CYIL 2015

406

VÍT ALEXANDER SCHORM

CYIL 6 ȍ2015Ȏ

a home, far from possible (not necessarily compulsory) intervention of a medical

doctor in case of unexpected complications.

The chamber of the Court did not find a violation of Article 8 of the Convention

in a situation of a rather abstract review of the national legislation in the matter. It

took the view that the cases must be examined from the angle of a State’s negative

obligations under Article 8. Having established that the interference had a sufficient

legal basis and pursued the legitimate aim of protecting the health and safety of the

child and indirectly of the mother, the Court concentrated upon the analysis of

proportionality.

The State enjoys a margin of appreciation when it comes to striking a balance

between competing interests; this margin is large in the area of complex issues of

health, social and economic policy, in the absence of a consensus at the European

level. Though there is usually no contradiction between the interests of the mother

and the child, some decisions taken by mothers with regard to delivery may put new-

borns at a greater risk. Home deliveries as opposed to those carried out in hospital

apparently do not present higher risk, but only on some conditions, amongst

others those which allow for rapid medical intervention when needed. Moreover,

a physiological pregnancy may end in unforeseen difficulties during delivery which

can better be solved in hospital. The Court added that relevant provisions should

be subjected to continuous examination in light of developments in the fields of

medicine, science and law. It referred to the discussion on the 72-hour recommended

stay of the new-born in hospital which resulted in a change of policy.

So, at the end of its reasoning, the Court invited the respondent State to go on

discussing the issue. It is not an easy task in light of the escalated character of the

debate that took place in the past, echoed imperfectly in judge Lemmens’s dissenting

opinion on the basis of the applicants’ assertions; the fact that the applicants’ view

were not accepted infers at least that both parties have legitimate arguments which

deserve attention in the debate. As already mentioned, the story will continue

before the Grand Chamber of the Court, so it is premature to draw other specific

conclusions from the Chamber judgment, the main deficiency of which, warranting

the referral to the Grand Chamber, probably is its lack of response to the Court’s

previous judgment in the case of

Ternovszky v. Hungary

(no. 67545/09, 14 December

2010), favourable to women’s choice of the place of delivery and heavily relied upon

by the applicants.

2. Privacy

For the sake of this presentation, privacy covers all the other issues within the

framework of the right to respect for private and family life guaranteed by Article 8

of the Convention when it does not concern parents and children. This chapter shall

nevertheless comprise two different cases, one submitted mainly under Article 8, the