CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 décembre 2014

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THE CZECH REPUBLIC   (Applications nos. 28859/11 and 28473/12)                     JUDGMENT     STRASBOURG   11 December 2014     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/11/2016   This judgment may be subject to editorial revision.   In the case of Dubská and Krejzová v. the Czech Republic, The European Court of Human Rights (Former Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   André Potocki,   Paul Lemmens,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 10 September 2013 and 7 October 2014, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in two applications (nos.   28859/11 and 28473/12) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Czech nationals, Ms Šárka Dubská (“the first applicant”) and Ms Alexandra Krejzová (“the second applicant”), on 4 May 2011 and 7 May 2012 respectively. 2.     The first applicant was represented by Mr D. Zahumenský, a lawyer with the human rights organisation Liga lidských práv in Brno, and the second applicant by Mr R. Hořejší, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr   Vít   A. Schorm, of the Ministry of Justice. 3.     The applicants alleged that Czech law forbade health professionals to attend home births, in violation of Article 8 of the Convention. 4.     On 3 September 2012 the applications were communicated to the Government. 5.     A hearing took place in public in the Human Rights Building, Strasbourg, on 10 September 2013 (Rule 59 § 3 of the Rules of Court). There appeared before the Court:   (a)     for the Government Mr Vít A. Schorm ,   Agent ,   Ms D. Kopková,     Ms I. Köhlerová,     Mr O. Hlinomaz,     Ms T. Jančárková,     Mr J. Feyereisl,     Mr P. Velebil,   Advisers ;     (b)     for the first applicant Mr D. Zahumenský,   Counsel ,   Ms Z. Candigliota ,   Adviser ;   (c)     for the second applicant Mr R. Hořejší ,   Counsel,   Ms A. Hořejší, Ms M. Pavlíková ,   Advisers.   The Court heard addresses by Mr Schorm, Mr Velebil, Mr Zahumenský, Mr Hořejší, Ms Pavlíková and their answers in reply to questions put by the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The first applicant, Ms Šárka Dubská, was born in 1985 and lives in Jilemnice. The second applicant, Ms Alexandra Krejzová, was born in 1980 and lives in Prague. A.     Application lodged by Ms Šárka Dubská 7.     The first applicant gave birth to her first child in hospital in 2007 without any complications. According to her, during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment. She was also forced to give birth in a position she did not wish. She wanted to leave the hospital a few hours after the birth as both she and the baby were healthy, but a doctor ordered her to stay in the hospital. She therefore did not leave until the next day, when she presented a letter from her paediatrician, who confirmed that she would take the child into her care. 8.     In 2010 the applicant became pregnant for the second time with an expected delivery date in the middle of May 2011. The pregnancy was free from complications and the medical examinations and tests did not indicate any problems. Since she considered that giving birth in a hospital had been stressful for her, the applicant decided to give birth at home and searched for a midwife to assist at the birth. However, she was unable to find any midwife who was willing to assist her with a home birth. 9.     On 5 April 2011 she wrote to her health-insurance company and to the Liberec Regional Office ( krajský úřad ) asking for help in finding a midwife. 10.     On 7 April 2011 the health-insurance company replied that Czech legislation did not provide for the possibility that a public health-insurance company might cover costs arising from home births and that it therefore had no contracts with any health professionals providing such services. Moreover, prevailing expert medical opinion did not approve of home births. 11.     In a letter of 13 April 2011 the Regional Office added that the midwives listed in its register of health professionals were, in any event, only allowed by law to attend births at premises possessing the technical equipment required by Decree no. 221/2010 and not in a private home. 12.     Not having found any health professional to assist her, the applicant gave birth to her son alone at home on 11 May 2011. 13.     On 1 July 2011 she lodged a constitutional appeal ( ústavní stížnost ) claiming that she had been denied the possibility of giving birth at home with the assistance of a health professional, in violation of her right to respect for her private life. 14 .     On 28 February 2012 the Constitutional Court ( Ústavní soud ) dismissed the appeal, holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case because the applicant had not exhausted all the available remedies, which included an action for protection of personal rights under the Civil Code and an application for judicial review under section 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of the Czech legislation with Article 8 of the Convention and asked the relevant parties to initiate a serious and well-informed debate about new legislation. Nine out of the fourteen judges attached to the decision their separate opinions, in which they disagreed with the reasoning behind it. Most of them considered that the Constitutional Court should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births. B.     