12 Aug A post-mortem examination of a child against the will of the parents is not in accordance with the Convention

In the case of Polat v. Austria (application no. 12886/16, 20.07.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) and Article 9 (freedom of thought, conscience and religion)of the European Convention on Human in respect of the post-mortem examination of the applicant’s baby carried out against her will and against her religious convictions, and a violation of Article 8 in respect of the authorities’ failure to disclose information to the applicant about her son’s post-mortem examination.

The case concerned a post-mortem examination of the applicant’s son carried out against her will. In 2006 the applicant became pregnant. Doctors indicated to her that the baby was likely to be born with a   disability as a   result of Prune-Belly syndrome. She gave birth prematurely in 2007. Her son, Y.M., died from a cerebral haemorrhage two days later. Doctors asked the applicant and her husband for permission to carry out a post-mortem examination, in the interests of science. They refused, as they wanted to bury their child in accordance with their Muslim religious beliefs, which required the body to remain unscathed. The treating doctor told them that it would have to be carried out in any case in order to clarify the exactreasons for their son’s death. On 6 April 2007, the post-mortem examination was performed at the Feldkirch Regional Hospital and practically all the internal organs were removed.

The Court reiterated that under the Convention there was no absolute right to object to a post-mortem taking place. The post-mortem of Y.M. had been carried out in accordance with the law, namely on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act. Under those provisions, a post-mortem examination could be carried out against the relatives’ wishes in the interests of science and public health, in particular where there were diagnostic doubts. The Court was satisfied that there had been a legitimate interest in carrying out the examination.

However, the Court stated that the applicant’s views had not been taken into account when that decision had been made, either by hospital staff or by the domestic courts. It noted in particular that the States ordinarily have a wide discretion in assessing the balance between private and public interests. Specifically with regard to post-mortem examinations against the will of the family, they had to be carried out with maximum respect for the family members’ rights. 

The authorities had therefore failed to balance the competing interests involved, namely the State’s obligation to protect public health and the applicant’s rights under Articles 8 and 9. The Court concluded that the decision to perform a post-mortem on the applicant’s child against her will and against her religious convictions had been an interference with her “family life” and her right to manifest her religion which had not been justified, leading to violations of the Convention.

References from the official website of the European Court of Human Rights