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Polish woman wins case over denied abortion
Irish Times 21/03/2007

By Jamie Smyth

Poland has been ordered to pay a woman 39,000 after she was prevented from having an abortion despite medical warnings that she could lose her sight if she gave birth. The European Court of Human Rights (ECHR) ruled yesterday that the human rights of Alicja Tysiac (36) were breached because Poland has no effective legal framework that enables a pregnant woman to assert her right to an abortion on medical grounds.

Abortion is legal in Poland if the health of a mother is at risk. However many doctors refuse to carry out the procedure because of their own beliefs, or because there is no proper procedure to determine when the legal conditions for a therapeutic abortion are met. In Ms Tysiac's case, three doctors told her in 2000 that she could end up going blind if she carried through with her pregnancy but they all refused to write a certificate that would authorise an abortion to take place. A certificate issued by a fourth doctor was later ruled invalid by the chief gynaecologist in a public hospital, a decision that forced Ms Tysiac to give birth despite the risk to her health.

"The legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility . . . can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case," the court concluded in its judgment.

Ms Tysiac, who suffers from severe myopia, experienced a severe deterioration of her eyesight due to retinal haemorrhage as a result of the birth. A panel of doctors concluded after the delivery that her medical condition required treatment and daily assistance and declared her to be significantly disabled, said the court judgment.

The court awarded Ms Tysiac - who is raising three children alone on a monthly pension of 140 and cannot see more than 1.5m ahead of her - damages of 25,000 and 14,000 expenses. It also ruled that Poland had failed to safeguard her "right to the effective respect for her private life" in a decision by six votes to one.

"It has not been demonstrated that Polish law . . . contained any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in her case," said the judgment. "It created for the applicant a situation of prolonged uncertainty. As a result, the applicant suffered severe distress and anguish when contemplating the possible negative consequences of her pregnancy."

The ECHR ruled that Poland had not breached article 3 of the European Convention of Human Rights, which outlaws inhuman or degrading treatment. The Polish government has three months to appeal the verdict to a 17-member grand chamber of the ECHR, although this is only possible in exceptional cases. Women's rights groups in Poland welcomed the judgment yesterday, coming at a time when conservative parliamentarians are campaigning for a constitutional amendment to ban abortion in all cases.

"Thousands of women are denied abortions that they are legally entitled to in Poland every year," said Wanda Nowicka, president of the Polish Federation for Women and Family Planning. Under a law introduced in Poland after the fall of communism, women have the right to abortion in three specific situations: when the life and health of a mother are under threat, in cases of rape or when the embryo has a serious defect. During the communist era, abortions were available on request.

The far-right party the League of Polish Families, which is a junior partner in the governing coalition in Poland, is campaigning for a constitutional amendment to ban abortion in all cases, including rape and incest. Maciej Giertych, an MEP for the League of Polish Families, said: "Ireland is abortion-free and we want to be abortion-free by passing a constitutional amendment. It is easier to change a law if it is passed in the parliament rather than in the constitution." He described the European Court of Human Rights ruling as "a tragic decision" which distorted Polish law.