The Constitutional Court denies the right to home delivery in a case of danger "to the life of the fetus"

The Constitutional Court has denied protection to a woman who considered her fundamental rights violated because a judge forced her to give birth in a hospital, instead of authorizing her to remain at home for it, as she intended. The sentence considers that there were reasons of urgency and a clear medical indication to remember the “compulsory admission” of the plaintiff “for the practice, if necessary, of an induced delivery.”

Given the insistence of the pregnant woman to give birth at home, the Obstetrics service of the Central University Hospital of Asturias (HUCA), where she had been treated, raised the woman’s request for admission in the police court. The doctors explained that the wish expressed by the plaintiff and her partner to carry out the delivery at her home, with the assistance of a midwife, implied putting the life of the fetus in “imminent and serious danger.”

According to the reports of said service, there was in this case a risk of “fetal hypoxia (oxygen deficiency in the blood) and intrauterine death” derived from the advanced state of pregnancy (at that time, 42 + three weeks). After agreeing to the judicial measure, “Doña CP was taken by ambulance to the HUCA, where she gave birth to her daughter, after performing a cesarean section for medical reasons, due to complications that occurred during a delivery that had started unexpectedly. spontaneously”.

The appeal was based on the fact that the surrogate mother considered that the mandatory admission was not sufficiently motivated and that the judicial measure to take her to the hospital was adopted without having heard her through a prior hearing procedure. The court, in turn, considers in its ruling whether the plaintiff’s rights to physical freedom and personal and family privacy were violated, and on the other hand, to what extent there was a risk to the life and health of the nasciturus.

The Constitutional Court considers that although there is no legislative provision that resolves this type of conflict, the judge who took charge of the case -and the Provincial Court of Oviedo, which confirmed her decisions- relied on civil law precepts that offered “coverage” for require hospital admission. However, the ruling specifies that “before adopting a measure of this type, the interested parties must be granted a hearing.” In particular, “very especially, to the surrogate mother herself, without prejudice to the fact that, in this specific case, the urgency of the situation has justified the omission of this procedure.”

Proportionality of the measure

Analyzing all these factors, the court concludes that the judicial bodies sufficiently motivated both the suitability, as well as the necessity and proportionality of the measure they adopted, “according to the concurrent circumstances and the different legal rights and assets” that were weighted.

Three magistrates from the progressive sector of the court have formulated dissenting votes, estimating that the amparo appeal should have succeeded. They point out, in this regard, that the decision to transfer and forcefully intern the applicant, who at that time was in an advanced state of gestation, was adopted without her being heard, and without this lack of a hearing being justified by the urgency of the case.

The dissenting opinion of the vice president of the court, Juan Antonio Xiol, and of the magistrates Ramón Sáez and Inmaculada Montalbán underlines that the failure to comply with said minimum guarantee ―the prior hearing― “is not only revealing of a total absence of a gender perspective, but also supposes a violation of the rights of the plaintiff to personal freedom, privacy and effective judicial protection”. Judge María Luisa Balaguer has in turn formulated a concurring opinion – in accordance with the decision adopted, but with other arguments – in which she considers that the pregnant woman’s partner did not have legitimacy to also file the amparo appeal, as he did, and underlines that there are precise rules that regulate situations such as the one analyzed by the court in this case.

In turn, the magistrate Cándido Conde-Pumpido, also from the progressive sector, has formulated another concurring opinion in which he underlines that the decision adopted by the judge was founded, by “the existence of a legal duty to protect life in formation when, as was the case in this case, the viability of the fetus was absolutely undeniable, due to the advanced stage of pregnancy” of the plaintiff.

Dismissed the appeal of a transgender person

The Constitutional Court has dismissed a request for protection in which the annulment of a dismissal was requested when the appellant considered that this measure was based “on his condition as a transgender person”. It was the first case raised in this regard, but the court has reached the conclusion that said personal situation was unrelated to the dismissal decision, because the company was able to provide data that allowed it to be estimated as such.

The ruling – for which Judge María Luisa Balaguer was the rapporteur – explains that “gender identity is a particularly important facet of an individual’s identification, and is a suspected cause of discriminatory treatment”. Therefore, the court adds, “the condition of being a trans person is included in the prohibition of discrimination in article 14 of the Constitution.” But he explains that the determining factor for denying the protection, therefore, has been that the contracting company had been able to demonstrate the existence of causes for the interruption of the contract that had nothing to do with “the condition of a transgender person of the person who appeals for protection. ”.

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