RR -v- Poland
European Court of Human Rights: Chamber judgment
Judgment was given by a majority of six to one on May 10th, 2011
Judgment
The Polish government was ordered to pay the applicant, Ms RR, €60,000 for violation of her rights under articles 3 (prohibition of inhuman and degrading treatment) and 8 (respect for family life) of the European Convention on Human Rights, in denying her timely access to prenatal tests to determine whether the foetus she was carrying suffered from congenital abnormalities.
Background
Ms RR was a married mother of two. In February 2002, when 18 weeks pregnant, she had an ultrasound scan, following which her family doctor, Dr S B, told her he could not rule out the possibility the foetus was malformed.
She told him she wished to have an abortion if this was the case, as is permitted under Poland’s 1993 Family Planning Act.
Two further scans confirmed the likelihood of foetal malformation, and an amniocentesis test was recommended.
However, Dr S B refused to refer her for this test. In the first week of March, he refused a request from her and her husband for a termination.
On March 14th, 2002, the woman was referred to a university hospital in Kraków, 150km away.
The doctor there criticised her for considering an abortion, and refused to authorise genetic tests.
She was discharged on March 16th, 2002. Her discharge record and medical certificate stated that the foetus had developmental abnormalities.
On March 21st, 2002, a further scan confirmed that the foetus was malformed.
She had an amniocentesis test on March 26th of that year, in the 23rd week of pregnancy, and was told she would have to wait two weeks for the results.
On March 29th she submitted a written request to the local hospital for an abortion under the 1993 Family Planning Act, which stipulates that an abortion on the grounds of foetal abnormality can only be performed before the foetus is considered capable of independent life, normally thought to be in the 24th week of pregnancy.
On April 9th she received the results of the genetic tests which confirmed that her child had Turner syndrome.
She renewed her request for an abortion the same day.
The doctors refused because the legal time limit for abortion had passed.
On July 11th, she gave birth to a girl with Turner syndrome. Her husband left her after the baby was born.
She took both criminal and civil proceedings against the doctors for failing to perform timely prenatal tests.
The criminal proceedings failed, but she was awarded 10,000 Polish zlotys (€2,515) against her family doctor, who had criticised her and her husband in a newspaper, revealing personal details.
She was refused any compensation for her treatment by the doctors, and she appealed this ultimately to the Polish Supreme Court, which found she had suffered stress, anxiety and humiliation, and remitted her case.
Her award was increased, and both hospitals ordered to pay compensation.
She brought a case against the Polish state to the European Court of Human Rights claiming she was denied access to the prenatal tests to which she was entitled, and therefore missed the time-limit for a legal abortion.
Decision
The court found that the determination of whether the applicant should have had access to genetic tests, as recommended by doctors, was marred by procrastination, confusion and lack of proper counselling and information.
Under the 1993 Act, the state was obliged to ensure unimpeded access to prenatal information and testing, particularly where there was a possible genetic disorder or development problem.
However, there was no indication the legal obligations of the State and of the medical staff regarding RR’s rights as a patient were taken into consideration by the people and institutions dealing with her requests to have access to genetic tests.
Six weeks elapsed between the first relevant ultrasound scan and the results of the amniocentesis – too late for her to make an informed decision on whether to continue the pregnancy or to ask for a legal abortion, as the legal time limit had by then expired.
It was a matter of great regret that she was so shabbily treated by the doctors dealing with her case.
The court could only agree with the Polish Supreme Court’s view that the applicant had been humiliated. There had therefore been a violation of article 3.
Turning to article 8, the court noted that, while states had a broad margin of appreciation regarding the circumstances in which an abortion would be permitted, once that decision had been taken there had to be a coherent legal framework in place to allow the different legitimate interests involved to be adequately taken into account, in accordance with the convention.
The court stressed that, as Polish domestic law allowed for abortion in cases of foetal malformation, there had to be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the health of the foetus be made available to pregnant women.
The court considered that Polish law lacked any effective mechanisms enabling the applicant to have access to the available diagnostic services and to take an informed decision, based on their results, as to whether or not to seek an abortion.
The court concluded the Polish authorities had failed to comply with their obligations to ensure the effective respect of RR’s private life, and that there had therefore been a violation of article 8.
The chamber was composed of judges Nicolas Bratza (UK), president Lech Garlicki (Poland), Ljiljana Mijovi (Bosnia and Herzegovina), Sverre Erik Jebens (Norway), Päivi Hirvelä (Finland), Ledi Bianku (Albania), Vincent A de Gaetano (Malta), and Lawrence Early, section registrar