Application lodged by Ms Alexandra Krejzová 15.     The second applicant is the mother of two children who were born at home in 2008 and 2010 with the assistance of a midwife. The midwives attended the births without any authorisation from the State. 16.     According to the applicant, before deciding to give birth at home, she had visited several hospitals which had all refused her requests to deliver the baby without any medical intervention that was not strictly required by the situation. They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth, as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation lasting for two hours. 17.     At the time of lodging the present application, the applicant was pregnant again, with an expected delivery in the middle of May 2012. The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife. However, she was unable to find a willing midwife because of the risk of a heavy fine if medical services were provided without authorisation. The applicant asked various authorities to help find a solution to her situation. 18.     In a letter of 18 November 2011 the Ministry of Health replied that it did not provide medical services to individual patients and that the applicant should make enquiries with the City of Prague ( Město Praha ) which, acting as a regional office, registered and issued authorisations to health professionals. 19.     On 29 November 2011 the applicant’s health-insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance. 20.     On 13 December 2011 the City of Prague informed the applicant that no midwife registered in Prague was authorised to assist with home births. 21.     On 7 May 2012 the applicant gave birth to a child in a maternity hospital in Vrchlabí, 140 km away from Prague. She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery. Nevertheless, according to her, not all her wishes had been respected. Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth, the applicant had had to stay in the hospital for seventy-two hours. The newborn baby had been separated from her after the birth and before leaving the maternity hospital the remains of the child’s umbilical cord had been cut off despite her wishes to the contrary. C.     General information pertaining to home births in the Czech Republic 1.     Guidelines issued and published by the Ministry of Health 22.     In its bulletin no. 2/2007 of February 2007 the Ministry of Health published a practice guideline which stated: “Conducting a delivery in the Czech Republic is regarded as a healthcare provision that is provided only in a healthcare institution. Each healthcare institution must fulfil the statutory requirements ... and the requirements laid down by the relevant secondary legislation.” 23.     The Czech Medical Chamber ( Česká lékařská komora ) considers a home birth to be a procedure non lege artis because of the dangers associated therewith. 24.     Almost all births in the Czech Republic currently take place in hospital, with only about 0.2% to 0.3% of births happening at home. 25.     In reaction to what has been perceived as an attempt to criminalise midwifery in some central and eastern European countries – in particular in Hungary – the President of the International Confederation of Midwives and the President of the International Federation of Gynecology and Obstetrics issued a joint statement on 6 March 2012 in which they declared: “There is strong evidence that out of hospital birth supported by a registered midwife is safe, and a preferred experience for many mothers. Women should not be denied this choice because of the lack of an adequate regulatory framework that makes it possible for midwives to practice their profession in any place that women choose to give birth.” 26 .     On 20 March 2012 the Ministry of Health set up an expert committee on obstetrics with the objective of studying the issue of home births. There were representatives of care recipients, midwives, physicians’ associations, the Ministry of Health, the Government’s Commissioner for Human Rights and public health-insurance companies. The representatives of the physicians’ associations boycotted the meetings, declaring that the current state of affairs was satisfactory and that, in their view, there was no need to change anything. Subsequently, the Minister of Health removed the representatives of care recipients, midwives and the Government’s Commissioner for Human Rights, with the argument that only by changing the committee’s composition in this way would it be possible for it to agree on certain conclusions. 27.     On 18 January 2013 the Governmental Council for Equal Opportunities for Women and Men ( Rada vlády pro rovné příležitosti žen a mužů ), an advisory body to the Government, recommended the prevention of further discrimination against women in the enjoyment of their right to a free choice of the method and circumstances of giving birth and the place of delivery. It also recommended the prevention of discrimination against midwives by permitting them to practise their profession in full through their inclusion in the public health-insurance system. The Council also referred to the recommendations of the Committee on the Elimination of Discrimination against Women (see paragraph 56 below), which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women, to support its position that women should have a choice of where to give birth. 