On 20 March, the European Court of Human Rights issued a judgment in the case of Alicja Tysiac, right, vs. Poland. The Court announced that Poland violated Article 8 of the European Convention on Human Rights defining the right to respect for family life. It awarded her damages in the amount of 25,000 EUR, as well as returned the costs of proceedings in the amount of 14,000 EUR. (24-MAR-07)
Written by Marta Lempicka/HRH Warsaw
In 2000, Alicja Tysiac (left, outside the European Court of Human Rights), mother of two, who suffered from a serious seeing disorder (-20 dioptre), found out that she is pregnant once again. Three ophthalmologists stated that the pregnancy constitutes a threat to her eyesight, but not one of them agreed to issue a medical certificate that would allow the performance of a legal abortion. A general practitioner, to whom Mrs. A. Tysiac came for consultations, also stated a threat to her health. He also gave her a medical certificate stating that the pregnancy is a risk due to her sight defect, as well as due to the fact that her two previous children were born trough Cesarean section. During the second month of the pregnancy, Mrs. A. Tysiac’s sight defect worsened to -24 dioptre. In April 2000, A. Tysiac went to a gynecologist to have an abortion. She was also examined by the head of the hospital ward, who stated that there are no contraindications against the pregnancy. In consequence, A. Tysiac could not have the abortion and gave birth to her third child in November 2000. After the delivery her eyesight worsened even further. A. Tysiac was classified as a category 1 disabled person, which in her case meant a contraindication against any form of exertion including child care as well as a requirement to have constant assistance from third parties.
In January 2003, A. Tysiac lodged a complaint to the European Court on Human Rights against the violation by Poland of Article 3 (degrading treatment), Article 8 (right to respect for private life), Article 13 (lack of effective means of appeal against the decisions of doctors) and Article 14 (unequal treatment due to gender and disability) of the Convention. Amicus curiae opinions supporting the complaint of Mrs. A. Tysiac were submitted to the Court inter alia by the Helsinki Foundation for Human Rights together with the Polish Federation for Woman and Family Planning and the Center for Reproductive Rights with a headquarters in New York. An opinion contrary to the complaint was submitted by the Association of Catholic Families and the Forum of Polish Women. In its opinion, the HFHR argued that in practice women in Poland have seriously limited access to legal abortions. (According to the Act of 7 January 1993 on family planning, human embryo protection and conditions of permissibility of abortion, in Poland an abortion may only be performed when the pregnancy constitutes a threat to life or to the health of the pregnant woman or when there is irreversible damage to the embryo or the pregnancy is the result of rape.) This was shown by the decline in the number of legal abortions from 782 in 1994 to no more than 200 in the following years. The lack of clear criteria, as well as doubts as to the structure of the right to an abortion due to medial and genetic circumstances, allow doctors to refuse performing an abortion or relevant prenatal examination for fear of criminal liability.
The Court underlined that the case relates to the right to respect for private life, since the pregnancy and the circumstances that surround it are inseparably linked with the woman’s private life – they determine her physical and psychological integrity. According to the Court, Article 8 of the Convention includes the concept of the so called positive duties, i.e. actions that must be taken by the state in order to ensure the execution of the rights resulting from Article 8 of the Convention. It pointed out that in Poland there is a problem with access to abortion due to therapeutic considerations, due to the threat of criminal liability as well as unclear procedures concerning the circumstances under which a doctor can perform an abortion and when he/she can refuse.
The Court’s judgment in this case becomes particularly significance in present-day Poland considering the current debate triggered by the members of the parliamentary from the League of Polish Families (LPR) and some Law and Justice (PiS) representatives regarding constitutional amendments intended to guarantee absolute protection of conceived life.