Home birth and the Constitutional Court

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The Constitutional Court had the opportunity to decide on the amparo – protection of fundamental rights – appeal filed by a pregnant woman who had a risky birth and her husband with the intention of giving birth in their own home, not in a hospital. The health services had informed them of the high risks to the life of the fetus by this claim, such as insufficient oxygen in the blood (fetal hypoxia) and possible intrauterine death due to the advanced stage of pregnancy, even though the midwife was pregnant. To present. Given this negligence, the medical services report these facts to the Court of Duty, which ordered the pregnant woman to give birth in an Asturian Hospital after a cesarean section in an ambulance because of complications during childbirth.

The allegations of the surrogate mother and her husband were based on the fact that the judicial measure compelling the surrogate mother to take her to the hospital by ambulance and give birth there was a) not supported by any legal provision, b) the woman was not supported by any legal provision. has not given any hearing procedure to claim that it is not and to indicate that it will take it into account; and c) there is not sufficient reason for the decision rendered.

It should be said that the explanation of the Court, which is the guarantor of the Constitution, was not unanimous. However, the Turkish Prosecutor’s Office argued that the Turkish Prosecutor’s Office had the right. nasciturus The place and manner in which she wishes to give birth depends on the will of the surrogate mother to determine her own destiny. There are dissenting votes (three magistrates who pointed out that the amparo appeal should be upheld and disagreed with the deprivation of liberty, in particular the forced transfer and detention order, as well as the absence of a hearing).

and there are two individual unanimitythat is, they agree with the decision on the merits, but there are other reasons and other issues discussed. Therefore, a magistrate considered that the pregnant woman’s spouse lacked the legitimacy to seek protection as permitted; and another magistrate, referring to the current 2010 Abortion Law, points out that the decision is not devoid of normative basis, as it is based on the existence of a legal obligation to protect life in formation.

Despite this, the three dissenting judges point to serious interference by public authorities and even the complete absence of a gender perspective.

Much of the Court shows that there is a clear definition of the rights and freedoms that need to be combined. On the one hand, there is the physical freedom involved in art. 17.1 CE enshrined in art as well as the right to personal and family privacy. 18.1 CE these rights are expressly held by the appellant part of amparo. On the other hand – and on the contrary – is the life and health of the one to be born. nasciturus) finds its constitutional relevance in basic and essential art. 15 CE (right to life and physical and moral integrity). The duty of legal protection by public power must remain intact. The negative legislator (TC) agrees that there is no legal regulation. special. The court itself also requests that a “hearing” be given to the party concerned, only that the urgency of the decision can justify this omission. In the end, the Court sees the decision as constitutionally legitimate and so-called “proportionality test” depending on the legal entities in question. Let us remember that the Strasbourg Court (ECHR) has already decided in a decision dated 15 November 2016, Dubska – Czech RepublicHe pointed out that there is a greater risk to the life of the fetus and even the mother when the birth takes place at home.

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