სამართალი და მსოფლიო (Sep 2021)
The Scope of the Right to Give Birth at Home as Reproductive Self-determination In the Legislation of Georgia and the Practice of the European Court of Human Rights
Abstract
This article discusses the scope of the right to give birth at home as reproductive self-de- termination in the context of Georgian law and the case-law of the European Court. Georgia, like many other member states of the Council of Europe, unconditionally prefers the model of hospital delivery to protect maternal and fetal life and health. It is true that under Georgian law, home birth is not prohibited as such, however except for emergencies, medical staff is authorized to provide medical care only in a licensed medical premise. That equates to a restriction of the right. Despite the legitimate interest in restricting the right to give birth at home, scientific studies have confirmed the similarity between the consequences of home birth and hospital delivery in the case of low-risk pregnancies. The blanket ban on the right to give birth at home became the object of debate in the European Court in 2010. The court explained that the right to respect for private life enshrined in the Convention includes not only a person’s decision to become or not to become a parent, but also the choice of conditions. According to the court, childbirth is a unique and delicate moment in a woman’s life, and the determination of the place of childbirth is fundamentally related to a woman’s personal life. The European Court has discussed the availability and foreseeability of national legislation in the context of restricting the right to give birth at home. The Court has ruled that national authorities must ensure the clarity (if any) of the responsibility for providing obstetric services at home. However, the Court has still left open the issue of the need to restrict the right to give birth at home on the grounds of a lack of consensus among the member states of the Council of Europe and the complex socio-economic aspects of the issue.
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