CEDH · CASELAW;CLIN;ENG — 26 mai 2011

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Poland - 27617/04 Judgment 26.5.2011 [Section IV] Article 3 Degrading treatment Inhuman treatment Lack of access to prenatal genetic tests resulting in inability to have an abortion on grounds of foetal abnormality: violation   Facts – Following an ultrasound scan performed during the eighteenth week of pregnancy, the applicant was informed of a possible foetal malformation. She immediately expressed her wish to have an abortion if the diagnosis was confirmed. It was recommended she undergo a genetic examination by way of amniocentesis, but it was not until the twenty-third week of pregnancy, after her own doctor and a series of other doctors had repeatedly refused to refer her, that the examination took place. She again unsuccessfully requested an abortion. However, by the time, two weeks later, she received the results confirming that the foetus was suffering from Turner Syndrome, it was too late for her to have an abortion*. Although unsuccessful in an attempt to have the doctors prosecuted, the applicant was awarded compensation in civil proceedings both for the doctors’ failure to perform the genetic tests on time and for their failure to make any record of their refusals to refer her. Law – Article 3: The applicant had repeatedly tried to obtain access to genetic testing which would confirm or dispel the diagnosis of a possible malformation. However, the determination of whether she should have access to genetic testing, as recommended by the doctors, was flawed by procrastination, confusion and a failure to provide her with proper counselling and information. It was undisputed that only genetic tests were able to establish objectively whether the initial diagnosis was correct. It was never argued or shown that genetic testing as such was unavailable for lack of equipment, medical expertise or funding. The domestic legislation unequivocally imposed an obligation on the State in cases of suspicion of genetic disorder or development problems to ensure unimpeded access to prenatal information and testing. It also imposed a general obligation on doctors to give patients all the necessary information on their cases and afforded patients the right to obtain comprehensive information on their health. There had thus been an array of unequivocal legal provisions in force at the relevant time specifying the State’s positive obligations towards pregnant women regarding access to information about their own health and the foetus’s health. The applicant had been in a situation of great vulnerability. As a result of the procrastination of the health professionals she had had to endure six weeks of painful uncertainty concerning the health of her foetus, despite the medical staff’s legal obligation to properly acknowledge or address her concerns. No regard was had to the temporal aspect of the applicant’s predicament and she eventually obtained the results of the tests when it was already too late for her to make an informed decision on whether to continue the pregnancy or to have recourse to legal abortion. The applicant had thus been humiliated and, in the Court’s view, her suffering had reached the minimum threshold of severity under Article   3. Conclusion : violation (six votes to one) Article 8: Polish law as applied in the applicant’s case did not contain any effective mechanisms which would have enabled the applicant to seek access to a diagnostic service, which was decisive for the possibility of exercising her right to take an informed decision as to whether to seek legal abortion. Consequently, the practical implementation of the domestic law came into a striking discordance with the theoretical right to a lawful abortion in Poland and the authorities in the applicant’s case had failed to comply with their positive obligations to secure her effective respect for her private life. Conclusion : violation (six votes to one). Article 41: EUR 45,000 in respect of non-pecuniary damage. * Under Polish law an abortion on grounds of foetal abnormality is possible only during the first twenty-four weeks of pregnancy.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes