In 2019, CP was pregnant, and planning to birth at her home in Spain, supported by a registered private midwife. At 42+2 days pregnant, CP attended hospital for a check-up. The doctor who examined her recommended induction of labour, on the basis that the CTG had been insufficiently reassuring and required prolonged, closer monitoring, an ultrasound showing that the foetal head looked large (possible cephalopelvic disproportion) and the fact that the pregnancy was now “post term”. CP left the hospital to consult with her midwife, and said she would return. According to the Spanish government, CP did not return that day. According to CP, she did return later the same day, but the Patient Care Service had closed, and as she was tired, and having contractions, she returned home.
The following day, the hospital made an urgent application to the court, and the court ordered CP’s compulsory admission to hospital for induction of labour. As a result, police officers and an ambulance crew arrived at CP’s home, where she was in fact in her birth pool, supported by her husband and midwife, in labour. She was then required to attend hospital, where she had tests which showed no cause for immediate concern, and she was permitted to remain in hospital, and wait for labour to (re)start, which it did 2 days later. Ultimately, the doctor recommended a caesarean as being necessary due to stalled labour progress, and CP agreed to this.
Following the birth, CP challenged what had happened to her in the Spanish courts, but they repeatedly held that the court order requiring CP’s compulsory admission to hospital for the birth was lawful, on the basis that Spanish legal protection afforded to children extended to an unborn child. The European Court of Human Rights held that, although this was an interference with the mother’s article 8 right to private and family life, in healthcare policy matters the margin of appreciation to be afforded to national authorities was wide. Accordingly, by a majority of 6:1, the Court held that there was no breach of article 8. The Court also held that there was no breach of article 5, on the basis that the compulsory hospital admission did not amount to a deprivation of liberty within the meaning of the convention.
This is a shocking and damaging judgment. It demonstrates clearly that treating foetuses as children under Spanish law has the consequence of destroying the bodily autonomy of pregnant women and birthing persons in Spain. It is deeply disappointing that the European Court of Human Rights made this decision, given that bodily autonomy is supposed to be a fundamental principle protected by the Convention.
We entirely agree with Court President Judge Simackova who stated in her dissenting judgment that the series of events leading to today’s ruling shows a “structural problem”, involving “old men making decisions about young women’s bodies while positioning themselves as experts, without having any personal experience or understanding”. We consider it no coincidence that this ruling was reached by five male judges, and just one female judge, with the second female judge dissenting. It is also telling that no detailed evidence appears to have been presented to the Court on the safety of homebirth, nor regarding the risks to mother and foetus caused by the Spanish authorities breaking into the mother’s home whilst she was in labour, being supported by her midwife, and instead forcing her into hospital.
We agree with Judge Simackova that “the lack of respect shown by the doctors and judges towards the role of the midwife…reflects a stereotypical lack of respect for women’s strength and wisdom and a clear effort to eliminate this form of support from the birthing mother”. Judge Simackova was entirely right to observe that this case “sends a message that society does not care about a woman’s free choice; her body is merely a child incubator in the eyes of society.”
We want to reassure women and birthing people that this judgment does not affect the law in England and Wales. Our laws do not grant a foetus legal rights, and our highest courts have repeatedly stated that a pregnant woman or birthing person cannot be forced to accept any treatment that she does not want, even where the consequence would be the death of the foetus or her own death (except in the very rare case where such woman or person does not have the capacity to make decisions).
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- Article: “Spain lawfully intervened in risky home birth, rights court says”
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