By Hewson, Barbara
Conscience , Vol. 28, No. 2
ON MARCH 20, 2007, THE Fourth Section of the European Court of Human Rights, made up of seven judges, gave judgment in Tysiac v Poland. It upheld the applicant's complaint. She suffers from severe myopia, but was unable to obtain a lawful abortion after she became pregnant for the third time. Alicja Tysiac had seen three ophthalmologists, who agreed that she might suffer retinal detachment as a result of pregnancy, but that this was not certain. Her family doctor was concerned about the impact of pregnancy on her sight, and certified that she met the criteria for an abortion. But when Tysiac saw a gynecologist, he disagreed.
Tysiac had her baby, and suffered retinal hemorrhages. Her sight deteriorated significantly. She complained to the criminal authorities. The prosecutor obtained a medical opinion that her eye problems were not caused by the gynecologist's refusal of an abortion. Tysiac challenged the refusal to prosecute in a judicial review, which failed. She reported the gynecologist to his professional body, which rejected her complaint.
The court said that her rights under Article 8 of the European Convention on Human Rights, which guarantees respect for private life, were violated. It rejected her claim under Article 3, a prohibition on inhuman and degrading treatment. It awarded her 25,000 [euro] in damages, plus legal costs.
This is the first case where the court has upheld a woman's complaint that her state denied her a lawful abortion. In D v Ireland, it decided that the applicant had failed to exhaust her domestic remedies. This ruling suggests that the court is more receptive to complaints about a malfunctioning abortion regime than to complaints touching on wider questions of when states should permit abortion.
Polish law permits abortion if pregnancy endangers a woman's life or health; if antenatal tests or other medical findings indicate a high risk that the fetus will be severely and irreversibly damaged, or is suffering from an incurable life-threatening disease; or if there are strong grounds for believing that the pregnancy is a result of a criminal act. Unless one of these conditions is met, abortion is a criminal offense punishable by up to three years' imprisonment.
In its fifth periodical report to the U.N. Committee on the International Covenant on Civil and Political Rights (ICCPR), the Polish government had stated:
"The Law's provisions are not fully implemented and ... some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go.... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions."
Tysiac complained that, while Polish law allowed doctors to make referrals for therapeutic abortion, it gave no details as to how that process worked, or within what time frame. Critically, there was no provision for any meaningful review of or scope for challenge of a doctor's decision not to make a referral for termination.
The Polish government maintained that Tysiac did not meet the criteria for a lawful abortion anyway. If she had been dissatisfied, she could have challenged the doctors' refusal in a judicial review.
A majority of the European Court accepted the applicant's argument. The court's reasoning shows a purposive approach to the application of the Convention to the facts.
Article 8 of the Convention has two aspects: first, protection of the individual from arbitrary interference by the authorities; and second, the state's obligation to take positive measures to ensure effective respect for private life. …