Chief Justice Emeritus Vincent Degaetano formally signalled his disagreement with the European Court of Human Rights over what he described as a weak and hesitant approach on the right to life of the unborn child.

His comments come in the wake of a judgment delivered yesterday by the Fourth Section of the Court in a Polish case (R.R. v. Poland).

The applicant, who had been informed her unborn child might be suffering from some malformation, sought to have the appropriate genetic tests carried out but the doctors kept delaying such tests because they feared that if the results showed that the child was suffering from severe malformation or an incurable life-threatening ailment she would ask for an abortion under a provision of Polish law. The law in Poland allows an abortion to be carried out in such cases and up to a certain period of gestation.

The majority of the six judges sitting in the Court, presided over by Judge Sir Nicolas Bratza, found that, in the particular circumstances of the case, the woman’s rights under articles 3 (protection from degrading treatment) and 8 (protection of one’s private life) of the European Convention on Human Rights had been breached.

In his partly dissenting opinion, Judge Degaetano agreed with the finding of a violation of article 3. He noted that under Polish law a woman had a right to be referred in a proper and efficient manner for the necessary genetic testing and that there were no legal or medical grounds on which to automatically link genetic testing with access to abortion.

The applicant, who, as a woman with child, was to be regarded as a vulnerable person irrespective of whether or not the child she was carrying had any abnormality, “was subjected to what can best be described as a string of constructive prevarications by the health care professionals in question and was shoved from pillar to post for several weeks, presumably because the doctors involved suspected that if the results were to show that the unborn child was affected with some malformation, she would request an abortion”.

The Maltese judge observed that although the doctors involved were perfectly entitled, on grounds of conscientious objection, to refuse to perform an abortion or even to refer a woman for a legal abortion, what they were not entitled to do was to keep her in the dark and increase her distress and anxiety to such an extent that she was prepared to ask for an abortion even without a proper diagnostic finding. “Instead of providing the necessary care and, above all, support to the parents who were facing the possible birth of a handicapped child, the system worked to push the applicant to take an extreme measure – the same measure (asking for an abortion) that the doctors wanted to avoid.”

Judge Degaetano, however, disagreed with the finding of a violation of article 8.

Referring to a decision by the European Commission of Human Rights, which had stated that “pregnancy cannot be said to pertain uniquely to the sphere of private life”, he was of the view that, by examining the issue under article 8, the Court was making things more difficult for itself on the question of “the beginning of life and the unborn child’s protection under a ‘more fundamental’ provision of the Convention, namely article 2 (right to life)”.

He noted that in spite of all the “evolutive interpretations” adopted by the Court in other areas of the Convention, “when it comes to the right to life of the unborn child, the Court has been exceptionally pusillanimous”, with only cursory references hinting at some form of protection and the Court in most cases preferring to avoid the issue completely or to hide behind the “margin of appreciation” doctrine.

“So we continue to drag article 8 into the fray, making things ‘confused, worse confounded’. At one end of the spectrum the death penalty has been abolished, at the other end the unborn child’s right to life remains in limbo,” Judge Degaetano concluded. Sir Nicolas also delivered a partly dissenting opinion in respect of the finding of a violation of article 3.

The full text of the majority judgment and of the two partly dissenting opinions can be found at Court’s website www.echr.coe.int.