What happens when a doctor's conscience tells him the life of a non-viable fetus is more important than the life of the pregnant woman and what is the responsibility of the state?

A woman died, because the doctors were afraid she could miscarry and refused to examine her. Whether Poland violated a patient’s right to life or freedom from inhumane and degrading treatment by making her suffer – these are the questions put forward by the European Court of Human Rights in Strasbourg.

When a doctor refuses to carry out a medical service, invoking his or her objections on the ground of conscience, because he or she is afraid of endangering the life of the fetus – in such a case does Poland provide a woman with assistance of another doctor – the Court asks the Polish government.

A 25-year-old pregnant woman from Piła died in 2004 of septic shock before being fully examined by a doctor. Seeking justice in Polish courts proved to be ineffective, so her mother turned to the European Court of Human Rights in Strasbourg and is currently an applicant before the Court represented by two women lawyers, members of the Network of Lawyers of the Federation for Women and Family Planning in collaboration with the Center for Reproductive Rights.

In May 2004, the woman was informed that she was between 4 and 5 weeks pregnant. Prior to or early during her pregnancy she developed ulcerative colitis (UC). She was admitted repeatedly–11 times–to a number of different hospitals (in Piła, Poznań and Łódź). Certain examinations such as a colonoscopy and full endoscopy, which would have made it possible to gather more information on the location and extent of the problem, were not performed because the doctors were afraid of endangering the life of the fetus. She was given pharmacological treatment (for example, intravenous and oral administration of steroids and antibiotics). In July she was diagnosed with an abscess. Three operations to remove it were performed.

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During her stay at the M. Pierogow Regional Specialist Hospital in Łódź in August 2004, the doctor refused to perform a full endoscopy. He stated that “my conscience does not allow me to do this,” but did not formalize his objection or direct the patient to another doctor. The doctor justified not performing a full endoscopy by referring to his fear of endangering the life of the fetus. At the end of August 2004 mother of the woman and the woman’s fiancée urged the doctor at the clinic in Łódź to commence any necessary treatment, irrespective of the consequences for the life of the fetus, to save the woman’s life. This was in vain. Why? Because the doctors were more concerned about the fetus. The woman lost the fetus on 5 September 2004. It was removed and the doctors removed an abscess. But then it was too late for intervention to help her. On 29 September 2004 she died of septic shock caused by sepsis.

The woman’s mother asked the Łódź District Prosecutor to institute criminal proceedings into the circumstances of the applicant’s daughter’s death, in September 2008 the District Court discontinued the proceedings. In June 2005 the Regional Agent for Disciplinary Matters instituted disciplinary proceedings against the doctors who had treated the woman. After consulting several experts and hearing witnesses, it concluded that there was no evidence of medical malpractice. In September 2007 the woman’s mother brought a compensation claim in the Łódź District Court against the M. Pierogow Regional Specialist Hospital in Łódź. The civil proceedings are still pending.

In September 2008, with the assistance of the Center for Reproductive Rights, Polish Federation for Women and Family Planning and the Warsaw University Law Clinic a lawsuit against Poland on behalf of the deceased woman’s mother was filed to the European Court of Human Rights.

The case asserts that medical care that disregards the health of the pregnant woman in favor of that of her fetus violates the woman’s rights to life (Article 2 of ECHR), to freedom from inhumane and degrading treatment (Article 3), right to private and family life (Article 8) and to non-discrimination (Article 14). The case also seeks to clarify international guidelines for conscientious objection. The Polish woman was denied timely and proper care that could have saved her life and allowed her to have a safe pregnancy because Poland failed to regulate doctors’ right to refuse care on moral or religious grounds. Under section 39 of the Polish Medical Profession Act, a doctor may refuse to carry out a medical service, invoking his or her objections on the ground of conscience. He or she is obliged to inform the patient where the medical service in question can be obtained and to enter a note concerning the refusal in the patient’s medical records. Doctors employed in health-care institutions are also obliged to inform their supervisors in writing about the refusal.

The case aims to ensure that the Polish government guarantees an adequate number of healthcare workers who are willing to provide all legal services and that patients receive timely referrals to these workers. It also asks the court to affirm that conscientious objection may not be invoked by institutions such as hospitals, nor be used to deny patients information or emergency care.

The tragedy of that young woman moved public opinion in Poland. Letters were sent to the Ministry of Health and the Ministry of Justice. They were signed within a period of three days by more than 400 people and 30 non-governmental organizations. A special commission was established by the Minister of Health, but regrettably it did not complete its work before the new elections were held and a new government was appointed.

Justice remains unserved.