Europe rights court rules against Poland in abortion case

[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment] on Thursday that a Polish woman who had been denied genetic testing [press release, PDF] and an abortion [JURIST news archive] was subjected to "inhuman treatment." The court found violations to Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life) of the European Convention on Human Rights [text].

Because the decision to continue or terminate a pregnancy had a profound effect on a woman's private life, including her physical and moral integrity, any interference with this decision must be analysed in light of the woman's right to privacy. This was true regardless of whether the interference directly affected the woman's access to legal abortion or affected it indirectly, by denying her the prerequisite healthcare she needed in order to make a decision regarding continuation or termination of the pregnancy. Numerous international conventions broadly recognised a woman's right to the highest attainable standard of health, including access to appropriate reproductive care. Privacy was particularly important in the case of sexual and reproductive healthcare, which must be provided in a manner consistent with women's rights to personal autonomy.
RR, the plaintiff, was pregnant and after several ultrasounds, believed her child to be "malformed." Signifying her intent to have an abortion if the child was disabled, she requested an amniocentesis. Her doctor refused both to perform the genetic test and to abort RR's fetus. She was also informed the hospital in question had refused to perform abortions for 150 years. After several more attempts to get an abortion were thwarted, RR gave birth to a girl with Turner syndrome. RR is to receive 45,000 euros in non-pecuniary damage and 15,000 euros for costs and expenses from Poland. Either party has three months to appeal to the Grand Chamber of the Court.

The ECHR has previously been called to rule on abortion rights in its signatory countries. In December, the ECHR ruled [JURIST report] that Ireland failed to provide "effective and accessible procedures" to allow a Lithuanian women to assert her constitutional right to a lawful abortion. In 2007, Polish Prime Minister Jaroslaw Kaczynski declared that Poland planned to appeal a ruling [JURIST reports] by the ECHR that found Poland in violation of Article 8 for prohibiting a pregnant woman who had a serious risk of vision loss if she carried the pregnancy to term from obtaining an abortion. The ECHR rejected this appeal [JURIST report], reinforcing that the Polish government did not provide any procedural framework to resolve a dispute concerning whether a medical exception should be granted, or to facilitate "effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met." Gerolf Hagens [professional profile] has analyzed [JURIST comment] the ECHR's rulings on abortion.

 

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