The R. R. v Poland abortion case: Another challenge on the Polish laws before the European Court of Human Rights.

Strasbourg
By Grégor Puppinck, Ph. D. Director of the ECLJ.

The European Centre for Law and Justice (ECLJ) draws attention on a case regarding abortion in Poland that is currently pending before the Fourth Section ofthe European Court of Human Rights (ECHR): the R.R. v Poland (Application n° 27617/04).

The applicant, Mrs R. R., complains about the refusal of her request to her physician for prescribing her genetic prenatal tests within the legal time-frame for abortion. Indeed, in the physician’s view, she didn’t meet the requirements for a legal abortion. Such genetic prenatal tests would have ultimately determined whether the strict conditions for performing an abortion were satisfied under Article 4a of the Polish Protection of the Human Foetus and Conditions Permitting Pregnancy Termination Act. This law provides that legal abortion is possible only until the twelfth week of pregnancy where the pregnancy endangers the mother's life or health; or prenatal tests or other medical findings indicate a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there are strong grounds for believing that the pregnancy is a result of rape or incest.1

The applicant gave birth to a girl suffering from “Turner Syndrome”, a chromosomal abnormality affecting girls, whose symptoms are generally a short stature and sterility. She unsuccessfully requested the prosecuting authorities to institute criminal proceedings against the physician involved in handling her case.

This case fall within the framework of other cases against Poland brought before the Court on the same issue, particularly Tysiac v. Poland2 and Z. v Poland,3 the latter of which is still pending.

It is fortuitously that the ECLJ got to know about this case. Contrary to the practice of the Court, this case has not been published on HUDOC, the official database of the Court. The publication on this database is essential for the transparency of its internal procedure; it permits to everyone to follow the work of the Court, to ask for leave to intervene as third parties, or even to draw attention to this issue. This may be explained because this case has been communicated to the responding State years ago, before the implementation of the HUDOC system. The same thing happened recently in another sensitive case, the Schlak and Kopf v. Austria case.

By opposition, a number of pro-abortion organizations, such as the Helsinki Foundation for Human Rights and the Polish Federation for Women and Family Planning, were well aware of this application for a significant period of time4. At least one of those lobbies – the International Reproductive and Sexual Health Law Programme of the University of Toronto - has been admitted to submit written comments to the Court, as third party. This communiqué is based, inter alia, on information obtained on the Internet from these files5. Here is an overview of the case, as we tried to piece it together from those sources and from the Information Note on the Court's case-law6.

According to the 2007 Annual Report of the Fourth Section of the ECHR, “When the applicant was pregnant with her third child, she was informed, on the basis of ultrasound scan results, of the likelihood that the foetus had been affected with Turner syndrome. A genetic examination was recommended to confirm or dispel these suspicions. However, her local physician refused to give her a referral to undergo such an examination as in his view her condition did not qualify for an abortion. She was subsequently refused a genetic examination in local and teaching hospitals. In the 23rd week of pregnancy she went, without a referral, to another hospital where she was admitted as an emergency patient. Genetic tests were performed there. In the 25th week of her pregnancy she received the results confirming that the foetus was suffering from Turner Syndrome. Before and after she obtained the results, she again requested the local hospital to carry out an abortion. This was refused since by then it was too late for a lawful abortion on grounds of foetal abnormality. The applicant gave birth to a baby suffering from Turner Syndrome. She unsuccessfully requested the prosecuting authorities to institute criminal proceedings against persons involved in handling her case. She also filed a civil action for compensation against the relevant physicians and health care institutions. Her claims were dismissed by domestic courts, as they found that there had been no procrastination [dilatoriness] on the doctors' part and that under the World Health Organisation standards termination was permissible only until the 23rd week of pregnancy.”7 In 2007, this case was still pending before the domestic courts.

