Polat v. Austria, No. 12886/16, ECtHR (Fourth Section), 20 July 2021

Autopsy and removal of the organs of the corpse of a newborn affected by a rare disease, son of a Muslim couple who had opposed the operation as an obstacle to a ritual burial. Violation of articles 8 and 9 of the ECHR.

Art. 8 ECHR
Art. 9 ECHR

1. The exercise of Article 8 rights concerning family and private life pertains, predominantly, to relationships between living human beings. However, the possibility cannot be excluded that respect for family and private life extends to certain situations after death. the removal of a deceased relative’s organs or tissues without consent falls within the scope of the “private life” of the surviving family members.
2. The manner of burying the dead represents an essential aspect of religious practice and falls under the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention. Article 9 is therefore applicable to the applicant’s complaint that the post-mortem had been carried out against her declared religious convictions, as she submitted that it had prevented her from burying her son in accordance with her beliefs.
3. The domestic authorities are called to proportionally balance, on the one hand, the protection of the health of others through the conduct of the post-mortem examination and, on the other, the protection right to respect for her private and family life and the right to manifest one’s religion.
(In the present case, the removal of the organs of the applicant's son had prevented the latter from guaranteeing the child a religious funeral. According to the Court, the hospital’s staff would not have checked whether the intervention was necessary for the pursuit a scientific interest)