ECHR condemns Poland: delayed publication of a ruling restricting access to abortion undermined legal certainty
In a judgment handed down on 13 November 2025, the European Court of Human Rights (ECHR) condemned Poland for violating the right of respect for private and family life of the applicant, a Polish national who travelled to the Netherlands to have an abortion, given the genetic disease diagnosed in her unborn child.
To understand the context of the decision, we must go back to 22 October 2020, when the Polish Constitutional Tribunal declared that the article of law allowing abortion in case of serious malformation or incurable disease threatening the life of the unborn child, was unconstitutional (see EIB News). The decision in question was not published until three months later, on 27 January 2021, and took effect on that date.
The Polish Constitutional Tribunal described these abortions as eugenic practices, as they induce selective sorting between healthy unborn children and those with disabilities or serious illnesses. The high court based its ruling in particular on the statement by the UN Committee on the Rights of Persons with Disabilities, which in 2018 affirmed that ‘laws that explicitly authorise abortion on the grounds of disability violate the Convention on the Rights of Persons with Disabilities (Articles 4, 5 and 8)’. For the Committee, this type of abortion ‘perpetuates the prejudice that disability is incompatible with a happy life’.
At the time of the Polish Constitutional Tribunal's ruling (October 2020), the applicant was 15 weeks pregnant with a foetus with a genetic abnormality. She travelled to the Netherlands to have an abortion in November 2020, not wanting to risk the Court's ruling being published before she had been able to terminate the pregnancy.
It is important to note that in its new ruling, the ECtHR does not rule on the compliance of Polish abortion legislation, as amended by the ruling of 22 October 2020, with the European Convention on Human Rights.
With regard to the invocation of the prohibition of inhuman and degrading treatment (Article 3 of the European Convention on Human Rights, ECHR) on the grounds of the ‘serious and real moral suffering’ that the applicant claims to have suffered as a result of the restrictions on abortion introduced by the Tribunal, the ECHR Court found that the complaint was unsubstantiated and inadmissible.
As for the invocation of the violation of the right to private and family life (Article 8 of the ECHR), the ECtHR considered that:
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the interference with the exercise of this right was ‘not provided for by law’ because it had not been adopted by a court established by law (pursuant to a prior decision of the ECtHR considering that the election of constitutional judges was marred by certain irregularities);
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The applicant was also harmed by the uncertainty surrounding the legislative implications: according to the ECtHR, "it remained unclear whether the restrictions on abortion for foetal abnormalities had already entered into force (editor's note: given the uncertainty as to when the judgment would be published and take effect) or whether abortion could still be performed legally. "
For these specific procedural reasons, the ECHR ordered Poland to pay the applicant 1,495 euros (EUR) for pecuniary damage and 15,000 EUR for moral damage.
