The Constitutional Court has decided, by eight votes in favor and three against, to endorse the decision of a judge who ordered that a woman who wanted to give birth at home with the assistance of a midwife be transferred to the hospital since her baby was running danger.
The appeal filed by the mother has been rejected, since it is considered that the judge fulfilled “a constitutional provision for the protection of the unborn “, the unborn baby who was in danger of life , given that the woman had exceeded 42 weeks of pregnancy and the doctors claimed that the fetal well-being was being compromised.
The judge ordered her to be transferred to the hospital.
According to El Español, the head of obstetrics sent a report stating that the woman had carried out pregnancy controls at the Central University Hospital of Asturias until week 35+2, but did not attend the control at week 37. calls by phone, and she informs that she is not going to do any more controls in that center.
“On April 23, she contacted us, and we made an appointment for her on the same day for a fetal monitoring consultation. (…) After carrying out the test, she was informed of the requirement to terminate the pregnancy due to prolonged gestation, given the increase of the risk of fetal hypoxia and intrauterine fetal death from the 42nd week of gestation”.
“The patient requests the reports for the midwives who assist her during pregnancy and home birth, which are attached. She informs us that she will comment again after the conversation, but she does not appear,” according to the report.
Based on these reports, those responsible for the Health Service of the Principality of Asturias took the case to the police court, suggesting that a forced admission order be adopted to induce labor.
With the support of the prosecutor, the judge ordered the transfer of the mother to the hospital in a medicalized vehicle given the ” imminent and serious danger to the life of her son.”
The baby was born by caesarean section in the hospital after detecting an “impaired fetal heart rate” due to “pelvifetal disproportion”.
The prevalence of the child’s health
The mother and her partner filed appeals against the judge’s decision because they consider they have suffered “a humiliating and degrading treatment .” Neither the Court nor the Provincial Court agreed with them, and they went to the Constitutional Court, which has dismissed their application for amparo .
However, the Constitutional Court recognizes that the woman and her partner were not allowed to attend a hearing with the judge before the decision was made. And it points out that ” a hearing must be granted to the interested parties and, 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.”
The ruling of the TC is based on the jurisprudence of the European Court of Human Rights, according to which ” the interests of the child may prevail over those of the mother , who is not protected by the European Convention on Human Rights to make decisions that may harm the health and development of that”.
Post-term pregnancy: beyond 42 weeks
In 5-10 percent of cases, the pregnancy lasts beyond 42 weeks. After 40 weeks, the risks to the fetus begin to increase very slowly and the pregnant woman must be duly monitored frequently to monitor the well-being of the baby.
According to the Childbirth Care Strategy, as of week 41+0, the pregnant woman must be offered the possibility of waiting for the spontaneous onset of labor or of performing labor induction throughout week 41, since the placenta could stop supplying the necessary nutrients for the baby. Normally, in hospitals, labor is induced by protocol at week 41+3 days .
For its part, according to SEGO protocols, post-term pregnancy (more than 42 weeks) is a reason for labor induction.
It is not the first time that a woman who wants to give birth at home is forced by court order to be transferred to the hospital because of risk to the baby. Against, there are those who consider it an arbitrary measure that does not respect the decision of women. While in favor, those who believe that the medical decision should prevail if any minimal risk to the baby is detected.
