ECtHR to analyse complaints of women expressing ‘concerns’ following removal of the eugenics condition

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● The European Court of Human Rights (ECtHR) has formally notified the Polish government that twelve complaints have been filed against the ban on eugenic abortion in Poland.

● On October 22, 2020, the Polish Constitutional Tribunal ruled that the possibility of a eugenic abortion is inconsistent with the right of every human being to life.

● None of the applicant women were harmed in connection with the ban, but they speak of unspecified ‘concerns’ caused by the judgement of the Constitutional Tribunal.

● In this case, the Ordo Iuris Institute intends to submit an opinion as a so-called friend of the court (amicus curiae).

● In the light of the international law, states have the right and obligation to protect the life of unborn children with developmental defects.

“These twelve complaints are only some of the many that, according to our information, were submitted to the Strasbourg Court to overturn last year’s verdict of the Constitutional Tribunal. This is a highly dangerous step aimed at enforcing the legalisation of eugenic abortion in Poland, against our constitution, which requires the protection of human life at every stage of its development. A difficult fight lies ahead of us: in the jurisprudence to date, the ECtHR, unfortunately, does not recognise the equality of the right to life of unborn children, assuming that it is too controversial an issue to be prejudged in its verdict; on the other hand, however, the Court strongly refuses to recognise abortion as a human right, assuming that the issue of legalising or banning this practice belongs to the so-called margin of manoeuvre of the Member States. So far, the Court has dismissed complaints seeking to directly challenge domestic law prohibiting abortion in specific cases. We hope that this will be the case here as well. On the occasion of this series of cases, it should be emphasised once again that the pursuit of protecting the lives of unborn children must be accompanied by appropriate state support for mothers of children with disabilities. As the Institute, we have repeatedly presented proposals for concrete help, but unfortunately they have remained unanswered so far,” said Ms. Anna Kubacka from the International Law Centre of the Ordo Iuris Institute.

At the beginning of July 2021, the European Court of Human Rights (ECtHR) formally notified the Polish government that twelve complaints have been filed against the ban on eugenic abortion in Poland. This was related to the judgement of the Constitutional Tribunal, which on October 22, 2020 ruled that the possibility of an abortion due to “high probability of severe and irreversible impairment of the foetus or an incurable life-threatening disease” (including, inter alia, Down syndrome) is inconsistent with the Constitution, in particular with the right of every human being to life. From that moment on, eugenic abortion has been illegal in Poland. In the remaining scope, however, abortion is still allowed: the Abortion Act now allows for the killing of an unborn child if the life or health of the mother is in danger, and if the child was conceived through a crime.

In their applications to the ECtHR, a group of twelve women of different ages indicate a ‘potential violation’ of their right to respect for private and family life (Article 8 of the

European Convention on Human Rights). One of the complainants indicated that shortly before the verdict was issued by the Constitutional Tribunal, she “discovered that she was pregnant” and that “she felt very concerned until she received the test results”. Another woman stated in her complaint that she is “taking contraceptives and not planning a pregnancy” due to her poor health condition, but nevertheless “she is very concerned that the judgement of the Constitutional Tribunal will affect her situation”. All twelve women complained that they may become pregnant one day and the child may be found to be disabled.

The Ordo Iuris Institute plans to apply to the President of the First Section of the ECtHR for permission to submit an opinion as a so-called friend of the court (amicus curiae) in each of these cases. In the event of receiving consent, the Institute plans to present the Court with the applicable legal status, which states that no provision of international law grants women the right to have an abortion, while many provisions guarantee the right to life for all people. Apart from that, the Institute aims to remind the Court of its own judicial pronouncements, in which it clearly stated that Art. 8 of the Convention does not guarantee the right to abortion.