The Impact of European Human Rights on Childbirth
In accordance with Article 8 of the European Convention of Human Rights (ECHR), each Member State has to offer a legal framework to future parents to make a free choice concerning the place of birth of their baby (in a hospital or at home). If complicatio
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The Impact of European Human Rights on Childbirth Marlies Eggermont
Abstract In accordance with Article 8 of the European Convention of Human Rights (ECHR), each Member State has to offer a legal framework to future parents to make a free choice concerning the place of birth of their baby (in a hospital or at home). If complications occur during the delivery and damage is done due to a medical fault, the responsible healthcare worker has to be made accountable. In order to be in conformity with Article 2 ECHR, every Member State has to set up a judicial system which offers the procedural guarantees to the parents to examine and finally determine the liability of the healthcare worker. The Belgian legislation offers the parents a real free choice and has a legal system which can result in criminal, civil and disciplinary sanctions in case of medical negligence.
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Introduction
Child care is one of the ground rules of our society. Caring starts in the prenatal phase, which has an important influence on the motoric and intellectual development at a later age. An important milestone between life “in utero” and life outside the womb is birth. The place of birth, in a hospital with a doctor and a midwife or at home with an independent midwife, is one of the choices that a future mother/father has to make. In Ternovszky v. Hungary the European Court of Human Rights considered that a Member State should provide an adequate regulatory scheme concerning the right to choose in matters of child delivery (at home or in a hospital), in accordance to Article 8 ECHR, the right to respect for private life.1 1
ECtHR 14 December 2010, No. 67545/09, Ternovszky v. Hungary.
M. Eggermont (*) Lecturer at the Artevelde University College of Ghent, Ghent, Belgium Practice Assistant at the Department of Social Law, Ghent University, Ghent, Belgium e-mail: [email protected] Y. Haeck and E. Brems (eds.), Human Rights and Civil Liberties in the 21st Century, Ius Gentium: Comparative Perspectives on Law and Justice 30, DOI 10.1007/978-94-007-7599-2_9, © Springer Science+Business Media Dordrecht 2014
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M. Eggermont
A birth without complications after a normal prenatal development offers the best opportunity of a good “outcome” and further evolution of the child. In Europe, the majority of the births present little complications and a good outcome for mother and child. Presuming that the baby dies after the delivery or is damaged (for example brain damage) due to a medical fault, one may ask what the options are for the parents to hold the responsible healthcare worker accountable. Article 2 ECHR, which protects everyone’s life by law, entails that a Member State has to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession can be determined and those responsible made accountable? This contribution stresses how the regulatory scheme in Belgium conforms with Articles 8 and 2 ECHR. Does Belgium provide the legal certainty to a future mother/father to cho
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