The ECHR ruling does not challenge Poland’s ban on eugenic abortion, only the way it was introduced

What was the complaint about?

The European Court of Human Rights issued a judgment in a case concerning a complaint lodged by a Polish woman in 2021. The case concerned the pregnant woman’s complaint against the ban on eugenic abortion in Poland, and in particular the state of uncertainty that arose between the delivery of Poland’s Constitutional Tribunal’s judgment on October 22, 2020, and its publication only at the end of January 2021. On October 22, 2020, in its judgment in case K 1/20, the Polish Constitutional Tribunal found the so-called eugenic ground for an abortion unconstitutional, thereby preventing abortions from being performed due to a developmental defect of the unborn child. However, the ruling did not take effect until several months later, because Mateusz Morawiecki’s government delayed its publication in the Official Journal until January 27, 2021.

The woman in question was 15 weeks pregnant when the Constitutional Tribunal issued its ruling. During this time, she learned that her child suffers from the so-called Edwards syndrome, a severe genetic disorder characterized by intellectual disability and defects of the heart, digestive system, and kidneys. Because the Constitutional Tribunal’s ruling could be published at any moment, she canceled her appointment for an abortion in Poland. Instead, she went to the Netherlands, where she had an abortion at a private clinic.

In 2021, she lodged an application with the European Court of Human Rights, alleging that Poland had violated the prohibition of torture and inhuman or degrading treatment (Article 3 of the European Convention on Human Rights) and the right to respect for private life (Article 8 of the ECHR). The Ordo Iuris Institute joined the proceedings before the ECtHR as amicus curiae. In its submitted opinion, Ordo Iuris advanced numerous legal arguments indicating that the scope of the right to life guaranteed under the ECHR and other international treaties also encompasses human beings in the prenatal stage of development. Even if one were to conclude otherwise, the existing case law of the Court in Strasbourg nonetheless indicated that the Convention does not provide for a so-called right to abortion, and that member states have discretion as to how to regulate this matter.

Violation of the European Convention on Human Rights.

This month, the ECtHR has ruled that Poland had not violated Article 3 of the ECHR but had violated Article 8 of the ECHR. It also awarded the complainant the amount of 16,495 euros, including 1,495 euros in damages for expenses incurred for travel to the Netherlands and 15,000 euros in compensation for mental suffering associated with having to travel.

The Strasbourg Tribunal held, among other things, that Article 8 of the ECHR provides for “the right to personal autonomy and personal development,” which includes “decisions about having or not having children”. In the Tribunal’s view, the applicant was directly affected by the change in the law that occurred as a result of the Constitutional Tribunal’s 2020 judgment. The ECtHR ultimately found a violation of Article 8 of the ECHR on two grounds.

First, the restriction on the right to privacy was established pursuant to what the Court considers a defective legal basis—the 2020 Constitutional Tribunal judgment, which is said to have been delivered by an improperly constituted panel. The ECtHR referred to its prior case law, from which it follows that 3 of the 15 judges of the Constitutional Tribunal were appointed to their posts in violation of the Polish Constitution. The violation of the Constitution was confirmed in Constitutional Tribunal rulings issued in 2015-2016, and it consisted in the fact that the Sejm of the 8th term (2015-2019), acting without a legal basis, annulled the resolutions of the Sejm of the 7th term (2011-2015) nominating three Constitutional Tribunal judges, and then elected three new judges to replace them. Since then, they have been called “duplicate judges” because they were elected to seats already filled by Constitutional Tribunal judges chosen by the 7th-term Sejm.

Secondly, in the Court’s assessment, the ban on eugenic abortion was established under conditions of “general uncertainty as to the law in force,” caused by the prime minister’s months-long delay in publishing the Constitutional Tribunal’s judgment. Consequently, it was unclear whether abortion on eugenic grounds was punishable as of the date the judgment was handed down (October 22, 2020), or only as of the date of its promulgation in the Official Journal (January 27, 2021).

The Convention does not grant the so-called right to abortion.

