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Doctor Chazan refused to abort her child, so she submitted an application to the Strasbourg Court. Ordo Iuris intervenes

Published: 02.10.2020

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There are ongoing proceedings at the European Court of Human Rights against Poland, initiated by an application from a woman who was refused an abortion by Doctor Bogdan Chazan. The ECHR allowed the Ordo Iuris Institute to join the proceedings acting as 'amicus curiae'. Doctor Chazan, in 2014, refused to perform the abortion, citing the conscience clause. According to the woman, the refusal to kill an unborn child violates her right to privacy and the prohibition of degrading and inhuman treatment.

In 2014, in the 10th week of pregnancy, the woman reported to the Szpital Specjalistyczny Świętej Rodziny (Polish for 'The Saint Family Specialist Hospital') in Warsaw. After a few weeks, during which a series of tests was carried out, it turned out that the child was likely to suffer from a life-threatening developmental defect. The mother then expressed her wish to have an abortion. Doctor Bogdan Chazan, who then was the head of the facility, refused to perform the abortion, citing the conscience clause. The woman was then referred to the Bielański Hospital, where, after further tests, the developmental defect of the child was confirmed. However, there the woman was refused the abortion as well, because the pregnancy was so advanced that the child was able to survive outside the mother's body. Therefore, from the point of view of the Polish law the abortion would be illegal. Soon after birth, the child died.

In 2017, the woman submitted an application to the European Court of Human Rights in Strasbourg, pointing out that the inability to perform a eugenic abortion was a violation of her right to privacy and of the prohibition of degrading and inhuman treatment. In 2020, the Court decided to proceed with the application by formally notifying the Polish government that an application had been submitted against it.

The Ordo Iuris Institute joined the proceedings at the ECHR acting as 'amicus curiae'. In the submitted opinion of the 'amicus curiae', the Institute pointed out that Art. 8 of the European Convention on Human Rights does not guarantee the 'right to abortion'. Polish law, on the other hand, protects the right to life at all stages of its development, and therefore abortion, in principle, is a crime that only in exceptional circumstances is not punishable.

'This is a yet another case in which the ECtHR is trying to force Poland to introduce an easier access to abortion, which is in breach of the Polish constitutional system. Although the premises of the Polish legal system that allow for abortion in exceptional circumstances can serve as a justification, the Court in its previous rulings has presented them as a subjective right, which raises fundamental doubts. In spite of this and in order to execute these judgments, the Polish authorities created, in 2009, an institution thanks to which patients can object to doctors' decisions, including the refusal to perform an abortion. The applicant did not make such an objection, which calls into question the validity of her complaint. However, the proceedings in question are a real opportunity to obtain a favourable judgment confirming the right of Member States to protect life in the prenatal phase of development,' said Karolina Pawłowska, Director of the International Law Centre of the Ordo Iuris Institute.

B.B. v. Poland, application to the ECtHR No. 67171/17.

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