Before the ECHR, the applicant claims that she has been subject to degrading treatment (art. 3) since she was unaware of the health of her pre-born child and was denied the genetic tests in a timely manner. The applicant also argue that her right to respect for private and family life (art. 8) has been violated because she did not enjoy the possibility to carry out prenatal genetic tests on time, which would have allowed to determine whether the strict conditions for performing an abortion were satisfied under Article 4a of the Polish law. In a wrongful birth action, the applicant submits in addition that raising and educating a severely-ill child has been damaging to herself and her other two children. Mrs R. R. also claims that she had no access to an effective remedy (Art. 13) before national courts, since, in her opinion, there were no available procedure allowing a resolution of her conflict with the doctors and hospital regarding whether prenatal genetic tests were justified or not.

For the ECLJ, it is clear that as long as abortion is limited to exceptional circumstances based on “medical” grounds (i.e. eugenics grounds), only the medical staff is in a position to confirm whether there is such a ground or not. On the other hand, if we admit that the mother’s opinion may, in some ways, prevail on the medical expert appraisal, the principle of the “medical” exception will unavoidably be slipping into a system of subjective right to abortion.
Moreover, recognizing the mother’s right to force the medical staff to carry out or prescribe a medical treatment which may lead to abortion (as prenatal diagnosis) would be an infringement of the right of the medical staff to freedom of conscience in regard to abortion, a fundamental right recently reasserted by the Parliamentary Assembly of the Council of Europe in its resolution 1763 (2010) on “The right to conscientious objection in lawful medical care”.

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The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person and life with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).

1 Section 4(a) of the 1993 Act reads in its relevant part:
“1. An abortion can be carried out only by a physician where
1) pregnancy endangers the mother's life or health;
2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease;
3) there are strong grounds for believing that the pregnancy is a result of a criminal act.
2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother's body; in cases listed under 3) above, until the end of the twelfth week of pregnancy.
3. In the cases listed under 1) and 2) above the abortion shall be carried out by a physician working in a hospital. ...
5. Circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman's life.”

2 Application n. 5410/03, judgment of the 20th March 2007, Section IV.

3 Application no. 46132/08 by Z against Poland, lodged on 16 September 2008; pending before the Fourth Section.

4 Noteworthy, we found the written comments issued to the Court on 28 September 2007 by the International Reproductive and Sexual Health Law Programme, University of Toronto, Faculty of Law, pursuant to Rule 44, § 2 and § 4 of the Rules of the Court. You can find this document at the web page
http://www.law.utoronto.ca/documents/reprohealth/BriefPoland2007.pdf.
A Report on “Reproductive Rights in Poland”, written in 2008 by the Federation for Women and Family Planning, contains a detailed exposition of the fact of the Case, at pages 62-63 see
http://www.federa.org.pl/dokumenty_pdf/english/report%20Federa_eng_NET.PDF as well as an Article written by Professor Adam BODNAR, Secretary of the Directorate of the Helsinki Foundation for Human Rights, “Les litiges relatifs au manque de services d’IVG en Pologne”
http://www.federa.org.pl/dokumenty_pdf/prawareprodukcyjne/PrReprod_Bodnar_Raport2008_Fr.pdf. The latter Foundation has included a reference to this case, in a “Submission to the 100th Session of the Human Rights Committe”, the 8th of October 2010, available at
http://www2.ohchr.org/english/bodies/hrc/docs/ngo/HFHR_Poland_HRC100.pdf. Furthermore, the case was cited in a report done by the “Euroregional Center for Public Initiatives” published on the 22nd June 2010 at http://www.ecpi.ro/documents/Docs/BasicInfo_PACEresolution_CO_FINAL_15-9-2010.pdf.

5 See, in particular the Article of Professor Bonar “Les litiges relatifs au manque de services d’IVG en Pologne”, at pages 23-24 and the Report on “Reproductive Rights in Poland”, written by the Federation for Women and Family Planning, at pages 62-63, both referred above, in footnote n. 2.

6 The Information Note on the Court's case-law is a“paper”bulletin available on subscription. The case is mentioned in n° 97 from may 2007 and n° 105 from February 2008.

7 See ECHR, Annual Report 2007: Fourth Section, p. 16 – available at http://www.echr.coe.int/NR/rdonlyres/96443711-4133-4043-8FB6-331AEC510FCA/0/2007_section_activity_reports.pdf