a)  Hungary / b)  Constitutional Court / c) / d)  17-12-1991 / e)  64/1991 / f) / g)  Magyar Közlöny (Official Gazette), 139/1991 / h) .
Keywords of the systematic thesaurus:
General Principles - Weighing of interests.
General Principles - Margin of appreciation.
Institutions - Executive bodies - Powers.
Institutions - Elections and instruments of direct democracy - Referenda and other instruments of direct democracy.
Fundamental Rights - General questions - Entitlement to rights - Natural persons.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to life.
Fundamental Rights - Civil and political rights - Right to compensation for damage caused by the State.
Fundamental Rights - Civil and political rights - Freedom of conscience.
Fundamental Rights - Civil and political rights - Right to private life.
Keywords of the alphabetical index:
Abortion / Foetus, legal status / Child, unborn, protection of life / Woman, right to self-determination / Foetus, dignity, right.
The non-statutory regulation of abortion was unconstitutional. Statutory regulation was required for any direct and significant restriction of fundamental rights and, in certain instances, the determination of the content of such rights and the manner of their protection. However where the relationship with fundamental rights was indirect and remote, administrative/executive (i.e. non-statutory) regulation was sufficient as otherwise everything would have to be regulated by statute.
The decision on whether the foetus is or is not a person is within the competence of the Parliament.
Two groups of petitioners sought to challenge the constitutionality of various statutory and non-statutory provisions regulating abortion.
The basis of both petitions was that the governmental and ministerial decrees on abortion were contrary to Article 8.2 of the Constitution and to various provisions of Act XI of 1987 on Legislation since such decrees constituted non-statutory regulation of issues involving fundamental rights and duties which could only be regulated by statute. The decrees were also contrary to Articles 35.2 and 37.3 of the Constitution which prohibited the government and ministers from issuing unlawful decrees.
The first group of petitioners contended that the decrees were unconstitutional since they permitted or insufficiently restricted the availability of abortions. They submitted, inter alia, that:
a.   since human life began at conception and any restriction on the substantial content of fundamental rights and duties, being contrary to Article 8.2 of the Constitution, was equally applicable to a foetus as to a fully-grown human being, the decrees violated Article 54.1 of the Constitution under which no one may be arbitrarily deprived of their right to life and human dignity;
b.   failure to protect the life of the foetus to the same extent as that conferred on other lives was discriminatory and therefore breached Article 70/A.1 of the Constitution;
c.   consequently permitting abortion also violated Article 56 of the Constitution which guaranteed the right to legal capacity; and
d.   the decrees did not guarantee doctors and other health-care workers the right to refuse termination of a pregnancy thereby violating their right to freedom of conscience in Article 60 of the Constitution.
The second group contended that since abortion was a matter of conscience to be resolved by the woman concerned, any external regulatory interference was unconstitutional. They submitted, inter alia, that:
a.   the right to terminate pregnancy sprang from the woman's fundamental right to human dignity under Article 54.1 of the Constitution and consequently any restriction on this right by decree was contrary to Article 8.2 of the Constitution; and
b.   were the decrees to be annulled, the Constitutional Court should therefore declare an unconstitutional omission to legislate since the provisions remaining in force would prohibit abortion in all circumstances thereby violating those rights of women which, according to Article 8.2 of the Constitution, could not be restricted.
According to the Court, the need for statutory regulation depended on the particular measure and on the intensity of its relationship to fundamental rights. In the present case, the regulation of abortion concerned the foetus' right to life and since this raised the question of its legal status, such regulation undoubtedly pertained to the foetus' right to legal capacity. This right was the prerequisite for the foetus' right to life and human dignity as a legal person. Therefore a decision as to whether the foetus was a legal person would determine whether it was a human being in the legal sense. The connection between abortion regulation and the rights to life and to legal recognition was necessarily predicated by the prior determination of the existence of these rights: since these rights could not be limited, for they either did or did not exist, the regulation of abortion was fundamentally related to them.
