The Commissioner for Fundamental Rights on the Rules applicable to Sterilisation

According to the ombudsman, László Székely, it is not justified at the moment to challenge before the Constitutional Court the restrictive conditions on carrying out sterilisation with the objective of family planning. In his response to the floor leader of the Hungarian Socialist Party, the Commissioner for Fundamental Rights justified his legal position with the specific criteria of the ombudsman for the initiation of an abstract review of norms.

The floor leader of the biggest opposition party turned to the Commissioner for Fundamental Rights, requesting the ombudsman to initiate the review of the amendment of the Act on Health Care at the Constitutional Court. In his view, the new terms and conditions of sterilisation with the objective of family planning, being even stricter than the provisions annulled by an earlier decision of the Constitutional Court, infringe on the right to self-determination of persons of legal age. As a result of the amendment, it is stipulated by the Act that, as of 15 March 2014,  sterilisation with the objective of family planning may be carried out at the request of a person being over 40 years of age or having three biological children. The complainant also pointed out that the health policy reason for the restriction of the terms and conditions is not clear from the explanation of the Act.   

In his response to the floor leader, the Commissioner for Fundamental Rights highlighted that the ombudsman hadbeen and intended to keep on taking into account his competence as regards the initiation of an abstract ex post review of norms as a complementary means of protecting fundamental rights. When examining all petitions on direct initiation, the ombudsman shall consider the aspect of whether any means of individual legal protection , e. g., in particular, the submission of a constitutional law complaint, is available for the persons concerned.  If the persons concerned are unable to use the means of individual protection in practice or the degree of the impairment of the right calls for an immediate intervention, petitioning the Constitutional Court by the Commissioner may be substantiated and justified.   

However, with regard to the new conditions for carrying out sterilisation with the objective of family planning, none of the conditions exists which would substantiate petitioning the Constitutional Court. For persons of legal age with limited competency, sufficient safeguard rules ensure that, owing to their vulnerability, no such interventions be misused. Petitioning the Constitutional Court is made unjustifiable by the fact that if the persons affected by the regulation deem that in a concrete situation their fundamental rights are infringed by these rules, they may initiate a constitutional review proceeding themselves.   

László Székely also pointed out that, as ombudsman, he may not take a position as to the amendment was or was not sufficiently substantiated from a professional perspective in the course of the preparation of the modification. At the same time, he stressed that it does not exclude the possibility of his conducting an inquiry, on the basis of a complaint and within his powers, in a concrete case related to carrying out sterilisation. The Commissioner emphasised that he would be monitoring the enforcement of patient rights and the operation of the right protection system even in the course of the inquiries ongoing this year.