Honourable Minister, Honourable Director General,

The Chancellor of Justice has received inquiries regarding obstetric care during the emergency situation, been in contact with professional associations, and monitored media coverage of topics related to obstetric care. Complaints and questions have been raised regarding reserves of personal protective equipment in maternity wards, prohibiting birth partners from entering the hospitals, testing the people giving birth for Covid-19 and wearing protective masks.

The rights of people giving birth are protected by international conventions binding on Estonia as well as §§ 12, 16, 18, 26 and 28 of the Constitution of the Republic of Estonia. Restrictions are necessary and understandable for the prevention of contracting the virus in hospitals, but such restrictions cannot be excessive, considering the actual situation.

With respect to the ongoing emergency situation in Estonia, the Estonian Gynaecologists Society, the Estonian Midwives Association, the Estonian Paediatric Association, and the Estonian Perinatology Association drew up recommendations titled “Birth, and the monitoring of pregnant women and newborn babies during the COVID-19 epidemic”. The recommendations put forward by the professional associations are general guidelines for health care providers, and where a specific hospital can ensure the safety of patients and personnel, exceptions that are more beneficial for the people giving birth can be made. The Estonian Health Insurance Fund submitted these recommendations to hospitals on 19 March 2020 (No. 3-22/8969) with a cover letter that stated: “Please implement the attached recommendations into day-to-day work routines”.

Under applicable law, health care providers must decide on how to ensure the safety of everyone in the hospital in the best way possible, taking into account the means available to them. I ask that the Health Board and the Ministry of Social Affairs along with the Estonian Health Insurance Fund, hospitals, and relevant professional associations, quickly determine what can be done to allow hospitals to ease restrictions applied regarding the restrictions in obstetric care.

The hospitals’ needs (e.g. personal protective equipment, etc.) for allowing birth partners to be present during birth must be assessed. Matters that must also be addressed include the administration of a Covid-19 test to people giving birth (including asymptomatic people giving birth), the times at which (upon being admitted to the hospital, while moving around in the hospital, or while in the maternity room) a person who has been admitted to the hospital to give birth must wear a protective mask, and the types of aid provided to those whose health condition excludes the use of masks.

Also during an emergency situation the UN Convention on the Rights of Persons with Disabilities must, among other things, be taken into account when organising obstetric care. More specifically, a birth partner might play an important role in protecting the rights of women with disabilities:1 e.g. where a woman giving birth speaks Estonian sign language, and needs a birth partner to help with translating. As relevant information is not currently available from the websites of all hospitals, I suggest that all of the necessary information regarding restrictions on obstetric care be published in plain and intelligible language on hospitals’ websites as well as alongside the FAQ on the emergency situation website kriis.ee. Unfortunately, materials that are misleading and evoke fear are also circulating amongst future mothers.

Additional explanations and references

Under subsections 10 and 11 of § 1 of the Chancellor of Justice Act (CJA), the Chancellor of Justice performs the functions of the national institution for the promotion and protection of human rights, and the functions of promoting, protecting and monitoring the UN Convention on the Rights of Persons with Disabilities. Subsections 10 and 11 of § 1 of the CJA also apply to the protection and promotion of sexual and reproductive rights.

Sexual and reproductive rights are human rights that protect persons’ sexual and reproductive health by relying on previously recognised human rights (i.e. rights established under domestic constitutions and international conventions). This means that in explaining the substance of sexual and reproductive rights, the relevant norms usually include the right to life, the right to health, the right to respect for private life, the prohibition of degrading treatment, the right to education, and the prohibition of discrimination. Thus, sexual and reproductive rights are also protected under §§ 12, 16, 18, 26 and 28 of the Constitution of the Republic of Estonia2.

The UN first recognised sexual and reproductive rights at the 1994 International Conference on Population and Development in Cairo. In recent years, both UN institutions and committees monitoring the implementation of international conventions have confirmed states’ obligations in protecting these rights.3 In its decisions, the European Court of Human Rights has, when elaborating on topics regarding sexual and reproductive rights, also repeatedly referenced provisions of the European Convention on Human Rights: e.g. Article 8 (right to respect for private life) and Article 3 (prohibition of degrading treatment).4 Separate references to sexual and reproductive rights are provided under the UN Convention on the Rights of Persons with Disabilities (Article 25(a)) and the UN Convention on the Elimination of All Forms of Discrimination Against Women (Article 16(1) (e)).

