The Plenary of the Constitutional Court has rejected the appeal of a woman against the court order to force her admission to the hospital so that a birth could be induced due to the risk to the life of the fetus. The woman insisted on giving birth in her house.
Those responsible for the health services of Asturias went to court before the notice from the doctors of the Central University Hospital of Asturias (HUCA) that, despite the warnings made about the “imminent and serious danger to the life of the foetus”, the pregnant woman and her partner wanted to give birth at home, with the assistance of a midwife.
Doctors warned of the risk of “fetal hypoxia (deficiency of oxygen in the blood) and intrauterine death” derived from the advanced stage of pregnancy.
After agreeing to the judicial measure, the woman was taken by ambulance to the hospital, where she gave birth to her daughter, after performing a caesarean section prescribed for the complications presented during a labor that had started spontaneously.
The appeal considers that the judicial measure adopted was not protected by any legal precept, that it was not granted a prior hearing and that it was not sufficiently motivated.
The Court begins by indicating the rights at stake: on the woman’s side, the right to physical freedom and personal and family privacy. On the other, the life and health of the unborn.
The sentence, for which Judge Antonio Narváez was the rapporteur, acknowledges that there is no specific legislative provision that resolves this type of conflict, but adds that the judicial resolutions used various precepts that, as a whole, offered “a reasonable regulatory coverage that enabled to intervene judicially and to adopt that measure that, ultimately, was protected by a legal duty to protect an asset derived from the constitutional text itself”.
The mother argued that, in order to restrict a fundamental right as was done with her, the law requires that she be given a hearing. The TC responds that “the urgency of the situation” justified that the judicial decision be agreed without this procedure. To this he adds that the court sufficiently motivated “the suitability, necessity and proportionality of the measure, based on the concurrent circumstances and the different rights and legal assets that were weighed.”
The sentence has three dissenting individual votes, formulated by the magistrates Juan Antonio Xiol Ríos, Ramón Sáez and Inmaculada Montalbán, who consider that the appeal should have been upheld. They consider that the total lack of a hearing cannot be excused by the concurrent urgent circumstances, “given that there are sufficient legal mechanisms to enable said hearing even in cases of extraordinary urgency and that they could have been followed in the case.”
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