On the Rules of Abortion and the Protection of Foetal Life

The obligation to protect foetal life is not a conceptual novelty in the Hungarian constitutional system. The rules of abortion are in accordance with the provisions of the Basic Law on the protection of human life - pointed out the Commissioner for Fundamental Rights while inquiring into the rules of abortion.

The Commissioner for Fundamental Rights has received several petitions that, citing the provisions of the Basic Law, contest the constitutionality of the rules of abortion. In this context, the Commissioner pointed out the following: although there is some difference between the wordings of the Constitution and the Basic Law, it does not mean a conceptual shift as regards the protection of foetal life. Pursuant to Article II of the Basic Law, "human dignity shall be inviolable. Everyone shall have the right to life and human dignity; the life of the foetus shall be protected from the moment of conception."

According to both the documents of international law and the practices of the Constitutional Court, the right to life shall be unrestrictable, absolute and shall take precedence to any other right. The starting point of life is one of the cornerstones of the right to life - that is what the issue of abortion is related to.

In its decisions the Constitutional Court has consequently refused to answer the question whether or not the foetus should be considered a human being. The Court has referred this issue to the competence of the legislator, emphasizing, however, that even if the latter decides not to consider the foetus a human being, the regulation of abortion should be based on the state's objective obligation to protect human life. Therefore, the legislator should strike a balance between the state's obligation to protect life and the mother's right to self‑determination.

In accordance with the earlier practices of the Constitutional Court, the Basic Law also makes a clear distinction between "everyone's" right to life and the obligation to protect foetal life. By doing so, the codifiers of the Basic Law have de facto incorporated into its text a criterion determined earlier by the Constitutional Court. Therefore, the obligation to protect foetal life is not a conceptual novelty in the Hungarian constitutional system and the prevailing rules of abortion, in the view of László Székely, are in accordance with the provisions of the Basic Law on the protection of human life.