Ternovszky s. Hungary:
Context and Consequences of the ECHR Decision
- Anna Ternovszky: mother, Hungary
- Stephanie Kapronczay: human rights attorney, Hungary
- Istvan Marton: OB/GYN and professor, Hungary
- Imre Szebik: bioethicist, Hungary
- Elizabeth Prochaska: human rights attorney, UK
- Karen Guilliland: midwife, New Zealand
- Barbara Katz Rothman (moderator): sociologist, USA
Each panelist had 5 minutes to speak. After the panel presentations, a 30-45 minute discussion/Q&A with the audience followed.
The panel opened with an acknowledgement of the presence of the Hungarian ambassador to The Hague, Gyula Sümeghy.
Anna Ternovszky spoke first about her two children's births, attended by Dr. Agnes Gereb. When she was pregnant with her second, Dr. Gereb was already under investigation and Anna was uncertain if she would lose her birth attendant. Anna and human rights attorney Stephanie Kraponczay decided to bring Anna's case before the European Court of Human Rights. As I noted in an earlier post, they won the case. The ECHR decision found that Anna's human rights had been violated in regards to both the right to privacy and the right to be free from discrimination. Although Anna won the case, Hungary's new home birth regulations are extremely restrictive and make HB nearly unattainable for both parents and midwives. Anna urged that we must continue to fight discrimination against midwives when there's a bad outcome. She noted that Hungary's regulations still give OBs the ultimate power in who can have a home birth. In addition, only OBs are allowed to provide prenatal care, further limiting access to midwives and eliminating the benefits that come from well-developed relationships between a midwife and the woman she cares for.
Next, attorney Stephanie Kapronczay, who works for a human rights NGO in Hungary, spoke about how she became interested in the case. She was horrified to learn that in Hungary, the doctrines of informed consent/refusal did not apply to pregnant women and that midwifery was not recognized as a profession. Now that she has won the case, she continues to be concerned about over-regulation of home birth since government decrees, rather than professional protocols, house home birth regulations. She mention the plight of Dr. Agnes Gereb, who is still under house arrest awaiting her 2-year prison sentence.
Dr. Istvan Marton, a Hungarian OB/GYN and professor, spoke about how he helped introduce family-friendly obstetric care in what used to be a totalitarian state. He published a book about family-friendly childbirth that sold 100,000 copies--remarkable for a relatively small country. His book is titled Terheskönyv: gyakorlati útmutató kismamáknak by Marton István. (Publication information: fényképezte Fekete Zsuzsa, 3rd ed., Budapest : Novotrade, 1990.). The record also says the book is based on Pregnancy and Birth Book by Dr. Miriam Stoppard.
In Hungary's health care act, doctors can treat pregnant women without their consent after 24 weeks of pregnancy. (See the slides below.) In other words, Hungarian medical practitioners have to uphold the fetus against the mother's interests--this goes against EU law that upholds a person's right to informed consent. The only way to get outside this legal-medical system was through home birth. Dr. Marton mentioned that he is working hard to obtain a presidential pardon for Dr. Gereb.
Hungarian bioethicist Imre Szebik spoke next. He argued that there is a war going on in Hungary over childbearing women's rights, and one tool in that war is providing false information. Underlying motives include financial gain and securing professional dominance for obstetricians. He noted that all testimonies in Dr. Gereb's trial came from OBs who openly stated that they were opposed to home birth. He feels that her trial was strongly biased. The underlying assumption at the trial was that whatever a midwife said, it was wrong. Scientific evidence was totally neglected by the experts testifying, and a double standard was evident. Szebik also explained the Hungarian obstetric system; most OBs' income comes from "informal" payments (bribes) to supplement their meager state salaries. However, home birth providers in Hungary accepted payments on a voluntary sliding scale. He argued that home birth outcomes in Hungary implicitly criticized hospital practices, and that the existence of home birth questions the dominance and hegemony of doctors and hospitals.
Elizabeth Prochaska, a UK human rights attorney, examined how the Ternovszky case is law and what impact is may have. All EU member countries have agreed to the human rights convention. So if a human rights complaint is upheld by the ECHR, the government has to follow the court's decision or face a large fine. Of course, the ECHR cannot do anything more than impose fines, so theoretically a state can ignore ECHR rulings as long as they have deep enough pockets. Prochaska explained that the more exciting and promising thing to do, now that the Ternovszky case exists, is to bring your case domestically, since EU law is domestic law.
She gave a recent example of a hospital in the UK that was going to suspend its home birth service over the Christmas holiday period. She represented the plaintiffs (pregnant women due in that period who had planned home births) and threatened legal action against the hospital if they withdrew their home birth services, based on Article 8 of the Human Rights convention. The hospital immediately backed down and contracted with independent midwives to cover these mothers' needs. So, take the EU human rights law to your domestic courts--it's the best way to show the power of this ruling.
Prochaska also noted that EU law is "absolutely clear" that a woman can only receive medical treatment without her consent when she has a documented inability to comprehend the situation (such as a documented mental illness).
Karen Guilliland, a midwife from New Zealand, next spoke about the NZ maternity care system. She noted that New Zealand's progressive system can not through the law, but through the power of the women's vote and women's groups. In New Zealand, the courts have upheld pregnant women's and midwives' right to make decisions about their health care. She painted a very rosy picture of birth choices and rights in New Zealand, noting that 80% of women use midwives, that women have free access to choose home births or birth centers, and that both midwives and pregnant women have the right to access and collaborate with doctors. However, she noted that New Zealand is becoming more fetus-centric. She noted the importance of consumer power and the need for strong male involvement in ensuring that pregnant women and midwives continue to have rights.
One point that really struck me was that New Zealand's maternity care laws and regulations mirror its core social/cultural beliefs. It made me realize that changing laws won't do enough; we also need to change attitudes and values about maternity care.
The Hungarian ambassador spoke next, noting that a presidential pardon for Dr. Gereb is at the sole discretion of the president. He found this issue very important and interesting and feels that the Ternovszky case has contributed significantly to both international and domestic dialogue.