a)  Hungary / b)  Constitutional Court / c) / d)  14-11-2005 / e)  43/2005 / f) / g)  2005/149 / h) .
Keywords of the systematic thesaurus:
General Principles - Proportionality.
General Principles - Margin of appreciation.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to private life.
Fundamental Rights - Economic, social and cultural rights - Right to health.
Keywords of the alphabetical index:
Sterilisation, voluntary, limitation.
Individuals are free to make choices - in line with the limitations laid down by the Constitution - over family life, marriage and child rearing. The state cannot assume responsibility for individuals' decisions on contraception and the advantages and disadvantages of the various means. This would be paternalism on an unjustified scale.
I. Two petitions requested the constitutional review of the legal regulation of voluntary sterilisation. Article 187.2 of the Act on Health Care of 1997 (hereinafter described as "the Act") prevents those under thirty five or with less than three children from undergoing voluntary sterilisation. One of the petitions suggested that such an unjustified restriction on the basis of age and number of children infringed the right to human dignity guaranteed in Article 54.1 of the Constitution. The other petition invoked Article 70/A of the Constitution, on the prohibition of discrimination, as the provisions in the Act are arbitrary and discriminatory. Article 187.5 of the Act obliges the spouse or partner of someone wanting to undergo this procedure to be informed and to consent to voluntary sterilisation. The petitioners argued that this violates the right to private life, as it compels the person asking for sterilisation to share this intimate and momentous decision with another person.
II. First, the Court looked at the rules on voluntary sterilisation in other democratic countries. With only a few exceptions, legislators have left ample room for manoeuvre in the exercise of the right to self-determination. Thus, anybody capable of making decisions in a legal sense is entitled to voluntary sterilisation, regardless of age, marital status and number of children. However, the age limit for decisions about voluntary sterilisation is not necessarily the same as the general age limit for capability of making one's own decisions.
The majority opinion emphasised that human dignity involves the right to self-determination and the ability to make choices, based on free and informed consent, over one's own body and fate. The Court proceeded to examine the conditions the Act imposes on voluntary sterilisation, from the point of view of the right to self-determination.
States may wish to impose restrictions for demographic reasons and their obligation to protect health. The judges took the view that preventing disadvantageous demographic trends is a legitimate legislative aim, but in a democratic state this cannot be achieved by the restriction of the right to self-determination. It could instead be achieved by regulating payment of public taxes, social politics, and the development of a culture of birth control. Restriction of the right to self-determination is clearly an unnecessary means in this context.
With regard to the state's obligation to protect health, the Court found that the articles of the Constitution governing the protection of children (Article 67.1 of the Constitution), the protection of the interests of the young (Articles 16 and 67.3 of the Constitution) and the state's obligation to protect health (Article 70/D of the Constitution) have to be taken into account. It is possible that the Act excludes a group of legally capable persons from exercising this kind of right to self-determination, on the basis that persons under restriction do not have any element of choice over voluntary sterilisation.
The Court found the provision of the Act making the possibility of voluntary sterilisation dependent on the number of children unconstitutional. It is not for the state to decide on the ideal number of children its citizens should have.
The Court was of the opinion that on the basis of the Constitution it was not unreasonable for the Act to prohibit surgical operations which were not necessary and which could damage health. Voluntary sterilisation, however, could not be viewed simply as an operation resulting in the damage of health. The aim of voluntary sterilisation was not necessarily the protection of health. Besides the individual's physical health their mental state, family and other circumstances had to be taken into account. There is no provision in the Act for weighing other circumstances.
In view of the above, the Court declared that the state's obligation to protect health can allow it to restrict voluntary sterilisation with the purpose of birth control. However, Article 187.2 of the Act exceeds the limits that are made justifiable by constitutional aims. The Court could not pronounce upon the specific legal regulations the protection of the interests of the young and securing the capacity to make decisions might require, but in the present case it could only conclude that the stipulation that the person must already have three children was out of proportion to the legitimate aims, and accordingly unconstitutional.
The drafting of the provision meant that the Court could not evaluate the two individual legal conditions in isolation. If the phrase which had been ruled unconstitutional "having given birth to three children" was removed, the provision would be more restrictive than ever. It would result in people under thirty five being unable to opt for voluntary sterilisation even if they had already given birth to three children.
Article 187.5 of the Act, dealing with the duty to inform a spouse or partner, was not found unconstitutional by the Court. Only the person requesting voluntary sterilisation takes the decision, and so the spouse or partner has no real right to consent or refuse. The Court pointed out that it had only studied this provision in the light of Article 54.1 of the Constitution. It had not looked at the right to privacy and the protection of personal data under Article 59.1.
Three Justices gave dissenting opinions. Justice Harmathy put more emphasis on the state's obligation to protect health than the majority. The age limit of voluntary sterilisation is based on medical experience. The restriction based on the number of children is required by the financial and other difficulties of larger families. Therefore, neither restriction could be held arbitrary.
Justice Vasadi's dissenting opinion emphasised that voluntary sterilisation not done for reasons of health can result in a deficiency which damages human dignity, and which is not included in the right to self-determination. There are other means of birth control which do not include final handicap or damage of health and so the restriction of voluntary sterilisation could not be questioned constitutionally.
Justice Kovács in his dissenting opinion emphasised that voluntary sterilisation was practically final, as fertility could only very rarely be restored. Infertility treatment has to be paid for and so the possibility to reverse decisions made thoughtlessly or in a different situation is only available for wealthier families.