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Naissance confidentielle et anonyme et dépôt anonyme de bébés comme exemples de dilemme éthique

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 décembre 2020    AOndrej Prostredník

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