28.     In its bulletin no. 8/2013 published on 9 December 2013, which replaced the previous practice guideline of 2007 (see paragraph 22 above), the Ministry of Health described the procedure for providers of healthcare services when discharging newborns into their own social environment. It stated that the recommendation of specialists was that a newborn should be discharged from the maternity hospital no sooner than seventy-two hours after birth. The new procedure allows for the discharge of the newborn from the maternity hospital less than seventy-two hours after the birth at the request of the newborn’s legal representative, provided that the latter: “(a) has submitted a written withdrawal of his or her agreement to the provision of medical services to the newborn, or a written statement declaring his or her disagreement with the provision of the medical services, or alternatively such agreement or disagreement has been entered in the newborn’s medical documentation ...; (b) has been demonstrably and duly informed about the possible consequences following the discharge of the newborn before seventy-two hours have elapsed since the birth ...; (c) has been duly informed that – in the interests of the subsequent healthy development of the newborn – the Czech specialist medical associations recommend: 1. that a clinical examination be conducted within twenty-four hours of the discharge of the newborn ...; 2. that a blood sample be taken within forty-eight to seventy-two hours following the birth for the purposes of screening for hereditary metabolic malfunctions ...” In the event that the newborn is hospitalised without the agreement of the legal representative in order to be given medical treatment necessary to save the child’s life or to prevent serious damage to the child’s health, the hospital should proceed in accordance with sections 38 and 40 of the Medical Services Act (Law no. 372/2011). This practice guideline came into force on 1   January 2014. 2.     Data on perinatal mortality 29.     According to estimated data provided by the World Health Organisation in a 2000 report, the Czech Republic was among the countries with the lowest perinatal mortality rate, which is defined as the number of stillbirths and deaths in the first week of life. The rate for the Czech Republic was 0.4%. In other European countries the figures ranged from 0.5% in Sweden and Italy to 5.8% in Azerbaijan. In most European countries the figures were below 1%. According to the report, perinatal mortality is an important indicator of maternal care and maternal health and nutrition; it also reflects the quality of available obstetric and paediatric care, comparing different countries. The report recommended that, if possible, all foetuses and infants weighing at least 500g at birth, whether alive or dead, should be included in the statistics. The reported data regarding stillbirths were not adjusted to this effect in the study. 30.     According to the European Perinatal Health Report on the health and care of pregnant women and babies in Europe in 2010, issued in 2013 within the framework of the activities of the Euro-Peristat Project, the Czech Republic was amongst the countries with the lowest mortality rate amongst newborns in the first twenty-seven days of their life. The rate was 0.17%. The data for other included countries, mostly European Union (EU) member States, ranged from 0.12% for Iceland to 0.55% for Romania. However, if only statistics relating to babies born after twenty-four weeks of pregnancy were taken into account, the Czech Republic, with a rate of 0.16%, moved closer to the average of 0.2%. The report noted that the wide variation in gestational age-specific neonatal mortality rates at twenty-two to twenty-three weeks suggested that not all births and deaths very early in the neonatal period were systematically included. Consequently, the report considered the data including only babies born after twenty-four weeks of gestation more reliable. 31 .     The applicants pointed out that the above sets of data were not easily comparable across countries owing to the different definitions used. The majority of European countries set a weight limit of 500 g for counting live births and stillborn children. In the Czech Republic, however, the practice until April 2012 had been that a birth was registered for statistical purposes only if the child weighed at least 1,000 g. 3.     Conditions in Czech hospitals 32.     