The applicant, Ms R.R., became pregnant but in 16th week of her pregnancy it was found that the foetus was most probably affected with some malformation. Although several other ultrasound scans by other doctors showed the same suspicion, the doctors refused to refer the applicant for prenatal genetic testing which was the only possibility to confirm or dispel this suspicion. Without full confirmation that the foetus is indeed malformed, the applicant was not able to have an abortion, which she pondered to have, but which in Poland was allowed only if there was a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life threatening ailment. Later, the applicant gave birth to a baby girl suffering from Turner syndrome.
The applicant complained that state authorities’ failure to implement laws and regulations governing access to prenatal examinations and termination of pregnancy resulted in insufficient protection of her right to private life.
The Court firstly pointed out that the decision of a pregnant woman to continue her pregnancy or not belongs to the sphere of private life and autonomy. It was not access to abortion as such which was primarily in issue, but essentially timely access to a medical diagnostic service that would, in turn, make it possible to determine whether there were conditions for a lawful abortion in the applicant’s situation.
The Court based it's judgement on several findings:
- There were no objective reasons why the genetic tests were not carried out immediately after the suspicions as to the foetus’ condition had arisen.
- If the domestic law allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women.
- There were no safeguards or mechanisms available for the applicant in order to learn about her medical condition and the one of the foetus.
Therefore, the Court ruled that the authorities failed to comply with their obligation to secure an effective respect for the applicant’s private life and that there has therefore been a violation of Article 8 of the Convention.