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Biolaw and the intimate

Confidential and Anonymous Birth and Anonymous Baby Drop-off as Examples of Ethical Dilemma

Confidential and anonymous birth and anonymous baby drop-off (baby box) are solutions that offer a way out for women in difficult social and existential situations. They represent an alternative (...)

Confidential and anonymous birth and anonymous baby drop-off (baby box) are solutions that offer a way out for women in difficult social and existential situations. They represent an alternative to the possible rash action of the mother or her immediate social environment directed against the child’s life.

For confidential birth, the medical facility protects the identity of the mother in relation to the child and the public, while the identity of the mother is known and is recorded in separate and sealed documentation. The identity of the mother may be revealed to the child after reaching a certain age and under specified legal conditions.

For anonymous birth, the mother does not provide her personal data to anyone. This solution prevents the later access of the child to information about his or her origin.

Anonymous baby drop-off (baby box or baby hatch) is a situation in which the mother or another person places the child in a designated facility without revealing the identity of the mother or the child. It can be a case where the mother has successfully concealed her pregnancy and childbirth, or a case where the mother has given birth in a medical facility without concealing her identity and then placed the child anonymously in a dedicated facility.

Legislation on these cases varies across European countries. Most countries allow confidential but not anonymous births. In principle, it is a matter of balancing the interest and the right of the child to know his or her origin, and the public interest in preventing illegal abortions and the illegal abandonment of children.

The case law of the European Court of Human Rights addresses several cases of conflict between the mother’s right to privacy and the child’s right to obtain information about one’s own origin. Granting an exception to the protection of the mother’s privacy in favor of the child’s right to obtain information about his or her own origin is considered by the court a procedure in accordance with Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In Slovakia, confidential birth is possible, and the information on the identity of the mother is kept in separate medical documentation. This is made possible by § 11 par. 10, § 19 par. 4 and 5 of the Act and in § 23 of Act no. 576/2004 coll. on health care, an indirect amendment of Act 576/2004 coll. Through the Act 538/2005 coll. allows anonymous baby drop-off in the Slovak legal system by allowing medical facilities to create a publicly accessible incubator into newborns can be placed, for the purpose of saving newborns. Details are regulated by the Professional Guideline of the Ministry of Health of the Slovak Republic on the Procedure of Healthcare Professionals in the Provision of Healthcare to Newborns Deposited in a Publicly Accessible Incubator, Number: 09894/2009 - OZS of 12 May 2009.

Ethical discussion in this area is hampered by the fact that it is quite impossible to determine with certainty how the mother, or parents would have acted it if they did not have the possibility of confidential or anonymous birth or the option of anonymous baby drop-off. Statistics show a drop in the number of newborn homicides in countries where these options were legalized. At the same time, however, these statistics indirectly indicate an increasing number of children growing up in difficult living conditions without parents, without a name and without knowledge of their origin. The German Council for Ethics (Ethikrat) with regard to several ethical and legal problems of this practice issued an opinion recommending the abolition of the possibility of anonymous birth and the anonymous baby drop-off.

A statement of the Catholic Church in Slovakia goes in quite an opposite direction. The Catholic Conference of Bishops in Slovakia objected to the recommendation of the UN Committee on the Rights of the Child in 2017 that parties of the Convention work towards a ban of anonymous baby drop-off facilities. Using its right to formulate and raise objections in the official governmental legislative process, the Conference of Bishops stated that “saving lives is a value that far surpasses other goods.” The competent state authority, which in this case was the Ministry of foreign affairs, did not accept this objection. However, the above-mentioned legal conditions for the functioning of anonymous baby drop-off facilities were not changed, and they continue functioning in an unchanged mode.

There are two possible ethical motivations which in this case are in conflict and represent different interests with regard to the welfare of the child and of its mother or its parents. The first motivation is to ensure the life and health of the child. Closely related to it is the motivation to help women who are in a situation of extreme social and existential need and are aware of their inability to provide the necessary protection for their child in that situation. This state of emergency can be amplified in various ethnic and religious contexts that put additional pressure on a woman and lead her to conceal her pregnancy and childbirth from her family and social environment.

On the other hand, there is the motivation to provide the child with the opportunity to grow up with an awareness of its own identity and belonging to a certain community. The knowledge of who the biological mother and biological father are, who the potential biological siblings are, is an essential prerequisite for the development of a stable personal identity and the building of trust in the positive contribution of the closest interpersonal relationships. At the same time, this motivation is linked to the intention to strengthen the awareness of parental responsibility.