In order to determine whether these rights were affected by abortion regulation to an extent which rendered statutory intervention necessary, a balancing test therefore had to be employed. It was necessary to weigh the woman's right to self-determination (dignity) against the question of whether the State's duty to protect life extended to the foetus the right to life. Only if the foetus had no right to legal recognition and was therefore not a legal person could it be maintained that abortion complied with the right to life under Article 54 of the Constitution. In contrast, if the foetus had a right to life and human dignity then this right could not differ from those accorded to others and the rights of the unborn, when conflicting with those of the mother, had to be weighed no differently than would be the case with children already born. The right to dignity of the foetus in such circumstances would prohibit the termination of a pregnancy. Consequently abortion always required statutory regulation because any ruling on the matter implied the resolution of the question of the foetus' legal status. Based on this reasoning the executive decrees in question were unconstitutional since by regulating abortion they also determined that question, a decision which according to Articles 8.2, 54 and 56 of the Constitution could only be made by statute.
Article 8.2 of the Constitution was also violated by Articles 29.4 and 87.2 of the Health Act 1972. These subsections authorised the regulation of abortion by measures which did not have the full force of law. No decree could be elevated to the status of a law by another law, i.e. the mere possibility of regulation was superfluous, since the decrees in question could not be construed to mean that the Health Act exclusively authorised statutory regulation of abortion in a manner consistent with the Constitution and the Act on Legislation. Both subsections were necessarily unconstitutional since they permitted regulation of a fundamental right by decree and not by statute.
Although the question of whether the foetus was a legal subject could not be resolved by constitutional interpretation, nevertheless it was possible to evaluate both the constitutionality of the restriction and the extension of its scope. According to the Constitution and international human rights' agreements, every human being was unconditionally entitled to be recognised as a legal subject, i.e. a person in the legal sense of the word. The substantive rights to life and to human dignity which supplemented a human being's basic legal status fulfilled formal requirements of the right to legal capacity while giving content to a person's human quality. The right to human dignity meant that the individual possessed an untouchable core of autonomy and self-determination beyond the reach of all others, whereby the human being remained a subject not amenable to transformation into an instrument or object whereas entities having legal capacity remained susceptible to total regulation, lacking an inviolable substance. Human dignity was a quality coterminous with human existence, indivisible and unlimitable thus belonging equally to every human being. Consequently the right to equal dignity coupled with the right to life, ensured that the value of human life could not be legally differentiated. A person's dignity and life was inviolable irrespective of development or conditions, or fulfilment of human potential. Based on these most important fundamental rights which formed the foundation of a person's legal status, the Constitution did not permit the revocation or restriction of any part of the legal position already attained by a human being. Conversely only a constitutionally-mandated change in the scope of entitlement to legal status and, correspondingly, in the legal concept of personhood, could permit its extension to the pre-natal stage.
Further it was also possible for the Court to consider whether such an extension modified the basic characteristics of the legal concept of man and assess whether its interpretation of the right to life complied with such a modification. The realisation of this extension would be permissible provided it did not contradict the existing constitutionally-validated legal concept of man. The most important substantive component of such a concept was equality in the abstract which, being the legal equivalent of the ethical concept of man guaranteed by substantive law, was not affected by the extension of legal capacity to the unborn. Consequently neither the foetus' legal status had to be recognised nor was it impossible to accord it legal capacity since such an extension did not substantially affect the important elements of the legal concept of man. Within such a framework, it was for Parliament to legislate on the matter.
The abortion regulations in force guaranteed doctors and other health-care professionals the possibility, on grounds of conscientious objection, of refusal to perform or to assist in abortions. The State's duty to uphold the doctor's right to freedom of conscience was met by the Constitution and by existing rules in the Labour Code which permitted exemption from work-related obligations or of the doctor to create a work environment where he/she was not forced to undertake an abortion contrary to their convictions.
Subject to Parliament's determination on whether the foetus was a legal person, there were constitutional boundaries limiting the opportunities for abortion. Were the legislature to decide that the foetus was not legally a person, a legal subject entitled to the right to life and dignity, then abortion was permissible only in those situations where the law tolerated a choice being made between two lives and therefore did not punish the extinction of human life. Were the legislature to decide otherwise, the State would be compelled to balance its duty to protect life against the woman's right to self-determination. An outright ban would be unconstitutional since this would completely negate the mother's right to self-determination as would rules which exclusively favoured that right. The State's duty was to protect human life from its inception and so the right to self-determination could not be dispositive even at the earliest stages of pregnancy. This duty meant that the State could not lawfully permit unjustified abortions. Justifications deemed adequate by Parliament had to be incorporated into a new abortion law as conditions with which to be complied. In the ultimate analysis, it was for Parliament to decide where to draw the line between the two unconstitutional extremes of total prohibition and unrestricted availability of abortions.
Supplementary information:
Five of the Justices attached concurring opinions to the decision.