In a landmark decision, the European Court of Human Rights today delivered a majority judgment in the case of Tysiac v Poland. The Court held, by six votes to one, that the Polish State had failed to safeguard Ms Tysiac’s right to the effective respect for her private life, given her inability to access a ‘therapeutic’ abortion, lawful in Poland. In a controversial area, the judgment is a call for objectivity, clarity and fairness in decision-making that should assist those whose rights have been affected by State regulation of reproductive choice. Ms Tysiac was represented in court by Polish lawyers, advised by interights.

The applicant complained that the failure to allow her to terminate her pregnancy on therapeutic grounds, in circumstances where it was believed that continuation of the pregnancy would risk destroying her eyesight, violated the right to respect for private life under the Article 8 of the European Convention on Human Rights. She challenged Poland’s failure to put in place an appropriate procedural and regulatory framework to enable a pregnant woman to assert her right to a therapeutic abortion. In addition, she complained that this amounted to inhuman and degrading treatment and discrimination on grounds of sex and disability.

Ms Tysiac suffered for many years from severe myopia. When she discovered that she was pregnant for the third time, she consulted several doctors in Poland to determine what impact this might have on her health and, more particularly, her sight. Although the doctors concluded that there would be a serious risk to her eyesight if she carried the pregnancy to term, they refused her requests to issue a certifcate authorising termination. Two months

into her pregnancy, her eyesight had already deteriorated significantly. She secured a referral for a termination on medical grounds but the gynaecologist refused to perform it and voided the referral. There was no procedure through which Ms Tysiac could appeal this decision and she gave birth to her third child in November 2000. Her eye sight deteriorated further following the delivery, and she now cannot see objects more than 1.5 metres away, risks becoming completely blind and requires daily assistance. She receives a small monthly pension from the State and supports three young children. The Polish authorities have not prosecuted or disciplined any of the health offcials involved for the treatment Ms Tysiac suffered.

In characterising the case, the Court observed that it concerned therapeutic abortion, which is legal in Poland under certain circumstances. Therefore, the Court did not, and was not asked to, examine whether the Convention guarantees a right to abortion, as such. Rather, it looked at the manner in which this exception of therapeutic abortion operated in practice, and the extent to which it was able to be accessed by the applicant under Article 8. The Court noted the importance of a fair decision-making procedure which affords due respect to the interests it is designed to safeguard. The importance of a clear process was heightened by the risk of criminal sanction for doctors breaching the conditions for a therapeutic abortion – which the Court recognised could have "chilling effect" on the decision of doctors to perform terminations – and by time pressure inherent in pregnancy. In this case, the Court considered that the applicable Polish legal framework did not provide any effective mechanism to resolve disagreement as to the availability or legality of therapeutic abortion in any case, either between the pregnant women and her doctors or between doctors themselves. The Court considered that the absence of such a mechanism created a situation of prolonged uncertainty for Ms Tysiac, causing her severe distress and anguish. Moreover, the retroactive nature of civil and criminal remedies in Poland could not have provided appropriate protection for her rights. The Court concluded that there had been a violation of Article 8 and ordered Poland to pay a substantial sum in non-pecuniary damages. The Court held that it was not necessary to consider the other complaints of the applicant as the issues raised had been addressed by its Article 8 judgment.

The Tysiac judgment is signifcant in several respects. First, in the context of abortion in Poland and those countries with narrow exceptions to prohibition, it requires the adoption of meaningful mechanisms by which the conditions for obtaining a lawful abortion can be determined in a certain and timely fashion. In a controversial area, the judgment is a call for objectivity, clarity and fairness in decision-making that should assist those whose rights have been affected by State regulation of reproductive choice. Beyond the issue of abortion, the judgment clarifes the procedural obligations of States generally in respect of the right to privacy and family life, in particular to ensure an effective and accessible decision-making process that can resolve disagreements. For Ms Tysiac the judgment provides offcial recognition of the anguish she suffered as a result of Poland’s uncertain abortion regime and the compensation ordered will assist her in taking care of her family in di;cult personal circumstances.