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In the pending case that gave rise to the judicial initiative, the plaintiff’s parents requested that the defendant hospital be ordered to pay damages and compensation because:
her youngest child suffers from a congenital developmental disorder that could have been eliminated during the care of the pregnancy and therefore could have exercised the abortion option within the time prescribed by law.
Fetal abnormalities
The quality of life of the child is mainly affected by the fact that his left forearms are missing from the elbows, two-thirds of his fingers are struck with the right palm, his speech development is slightly delayed, and he needs support in terms of his psychomotor skills. In the opinion of the independent expert, the developmental abnormalities are clearly not genetic in origin, most likely due to damage to fetal life, the hospital should have detected the abnormalities in the extremities at the latest during the screening of the second trimester. The independent expert also noted that in the case of similar fetal abnormalities, the genetic caregiver always informs the mother that she does not support abortion.
The parents’ appeal was dismissed by the Metropolitan Court of First Instance on the occasion of the LXXIX of 1992 on the protection of fetal life. From Section 6 (3) of the Law it does not follow that pregnancy can be interrupted in case of fetal anomaly; The freedom of self-determination of the mother is not unlimited on the right to life of the fetus.
The contested provision establishes:
Pregnancy can be interrupted until week 20, if the diagnostic procedure is prolonged, until week 24, if the probability of genetic and teratological damage to the fetus reaches 50%.
On appeal from the parents, the Metropolitan Court of Appeal reversed the decision of first instance by means of an interlocutory judgment and determined that
the defendant health institution violated the plaintiff’s mother’s right to self-determination in the first degree and the right of both plaintiffs to family planning and family life.
According to the adjudication table, the defendant is responsible for the damage or moral damage that the child was born with a health impairment.
Life after birth
Subsequently, Levente Sághy, judge of the Metropolitan Court, suspended the process for determining the amount of compensation and compensation, who presented a petition to the Constitutional Court.
In the judge’s opinion, article 6 (3) of the law violates the provision of the Basic Law regarding the protection of fetal life. It is not clear what exactly is meant by the term teratological damage and to what extent it treats minor and major fetal abnormalities differently. The standard does not provide adequate protection for fetal life due to deficiencies in wording and content.
According to judge Levente Sághy
Differences of opinion cannot remain in a strictly professional framework, mainly because unable to represent the rights of the fetus, he cannot be alone in the future, he is not given a position of discretion. The representation of their rights, even in front of the holder of the right to self-determination, must be ensured by a law that measures and predicts the expected parameters of life after birth in a sober and ethical manner, based on the information provided to date. 24. week of pregnancy.
However, in the majority opinion of the Constitutional Court, a judge can only present a motion to establish the unconstitutionality of a legal provision that must be expressly applied when resolving a particular case. However, in the case on which the procedure is based, the Metropolitan Court of Appeal has already finally established the legal basis for the compensation in a provisional judgment, namely by applying the contested provision. That is, the contested provision in a case pending before the referring judge no longer applies, because the lawsuit now only aims to determine the amount of the plaintiff’s (parental) claim. Therefore, the Constitutional Court rejected the judicial initiative without any substantive examination.
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How long does the mother’s freedom of choice extend?
Despite the lack of a substantive examination, marked positions of constitutional judges were also revealed, four judges – Ildikó Hörcherné Marosi, Béla Pokol, Balázs Schanda and Marcel Szabó – attached separate opinions to the order.
Hell bela did not support the rejection. According to him, under the contested legislation
the too wide possibility of abortion makes the deprivation of fetal life unconstitutional.
In the panel discussion, Hell proposed the following constitutional requirement, but ultimately without endorsement:
The Constitutional Court establishes that, if the adverse teratological effect does not constitute a complex developmental disorder and, therefore, does not appear as a possibility of systemic damage, the termination of pregnancy is not eligible.
Balázs Schanda – and its connector Ildikó Hörcherné Marosi Y Marcel szabo – The judicial initiative should also have been examined on the merits. According to them, a constitutional issue is also important from the point of view of the merits of the claim for damages:
To what extent does the mother’s freedom of choice extend and what are the responsibilities of the legislature in protecting fetal life?
In addition, significant progress should have been made in the decades-long advances in medical diagnosis and preterm care since the enactment of the 1992 law.
Marcel szabo – Balázs Schanda joined his dissent – and saw that today
In most cases, the baby can be viable by the 24th week of pregnancy.
Therefore, in the case of a substantive investigation by the Constitutional Court, it would have considered it necessary to analyze whether “Yes or no level” The certainty is constitutionally acceptable for fetuses already viable in utero to authorize and perform a medical intervention to eradicate the pregnancy.
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