of discrimination against women Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979 | OHCHR (general recommendation n°28, article 2 paragraph 9), a State must refrain from adopting laws, policies, regulations, programs, administrative procedures, and institutional structures that directly or indirectly undermine women’s equal rights. However, currently, there is no evident European consensus on how home  birth  shall  be  regulated,  thus,  the  legal  approach  is  different  among European states. In C.P. v. SPAIN, the case raises question about the value and status of reproductive autonomy.

A WIDE MARGIN OF APPRECIATION TO DETERMINE THE LEGAL STATUS OF PRENATAL LIFE

The pregnant C.P., a French national living in Asturias, had an express wish to give birth at home. But, in order to preserve the unborn child, at 42 weeks of pregnancy, the Spanish authorities issue a court order for compulsory admission to hospital. Consequently, C.P. ultimately gives birth in hospital, against her wishes. C.P. files a complaint to the Court that her right to respect for private and family life under Article 8 of the Convention has been breached. Albeit the interference with her rights under Article 8 was not disputed, the Court found this to be proportionate and ‘necessary in a democratic society.’ The legal basis for this compulsory hospital admission and the proportionality of the measure are, among other things, highly questionable. The coercive intervention by the Spanish authorities has had a severe impact on C.P.’s right to respect for her private life, her dignity, and her moral and physical integrity.

The applicant argues that these provisions did not confer upon the Court the power to restrict her fundamental rights so severely (par. 83), insofar as they are not directly applicable to her case. Regarding the lawfulness of the interference, the Court examines whether Article 158, paragraph 6, of the Spanish Civil Code-which constitutes the legal basis for taking “other measures deemed appropriate to remove a minor from danger”- and Article 29 of the same Code-which allows for the recognition of legal personality for the unborn child-are sufficiently clear and foreseeable.

The Court assesses the proportionality of the order within the wide margin of appreciation of national authorities on healthcare policy matters. According to the Court, the national authorities had struck a fair balance between the competing interests at stake – C.P.’s interests to exert her right to private life and her choice to give birth at home – versus the health interests of her unborn child. The Court takes note of the interpretation by domestic courts according to which the Spanish law protects the interests of the unborn child, and accepts the conclusion of the national authorities after weighing the competing interests.

Furthermore, given that medical staff had assessed the risks associated with C.P. not returning to the hospital as serious and imminent, the Court deemed appropriate the decision by the duty court to issue an order aimed at safeguarding the life and health of the unborn child and ensuring a safe delivery.

The Court does not follow this line of reasoning and concludes that the domestic law has been interpreted in an acceptable manner. The issue required resolution of a conflict between C.P.’s right to privacy and the right to life of the unborn child. The order was based on balancing these interests, ultimately favouring the health interests of the foetus, which – according to medical professionals – were in imminent danger. Given the circumstances, the Court did not find the choice to issue the order arbitrary or unreasonable (para. 102).

Furthermore, the Court sees no reason to depart from the assessment of the domestic courts, which found that there were no less restrictive measures available and compulsory hospitalization for the delivery. Foetal monitoring was carried out, and dialogue between the pregnant C. P and the medical team was maintained. Labor was allowed to begin as there were no alarming signs. However, given that an emergency caesarean section ultimately proved necessary due to a suspected inability of the foetus to pass through the pelvis, the Court considers that these subsequent developments confirmed the existence of a high risk to both mother and child, thereby reinforcing the justification of the Court order. The Court concludes that there has been no violation of Article 8 and that the interference was ‘necessary in a democratic society.’ Overall, the Court rules that Article 8 had not been violated.

THE COURT’S REINFORCEMENT OF PREJUDICIAL REPRESENTATIONS OF PEOPLE GIVING BIRTH

The Court reinforces stereotypes by characterizing the behavior of individuals wishing to give birth at home as imprudent. According to the Court’s reasoning, the person giving birth cannot necessarily be relied upon to make informed decisions regarding childbirth (Kosaite Cypiene and others versus Lithuania , at 85; Pojatina versus Croatia , at 40).

The Court noted that “in addition to their physical vulnerability, newborns depend entirely on decisions made by others, which justifies significant State intervention,” and that “ a parent cannot rely on Article 8 to obtain measures likely to harm the child’s health and development” (Dubska and Krejzova versus Czech Republic, 2014, 93-94) It states that “certain choices made by the mother regarding the place, circumstances, or method of delivery may be considered to expose newborns to an increased risk to their health and safety” (Dubska and Krejzova versus Czech Republic 2016, 185).

The Court indicated that individuals who choose home birth over a medical setting prioritize their personal comfort at the expense of their baby’s safety (Kosaite Cypiene and others versus Lithuania , at 104; Pojatina versus Croatia, at 58, 80; Dubska et Krejzova versus Czech Republic , at 188).

To conclude, gender undeniably influences the Court’s conception of reproductive autonomy. By subscribing to a narrative of childbirth that is corroborated by neither documents nor data, the Court harms those who give birth. The autonomy of these individuals is thereby restricted, and the control exercised  by third parties over the reproductive process is reinforced. It is to be hoped that, in the future, the Court will consider addressing stereotypes regarding women giving birth, rather than siding with national courts and the respondent state.