European Court holds that failure to provide access to reproductive healthcare may violate prohibition against torture and ill-treatment

R.R. v Poland [2011] ECHR 828 (26 May 2011)

Summary

In this case the European Court of Human Rights (ECHR) delivered judgment in favour of an applicant, Ms R.R., who brought a case against  Poland for a violation of arts 3 and 8 of the European Convention of Human Rights. Article 3 of the Convention protects the right to freedom from inhuman and degrading treatment. Article 8 of the Convention, inter alia, protects an individual’s right to respect for privacy and family life. This case is a significant step forward in the protection of reproductive rights, with third-party comments submitted by the United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, the International Federation of Gynaecology and Obstetrics, and the International Reproductive and Sexual Health Law Programme, University of Toronto, Canada.

Facts

In December 2001, the applicant, a Polish national, R.R., was informed by a local doctor, Dr S.B., that she was approximately 7 weeks pregnant. During an ultrasound conducted in her 18th week of pregnancy, R.R. was informed by the same doctor that it could not be ruled out that the foetus was affected with some malformation. The applicant informed him that if tests concluded that this was the case, then she wished to have an abortion.

R.R. underwent two more ultrasounds, one by referral at a public hospital, and another at a private clinic, both confirmed the likelihood that the foetus was suffering from a malformation, and both recommended amniocentesis genetic testing occur to confirm the suspicion.

With these recommendations, R.R. attended Professor K. Sz., a clinical genetics specialist who also recommended genetic testing, however, Professor K. Sz. advised that R.R. obtain a formal referral from the original local doctor, Dr S.B., so that the testing could be carried out in a public hospital. Subsequently, Dr S.B. refused to provide this referral on the basis that, in his opinion, the foetus’ condition did not satisfy the provisions for abortion under the 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act.

Section 4(a) of the Act provides that an abortion can only be carried out by a physician where the pregnancy endangers the mother’s life or health, where prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life threatening ailment or where there are strong grounds for believing that the pregnancy is a result of a criminal act.

Although R.R. had requested a referral for further genetic testing from Dr S.B (which he refused), when she and her husband demanded a termination of the pregnancy in early March, Dr S.B. refused on the basis that the results of the ultrasound scan could not form the sole basis for diagnosis of a “severe malformation” satisfying the Act.

R.R. continued to attempt to obtain a more conclusive diagnosis, including admission to her regional hospital. When R.R. was finally given a certificate confirming that the foetus had a chromosomal aberration and congenital defects, satisfying the requirements of the Polish abortion laws, R.R. was informed by the hospital that it was too late in the pregnancy for an abortion under Polish law. R.R. gave birth in July 2002 to a baby girl affected with Turner Syndrome.

After exhausting domestic remedies (and receiving partial compensation at the Polish Supreme Court), R.R. appealed to the ECHR for breaches of her rights protected under the Convention.

Decision

The Court found that Poland had breached R.R.’s right to freedom from inhuman or degrading treatment or punishment (art 3) and her right to respect for private and family life (art 8). Whilst the applicant also argued that her right to seek an effective remedy for an infringement of a Convention right (art 13) was breached, the Court unanimously found that there was no need to make a separate ruling on this point as it was effectively covered by examination of the breach of art 8.

The Court’s approach to art 3 and art 8 are discussed in turn below.

Article 3 - Right to freedom from inhuman or degrading treatment

The Court made it clear that a minimum level of ill-treatment must be reached to be covered by art 3, however this threshold is relative to the circumstances and the individual. The majority (see below for the partially dissenting opinion on this point) found that the applicant was in a situation of great vulnerability, and was exposed to multiple instances of withholding of medical information regarding the foetus, “had to endure weeks of painful uncertainty” and “acute anguish” concerning the health of the foetus, her own and her family’s future. In concluding this point, the court found that “the applicant’s suffering, both before the results of the tests became known and after that date, could be said to have been aggravated by the fact that the diagnostic services which she requested early on were at all time available and that she was entitled as a matter of domestic law to avail herself of them”. The Court found that the applicant’s suffering surpassed the minimum threshold of severity required, and concluded that there was a breach of art 3.

Article 8 - Right to private life, family

The right to private life was confirmed by the majority of the Court to be a broad concept that includes the right to personal autonomy, including to have or not to have a child (see below for the partially dissenting opinion on this point). Importantly, the Court affirmed that “the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy. Consequently, also legislation regulating the interruption of pregnancy touches upon the sphere of private life”.

Accepting that art 8 was applicable to the circumstances of the case, the Court explored whether there had been an arbitrary interference by public authorities, which includes positive obligations to respect private life.

The Court acknowledged that Poland possessed a margin of appreciation with respect to determining the point at which life begins, and the subsequent balancing of rights (discussed in further detail in the partial dissenting opinion below). However, “once the State […] adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain it. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to exercise her right of access to lawful abortion”.

After applying the various facts to this requirement, and acknowledging third party submissions on this point, the Court concluded that the State failed to comply with their positive obligations to ensure that the applicant’s right to respect for her private life was protected, thus breaching art 8.

Partially dissenting opinions

There were two partially dissenting opinions in this case. The first opinion, that of Bratza J, found that art 8 alone was violated, and whilst the applicant was treated callously and uncompassionately, this did not amount to a breach of art 3. In deference to the majority of the Court however, Bratza J agreed with the total amount of compensation awarded.

The second partially dissenting opinion was that of De Gaetano J, who found that whilst there had been a breach of art 3 in the manner in which the applicant was treated, there was not a violation of art 8. De Gaetano J found that there was no such thing as a right to an abortion, and the Court had failed to adequately discuss the right to life of the unborn child, referencing the 1977 case of Brueggemann and Scheuten v. Germany which stated that “…pregnancy cannot be said to pertain uniquely to the sphere of private life [as protected by Article 8].  Whenever a woman is pregnant her private life becomes closely connected with the developing foetus”.

Relevance to the Victorian Charter

Section 48 of the Charter provides that “[n]othing in this Charter affects any law applicable to abortion or child destruction”. Although competing views have been raised as to the correct interpretation and application of this provision, it is arguable that a Victorian Court could nonetheless examine the substantive rights in ss 10 and 13 of the Charter (the right to protection from inhuman and degrading treatment and the right to privacy respectively) in a similar factual scenario to this case.

In particular, proceedings could be instituted relying on a discrete cause of action unrelated to Victoria’s abortion laws, for example negligence, which is not a “law applicable to abortion or child destruction”. In such a case, a Victorian Court may then be required to consider whether a woman’s right to privacy and reputation in particular is engaged, despite the difference in wording between s 13 of the Charter and art 8 of the European Convention.

The case is available at: http://www.bailii.org/eu/cases/ECHR/2011/828.html

Alexandra Phelan is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques.