PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot share the Court ’ s conclusions in their entirety in this case. I have voted for a fi nding of a violation of Article 3, but cannot share the majority ’ s view in connection with the fi nding of a violation of Article 8. In light of this, I consider that the amount of non-pecuniary damages should have been less than actually awarded. However, since the majority have found a violation under both articles, the n the amount of EUR 45,000 is substantially correct, and my vote under that head of the operative part of the judgment is to be understood subject to that caveat .

2. I also regret that the long-winded and at times convoluted way in which the judgment has been presented – with an attempt to pack into it every bit of information irrespective of the degree of relevance of that information to the core issu e (see, for example, paragraphs 81 to 89, and 122 to 143) – leads the reader to miss the wood for the trees. Indeed, this case, like Tysiaç ( Tysia c v. Poland , no. 5410/03, 20 March 2007), has in part been presented by the applicant, and the judgment approved by the majority has similarly been put together, in such a way as if this was an “abortion” case, or a case about the “right” to have an abortion. This is not so. Polish law allows a woman to seek an abortion in the narrowly defined circumstances envisaged in Section 4( a) of “the 1993 Act” (see para. 67 of the judgment). One may agree or disagree with that provision of law, but there is nothing this Court can do about it in the instant case; and indeed this Court has not been called upon to do anything about it. What this Court has been called upon to examine is whether, from the moment that there was some indication that the child the applicant was carrying might be suffering from some form of deformity or malformation, the treatment she received at the hands of the health care professionals with whom she came into contact was in breach of her fundamental human rights as protected by the Convention.

3. In its judgment of 11 July 2008 the Polish Supreme Court (see paragraphs 52 to 54) held, in substance, that the applicant, as a patient, had the right to be referred in a proper and efficient manner for the necessary genetic testing so that she could have the necessary information as soon as possible about her unborn child ’ s health. That court likewise held that there were no legal or medical grounds on which to automatically link genetic testing with access to abortion under the 1993 Act. The facts, however, show that the applicant, who as a woman with child must be regarded as a vulnerable person in view of her condition (and 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. Now, apart from the fact that it is very doubtful whether a child suffering from Turner syndrome can be described as “severely damaged” or as “suffering from an incurable life-threatening ailment” for the purposes of the above ‑ mentioned Section 4(a) of the 1993 Act [5] , the doctors concerned were perfectly entitled, on grounds of conscientious objection, to refuse to terminate the life of the unborn child by performing an abortion or, indeed, even to refuse to refer the applicant for an 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 – her appel de détresse – even without a proper diagnostic finding (see paragraphs 17 and 30). 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 that the doctors wanted to avoid. To that extent the Court ’ s conclusions in paragraphs 159 to 161 are unimpeachable.

4. The matter could, and should, have stopped there. The majority, however, chose to go down the Tysiaç path. In Tysiaç , it will be recalled, the woman had requested an abortion because she claimed that otherwise her health – her eyesight – would suffer. The Court found that, once that a woman could in certain circumstances under Polish law ask for the termination of her unborn child ’ s life to preserve her own health, when a referral was refused by the medical profession there had to be a procedure before an independent body competent to review that refusal to terminate the pregnancy and to review the relevant evidence; a procedure in which the pregnant woman could be heard in person, and where written grounds for the decision would be given ( Tysiaç §117). For reasons which are still not entirely clear to me, the Court in that case chose to examine the issue under Article 8 instead of under Article 6. The very limited issue involved in that case was highlighted in the separate opinion of Judge Bonello: “The decision in this case related to a country which had already made medical abortion legally available in certain specific situations of fact. The Court was only called upon to decide whether in cases of conflicting views ... as to whether the conditions to obtain a legal abortion were satisfied or not, effective mechanisms capable of determining the issue were in place. My vote for finding a violation goes no further than that.” Even in the instant case the matter should, if at all, have been further examined under Article 6 and not under Article 8.

5. In the instant case there was no question of weighing the unborn child ’ s life against the mother ’ s or her health. By bringing Article 8 into the picture (as the Grand Chamber also did in A, B and C v. Ireland , no. 25579/05, 16 December 2010), the Court is simply making things more difficult for itself in regard to the issue of the determination of the beginning of life and the unborn child ’ s protection under a “more fundamental” provision of the Convention, namely Article 2. Notwithstanding all the “evolutive interpretations” of the Convention adopted by the Court, 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 (see, for instance, Odiè vre v. France [GC], no. 42326/98 13 February 2003, § 45), the Court in most cases preferring to avoid the issue ( Vo v. France [GC], no. 53924/00 , 8 July 2004, § 85) or to invoke the “margin of appreciation” doctrine (as in Boso v. Italy (dec.) no. 50490/99 , 5 September 2002). The Court, moreover, seems not to be giving the proper weight and importance to the clear proposition made by the Commission in its report of 12 July 1977 in the case Brüggemann and Scheuten v. Germany (Application no. 6959/75) to the effect that “...pregnancy cannot be said to pertain uniquely to the sphere of private life. Whenever a woman is pregnant her private life becomes closely connected with the developing foetus” (§ 59). 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.

[1] . For prenatal genetic testing an amniocentesis must be performed and karyotyping done on the extracted fluid. Karyotyping is a test to identify chromosome abnormalities associated with malformation or disease.

[2] . Turner syndrome: Turner syndrome, a medical disorder that affects about 1 in every 2,500 girls, is a genetic condition in which a female does not have the usual pair of two X chromosomes. Girls who have this condition usually are shorter than average and infertile due to early loss of ovarian function. Other health problems that may occur with TS include kidney and heart abnormalities, high blood pressure, obesity, diabetes mellitus, cataract, thyroid problems, and arthritis. Girls with TS usually have normal intelligence, but some may experience learning difficulties. Edwards syndrome: A rare genetic chromosomal syndrome where the child has an extra third copy of chromosome 18, more severe than the more common Down syndrome. Causes mental retardation and numerous physical defects that often cause an early infant death.

[3] . The report is issued unedited, in compliance with the wish expressed by the Human Rights Committee at its sixty-sixth session in July 1999.

[4] . PLN 100,000 at the relevant time.

[5] . With reference to f.n. no. 2 at para. 16 it should be further noted that most of the medical literature on the subject is in agreement as to the fact that persons with Turner syndrome can have a normal life when carefully monitored by their doctor.