BOSO v. ITALY
Inadmissible
The applicant, Mr Giampiero Boso, is an Italian national who was born in 1960 and lives in Eraclea. He was represented before the Court by Ms W. Viscardini, of the Padua Bar. The applicant was married. In 1984 his wife, who was pregnant, decided to have an abortion despite his opposition. Her pregnancy was terminated on 10 October 1984. On 8 November 1984 the applicant brought an action against his wife in the San Donà di Piave magistrate’s court, seeking compensation for the infringement of his rights as a potential father and of the unborn child’s right to life. The applicant further challenged the constitutionality of Law no. 194 of 1978, arguing that it contravened the principle of equality between spouses as enshrined in Articles 29 and 30 of the Italian Constitution in that it left it entirely to the mother to decide whether to have an abortion and took no account of the father’s wishes. The applicant’s wife maintained that she had acted in accordance with section 5 of Law no. 194 of 1978, by which she alone had the right to decide whether to undergo an abortion. In an order (no. 389) of 31 March 1988 the Constitutional Court declared the constitutionality issue manifestly ill-founded on the ground that the Law complained of was based on a policy decision to grant the mother full responsibility for an abortion, and that that decision was not illogical, especially as the effects of pregnancy, both physical and mental, were felt primarily by the mother. Having regard to the Constitutional Court’s decision, the magistrate’s court dismissed the applicant’s action in a judgment of 18 May 1990. The applicant appealed against that judgment to the Venice District Court. He raised a further constitutionality issue, submitting that section 5 of Law no. 194 of 1978 infringed Articles 2, 8 and 12 of the Convention and Articles 2, 10 and 11 of the Italian Constitution. In a judgment of 24 June 1993 the Venice District Court dismissed the appeal on the ground that the right to compensation under Article 2043 of the Civil Code presupposed that the applicant’s wife’s conduct had been unlawful, whereas she had acted in accordance with Law no. 194 of 1978. The Court further held that the constitutionality issue raised by the applicant was essentially the same as that raised at first instance and accordingly declared it manifestly ill-founded. The applicant appealed on points of law to the Court of Cassation, arguing, in particular, that section 5 of Law no. 194 of 1978 infringed Articles 2, 8 and 12 of the Convention, which protected the right to life and the right to found a family. In a judgment of 19 June 1998, the text of which was deposited at the registry on 5 November 1998, the Court of Cassation dismissed the applicant’s appeal. It had regard to the Constitutional Court’s decision of 31 March 1988 and further held that declaring the abortion legislation unconstitutional would not have had any bearing on the applicant’s claim for compensation. The claim was in any event bound to fail in the absence of any unlawful conduct on the part of the applicant’s wife, who had made use of a right to which she was entitled. Law no. 194 of 1978 allows doctors to terminate a pregnancy in specified circumstances. By section 4 of the Law, a woman may decide to have her pregnancy terminated before the twelfth week where continuation of the pregnancy, childbirth or motherhood might endanger her physical or mental health, in view of her state of health, her economic, social or family circumstances, the circumstances in which conception occurred or the likelihood of abnormalities or of malformations of the foetus. The woman may apply to a health centre (struttura socio-sanitaria), a clinic (consultorio) established under Law no. 405 of 2 July 1975 or her doctor. By sections 2 and 5 of the Law, clinics and health centres must carry out the necessary medical examinations. Where an abortion is requested because of the impact of economic, social or family circumstances on the pregnant woman’s health, they must also (a) examine possible solutions to the problems, together with the woman and, with her consent, the potential father; (b) help the woman to overcome the problems that have led her to request an abortion; and (c) take any appropriate measures to help the woman by providing her with all the necessary assistance both during the pregnancy and after the birth. Where the woman applies to her doctor, the doctor carries out the necessary medical examinations and, together with the woman and the potential father, discusses the reasons for her decision to request an abortion, having regard also to the results of the examinations. The doctor informs the woman of her rights, the welfare facilities available to her, and the clinics and health centres at her disposal. In cases of emergency, a doctor from the clinic or health centre or the woman’s own doctor immediately issues her with a certificate attesting that termination of the pregnancy is urgently required. On the basis of the certificate, the woman may report to one of the establishments authorised to perform abortions. If the results of the medical examination indicate that there is no emergency, the doctor draws up a certificate, which the woman must also sign, attesting that she is pregnant and that her request for an abortion has been made in accordance with section 4 of the Law. At the same time the doctor gives her seven days to think the matter over. Once that period has elapsed, the woman may request the termination of her pregnancy at an authorised establishment, on the basis of the medical certificate. Beyond the first ninety days, an abortion may be carried out (a) where pregnancy or childbirth entails a serious threat to the woman’s life; or (b) where conditions entailing a serious threat to the woman’s physical or mental health have been diagnosed, including serious abnormalities or malformations of the foetus. The abortion process is covered by the Personal Data Protection Act (Law no. 675/1996). There is no provision in law allowing the potential father to prevent an abortion from taking place.