Home births are an increasingly common choice for some women, although they remain a controversial topic from both a medical and legal perspective. Who is criminally liable if a baby dies during a home birth? It was the criminal liability of the mother and the mother-in-law that was addressed in a recent case by the Constitutional Court.
According to Czech legislation, or rather the lack of precise regulation, a woman has the right to choose the place where she gives birth. This means that she has the right to refuse medical care. This is based on constitutionally guaranteed autonomy and the right to bodily integrity. On the other hand, however, is the child’s right to life and health. Thus, there may be a conflict of interest in home births, especially if the decision of the mother increases the risk to the unborn child.
The Constitutional Court has addressed this issue in several cases. One of the key points is the situation where the midwife (or doula) in a home birth does not have sufficient equipment or take steps to save the baby. The Czech legal system does not yet provide clear rules on the equipment and procedures that should be followed in home births, which creates a legal vacuum. At the same time, it has been stressed in the past that the state has an obligation to define specific standards for this area, so as not to create criminal uncertainty.
Dealing with legal uncertainty about home birth?
Home births are a sensitive subject, where ideally the law should not go if everything is going as it should. However, man thinks and life changes. So whether you have a question of a preventative nature, or you find yourself in a situation where you must already address the issue of home birth through one of the legal avenues, do not hesitate to contact us. Our legal clinic is here for any of your problems.
The following issues often arise in disputes:
Before we get to the actual case, let’s define who a doula is. It is a specially trained woman whose job is to provide psychological and physical support to a woman during pregnancy, childbirth and the six months of labour. Doulas are not medical staff, as is the case with midwives. They are women trained by training only.
One of the recent disputes over home births has gone all the way to the Constitutional Court. It was approached by both the birth mother and the doula (the complainants) who were found guilty of the offence of negligent homicide. They were alleged to have committed this very act during a home birth. They walked away from the District Court with a sentence of six months imprisonment suspended for a probationary period of one year.
The applicants lodged a constitutional complaint against that judgment, alleging a violation of their fundamental rights and freedoms. In the case of the parturient, it was in particular the right to free choice of place of birth, which could not be restricted by the interests of the unborn child. Dula, in turn, referred to the fact that, as non-medical staff, she was not responsible for the outcome of the birth.
The Constitutional Court rejected the complaints of both women. However, it ruled on the merits of the case.
The doula, who can be simplistically defined as a non-medical helping profession, was blamed for actively acting out during the delivery, exceeding her competence and then forcefully pulling the baby after it was stuck in an inappropriate manner, contributing to its death.
The Constitutional Court upheld the district court’s decision on the criminal liability of the parent and the doula for the death of the child during home birth and did not uphold the complainants’ constitutional complaint. It confirmed the sentence of six months’ imprisonment suspended for 12 months.
The Constitutional Court also stressed that home births remain legal, but those responsible must always take into account the specific risks. Both women were found guilty of the offence of manslaughter by negligence. The birth mother chose a home birth despite the obvious risks (age, position of the baby, firstborn), which led to complications. Dula’s unprofessional intervention contributed to the death of the child.
Home births are legal, but can lead to criminal prosecution in certain circumstances if the decisions or actions of those present are so risky that they cause the death of the baby.
In this case, the birth mother ignored risks such as the position of the baby’s pelvic end, her age and the fact that she was a first-time mother. Complications of which she should have been aware led to the baby suffocating.
Dula exceeded her competence, primarily by actively participating in the delivery and unprofessionally handling the baby while it was stuck in the birth canal. In doing so, she contributed to its death.
The right to free choice of place of birth may be restricted if the life of the child is at risk. Thus, the freedom of the birth mother is not absolute and the interest in protecting the life of the child overrides it. Nevertheless, criminal liability cannot be inferred solely on the basis of the general riskiness of home births.
A doula must not perform the acts of a health professional unless he is competent and has sufficient knowledge, especially in situations with known risks. A doula is not a health professional, but liability may be inferred if she steps outside her role and acts in a way that contributes to harm. In this case, the doula unprofessionally intervened in a complication, thereby being found criminally liable.
Direct adoption is also a legally complex and sensitive topic. Read more about it in our article.
The Constitutional Court emphasizes that criminal law is supposed to be a means of ultima ratio – i.e., a last resort – and its use must be proportionate to the circumstances. The decision of the Constitutional Court was guided by the desire to protect the life of the child, but at the same time not to restrict women’s rights disproportionately.
In order to ensure legal certainty for all parties, it is essential that the State set clear rules for the provision of care during births outside health care facilities. Until then, however, court decisions often remain subject to disputes about fairness and reasonableness.
Home births remain legal, but can lead to criminal liability if the decisions or actions of the birth mother or those present are so risky as to endanger the life of the child. In this case, the Constitutional Court dismissed the complaints of the parent and the doula, who were found guilty of negligent homicide in a home birth. The decision emphasises that the freedom of choice of the birth mother is not absolute and the interest in protecting the life of the child takes precedence. The doula, as a non-medical staff, exceeded her competence, which contributed substantially to the tragic outcome. The Constitutional Court appeals for a clear definition of the rules for home births to avoid legal uncertainty.
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