The Government stated that Czech maternity hospitals offered high ‑ quality services during delivery that fully respected the rights and wishes of mothers. For their part, the applicants submitted testimonies from numerous mothers who had given birth in maternity hospitals during recent years and who pointed to practices that were – in their view – unacceptable, including the following: medical intervention during delivery without the consent of the mothers and sometimes against their explicitly expressed will, such as artificial rupture of membranes; episiotomy; intravenous infusion of medication for the mother; performing the Kristeller manoeuvre (pushing with the fist or forearm the top of the uterus coinciding with a contraction and pushing by the mother during the second stage of labour); performing Caesarean section without sufficient medical justification; using techniques and medication to speed up the delivery; separation of mothers from their babies for several hours after delivery, ignoring the mother’s wishes to have immediate contact with the baby after delivery; routinely placing healthy babies in incubators; administering treatment to babies against the express wishes of the mother; and forcing the mother and baby to stay in hospital for seventy-two hours after delivery even when they were both healthy. There had also been complaints of arrogant, intimidating, disrespectful and patronising behaviour on the part of the hospital staff and of a lack of privacy. 4.     Criminal proceedings against midwives 33.     It appears that no midwife has been prosecuted in the Czech Republic for attending home births per se . Several of them have been prosecuted for alleged malpractice in connection with a delivery at home, however. The applicants referred to the cases of Ms Š. and Ms K., who are both well-known promoters of natural deliveries without any unnecessary medical intervention and who used to regularly conduct home deliveries. 34.     On 27 March 2013 the Prague 6 District Court ( obvodní soud ) found Ms Š. guilty of negligently causing the death of a baby who was stillborn. She was sentenced to two years’ imprisonment, suspended for five years, and prohibited from practising the occupation of midwife for three years. The culpability of Ms Š. was based on the fact that she had not strongly advised the mother to contact a medical facility when consulted by telephone during a labour that was already ongoing at home. She had thus given flawed advice to the mother-to-be without actually examining her. The conviction was upheld on appeal on 29   May 2013, although the sentence was changed to fifteen months’ imprisonment, suspended for thirty months, and two years’ prohibition on practising as a midwife. An appeal on points of law is pending. 35.     On 21 September 2011 the Prague 3 District Court found Ms K. guilty of negligently causing bodily harm to a baby whose home birth she had attended and who had stopped breathing during the delivery. The baby died several days later. She was sentenced to two years’ imprisonment, suspended for five years, prohibited from practising as a midwife for five years, and ordered to pay 2,700,000 Czech korunas (CZK) (equivalent to 105,000 euros (EUR)) by way of reimbursement of the costs incurred by the insurance company in treating the child until the latter’s death. According to the court, the malpractice on the part of Ms K. consisted in the fact that she had not followed the standard procedures for deliveries as laid down by the Czech Medical Chamber ( Česká lékařská komora ) and her conduct had thus been “ non lege artis ”. The criminal complaint was not lodged by the parents but by a hospital. 36 .     On 24 July 2013 the Constitutional Court quashed all the judgments in the case against Ms K. on account of a violation of her right to a fair trial. It considered the conclusions of the ordinary courts as to Ms K.’s guilt to have been too subjective and not supported by the evidence beyond any reasonable doubt, thereby violating the principle of the presumption of innocence. It stated in particular that the courts had uncritically relied on an expert opinion which they had failed to subject to thorough scrutiny. It held that – on the basis of the expert opinion – the courts had applied very strict liability to the conduct of Ms K. in a situation where it had not been clear how she could have prevented the baby’s death. Moreover, it had been established that she had tried to help the baby and had called an ambulance immediately after establishing that the baby had hypoxia. To foresee every possible complication during delivery and be able to react to it immediately, as was required of Ms K., would ultimately lead de facto to an absolute prohibition of home births. In that context the Constitutional Court noted: “... a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospital.” II.     RELEVANT DOMESTIC LAW A.     Medical Care Act (no. 160/1992) (in force until 31 March 2012) 37.     Under section 5 of this Act, a person could provide medical care only if in possession of the appropriate licence, the conditions of which included having appropriate technical equipment on the premises where such services were being provided as specified in a decree issued by the Ministry of Health. Under section 14, a person providing medical care could be fined for violating this Act. The amount of the fine was not specified. B.     Medical Services Act (no. 372/2011) (entry into force on 1   April 2012) 38.     Under section 11(5) of this Act, healthcare services can be provided only in healthcare institutions in places specified in the licence as providing healthcare services. Under section 4(1), a healthcare institution means premises intended for the provision of healthcare services. Under section   11(6), a healthcare institution must possess technical and material equipment for the provision of healthcare services. The technical and material equipment in such healthcare institutions must correspond to the specialisation, type and form of healthcare provided by the institutions. Requirements for the minimum standard of technical and material equipment must be set down in an implementing decree. 