Same-Sex Unions, Abortion, and the Constitutional Court of Poland: Two Recent Judgments of the European Court of Human Rights

This is a presentation of two judgments adopted by the ECtHR in December 2023 in two important cases from Poland. In Przybyszewska and others v. Poland, the ECtHR found Poland in breach of the positive obligations to provide a comprehensive legal regulation on the status of same sex couples. The ECtHR reiterated its well-established jurisprudence in that matter, in particular the Grand Chamber ruling in Fedotova v. Russia (March 2023). Its applicability to Poland was obvious, and the judgment leaves the Polish government with no alternative but to adopt appropriate changes in the legal system. In the M.L. case, the ECtHR found that the refusal of Polish medical authorities to proceed with an abortion request had violated Art. 8 of the European Convention. The ECtHR observed that the pregnancy in question was affected by a grave and incurable deformation of the fetus. The legal ban on such abortions was imposed, in 2020, not by a legislative amendment but by a judgment of the Constitutional Court of Poland. The “legality” of the Polish Court is, however, dubious in the context of the ongoing rule-of-law crisis in Poland. Therefore, the abortion ban was not adopted by a “lawful” body, and – in consequence – the interference with the applicant’s right to private life did not meet the requirement of “legality.” The ECtHR ruling was very important for Poland since it has not only invalidated the Polish ban on the abortion in case of the fetal deformation, but also indicated that most of the – previous and future – rulings of the Polish Court would not be accepted by the ECtHR. However, as concerned the European standards, the ECtHR abstained from any discussion on the substantive law on abortion in cases of the fetal deformation.