During the Covid-19 pandemic, hospitals might consider it necessary to administer Covid-19 tests to all women giving birth (including those who are asymptomatic). The precondition for this is

                      Footnotes                           1 See also the UN Committee on the Rights of Persons with Disabilities, General Comment No. 3 (women and girls with disabilities), CRPD/C/GC/3, 2016. 2 See also the Constitution of the Republic of Estonia, Commented Edition, comments on § 26. 3 See e.g. the UN Committee on Economic, Social, and Cultural Rights, General Comment No. 22 on the right to sexual and reproductive health (Article 12 of the International Covenant on Economic, Social, and Cultural Rights), E/C.12/GC/22, 2016; the UN Human Rights Committee, General Comment No. 36 (Article 6 of the International Covenant on Civil and Political Rights, right to life), CCPR/C/GC/36, 2018; Views adopted by the UN Human Rights Committee in Whelan v. Ireland (2017), Mellet v. Ireland (2016), Views adopted by the UN Committee on the Elimination of all Forms of Discrimination Against Women in S.F.M. v. Spain (2020). 4 E.g. P. and S. v. Poland (2013), I.G. and Others v. Slovakia (2013).

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Staying in our homes, maintaining personal hygiene and physical distance are some of the most effective measures to stop the spread of coronavirus, but they put citizens with an uncertain housing situation in a difficult position during the epidemic.

In addition to tenants, this issue also relates to persons under international protection in Croatia, namely those whose two-year right to accommodation is about to expire or already has. Since some of them lost their jobs as a result of measures taken to contain the virus, such as shutdown of cafe bars, and as it is almost impossible to find a new one, it is a question how will they cover housing costs.

That is why we asked the Government’s Office for Human Rights and the Rights of National Minorities, which is coordinating the work of all ministries, non-governmental organisations and other bodies involved in integration of persons under international protection, about measures planned or already taken to ensure their accommodation.

In addition, all those still waiting for the final decision on their application for international protection who are temporarily placed in reception centres, should have secured access to health care, conditions for self-isolation in case such measure is appointed to them, as well as all information related to all imposed measures, while access to education must be secured to children. Adequate health care, self-isolation conditions and adherence to all measures should also be secured for irregular migrants, placed with movement restrictions in reception centres for foreigners, which makes them especially vulnerable.

As the Ministry of Interior is responsible for all reception centres for asylum seekers and foreigners, we requested the information about measures to reduce the spread of infection, including the availability of protective equipment for all employees in direct contact with applicants for international protection and irregular migrants.

Emergency situations such as this epidemic, just as fires, floods and similar, are inseparable from human rights. More details about our activities on human rights protection during the epidemic can be found here.

Monika Šimůnková, the Deputy Ombudsman, and her colleagues dealt with several cases concerning negative impacts of government’s emergency measures on families. In cases in question, married couples coming from different countries were to be separated by the temporarily closed borders. Fortunately, in all cases mentioned bellow the Deputy and her colleagues were able to help them.

The first case was related to the partners living each at the opposite side of the Czech-Slovak boarders. Both of them have had severe health issues and one of the partners was dependent on the care of the other one – the woman was caring a lunch for her partner to the borders every day. After several consultations, an exception was granted to the woman so she could finally cross the borders to take care of her partner. Moreover, we cooperated with the Slovak Public Defender of Rights to facilitate the entry to the Slovak Republic.

In the second case we were approached by a pregnant woman who claimed to have difficulties with the entry of her husband (a South American state citizen) to the Czech Republic. The complainant was in a high-risk pregnancy and lived with her husband in his country of origin. They planned to return to the Czech Republic this spring. The complainant who is the citizen of the Czech Republic managed to arrive safely. However, her husband, even though he would not need to have visa to stay in the Czech Republic up to 90 days under the normal circumstances, was requested to present himself with a residence permit for more than 90 days as a consequence of the emergency measures in force at that time. The complainant’s husband was granted by the requested visa bud he would have to pick up his residence card in the Czech Republic only. This was, however, impossible under the current circumstances. The Ombudsman’s Deputy and her team luckily managed to break up this vicious circle and after the communication with the Ministry of the Interior the decision granting the complainant’s husband the temporary residence permit was delivered to him by other means. In the end, he could fly to the Czech Republic and be with his pregnant wife.

The last case concerned a woman having a Czech citizenship, her husband who was a third-country national, and their six-month-old baby. The family was living in the husband's Asian country of origin. Due to the measures related to COVID-19, the whole family was to arrive to the Czech Republic by a repatriation flight. However, the husband was informed by the Czech Embassy that he will not be allowed to enter the territory of the Czech Republic since he did not have a residence permit for more than 90 days (he had only a short-stay visa). Following the Deputy’s intervention the Ministry of the Interior clarified that the complainant, being the father of the Czech citizen, can enter the Czech Republic also on the basis of a short-stay visa. Thus, the repatriation of the whole family was finally ensured.