Contrary to some media reports, the judgment of the ECtHR did not question the ban on eugenic abortion as such. Once again, the Strasbourg Court did not challenge the legal provisions introduced in Poland concerning the scope of the legal protection of human life. The ECtHR’s criticism concerned the manner in which the amendment to Article 4a(1) of the Act of January 7, 1993 on Family Planning, Protection of the Human Fetus and the Conditions for the Admissibility of Termination of Pregnancy was made—in particular, the delay in the publication of the Polish Constitutional Tribunal’s judgment of October 22, 2020, which formed the basis for the amendment. It should be noted that the ECtHR’s position, expressed back in 2010, remains in effect: the Convention does not grant a “right to abortion,” and European states have discretion in regulating this matter. The judgment under discussion of the Strasbourg Court does not change this situation—it does not condemn the protection of life as such, but its legal form—in Poland, eugenic abortion was not prohibited by statute, but by virtue of a judgment of the Constitutional Tribunal (CT), which, according to the ECtHR, was issued by a panel of legally questionable composition, with the participation of three so-called “duplicate judges,” and acquired binding force only three months after it was delivered (upon its publication in the Official Journal, which took place on January 27, 2021).

In the reasoning of its judgment, the ECtHR devotes particular attention to the second issue, namely the delay in the publication of the Constitutional Tribunal’s judgment of 22 October 2020, which, in the Strasbourg Court’s view, led, on the part of the applicant, to a state of legal uncertainty regarding the law that is unacceptable in light of the provisions of the Convention. Indeed, one can say that the ECtHR’s judgment concerns the principle of legal certainty more than the issue of the protection of private life provided for in Article 8 of the Convention. As the Court held, “the interference with the applicant’s Article 8 rights was caused by the prolonged situation of considerable uncertainty as to the applicable laws and the permissibility of abortion on the ground of foetal abnormalities.” In this regard, the interpretation of Article 8(2) of the Convention adopted by the Court is of particular importance. It was on the basis of the prohibition of state interference with individuals’ private life expressed therein, limited to cases where this is in accordance with the law, that the Court formulated its position on the unlawful delay in the publication of the 2020 Constitutional Tribunal judgment, which, in the ECtHR’s view, led to unlawful interference with the applicant’s private life, protected under Art. 8 of the Convention. Therefore, the reason for finding a violation of this provision is not the introduction of legal changes intended to expand the legal protection of human life, but above all the fact that this instance of state action, which affects individuals’ private lives, was carried out in an unlawful manner. In this respect, as a point of reference, the Court cited Article 190(2) of the Constitution of the Republic of Poland, pursuant to which judgments of the Constitutional Tribunal shall be published without delay in the official journal in which the normative act was promulgated. Since the Constitutional Tribunal’s judgment of October 22, 2020 was not published until the end of January 2021, the Tribunal found that “the interference with the applicant’s rights cannot be regarded as lawful.”

At this point, it is worth noting that the Polish-language version of Article 8(2) of the Convention shows some differences compared with the English version. For it provides that interference by the State with the right to respect for private and family life (Article 8(1)) is permissible in cases prescribed by law, which was the case here (the Polish Constitution provides legal protection of life to the extent defined by the Constitutional Tribunal in judgment K 26/96 of 28 May 1997, including during prenatal development, and the Constitutional Tribunal is empowered to remove from the legal order statutory provisions that are inconsistent with the Constitution). In light of the ECtHR’s judgment, the Polish state’s interference was incompatible with Article 8(2) of the Convention not because it lacked a legal basis (a law), but because it was carried out unlawfully (contrary to the law). The issue that emerges from the ECtHR judgment therefore concerns the application of the law, which affected the situation of the individual, and not—as some media have wrongly reported—the fact that Poland introduced a ban on abortion on eugenic grounds.

Attorney Katarzyna Gęsiak – Director of the Ordo Iuris Center for Medical Law and Bioethics

Judgment of the European Court of Human Rights of November 13, 2025, A. R. v. Poland.