STRASBOURG, France May 30, 2011 (LifeSiteNews.com) – The Maltese judge on the European Court of Human Rights (ECHR) voiced his disagreement with fellow jurists last week over what he termed a “weak, hesitant” approach to protecting children in the womb.
“When it comes to the right to life of the unborn child, the Court has been exceptionally pusillanimous…in most cases preferring to avoid the issue or to invoke the ‘margin of appreciation’ doctrine,” said Chief Justice Emeritus Vincent Degaetano,” in his dissenting opinion on R.R. v. Poland last week.
The case in reference concerned a Polish woman thought to be carrying a child with severe genetic abnormalities. Upon her repeated request for genetic testing, Polish doctors and hospitals delayed, fearing if the tests proved positive the woman would request an abortion. Under Polish law, abortions are permitted only in certain cases of severe malformations or life-threatening ailments.
The court ruled that the woman’s rights were violated under Article 3, prohibiting inhuman or degrading treatment, and Article 8, right to respect for private and family life, of the European Convention on Human Rights.
While agreeing with the Court’s decision regarding Article 3, Judge Degaetano disagreed with the use of Article 8 in the judgement, noting that an unborn child’s right to life should be more fully recognized by the Court under the already existing Article 2, on the right to life.
“The Court seems not to be giving the proper weight and importance to the clear proposition made by the Commission…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,’” he said.
“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.
With regards to Article 3, prohibiting inhuman or degrading treatment, Degaetano agreed with the judgement of the majority that the woman did in fact bear mistreatment at the hands of doctors who refused or delayed testing.
According to Degaetano, the woman “was subjected to what can best be described as a string of constructive prevarications” to prevent the assumed outcome of an abortion.
While emphasizing that the doctors were in fact entitled to refuse an abortion or application for an abortion under Polish law for conscience grounds, Degaetano said they were not entitled 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 that the doctors wanted to avoid,” criticized Degaetano.
The full Court ruling, including Judge Degaetano’s dissenting opinion, can be found here.