On May 26th, 2011, the European Court of Human Rights (ECHR) delivered a judgment in the case of R.R. v. Poland (application no. 27617/04). The court ruled that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) and a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned a pregnant woman, Mrs R.R. who claimed that she was abusively denied access to the genetic prenatal tests to which she was entitled when pregnant due to doctors’ lack of proper counselling. She therefore missed the time-limit for a legal eugenic abortion (24 weeks) and subsequently gave birth to a baby suffering from Turner syndrome.
Article 4a of the Polish Protection of the Human Foetus and Conditions Permitting Pregnancy Termination Act allows in some cases abortion, particularly when the preborn child suffers from an incurable life-threatening ailment. The doctors considered that the syndrome of the unborn didn’t meet the requirements of a legal eugenic abortion, and that is why no genetic prenatal tests were carried out. The “Turner Syndrome” is a chromosomal abnormality affecting girls, whose symptoms are generally a short stature and sterility.
In a kind of wrongful birth action, Ms R.R. claims that bringing up and educating an ill child has been damaging to herself and her other two children. Her husband also left her following the birth of their third child. The applicant submitted that the alleged violation of her rights “had originated also in the unregulated practice of conscientious objection” (§ 173).
R.R. v. Poland is to be collocated in the framework of other cases brought before the Court on the same issue and against Poland, particularly Tysi?c v Poland and Z. v Poland, the latter of which is still pending.
Importantly, the case R.R. v. Poland doesn’t strictly concern the access to abortion, but rather the access to genetic prenatal tests. Genetic prenatal tests have several purposes, among which the most common – as in this case – is to determine whether the legal requirements for a eugenic abortion are met. Therefore, the Court improperly focuses its analysis on abortion, even if it recognized that “it was not access to abortion as such which was primarily in issue, but essentially timely access to a medical diagnostic service that would, in turn, make it possible to determine whether the conditions for lawful abortion obtained in the applicant’s situation or not.” (§ 196)
The European Court notices that the applicant was entitled to carry out genetic prenatal tests, on the account of her right to health-related information and in order to allow her to exert her right to “personal autonomy”. However, the Court notices that “the Convention does not guarantee as such a right to free medical care or to specific medical services” (§ 198).
The Court maintains its presumption according to which during pregnancy the foetus’ condition and health constitute elements of the pregnant woman’s health. Therefore, the interest of the child itself is not taken into consideration by the Court (§ 197). The Court contrasts only the “competing interests of the individual and of the community as a whole”, but never recognizes or even considers the rights and interests of the child. This differs from the Grand Chamber recent ruling in A B C v. Ireland assessing that “The woman’s right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the unborn child” ( § 213). As the Maltese judge De Gaetano says in his dissenting opinion: “At one end of the spectrum the death penalty has been abolished; at the other end the unborn child’s right to life remains in limbo.”
The European Court, like the Polish Court, considers that the applicant couldn’t have had access to the genetic prenatal tests because of the reticence of her doctors, and of the organisational confusion in the polish health system.
Regarding the doctors “reticence”, the Court notices that:
– As in the Tysiac case, the criminalization of abortion in Poland can well have a “chilling effect” on doctors, dissuading them when deciding whether the requirements of legal abortion are met. In this, the Court invites once again Poland to reformulate its regulation in order to “alleviate this chilling effect“(§ 193).
– “States are obliged to organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.” (§ 206)
With regard to the organisational confusion in the Polish health system, the Court reminds that: “the State, acting within the limits of the margin of appreciation, referred to above, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to exercise her right of access to lawful abortion (Tysiac v. Poland, no. 5410/03, §§ 116 – 124, ECHR 2007 IV). In other words, if the domestic law allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women.” One question remains: who decides whether a disease is serious enough to legally resort to abortion? Is this the woman, the physician, a commission, a judge?
Furthermore, it has to be noted that the Court doesn’t take at all into consideration the fundamental principle of the physician’s freedom of contract. The tendency in Western social democracies is more and more to perceive the health system as a public service of which the doctors are kinds of “public servants”. As such, the doctors would be submitted to a ‘duty of reservation’, limiting accordingly their freedom of conscience.
On “therapeutic abortion”
In this ruling, the Court seems to give a signal toward a positive obligation for the States to afford “therapeutic abortion” to secure the physical integrity of mothers. The Court recalled, as it founded in A., B., and C. v. Ireland (§ 216), that “prohibition of the termination of pregnancies sought for reasons of health and /or well-being amounted to an interference with the applicants’ right to respect for their private lives.” (§ 188)
The Court goes on précising that the legitimacy of this interference must be assessed against the States “positive obligation to secure to its citizens their right to effective respect for their physical and psychological integrity” and in particular, “in case of a therapeutic abortion – be also assessed against the positive obligations of the State to secure the physical integrity of mothers to be.” (§ 189)
More generally on abortion, the Court confirmed that States are free, in regard to the European Convention, not to allow abortion.
On the right to conscientious objection for health professionals
One of the aims of this application was to break the right to conscientious objection. The 2010 McCafferty resolution of the Parliamentary Assembly of the Council of Europe (PACE), which initially was aimed at limiting the conscientious freedom of medical practitioners, was synchronized with this case and the still pending one Z v. Poland.
Thankfully, this resolution has been fully amended and finally ended up promoting the right to conscientious objection. We can question the Court why it chose not to quote this recent and important resolution whereas all pro-abortion resolutions and soft law texts are quoted.
Whatever, on this issue, the pro-abortion lobbies didn’t achieve their ends to abolish the right to conscientious objection. The Court, in fine, asserts the right of “health professionals in the professional context” to an “effective exercise of the freedom of conscience”. In addition, the Court makes clear that the obligation to ensure patients’ access “to services to which they are entitled under the applicable legislation” belongs to the State, not to the health professionals.
On a strategic point of view
This case was perfectly built by the pro-abortion lobby. It remained very confidential until the end. Contrary to the usual practice of the Court, this case wasn’t published on the website of the Court (HUDOC), depriving pro-life advocates of any chance of action. On a procedural point of view, and regarding admissibility, this case is also, to say the least, original. The applicant won before the national jurisdiction and the application was instituted before the ECHR almost at the same time as before the national jurisdiction. In fact, the Court had many good reasons to dismiss the case.
Intervened as third parties before the ECHR, all in favour of the applicant:
– The United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,
– The FIGO, International Federation of Gynaecology and Obstetrics
– The International Reproductive and Sexual Health Law Programme, University of Toronto
It is quite questionable that a United Nations Special Rapporteur makes a stand as such, and in the name of United Nations organs (including the CEDOW), in favour of one of the parties. Is pro-abortion advocacy part of the Special Rapporteur mandate?