On 13 October 2005, the Supreme Court in Warsaw issued – for the first time – a verdict on compensation for so called “wrongful birth”. The Court considered an extraordinary appeal of Mr and Mrs Wojnarowski, drawn up by lawyers cooperating with the Helsinki Foundation for Human Rights, and returned the case for re-consideration by the Court of Appeals in Bialystok. (24-OCT-05)

Mr and Mrs Wojnarowski claimed compensation of 1.7 million PLN from a hospital in £omza and two medical doctors. Their child was born with a serious genetic illness due to the fact that doctors in the hospital refused to perform prenatal diagnostic tests and, as a result, Mrs Wojnarowska could not make a decision regarding the termination of the pregnancy. The prenatal testing was refused despite the fact that already Ms Wojnarowska’s first child had a genetic disorder. As a result of the refusal the child, a girl, was born with the same genetic disorder as her brother. Mr and Mrs Wojnarowski – having no funds for costly treatment and rehabilitation of the girl – decided to claim compensations in court.

The courts of first and second instance found a breach of Ms Wojnarowska´s patient rights and granted her compensation in the amount of 60,000 PLN. However, the major part of the claim costs of rehabilitation, treatment and childcare was refused by courts. The court of first instance said that such costs should be claimed by the child (or parents acting on her behalf – thus suggesting the possibility of the “wrongful life” claim). On the other hand, the court of second instance established that even detailed prenatal diagnostic tests would not detect the foetus´s disorder in time allowing for legal abortion. Therefore, in the opinion of the court, there was no casual link between the damage and its cause. However, a specialist (whose opinion has been submitted to the Supreme Court) stated that an examination with a good ultrasound scanner would allow detection of the disorder in the 16-18 week of pregnancy, thus in time allowing for an abortion.

In its verdict, the Supreme Court stated that preventing people from exercising the right to an abortion in line with the law must give rise to compensation. According to the Supreme Court, the expenses (costs) incurred by the parents in connection with the child´s illness, and not the birth of the child itself, can be considered as an example of damages. Even, if the child is ill. Therefore, the Supreme Court has allowed for the possibility of issuing “wrongful life” claims in the Polish law. However it has not permitted for claims to be launched by disabled children (or parents acting on their behalf), since the very fact of them having to live with the disability can be considered as damage (the so called “wrongful life” claim).

The case will once again be presented before the Court of Appeal in Bialystok, which will have to consider the Supreme Court´s guidelines during the second hearing. The subject of the upcoming hearings will consist in establishing whether it was possible to detect the foetus’s disorder within the period enabling the performance of an abortion. Based on the doctor’s opinion presented before the Supreme Court – there can be no doubt as to this. Furthermore, it will be necessary to establish whether the doctors acted with intent. If so, than not only the hospital, but also they will be responsible for the damage. Thanks to this, it will also be easier to determine the casual link between the negligence and the damage for the parents. The final issue to be considered is the actual level of damage, i.e. the costs of treatment, rehabilitation, care etc. These are however secondary and technical issues, because, similar to many western countries, the general principle concerning the admissibility of “wrongful birth” claims was been determined.