Human rights court sides with Polish woman who sought eugenic abortion

A major human rights court in Europe sided with a Polish woman who wanted a eugenic abortion following a fetal diagnosis and traveled to the Netherlands to obtain one.

Key Takeaways:

• A human rights court in Europe has awarded a Polish woman €16,000 in compensation after she traveled out of the country to the Netherlands to abort her baby in the second trimester.

• The baby had been diagnosed with Trisomy 18, and though aborting the baby was still legal in Poland at the time, the Constitutional Court had recently deemed the law allowing abortion for a prenatal diagnosis to be unconstitutional. That ruling had not yet been made official.

• There is a 90% hospital discharge rate for babies with Trisomy 18 who have undergone heart surgery. When denied heart surgery because of their Trisomy 18, children with the condition are more likely to die before leaving the hospital.

The Details:

The European Court of Human Rights (ECHR) ruled last week that Poland must pay a woman over €16,000 in compensation after she chose to travel out of the country for an abortion; at the time, Poland's law on abortion was in the midst of change.

According to ECHR, the woman was 15 weeks pregnant in November 2020 when she learned her baby had Trisomy 18, a condition that can be survivable when children born with it receive appropriate medical care.

The law in Poland at the time would have allowed her to have an abortion because of her baby's diagnosis, but the Constitutional Tribunal had declared only days earlier that eugenic abortion (intentionally killing children who have been diagnosed with a condition or disability) was unconstitutional. Though the law hadn't officially been changed, abortionists were unsure when it would take effect and refused to abort her baby.

The law protecting babies from eugenic abortion was enacted in January 2021 — two months after the woman's prenatal diagnosis.

"She had not wanted to risk that the judgment would be published before she would have completed the various steps required to qualify for a legal abortion," the ECHR said. In addition, she was "worried about the risk of borders closing because of COVID-19 restrictions..."

She was also worried that doctors would conscientiously object to killing her preborn baby, which indicates she may not have sought one in Poland at all. She decided to travel to the Netherlands to have the abortion at a private abortion facility on November 12, 2020, at 17 weeks — nearly two months prior to the enactment of Poland's law.

2nd Trimester Abortion | Dilation and Evacuation (D&E) | What Is Abortion?

"The applicant contended that she had suffered stress on account of the physical and psychological impact of her travelling abroad for an abortion, in addition to the financial burden the situation had entailed," the ECHR said. "She also submitted that she had had difficulties confirming her rights to a special shortened maternity leave because she had undergone a termination abroad."

The Court agreed that traveling for the abortion had caused her "pain and suffering" because she was away from her family. Yet court documents show that her husband and their son traveled with her.

"On a whole," said the Court, "the Court is of the view that many of the negative experiences described by the applicant could have been avoided if she had been allowed to terminate her pregnancy in the security of her home country.

".... [T]he court finds that the applicant was not a potential victim but was 'directly affected' by the legislative change in question."

The Court also noted that "the restriction imposed by the Constitutional Court's judgment caused the applicant considerable anxiety and suffering, in circumstances where she was confronted with the fear stemming from the foetus’ diagnosis with a genetic abnormality and faced with uncertainty as regards the availability of a legal abortion in such a situation."

Why It Matters:

The ECHR believes that the woman suffered because she felt unable to have an abortion in Poland, noting that she had "fear stemming from the [baby's] diagnosis.... and [was] faced with uncertainty" regarding whether she could abort the baby or not.

But she did not need an abortion. Her life was not in danger, and had her baby not received the diagnosis, she would not have even been considering an abortion. The sole reason she felt the desire to fly to another country to have her preborn baby killed was because she had "fear" surrounding her baby's diagnosis and what it would be like to care for a baby with a genetic health condition. She wanted a healthy baby, not one with Trisomy 18.

The Pro-Life Reply to: "Babies with Disabilities Are Better Off Aborted"

Trisomy 18 is not the death sentence it was once considered to be.

A 2017 study from researchers at Stanford and the University of Arkansas revealed that children with Trisomy 18 are more likely to survive if they undergo pediatric heart surgery. In addition, a 2019 study revealed a 90% discharge rate for children with Trisomy 18 after having their hearts repaired. You can read about the lives of individuals with Trisomy 18 here.

The Bottom Line:

Research shows that women who abort their babies following a prenatal diagnosis have worse mental health outcomes than women who choose life. Ultimately, much of the Polish woman's emotional turmoil could be connected to feeling the pressure to abort her baby based on her own fears or even societal pressures. But in the end, her baby is the ultimate victim.