Europe’s Top Court Rules for Jehovah’s Witness Child in Medical-Bias Case

Court News Service/October 29, 2020

By Molly Quell

Luxembourg — A Latvian child who needed open-heart surgery prevailed Thursday in a religious discrimination case against the country’s Ministry of Health, which refused to sign on off on letting him undergo the procedure in another country where he wouldn’t require a blood transfusion.

Names are withheld from the ruling released this morning by the European Court of Justice. It says only that the child was a Jehovah’s Witness who needed surgery because of a congenital heart defect, and that in Latvia the procedure is not possible without a blood transfusion.

The boy’s parent requested a form called an S2 that would authorize treatment in Poland — presumably where the surgery can be performed without a transfusion — but Latvia’s National Health Service refused to comply. The family began fighting in court, losing every step of the way before the case reached Europe’s high court in Luxembourg, but ultimately the boy underwent heart surgery in Poland on April 22, 2017 — over a year after he was first denied an S2 form.

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“Such a refusal introduces a difference in treatment indirectly based on religion,” the opinion states.

Under the 2004 Coordination of Social Security Directive, citizens of one member state who travel to another member state for medical care must first obtain authorization. This is to limit unexpected financial burdens on publicly funded healthcare systems. “[A member state] would, in the absence of a prior authorization system based exclusively on medical criteria, face an additional financial burden which would be difficult to foresee and likely to entail a risk to the financial stability of its health insurance system,” the court’s second chamber wrote.

Believing that it is counter to God’s will to receive blood, Jehovah’s Witnesses risk being expelled from the church if they receive one.

“A Member State may provide for a system of prior authorization for hospital care. However … the criteria and the application of those criteria, and individual decisions of refusal to grant prior authorization, must be restricted to what is necessary and proportionate to the objective to be achieved, and may not constitute a means of arbitrary discrimination or an unjustified obstacle to the free movement of patients,” the five-judge panel wrote.

The court was clear that discrimination based on religion is forbidden within the 27-member state political and economic union, writing: “The prohibition of all discrimination based on religion or belief is mandatory as a general principle of EU law.”

But the ruling did allow for some exceptions. “The criteria attached to the grant of the prior authorization should be justified in the light of the overriding reasons of general interest capable of justifying obstacles to the free movement of healthcare, such as planning requirements relating to the aim of ensuring sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned or to the wish to control costs and avoid, as far as possible, any waste of financial, technical and human resources,” the judges found.

“It is for the referring court to examine whether the Latvian system of prior authorization … was restricted to what was necessary and proportionate,” the court found, leaving the final decision in this specific case in the hands of the referring court, the Supreme Court of Latvia. The case now returns to that court for a final ruling.

Latvia, whose population is just under 2 million people, has about 2,000 Jehovah’s Witnesses, according to the church. The government recognizes it as an official religion and has granted asylum in recent years to Russian church members who have been persecuted in their homelands. Some stigma surrounding the religion exists, however, especially with regards to medical care.

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