ECtHR: Post-mortem examination of baby violated parents’ humans rights
A post-mortem examination of a baby conducted against the wishes of his parents has been ruled a breach of Articles 8 and 9 of the European Convention on Human Rights (ECHR).
Leyla Polat, an Austrian national, became pregnant with her son Y.M. in 2006 and was told by doctors that her baby was likely to be born with a disability as a result of Prune-Belly syndrome. On 3 April 2007, Mrs Polat gave birth prematurely and just two days later her son died from a cerebral haemorrhage.
Doctors wished to carry out a post-mortem examination in the interest of science and public health, but Mrs Polat and her husband wanted to bury their son in accordance with their Muslim beliefs so refused to give their permission.
Nevertheless, on 6 April 2007, a post-mortem examination was performed at the Feldkirch Regional Hospital as the doctors claimed it had to be carried out in order to clarify the exact reason for Y.M.’s death. According to standard practice, all the internal organs were removed and the hollows were filled with cotton wool.
Mrs Polat and her husband told the court that they had not been informed of the extent of the examination and did not discover the state of the body until the funeral rites took place in Turkey. Once the state of the body was discovered the planned funeral could not go ahead and Y.M. was buried in another village without the religious ritual washing and Islamic ceremony, at additional costs to the parents. His organs were later returned to the parents and they were also buried in his grave in Turkey.
Mrs Polat took a case against the hospital management company seeking damages and at first instance the local court ruled in her favour; however, on appeal, the Innsbruck Court of Appeal remitted the case. Medical experts for the case had confirmed that the post-mortem had been necessary to confirm the diagnosis and the hospital had followed the standard practice during the examination. The hospital was also awarded costs of almost €33,000.
Unsatisfied by this result, Mrs Polat lodged an appeal on points of law and particularly relied on Article 9 of the ECHR and the Austrian constitution, requesting a preliminary ruling from the Court of Justice of the European Union (CJEU). Once again, she was unsuccessful.
Thereafter, she lodged an application with the European Court of Human Rights (ECtHR), claiming that she had suffered a breach of her Article 8 right to respect for private and family life and Article 9 right to freedom of thought, conscience and religion.
The court found that the hospital had a legitimate interest in carrying out the post-mortem for science and public health reasons, but had failed to appropriately balance these interests with the rights, will, and religious convictions of the parents.
The court was also asked to examine the rights of the parents to have been told that a post-mortem examination would be carried out or the extent of that examination. It found that there appeared to be no law in Austria regulating how much information had to be provided in such circumstances but noted the delicacy of the situation. Ultimately the court decided in these particular circumstances, and given the religious interests of the parents, the hospital did have a duty to inform them of the extent of the post-mortem.
The court’s judgment stated that there had been a breach of Article 8 and Article 9 of the ECHR was held unanimously and the court ruled that Austria must pay Mrs Polat and her husband €10,000 in respect of non-pecuniary damage and €37,796.92 in respect of costs and expenses.
© Scottish Legal News Ltd 2021