R.R. was 18 weeks pregnant when following an ultrasound she learned of a cyst on the fetus’ neck. Prenatal genetic tests were required to determine whether there was a severe fetal impairment. However, despite consulting more than ten medical professionals over almost five weeks, R.R. was unable to obtain a referral that would have enabled her to undergo the necessary test. Finally in her 23rd week of pregnancy, R.R. was able to undergo the test, which confirmed a severe fetal impairment. She was only informed of the test results in the 25th week of pregnancy. When she then requested an abortion she was told dy doctors that it was too late as the fetus had reached viability. As a result R.R. had to continue her pregnancy to term
With the support of counsel from the Federation for Women and Family Planning and the University of Warsaw Law Clinic and in cooperation with the Center for Reproductive Rights, filed a complaint before the European Court of Human Rights in 2004.
The Court found Poland in violation of Article 3, the right to be free from inhuman and degrading treatment, and Article 8, the right to respect for private life, of the European Convention on Human Rights (ECHR). The Court recognized that R.R. suffered greatly as a result of the prolonged denial of prenatal genetic testing, as she was deeply distressed by information that the fetus could be affected with a deVere impairment, and had to endure weeks of painful uncertainty as a result of the health professionals’ procrastination. In the view of the Court, her concerns were not properly acknowledged and addressed by health professionals, nor was proper regard had to the time constraints at issue. The Court expressed concern that R.R. eventually obtained the results of relevant tests when the time-limit for a legal abortion had passed and it was too late for her to make an informed decision on whether to continue the pregnancy or not. The Court recognized that R.R. was “shabbily treated by the doctors dealing with her case,” and found that her treatment had been humiliating. It also noted that her suffering was aggravated “by the fact that the diagnostic services which she had requested early on were at all times available and that she was entitled as a matter of domestic law to avail herself of them.”
In assessing the severity of R.R’s suffering and determining that she had been subjected to inhuman and degrading treatment in violation of Article 3, the Court held that the specific circumstances of pregnant women must be central to any such assessment. It recognized that R.R. was in a situation of “great vulnerability,” as she was “deeply distressed by information that the foetus could be affected with some malformation.” The Court considered that in her circumstances it was “natural that she wanted to obtain as much information as possible” to know whether the initial diagnosis was correct, and if so, the exact nature of the ailment and the options available to her.
The Court stressed that “the nature of the issues involved in a woman’s decision to terminate a pregnancy is such that the time factor is of critical importance.” As a result, the Court held that procedures must be in place that guarantee that women are enabled to decide in a timely manner whether or not to continue a pregnancy. It considered that the exercise of personal autonomy requires that such procedures extend to ensuring timely access to information concerning the health of a pregnant woman and the fetus, where legislation allows for abortion in certain situations.
The Court also found a violation of Article 8 (right to respect for private life) due to the state’s failure to put in place any effective mechanisms by which R.R. would have been able to access the diagnostic services, and in light of the results, to exercise her right to make an informed decision about her pregnancy. The Court recognized that under Article 8 women have the right to make an informed decision about whether to access lawful abortion services and found that access to relevant information is a critical requirement to enable women to exercise this right. It underlined that the right to information is decisive for the exercise of personal autonomy, including in the context of decisions relevant to an individual’s health and quality of life. The Court emphasized that where domestic law allows for abortion in case of fetal impairment, the state has a positive obligation to put in place an effective legal and procedural framework to guarantee that relevant, full and reliable information, including on fetal health, is available to pregnant women.
The Court underlined that the combination of severe legal restrictions on abortion in Poland and the criminal prohibition on doctor’s performing abortions except in a small number of narrow circumstances gives rise to a “chilling effect” which discourages doctors from authorizing and performing legal abortions. The Court held that Poland must ensure that domestic legal provisions regulating access to lawful abortion are formulated in such a way as to alleviate this chilling effect.
The Court held that states are obliged under the Convention to ensure that health care professionals’ refusals to provide care on grounds of conscience do not impede women’s access to reproductive health care services to which they are legally entitled under domestic law, including abortion services. It considered that states have a duty to organize health systems so as to ensure that such refusals do not prevent patients from obtaining access to services to which they are entitled.
The Court awarded 45,000 euros in non-pecuniary damages and an additional 15,000 euros for legal fees.