39.     Under section 28(1), healthcare services can be provided to patients only with their free and informed consent. Under section 28(3), when receiving healthcare services, the patient has the right to respect for privacy in the provision of those healthcare services in accordance with the nature of the services being provided; the right to choose a provider who is authorised to provide healthcare services meeting the patient’s health needs, and to choose a healthcare institution; the right to the presence of a close friend or relative or other person specified by the patient; and the right to the provision of healthcare services in the least restrictive environment while ensuring the quality and safety of the healthcare services provided. 40.     Under section 114, a person providing a healthcare service without an appropriate licence can be fined up to CZK 1,000,000 (approximately EUR 40,000). C.     Decree no. 221/2010 of the Ministry of Health on technical equipment at healthcare institutions (in force from 1 September 2010 to 31 March 2012) 41.     This decree envisaged the possibility of midwives conducting deliveries in rooms specially equipped for that purpose. Midwives had to have the following essential equipment in such a room: a birthing bed for a delivery room or other appropriate device for carrying out a physiological delivery, an examination light, a sterile clamp or rubber band for the umbilical cord, sterile scissors, EFM (electronic foetal monitoring), a pulse oximeter, a suction unit, a laryngoscope and instruments to secure the airways, a suitable space and surface for treating newborns, scales for newborns, an instrument to measure the newborn’s length, and a source of medical oxygen. Furthermore, such a place had to be a maximum of fifteen minutes’ drive from a hospital that could perform a birth by Caesarean section. The decree did not provide for the possibility of health professionals attending home births. D.     Decree no. 92/2012 of the Ministry of Health on technical equipment at healthcare institutions (entry into force on 1 April 2012) 42 .     This decree provides for the possibility of midwives conducting deliveries in delivery rooms specially equipped for that purpose. The equipment requirements are the same as those specified in Decree no.   221/2010. The decree does not provide for the possibility of health professionals attending home births. E.     Paramedical Professions Act (no. 96/2004) 43.     Under section 6 of this Act, the practice of the profession of midwife includes conducting physiological deliveries and providing care for newborns. F.     Emergency Medical Services Act (no. 374/2011) 44.     This Act regulates the emergency ambulance service. Under section   5(2), the service must be organised in such a way that an ambulance must be able to reach any location within twenty minutes of the request. III.     RELEVANT INTERNATIONAL LAW A.     Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine) 45.     The relevant provisions of this Convention are the following: Article 5 – General rule “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” Article 6 – Protection of persons not able to consent “... an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. ...” Article 8 – Emergency situation “When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.” 46 .     The explanatory report on the Convention states in paragraph 34 that “the word ‘intervention’ is understood in its widest sense, as in Article 4 – that is to say, it covers all medical acts, in particular interventions performed for the purpose of preventive care, diagnosis, treatment, rehabilitation or research”. B.     International Covenant on Economic, Social and Cultural Rights 47.     Under Article 12 of the Covenant, the States Parties recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the Covenant to achieve the full realisation of this right include those necessary for the provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child. 48 .     In General Comment no. 14 on the right to the highest attainable standard of health, published on 11 August 2000 (E/C.12/2000/4), the Committee on Economic, Social and Cultural Rights stated, inter alia , the following: “1. Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity. ... 8. ... The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. ... 14. ‘The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child’ (article 12.2 (a)) may be understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information.” 49.     The Committee also stated that the right to health, like other social rights, included the following interrelated and essential elements: availability (meaning that properly functioning public health and healthcare facilities, goods, services and programmes have to be available in sufficient quantity within the State party), accessibility (meaning that healthcare facilities, goods and services have to be accessible to everyone), acceptability (meaning that all healthcare facilities, goods and services must be respectful of medical ethics and culturally appropriate) and quality (meaning that healthcare facilities, goods and services must also be scientifically and medically appropriate and of good quality). 50.     