The Commissioner for Fundamental Rights stands up for clarifying the legal obligations and legal consequences related to prenatal care
It is contradictory and not clearly defined which screening and laboratory tests are obligatory as part of prenatal care, the failure to do which may even involve serious legal consequences. This was concluded by Ombudsman László Székely from his ex officio inquiry, so he requested that the regulation be made unambiguous, and that the current, worrisome practices be terminated.
A civil advocacy group turned to the Commissioner with questions of legal interpretation and legal practices related to prenatal care. The situation is that according to the general practice followed by the members of the child protection signaling system, primarily the health care visitors, undergoing the examinations specified in the decree on pregnancy care is obligatory for expectant women. It happens on a regular basis that when an expectant woman fails to attend these examinations, this will be qualified by the members of the signaling system as a severe threat to the embryo (the child to be born), and this is signaled to the child protection authorities with the aim of eliminating this practice. As a result of these, measures may even be taken by the public guardianship authority, which may finally lead to removing the child from his or her birth family.
The Ombudsman’s report mentions that the Primary Health Care Act defines the care provided to expectant mothers and the assistance provided in getting prepared for motherhood as the responsibilities of the health care visitors. The mothers in the prenatal and postnatal periods, as well as the care providers and statutory representatives of the minors are obliged to cooperate with the health visitor. If the expectant mother fails to cooperate, the health visitor will notify the family and child welfare services, the public guardianship authority, the family doctor, as well as the district pediatrician in a written form. However, in the opinion of the Commissioner, this notification cannot be interpreted as a communication equivalent to an automatic signal about the severe endangerment of the embryo (the child to be born). The situation is that after receiving the signal, it is primarily the responsibility of the expert of the child welfare services to decide whether any further measures should be taken to ensure the healthy development of the embryo in question. So, for example, the health care visitor will be obliged to give a signal to the family and child welfare services if she thinks that the lifestyle of the expectant mother (for example, her alcohol or drug consumption) or her circumstances (such as her harmful living conditions) jeopardize the healthy development of the embryo.
In his report, the Commissioner also clarified that giving a signal of the severe endangerment of the embryo, or the launching of the public guardianship procedure cannot be justified by the single fact that the expectant mother does not use the health care services that are required from her on a non-mandatory basis, for example the non-mandatory screening tests. The Ombudsman thinks that the right to self-determination and the requirement of legal certainty are violated by the solution in which the health care visitors give an automatic signal to the child welfare services regarding the endangerment of the embryo because the expectant mother does not take part in the non-mandatory medical and laboratory tests.
Ombudsman László Székely requested the Minister for Human Capacities to remove the expression “pregnancy care” from the sectoral laws in his competence by using the uniform expression “expectancy care”. He also asked the Minister to consider the clarification of the decree on expectancy care and the Primary Health Care Act. The Minister should take action to guarantee that the health care visitors perform their work related to expectancy care according to the criteria specified in the Ombudsman’s report. And if he regards it as necessary, then the head of the Ministry should also consider adding the relevant points to the currently effective Guidance for the Supervision of Health Visitors.