ruling in Poland abortion case could affect law
Irish Times 21/03/2007
By Mark Hennessy and Jamie Smyth in Brussels
The European Court of Human Rights has found Poland
guilty of a breach of human rights in an abortion
case that could have implications for Ireland. Three
Irish women have taken a case to the court that
has similarities with the Polish case. The court
may begin hearing the Irish case, lodged in 2005,
later this year.
The Polish case concerned Alicja Tysiac, a woman
who was told by three doctors that her eyesight
could suffer if she proceeded with a pregnancy.
However, all three doctors declined to certify Ms
Tysiac for an abortion. They refused, according
to the judgment, because they said there was not
a "certainty" that her retina would detach during
childbirth, even though they agreed that pregnancy
and delivery constituted a risk to her eyesight.
In the event, Ms Tysiac's eyesight suffered a steep
decline. She is no longer able to see farther than
1.5 metres and is classified as significantly disabled.
Abortion is legal in Poland in restricted circumstances,
including where there is a threat to the physical
or mental health of the mother, following a rape
or if the foetus is seriously deformed. Because
Poland allowed for abortion in cases where the health
of the mother is endangered, the seven judges said
it was not their function "to examine whether the
Convention [ on Human Rights] guaranteed a right
to have an abortion". However, they ruled: "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.
"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 [ Ms Tysiac's]
case," said the judgment. "It created for [ Ms Tysiac]
a situation of prolonged uncertainty. As a result,
[ she] suffered severe distress and anguish when
contemplating the possible negative consequences
of her pregnancy."
The Irish case has been brought by three women,
identified as A, B and C, each of whom had abortions
in Britain. In their affidavits to the Court of
Human Rights, they claim that the State's abortion
laws have violated their human rights. They say
they have been subject to inhuman or degrading treatment
(contrary to Article 3 of the European Convention
on Human Rights), that their right to respect for
private and family life has not been vindicated
by the State and that their rights to freedom of
expression, to an effective remedy in law and to
life without discrimination, have been infringed.
Last night, Ivana Bacik, professor of law at Trinity
College, Dublin, who is also spokeswoman for Safe
and Legal in Ireland, a campaign group set up to
support the women, said the European judgment "puts
pressure on the Oireachtas to legislate to deal
with issues arising out of the X case". In 1992,
the Supreme Court ruled in the X case that abortions
could be carried out in Ireland if continued pregnancy
posed a threat to the life or health of the mother.
However, the Oireachtas has failed to implement
the judgment. In the turmoil that ensued, a protocol
was attached to the 1992 Maastricht Treaty, which
was aimed at ensuring that the European Court of
Justice could not introduce abortion in Ireland
through any of its judgments. The Court of Human
Rights, however, is not subject to this provision.