Furthermore, the Committee noted that the obligation to fulfil the right to health included “dissemination of appropriate information relating to healthy lifestyles and nutrition, harmful traditional practices and the availability of services ... [and] supporting people in making informed choices about their health.” 51.     The Committee also noted that every State had a margin of discretion in assessing which measures were most suitable to meet its specific circumstances. C.     Convention on the Rights of the Child 52.     The relevant provisions of this Convention are the following: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...” Article 5 “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” Article 6 “1. States Parties recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child. ...” Article 18 “1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” Article 24 “1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; ... (d) To ensure appropriate pre-natal and post-natal health care for mothers; ...” 53.     In General Comment no. 7 on implementing child rights in early childhood, published on 20 September 2006 (CRC/C/GC/7/Rev.1), the Committee on the Rights of the Child stated, in particular, the following: “4. ... In its consideration of rights in early childhood, the Committee wishes to include all young children: at birth and throughout infancy; ... 10. Right to life, survival and development . Article 6 refers to the child’s inherent right to life and States parties’ obligation to ensure, to the maximum extent possible, the survival and development of the child. States parties are urged to take all possible measures to improve perinatal care for mothers and babies, reduce infant and child mortality, and create conditions that promote the well-being of all young children during this critical phase of their lives. ... Ensuring survival and physical health are priorities, but States parties are reminded that article 6 encompasses all aspects of development, and that a young child’s health and psychosocial well-being are in many respects interdependent. Both may be put at risk by adverse living conditions, neglect, insensitive or abusive treatment and restricted opportunities for realizing human potential. ... The Committee reminds States parties (and others concerned) that the right to survival and development can only be implemented in a holistic manner, through the enforcement of all the other provisions of the Convention, including rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment, education and play (arts. 24, 27, 28, 29 and   31), as well as through respect for the responsibilities of parents and the provision of assistance and quality services (arts. 5 and 18). ... 13. Best interests of the child . Article 3 sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children’s rights ... 15. A crucial role for parents and other primary caregivers . Under normal circumstances, a young child’s parents play a crucial role in the achievement of their rights, along with other members of family, extended family or community, including legal guardians, as appropriate. This is fully recognized within the Convention (especially article 5), along with the obligation on States parties to provide assistance, including quality childcare services (especially article 18). ... 18. Respecting parental roles . Article 18 of the Convention reaffirms that parents or legal guardians have the primary responsibility for promoting children’s development and well-being, with the child’s best interests as their basic concern (arts. 18.1 and 27.2). States parties should respect the primacy of parents, mothers and fathers. ... 27. Health-care provision . States parties should ensure that all children have access to the highest attainable standard of health care and nutrition during their early years, in order to reduce infant mortality and enable children to enjoy a healthy start in life (art. 24). In particular: ... (b) States parties have a responsibility to implement children’s right to health by encouraging education in child health and development, including about the advantages of breastfeeding, nutrition, hygiene and sanitation. Priority should also be given to the provision of appropriate prenatal and post-natal health care for mothers and infants in order to foster healthy family-child relationships, especially between a child and his or her mother. ...” 54.     In General Comment no. 15 on the right of the child to the enjoyment of the highest attainable standard of health, published on 17   April 2013 (CRC/C/GC/15), the Committee on the Rights of the Child stated, inter alia , the following: “33. States have an obligation to reduce child mortality. The Committee urges particular attention to neonatal mortality, which constitutes an increasing proportion of under-5 mortality. Additionally, States parties should also address adolescent morbidity and mortality, which is generally under-prioritized. 34. Interventions should include attention to still births, pre-term birth complications, birth asphyxia, low birth weight, mother-to-child transmission of HIV and other sexually transmitted infections, neonatal infections, pneumonia, diarrhoea, measles, under- and malnutrition, malaria, accidents, violence, suicide and adolescent maternal morbidity and mortality. Strengthening health systems to provide such interventions to all children in the context of the continuum of care for reproductive, maternal, newborn and children’s health, including screening for birth defects, safe delivery services and care for the newborn are recommended. Maternal and perinatal mortality audits should be conducted regularly for the purposes of prevention and accountability. ... 