There is an increasing tendency in the ethical debate to emphasize the value of the motivation that strives to provide the child with the knowledge of its biological roots. The legal situation in Slovakia, as well as in several other European countries still makes it possible to use the anonymous baby drop-off. In spite of the fact that a recommendation was issued by the UN Committee on the Rights of the Child, there is no discussion going on in Slovakia that would challenge the continuation of this practice.

Sources:
- Handbook on European law relating to the rights of the child.
- Monika Bradna und Claudia Krell, "Anonyme Kindesabgabe – ein passgenaues Angebot für hilfesuchende Frauen oder der Preis für ein kollektives gutes Gewissen?", in QJB – Querelles. Jahrbuch für Frauen- und Geschlechterforschung, Bd. 17 (2014)
- Rastislav Bublák, Utajený pôrod a právo dieťaťa poznať svoj biologický pôvod vo svetle judikatúry ESĽP (Secret Birth and the Right of the Child to know Their Biological Origin, in the Light of the ECHR jurisprudence)
- Eberhard Schockenhoff, Ethische Aspekte der anonymen Kindsabgabe.

D 2 December 2020    AOndrej Prostredník

Slovak anti-discrimination act and its saving clause for churches

The discriminatory employment behaviour of churches and religious societies is in certain cases explicitly excluded from the Slovak Anti-Discrimination Act. The law grants churches and religious (...)

The discriminatory employment behaviour of churches and religious societies is in certain cases explicitly excluded from the Slovak Anti-Discrimination Act. The law grants churches and religious societies the possibility of unequal treatment in cases where the religion or belief of the employee is a fundamental, legitimate and justified requirement for exercising the profession. In other words, if two equally qualified persons apply for two vacant positions of clergy, the church may refuse to employ the one for whom it finds that they profess a different faith than the church for which they want to work for, or they do not profess a religious faith at all. Similarly, when it comes to the teaching of religion at public schools, the content of which, according to the Slovak law, falls under the responsibility of the relevant church or religious society, it will not be considered as a discriminatory treatment if the church refuses to grant permission to teach such a subject on its behalf to a school employee who professes a different faith.

A frequently discussed question is whether the saving clause in the Slovak anti-discrimination act formulated in this way allows the Catholic Church to refuse to employ a theologically educated woman in the position of a clergywoman. The saving clause allows churches and religious societies to treat people unequally only in terms of their faith and religion, but not in terms of gender. These are, of course, hypothetical considerations, as no one in Slovakia has yet taken a legal action in such or a similar case.

An analogous discussion on the interpretation of the limits of legally tolerated discrimination in the case of churches and religious societies has recently been brought up by the statement of the Bishop General of the Evangelical Church of Augsburg Confession in Slovakia (ECAC) Ivan Eľko which he formulated in a public discussion about the attitudes of churches towards homosexuality. Among other things, he admitted that he is asking the pastors, meaning the employees of the church, direct questions concerning their sexual orientation, and also admitted that job seekers applying for the position of a pastor who gave a positive answer about their homosexual orientation would have a serious problem entering into an employment relationship with the church.

The employment relations in Slovakia can be regulated differently depending on internal regulations of the churches and religious societies recognised by the state. A church or a religious society may opt out from certain regulations of the Labor Code by adopting its own statutes. In case of the Catholic Church, its internal canonical law also regulates the employment of clergy. In case of the Evangelical Church, the employment relations are governed by the Labor Code. The Slovak Labor Code has taken over the provisions of the anti-discrimination law and does not allow churches to treat its employees unequally on the basis of their sexual orientation. Although Treaty 250/2002 Coll., concluded by the ECAC with the Slovak Republic, grants the Church the exclusive right to elect, appoint its members to the ecclesiastical ministry, transfer them, dismiss them and decide on the termination of their ecclesiastical ministry (Article 6, para. 2), the internal regulations of the Church do not state anywhere that sexual orientation of an applicant for employment in the ECAC spiritual service constitutes an obstacle for entering into an employment relationship.

From the point of view of the anti-discrimination law, the above-mentioned statement of the representative of the ECAC therefore appears to be discriminatory in at least two aspects. Firstly, it is not clear if asking direct questions about sexual orientation in a confidential interview conducted by a representative of the church in its position as an employer does not constitute discriminatory practice. Secondly, the fact that an employer presents the determination of sexual orientation as part of the procedure which, in the sense of the Labor Code, precedes the establishment of an employment relationship and that the homosexual orientation declared by the applicant during such a procedure would constitute a serious obstacle to employment.

The autonomy of churches and religious societies is a high and respected value in European legal systems. However, the protection of people against discrimination is of equal value. Maintaining a balance between these two values is a serious challenge, the urgency of which is underlined by the public statements we have outlined in this text.

D 27 April 2021    AOndrej Prostredník

CNRS Unistra Dres Gsrl

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