PRAVNI ZAPISI • Year V • No. 1 • pp. 120-161

THE RIGHT TO HOME BIRTH: A CHOICE, NOT A COINCIDENCE: AND SOME LEGAL CONSEQUENCES

Language: Serbian

Doc. dr Simić Jelena
Docentkinja, Pravni fakultet Univerziteta Union u Beogradu
e-mail: jelena.simic@pravnifakultet.rs

Doc. dr Jerinić Jelena
Docentkinja, Pravni fakultet Univerziteta Union u Beogradu
e-mail: jelena.jerinic@pravnifakultet.rs

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Pravni zapisi, No. 1/2014, pp. 120-161

Original Scientific Article

DOI: 10.5937/pravzap0-6103

KEY WORDS
home birth; freedom of choice; midwife; discrimination; right to respect of private life; European court of human rights; birth registration; public registrars; birth records

ABSTRACT/SUMMARY
In this article, the authors deal with certain legal aspects of home birth, in particular as recognised by the European Court of Human Rights and from the perspective of present Serbian legislation. The number of women giving birth at their homes is still significantly lower than those wishing to give birth at a hospital, both in Serbia and in Europe. Even with that in mind, the authors assert that the state does not have the right to deny a woman her right to choose the circumstances and the environment in which she will give birth. By doing that the state breaches the woman’s right to privacy, right to personal autonomy and right to self-determination in respect of her own body, which are all founded in the constitutionally guaranteed inviolability of the human personality. That is why the authors believe the state is obliged to provide the legitimacy to the woman’s choice of the place of her child’s birth. Moreover, the state should take a step further and enable the woman with accessible and professional medical assistance (of a midwife) in case she wishes to give birth at her home. Further on, the research into Serbian legislation and practice conducted by the authors and presented in this article, demonstrates that even though current Serbian legislation on birth registration expressly provides for registration of birth outside of medical institutions, that its implementation is not uniform across the state, leading to discrimination of these parents and their children, at least in some areas of Serbia. Unequal treatment in relation to registration of births which occurred outside of hospitals can be attributed to several factors, among which, the registrars’ desire to prevent undesirable situations such as obduction of children or false registration of birth certainly cannot be underestimated. However, as the authors point out, this must not be at the expence of parents who, by practicing their right to choose the place of childbirth, choose that their children be born at their homes. Because of that, the authors particularly stress the need for thorough analysis of legislation – both in the area of health protection and birth registration – so that clearer regulation would ensure realisation of the right to choose the place of childbirth which the European Court of Human Rights declared to be an element of the right to privacy guaranteed by the European Convention on Human Rights and Fundamental Freedoms.