51. The Committee notes that preventable maternal mortality and morbidity constitute grave violations of the human rights of women and girls and pose serious threats to their own and their children’s right to health. Pregnancy and child birth are natural processes, with known health risks that are susceptible to both prevention and therapeutic responses, if identified early. Risk situations can occur during pregnancy, delivery and the ante- and postnatal periods and have both short- and long-term impact on the health and well-being of both mother and child. 52. The Committee encourages States to adopt child-sensitive health approaches throughout different periods of childhood such as (a) the baby-friendly hospital initiative which protects, promotes and supports rooming-in and breastfeeding; (b) child-friendly health policies focused on training health workers to provide quality services in a way that minimizes the fear, anxiety and suffering of children and their families; ... 54. ... Maternal and newborn care following delivery should ensure no unnecessary separation of the mother from her child.” 55 .     In General Comment no. 14 on the right of the child to have his or her best interests taken as a primary consideration, published on 29 May 2013 (CRC/C/GC/14), the Committee on the Rights of the Child stated, inter alia , the following: “32. The concept of the child’s best interests is complex and its content must be determined on a case-by-case basis. It is through the interpretation and implementation of article 3, paragraph 1, in line with the other provisions of the Convention, that the legislator, judge, administrative, social or educational authority will be able to clarify the concept and make concrete use thereof. Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child’s best interests must be assessed and determined in light of the specific circumstances of the particular child. For collective decisions – such as by the legislator –, the best interests of children in general must be assessed and determined in light of the circumstances of the particular group and/or children in general. In both cases, assessment and determination should be carried out with full respect for the rights contained in the Convention and its Optional Protocols. 33. The child’s best interests shall be applied to all matters concerning the child or children, and taken into account to resolve any possible conflicts among the rights enshrined in the Convention or other human rights treaties. Attention must be placed on identifying possible solutions which are in the child’s best interests. This implies that States are under the obligation to clarify the best interests of all children, including those in vulnerable situations, when adopting implementation measures. ... 39. However, since article 3, paragraph 1, covers a wide range of situations, the Committee recognizes the need for a degree of flexibility in its application. The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.). Potential conflicts between the best interests of a child, considered individually, and those of a group of children or children in general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise. The same must be done if the rights of other persons are in conflict with the child’s best interests. If harmonization is not possible, authorities and decision-makers will have to analyse and weigh the rights of all those concerned, bearing in mind that the right of the child to have his or her best interests taken as a primary consideration means that the child’s interests have high priority and not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best.” D.     Convention on the Elimination of All Forms of Discrimination against Women 56 .     The Committee on the Elimination of Discrimination against Women recommended in its Concluding Observations on the Czech Republic of 22 October 2010 (CEDAW/C/CZE/CO/5), under the heading “Health” in particular: “36. While acknowledging the need to ensure maximum safety for mothers and newborns during childbirth, as well as the State party’s low perinatal mortality rate, the Committee takes note of reports of interference with women’s reproductive health choices in hospitals, including the routine application of medical interventions, reportedly often without the woman’s free, prior and informed consent or any medical indication, a rapid increase in the caesarean section rate, separation of newborns from their mothers for up to several hours without health-related reasons, refusal to release the mother and child from hospital before 72 hours after childbirth, and patronizing attitudes of doctors which impede the exercise by mothers of their freedom of choice. It also notes reports about women’s limited options for delivering their babies outside hospitals. 37. The Committee recommends that the State party consider accelerating the adoption of a law on patients’ rights, including women’s reproductive rights; adopt a protocol of normal birth care ensuring respect for patients’ ri