EU ruling in Poland abortion case could affect law here
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.