European Court of Human Rights
8 July 2004
Facts
Owing to a mix-up caused by the fact that two patients attending the same hospital department shared the same surname, a doctor carried out a medical act, intended for another person, on the applicant, even though she was pregnant. As a result of this error the applicant was obliged to undergo a therapeutic abortion. The applicant lodged a criminal complaint for unintentional physical injury to herself and homicide against her unborn child. The offence against the applicant was covered by an amnesty. Regarding the foetus, the Court of Cassation held that the fact of a doctor causing the death in utero of a human foetus which was not yet viable through carelessness or negligence did not constitute the offence of involuntary homicide, as the foetus was not considered as a human being entitled to the protection of the criminal law.
Complaint
The applicant considered that the lack of protection for her unborn child under French criminal law was unsatisfactory and constituted a violation of Article 2 of the Convention.
Court’s ruling
There was no clear legal definition in French law of the unborn child or a European consensus on the status of the embryo. The Court did not rule on whether the unborn child was a person for the purposes of Article 2. Noting in the instant case that the dispute concerned an involuntary fatal injury to the unborn child, counter to the mother’s wishes and at the cost of considerable suffering to her, the Court held that the interests of the foetus and its mother overlapped.
Accordingly, it examined the protection available to the applicant from the angle of the adequacy of the mechanisms in place for proving the doctor’s negligence in the loss of her child in utero and obtaining redress for the forced termination of her pregnancy. As the case concerned an involuntary infringement of her right to physical integrity, the positive obligation in procedural matters which derived from Article 2 did not necessarily require a criminal-law remedy. The applicant could have brought an action for damages against the authorities on account of the doctor’s negligence. Such an action would have had good prospects of success, and the applicant would have been able to obtain an order obliging the hospital to pay damages.
Consequently, even if Article 2 of the Convention was applicable in the instant case, the action for damages against the authorities on account of the doctor’s alleged negligence could be viewed as an effective remedy available to the applicant. The Court thus find no violation.