Tysiac v. Poland (European Court of Human Rights)
12.10.08 - In September 2005, the Center filed an amicus brief on behalf of Tysiac—a visually impaired Polish woman who was denied access to legal abortion on health grounds—arguing for States’ duty to ensure effective access to legal abortion by establishing appeals and review mechanisms for medical decisions about abortion, regulating the practice of conscientious objection, and instituting other procedural safeguards. In March 2007, the European Court of Human Rights made its decision, finding Poland in violation of its positive obligations to ensure the right to private life.
Filing date: September 21, 2005
Plaintiff(s): Tysiac, a visually impaired Polish woman, was denied an abortion on health grounds, even though medical diagnoses confirmed that continuing her pregnancy could severely impact her vision, thereby constituting a risk to her health.
Center Attorney(s): Christina Zampas
Partners: 1) Federation for Women and Family Planning,2) Interights, and 3), University of Warsaw Legal Clinic
Summary: This case involves a Polish woman who is severely visually impaired and was denied an abortion to protect her physical health. Upon becoming pregnant in 2000, the applicant consulted her doctors about the possible impact of the delivery on her eyesight. Numerous doctors concluded that the pregnancy and delivery posed a serious health risk, but refused to issue a certificate for the pregnancy to be terminated. After finally obtaining a certificate authorizing the abortion, the applicant went to a public hospital in Warsaw to have the procedure, only to have her request refused again. At this point, the applicant had no choice but to carry her pregnancy to term.
As predicted, after the delivery, the applicant's eyesight badly deteriorated due to hemorrhages in her retina. Corrective surgery is not possible in her case, and she currently faces a serious risk of blindness.
In September 2005, the Center filed an amicus brief with the European Court of Human Rights asking the Court to find a violation of the European Convention on Human Rights when a state fails to ensure that women legally entitled to abortion can effectively exercise their right. The Center's brief argues that states that permit abortion in prescribed circumstances – as Poland does in cases where pregnancy poses a physical health risk to the woman – have obligations to ensure that the guarantee to abortion in their national laws is an effective right in practice.
The Court issued its ruling in March 2007. It held that the Polish government had failed to fulfill its positive obligation, under Article 8 of the European Convention on Human Rights, to ensure the applicant’s right to respect for her private life. The finding of a violation is specifically based on the government's failure to establish an effective procedure through which the applicant could have appealed her doctors' refusal to grant her request for abortion. The Court prescribed some of the key components of such a procedure: It should guarantee to a pregnant woman the right to be heard in person and have her views considered; the body reviewing her appeal should issue written grounds for its decision; and, recognizing "the time factor is of critical importance" in decisions involving abortion, the procedure should ensure that such decisions are timely. The Court awarded the applicant EUR 25,000 for pain and suffering and EUR 14,000 for legal fees.