In connection with the dilemmas and issues which were raised in the media and in the public regarding the provisions of the Law on Exercise of Right to Health Care of Children, Pregnant Women and Nursing Mothers, which set out the duty of physicians and health institutions to inform the Republic Health Insurance Fund about abortions and stillborn babies, the Commissioner for Information of Public Importance and Personal Data Protection said it was necessary for the authorities competent for implementation of the law to take all necessary measures to eliminate the dilemmas and prevent possible abuses or violations of the Law on Personal Data Protection.
In that regard, Commissioner Rodoljub Sabic said the following:
"The Serbian Constitution stipulates that "collecting, keeping, processing and use of personal data shall be regulated by the law." In accordance with this, Article 16 the Law on Personal Data Protection sets out that data on health status (which also includes data on abortions etc.) are classified as the so-called "particularly sensitive data" which can be processed only on the basis of consent of data subjects. However, paragraph 2 of this Article leaves a possibility for processing of data on health status and some other data in exceptional cases without consent of data subjects, insofar as this is allowed under the law.
This means that in terms of formal legal requirements the provisions of the Law on Exercise of Right to Health Care of Children, Pregnant Women and Nursing Mothers are not contrary to the Constitution or the Law on Personal Data Protection. I would personally prefer, and I think it would be better, if the legislator had chosen some other mechanism to control the entitlement to the exercise of the rights set out in the law which would be less invasive for privacy. However, since the legislator has chosen this arrangement, it is necessary to emphasize a number of issues regarding implementation of the law.
Firstly, the only purpose of such data processing is to determine whether the data subject is no longer eligible to exercise of a right under a special form of health insurance. This means that the duty to report data on abortions and cases of stillborn babies includes only women who are entitled to exercise the right according to this special law (without it they would not have health insurance) and certainly not all pregnant women and nursing mothers.
Secondly, personal data cannot be processed for purposes other than those specified. Consequently, processing of data for other purposes, particularly for formation of any registers or special databases on women who had abortions and similar registers, would be completely illegal.
Thirdly, it is necessary for competent authorities to ensure that such data are submitted and processed in such a manner which would make them available only to a necessary minimum number of persons who must have access to them.
Unfortunately, in that regard, I have to remind again that the Serbian Government has not enacted the Decree on Protection of Particularly Sensitive Data for five years and I would like to use this occasion to invite it to finally comply with this legal duty."
