Европейский суд по правам человека
20 марта 2007 года
Facts
The applicant, Ms Tysiac, suffered from a severe eye disease. When she became pregnant, several doctors warned her that her third pregnancy constituted a threat to the applicant’s health, as there was a risk of rupture of the uterus and of severe deterioration of eyesight. However, the gynaecologist whose permission she needed in order to make an abortion, did not authorise it, because he did not consider that real risk to applicant's health exists. After giving birth applicant's eyesight deteriorated vastly, although expert's report stated that there is no causal link between the almost loss of her eyesight and the delivery of child. Therefore, the national institutions found no violation of her right to private life.
Complaint
The applicant claimed a violation of Article 8 of the Convention, as respect for her private life and her physical and moral integrity had been violated by failing to provide her with a legal therapeutic abortion.
Court's ruling
The Court noted that the Polish law prohibits abortion, providing only for certain exceptions, and provides for criminal punishment for doctors who breach the law. However, there were no strictly formulated regulations as to how evaluate whether in particular case the risk to the health of the mother or the child is so grave that the abortion should be allowed. Furthermore, there were no rules to be applied if the mother and doctor or several doctors had conflicting opinions on the case.
The Court commented that: "Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it." In the Court's view, for this kind of procedure to be lawful, it should guarantee to a pregnant woman at least the possibility to be heard in person and to have her views considered. The competent body should also give written grounds for its decision in timely manner. As the applicant was not able to challenge the doctor's opinion precluding her from having abortion and there were no other safeguards to that matter, the Court concluded that the authorities failed to comply with their positive obligation to secure effective respect for the applicant’s private life. Thus, Article 8 of the Convention had been violated.