Decision in the case of M.L. v. Poland, published on December 14, 2023: The European Federation
One of Us expresses its deep concern that the life and dignity of unborn children with Down
syndrome have once again been overlooked by the European Court of Human Rights (ECHR).
Poland was condemned because of the questionable composition of its Constitutional Court.
The ECHR did not rule based on Article 3 (prohibition of torture and inhuman treatment) to condemn
Poland and recalled that “there is no right to abortion under Article 8” (right to privacy).
The case
The European Court of Human Rights (ECHR) yesterday published its judgement in a case between
a Polish woman (who was pregnant) and her country. The pregnant woman wanted to abort her child
who was confirmed to have Down Syndrome by doctors. The 1993 Polish law allowed abortion in
the case of fetal abnormality until it was banned by the 2020 Constitutional Court ruling (a ruling
that states that abortion on the grounds of disability is considered a “eugenic” practice and therefore
unconstitutional).
The pregnant woman, who was denied medical termination of pregnancy (MTP) in Poland, had an
abortion in a private clinic in the Netherlands. The ECHR considers that there is a violation of Article
8 “Right to respect for private and family rights”. It states that the decision of the polish
Constitutional Court is tainted by a previous problem of the appointment of judges and that, as a
result, only the 1993 text, authorizing the MTP, is law. The reasoning of the ECHR, says that
preventing a pregnant woman from aborting her child with Down syndrome, when the law allows
it, constitutes a violation of Article 8.
No right to abortion (eugenic or not)
This reasoning must not be manipulated: the ECHR recalls that Article 8 “cannot be interpreted as
conferring a right to abortion” (§94). It adds that “any regulation relating to the termination of
pregnancy does not constitute an interference with the mother’s right to respect for her private life”.
(§153).
Stigmatization of persons with Down syndrome
Marina Casini, president of the European Federation One of Us, wonders that “sooner or later,
Western countries will end up being confronted with their contradictions: how can we accept
eugenic abortion when we are committed to human rights? Is the life of a baby with a disability
worthless? Every life with a disability deserves to be valued as worth living. It is necessary to
respect the fundamental rights of all individuals, and to recognize the value of each person,
regardless of their genetic condition”.
Recently, the UN Committee on the Rights of Persons with Disabilities (CRPD) has taken a strong
stance on this issue, expressing “concern about the devaluing of persons with disabilities through
ableist policies and practices that underpin prenatal genetic screening on fetal impairment, particularly
concerning trisomy-21” (2021).
The most beautiful words came from two judges of the ECHR, in a dissenting opinion stating that
“In a democratic society, a more inclusive approach should be preferred, and this genetic diversity
should be perceived not as threat but as a possible source of enrichment”. They regret this
condemnation of Poland by the ECHR confirming that “the instant judgment will contribute to
enhancing prejudice against the extremely vulnerable class of persons with trisomy 21 and
negatively stereotyping them as a burden on their families”.
A political agenda?
One of Us is questioning the timing of the ECHR decision. Although it was anticipated to be
released thissummer, the decision appears to have conveniently coincided with the recent political
changes in Poland. This synchronicity in timing raises some concerns, as it suggests that the Court
seems to be open to political pressure. This may cast doubts on the impartiality of European
justice.
