The principle of the rule of law and that of the best interests of the child, as well as the right to respect for family life are violated by all such hospital practices in the course of which newborn babies are separated from their mothers during postnatal hospital treatment, disregarding the statutory guarantees, without any medical reasons and in contrary to specific requests. Ombudsman László Székely consulted the competent ministry for the elaboration of the right legal interpretation and rules of procedures.
Two civil society organizations complained in a petition that it is still well-established practice in Hungary to place mothers and their newborn infants in separate hospital rooms. The two civil society organizations which voiced their concerns about this practice in their submission to the Ombudsman explained that this procedure ran against the provision of the Health Care Act which considers joint hospitalization for the mother and the child, the practice of so-called rooming-in as the main rule.
The Commissioner for Fundamental Rights launched an inquiry into this subject and in his report, he emphasized that in the period of childbirth, the requirement of respect for private and family life also extends to health care institutions and it is the responsibility of the state to reinforce respect for this principle. It is mentioned in the report that the separation of the mother and the child should be assessed on the basis of the governing guarantee rules set out in the Health Care Act. This stipulates that the mother is entitled to be placed in the same room as her newborn baby, as long as this is not excluded by any health risks, or the health condition of the mother or the infant. This statutory provision acknowledges the mother and the child as a unit, it defines their continuous and undisturbed unity as a value to be protected. The presence of the other patients and their children cannot override the right of the mother to be continuously together with her newborn child. It is unacceptable that this statutory guarantee is made meaningless or relative, or is destroyed by the house rules or treatment practices of certain institutions.
In his report, the Commissioner emphasized that the convenience of the roommates, the lack of a baby-friendly accreditation of the health care institution, the financial and infrastructural conditions of the hospital, the position taken by the hospital management, the work schedule or daily routines established at the hospital department, or the attitudes of the staff working at the department in question cannot constitute a legal obstacle to the development of child-friendly solutions. Such arguments are legally unsubstantiated, as it is clarified in the Ombudsman’s report, which states that the conflicts can be mitigated or prevented by placing patients in the hospital rooms on the basis of local work organization, as well as the preliminary mapping of the patients’ wishes. The Ombudsman drew attention to that the mother may request the help of the hospital staff with taking care of the child for a shorter or a longer period at any time during her postnatal hospital stay, without any obligation of justification, because of her exhaustion or tiredness. The Commissioner thinks that the approach that regards the mother and her children as parties with shared interests, and one that treats the mother as a responsible partner acting on behalf of her child, should be general in our health care system.
In their response given to the inquiry, the responsible ministry informed the Commissioner of some initiatives and developments. The progressive nature of these was not disputed by the report but the Ombudsman suggested that further action should be taken: the basic conditions for changing attitudes should not only be created in the case of supported flagship and accredited baby-friendly hospitals. In his recommendation, he requested the Minister of Human Capacities to take the necessary steps for ensuring that the current rules and statutory requirements are interpreted and applied in a uniform and right manner, and if necessary, to initiate that an internal professional meeting be convened. The Ombudsman also suggested that the elaboration and codification of the concept of outpatient obstetric care, which would mean an alternative to rooming-in and would allow as early safe discharge from hospital as possible, be considered.