R.R. v. Poland

This case concerned access to timely prenatal examinations in order to make an informed decision whether or not to continue with a pregnancy.

During her eighteenth week of pregnancy, RR’s doctor told her that her fetus might be affected by a malformation. RR informed her doctor that if further tests confirmed the malformation, she would choose an abortion. In the following weeks, RR tried to access the necessary tests to confirm the doctor’s diagnosis. She was repeatedly referred to different clinics and hospitals, and even hospitalized for several days for no clear clinical purpose. Finally, in her twenty-third week of pregnancy, the appropriate hospital admitted RR for genetic tests. She obtained the results almost two weeks later confirming that her fetus had Turner Syndrome. She requested that the doctors at the hospital perform an abortion, but they told her that she was too far into her pregnancy.

Under the 1993 Family Planning Act, abortion was permitted in Poland for a severe fetal malformation, but only until the fetus is sufficiently developed to be able to survive outside of the mother’s body. In RR’s case, an abortion was permitted only until the twenty-third week of pregnancy. RR did not receive the results of the genetic test until the twenty-fourth week of her pregnancy. Under the Polish Criminal Code, termination of a pregnancy in breach of the conditions outlined in the 1993 Family Planning Act was a criminal offense, and the person performing the abortion could be imprisoned.

RR argued that the doctors, acting on behalf of the State, had breached her rights under Article 3 (right to be free from inhuman or degrading treatment) and Article 8 (right to private life) of the European Convention on Human Rights (“Convention”).

The Court held that RR’s rights under Articles 3 and 8 of the Convention had been breached.

Under Article 3 of the Convention, for a person’s treatment to be considered “inhuman or degrading,” the treatment must reach a minimum level of severity. This minimum depends on the specific circumstances of each case, including the purpose of the treatment, the duration, and its physical and mental effects. The Court held that RR’s suffering reached the minimum threshold of severity under Article 3 of the Convention.  The Court found that the “procrastination, confusion and lack of proper counseling and information given to the applicant” (Para. 153) by the doctors placed RR in a vulnerable position. She unnecessarily endured weeks of uncertainty regarding the health of the fetus until she finally obtained the results of tests when it was too late for her to make an informed decision on whether or not to continue with the pregnancy.

Under Article 8 of the Convention, “private life” includes decisions to have or not to have children and decisions by a pregnant woman to continue her pregnancy or not. The Court found that the legal restrictions on abortion in Poland can have a chilling effect on doctors when deciding whether to fulfill their patients’ requests to terminate a pregnancy. The Court found that the state violated RR’s rights by not providing timely access to the prenatal tests required for her to make an informed decision about whether or not to continue her pregnancy before abortion ceased to be lawful.

Two judges dissented. The first disagreed with the Majority’s decision on Article 3. The judge conceded that RR was treated poorly, but called for a higher threshold for ill treatment under Article 3. The second dissenting judge disagreed with the Majority’s decision on Article 8. The judge insisted that the majority’s decision gave too much weight to the mother’s right to private life over the rights of the fetus.

“The Court is further of the view 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 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. It is a matter of great regret that the applicant was so shabbily treated by the doctors dealing with her case. The Court can only agree with the Polish Supreme Court’s view that the applicant had been humiliated.” Para 160.

“The Court has already found that the legal restrictions on abortion in Poland, taken together with the risk of their incurring criminal responsibility under Article 156 § 1 of the Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case.” Para 193.

“It was not access to abortion as such which was primarily in issue, but essentially timely access to a medical diagnostic service that would, in turn, make it possible to determine whether the conditions for lawful abortion obtained in the applicant’s situation or not.” Para 196.