Sąžinės laisvė sveikatos priežiūros srityje ir ES pagrindinės laisvės: kai kurie probleminiai aspektai
Conscientious objection in health care and eu fundamental rights: some problematic aspects

Summary/Abstract: The right to conscientious objection is an exceptional form of legally permitted disagreement of an individual with legal obligations or prohibitions. Traditionally, conscientious objection is linked to freedom of conscience, religion and thought. These freedoms are among the fundamental individual liberties which are protected at the constitutional and international level. However conscientious objection is an issue that receives limited protection under various human rights instruments and the law of the EU. The right to conscientious objection is not provided for in European Convention on Human Rights, nor explicitly deducted from the art. 9 of the said Convention by European Court of Human Rights. The right to conscientious objection is provided for in the Charter of fundamental rights of the EU (art.10). The rights guaranteed by art. 10 of the Charter do not give rise SĄŽINĖS LAISVĖ SVEIKATOS PRIEŽIŪROS SRITYJE IR ES PAGRINDINĖS LAISVĖS 73 directly to legislation at EuropeanUnion level. The recognition of the right to conscientious objection within EU fundamental rights framework reflects constitutional traditions and national legislation, and by referring to national law, allows the different ways in which this right is exercised to be taken into account. The latter affirmation is challenged by EU Network of Independent Experts on Fundamental Rights 40-page opinion No. 4-2005 “The Right to Conscientious Objection and the Conclusion by the EU Member States of the Concordats with the Holy See.” In the expert opinion the Draft Treaty between the Holy See and Slovakia On conscientious objection may lead to the Slovak Republic violating its obligations under the number of international human rights instruments and would constitute a violation of EU law. These violations would result from undertakings of Slovakia not to impose an obligations on the hospitals and healthcare facilities founded by the Catholic Church to perform artificial abortions or assisted fertilizations and from the exercise by the medical doctors their right to conscientious objection which could impose restrictions “to access to certain medical services, including in particular abortion and contraception, which disproportionately affect women“. According to the EU experts although none of such morally controversial practices in the healthcare field are protected as such under the European Convention on Human Rights or any other international human rights instrument, in a State where such practices are legalized, the right to religious conscientious objection, while it should be recognized to the medical doctors, should not be exercised in a way which leads to depriving any person from the possibility of exercising effectively his or her rights as guaranteed under the applicable legislation. A recent case concerns the question of diversity within the state both in relation to health care and to relationship between the State and the Church.

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