A visually impaired Polish woman, Ms. Tysiac, was denied access to an abortion that was necessary to protect her physical health. Under Polish law, abortion is legally permitted when the pregnancy poses a risk to the woman’s health. Several doctors concluded that the pregnancy and delivery would endanger Ms. Tysiac’s eyesight further and posed a serious health risk for her, but they all refused to issue a certificate for the pregnancy to be terminated. After finally obtaining a medical certificate authorizing the abortion, the applicant went to a public hospital to have the procedure, only to have her request refused again. Ms. Tysiac was not able to obtain an abortion and had to carry the pregnancy to term. After delivery, her eyesight severely deteriorated, and she was declared significantly disabled by the relevant authorities in Poland. Ms. Tysiac lodged a criminal complaint claiming that as a result of having had to continue her pregnancy, she had sustained severe bodily harm by way of almost complete loss of her eyesight, and that denying her access to abortion services was a violation of her legal rights. An investigation was initiated but the prosecutor found that there was no case for the doctors to answer. The decision of the district prosecutor was upheld on appeal by the regional prosecutor and then by the District Court. Ms. Tysiac then sought redress before the European Court of Human Rights.

The judgment in this case joined a series of decisions by international human rights bodies that recognize that denying women abortion in certain circumstances is a violation of their human rights. Notably, with respect to Article 8 (the right to respect or private life), the Court decided to examine the states’ positive obligations, finding that the state has a positive obligation to effectively secure the physical integrity of a pregnant woman, including by adopting a comprehensive legal framework regulating the termination of pregnancy that takes into account the woman’s views and it is not structured “in a way which would limit real possibilities to obtain [legal abortion].” Furthermore, the Court reaffirmed or established the following principles with respect to Article 8:

  • Abortion laws fall within the scope of the right to private life, which was previously interpreted by the Court as covering various aspects of private life including a person’s physical and psychological integrity.
  • The Court stressed that the provisions regulating legal abortion should be formulated in such a way as to lessen the “chilling effect on doctors” willing to perform abortions because of the uncertainty of the applicability of the criminal provision punishing doctors for providing illegal abortions.
  • Securing procedural safeguards to ensure access to legal abortion is particularly important “in a situation where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, either between the pregnant woman and her doctors, or between the doctors themselves.”
  • The Court acknowledged that other state parties to the Convention have established procedural and institutional mechanisms in order to effectively implement the legal provisions regulating access to a lawful abortion.