Hungary: Wrongful Birth Compensation?
On 15 October 2020, the Budapest-Capital Regional Court filed a judicial initiative to the Hungarian Constitutional Court (N° III/01838/2020), regarding a lawsuit in a tort law case. In the lawsuit, the parents of a disabled child (the plaintiff) sued a hospital (the defendant) for damages and compensation for a wrongful birth of their child, who had congenital disorder.
In Hungary, when the judges have to decide on a case applying a rule that they find unconstitutional, they have the possibility to seek the position of the Constitutional Court, and that suspends the lawsuit. As a result of a judicial initiative, the Constitutional Court may decide the annulment of the particular provision.
The basis case of the proceeding and the arguments of the plaintiffs
The basis of the present proceeding is a lawsuit, where the Budapest-Capital Regional Court decided to file the case to the Constitutional Court since the Court had found the applicable rule unconstitutional and it requested the Constitutional Court to annul the provision. In the lawsuit, the parents of a disabled child sue a hospital for damages and compensation.
Their child has a congenital disorder, which had not been diagnosed by the hospital. The parents argue that such disorder should have been diagnosed before week 20 or 24 of the pregnancy. Such mistake of the health care provider had deprived the mother from her right of self-determination, which is provided by the Hungarian law. The provision at the heart of this case is that of Hungary’s Act LXXIX of 1992 (“Act”) on the Protection of Foetal Life provides that the pregnancy can be terminated until the 20th week (or the 24th week in case of prolonged diagnostical procedure) if the probability for a genetic or teratological harm of the foetus is above 50%.
The plaintiffs argue that based on the relevant domestic case-law, in wrongful birth cases, the parents are entitled to compensation and damages for breach of their right to plan their family, in particular, the mother’s right to self-determination. The link between the compensation and the diagnostical failure is not the child’s disorder, but the fact that the mother was unable to decide to terminate of the pregnancy, since the diagnostical mistake had deprived her from such a right. This argument is based on a decision ensuring uniform application of the law in civil law cases.
The child’s bones down from the elbow are absent and their speech development is also delayed. The child also needs support in their psychomotor abilities, according to experts of the lawsuit and independent experts as well. According to the Institute of Forensic Experts, the defendant should have recognized the lack of the bones of foetus in the second trimester examination. However, the other anomalies could not have been realistically recognized, since there were no direct genetical proof that could have been a basis to set up a complex diagnosis that includes the other anomalies of the foetus. According to the experts, the anomalies were most likely a consequence of a teratological effect during the pregnancy. Nonetheless, the plaintiffs’ opinion is that the diagnostical mistake deprived the mother from her right to decide about the termination of the pregnancy.
The observations of the Budapest-Capital Regional Court
The Budapest-Capital Regional Court found that the issue in the present case was not only a diagnostical question, but that the level of protection of the foetus provided by the legislator also had to be assessed. Based on the above-mentioned provision of the Act, it also must be examined what diagnostical procedures and what disorders would be qualified as a basis of the right to terminate the pregnancy. Therefore, the case not only consists of a civil law issue and a matter of evidence, but also a constitutional matter, since in this relation, the protection of the foetus provided by the legislation should be in the focus of the Court. Therefore, the Court assessed whether the legislative body had provided the right amount of protection to the foetus.
The Court found that the Act cannot provide an appropriate balance between the rights of the foetus and those of the parents. The Court confirms that the prenatal life is a conditional legal status, but the present regulations do not establish a fair level of protection, since the right of the foetus is more limited than the parents’ right. The Court argues that the foetus should be provided with the same rights as any other person. To do so, the Act is the right tool to protect foetal life only when it limits the possibilities to terminate the pregnancy; the 50% possibility of teratological harm is not precise enough. This ambiguity opens the possibility for different interpretation of the law between courts, parents and health care providers.
The Court argued in the application that since the foetus is not provided with representation and ability to decide, the law should be more precise and ethical when it determines the parameters of the post-natal life. The question is, what disorders could be qualified as a basis to examine the liability of the health care providers, or when should the intrauterine disorders not be a basis to the right to terminate the pregnancy.
According to the Fundamental Law of Hungary protecting the human dignity of every person, the life of the foetus shall be protected from conception. This means that the Acts provisions shall embody this goal and that in case of abortion, the foetus’ rights should be taken into account by law.
In this case, according to the Budapest-Capital Regional Court, the wording of the Act “50% possibility of teratological harm” can cause ambiguity, as it is not precise enough: since the diagnostical tools have been developed recently and medical profession is able to provide more precise information, the relevant law should be interpreted and reshaped accordingly. The “50% possibility of teratological harm” could mean minor and major disorders, but it does not answer how these should be qualified when it comes to decide about the termination of the pregnancy.
Based on this ambiguity, the Budapest-Capital Regional Court found that this issue should not be answered by medical professionals or courts but by the legislative body. The Court also proposed that the rights provided to the mother should be limited based on an objective criterion that also considers the right to life of the foetus. Such criteria can only be in accordance with the principle of right to life if the law is as precise as possible. Based on these arguments, the Court found the relevant provision ambiguous and therefore unconstitutional.
A future decision of the Constitutional Court?
The Budapest-Capital Regional Court argues for the unconstitutionality of one particular provision, so it is not likely that it will fundamentally change the Hungarian regulation of the protection of foetal life.
The case is now at the admissibility stage, where a judge of the Constitutional Court will decide whether it fulfils the requirements to become a case in front of the whole body of the Constitutional Court. If this happens, it becomes a pending case, wherein the Constitutional Court has to decide the case on the substance. The Fundamental Law sets up a 90 days long limit for the decision.
After this stage, the Constitutional Court can either annul the ambiguous provision or decide in favour of the constitutionality of it. We shall know in the next months.
The recent Polish example
In October 2020, Poland was the place where the issue of the constitutional protection of the sick or disabled unborn babies was addressed. On October 22, the Polish Constitutional Court, meeting in plenary session, rendered a historic decision declaring that eugenic abortion is contrary to the dignity and life of the human being, the respect of which are guaranteed by the Polish Constitution.
In effect, this decision repeals the provision of the 1993 Polish law that, until now, allowed abortion when “prenatal examinations or other medical data indicate a high probability of serious and irreversible disability of the foetus or an incurable life-threatening illness.” Eugenic abortions in Poland make up most of the 1000 to 2000 abortions performed each year, most of which mainly target children with Down's syndrome.
The ECLJ intervened in this case before the Constitutional Court, bringing arguments based on European and international law (See here our written observations in English or in Polish). A number of Polish media described the ECLJ’s amicus brief as a decisive intervention in the proceedings at the Constitutional Court.
 See 1/2008, Decision ensuring uniform application of the law, point 3.
 See Article II of the Fundamental Law of Hungary.