Constitutional Court overturns ruling in baby-swap case: Lower courts failed to properly assess the consequences of discovering the truth after 36 years

Montenegro's Constitutional Court has upheld a constitutional complaint filed by three members of a family, overturned a Supreme Court ruling, and remanded the case for a new hearing, finding that the lower courts failed to adequately protect their right to private and family life in a case involving the swapping of newborn babies in a maternity ward. The Court also found that the burden of uncovering failures within the healthcare system and dealing with their consequences had been left to the family for years.

According to the Constitutional Court, the complainant was born in the late 1970s at Kotor General Hospital and lived for more than three decades believing that the people who raised her were her biological parents.

- The family functioned as a family unit throughout that period, unaware that a baby swap had occurred in the maternity ward after her birth - the Court said in a statement.

The Court explained that the complainant only began to question her origins after having children of her own.

- Observing her children and noticing physical differences between herself and the family she had grown up with, she began to question her biological origins and, after consulting a doctor, insisted on undergoing DNA testing. Other family members initially did not believe her suspicions could be true and agreed to the test primarily to reassure her. According to their testimony before the lower courts, none of them doubted what the outcome would be - the Constitutional Court said.

DNA testing conducted in Switzerland in 2014 revealed, when the complainant was 36 years old, that the people she had considered her parents throughout her life were not her biological parents, and that the woman she had grown up with as her sister was not her biological sister either.

- The findings were later confirmed through additional DNA expert analysis, which definitively excluded biological parenthood - the statement said.

According to the Court, the discovery had devastating consequences for the entire family. The complainant told the ordinary courts that, for her, life was divided into „before and after that discovery“, while her father said the family had never doubted the DNA results and that the outcome came as a profound shock to everyone.

The woman who had believed for 36 years that she was the complainant's biological mother has been receiving psychiatric treatment since December 2018. Court-appointed experts established that members of the family had suffered serious psychological consequences and prolonged emotional distress.

State failed to take an active role in establishing the truth

The Constitutional Court said it examined the case from the perspective of the state's positive obligations to effectively protect the right to private and family life. Article 8 of the European Convention on Human Rights requires not only that the state refrain from arbitrary interference with private and family life, but also that it take appropriate measures to ensure those rights are effectively protected.

- Instead of the hospital and the state taking an active role in investigating these serious and socially alarming allegations of babies being switched at birth and assisting in establishing the truth, the entire burden of proof, financing highly accredited DNA testing abroad, and pursuing years of litigation was placed on the constitutional complainants - the Court said.

The Court found that this approach by the authorities and the ordinary courts constituted a violation of the procedural aspect of the right to private and family life under Article 8 of the European Convention by both defendants - the State of Montenegro and the hospital.

It further noted that, after having to establish the truth about an event that permanently altered their lives on their own, the complainants were subjected to secondary victimisation instead of receiving an effective institutional response and fair, proportionate compensation for the lifelong impairment of their psychological integrity and family life.

The Court stressed that the case is not merely about the hospital's negligence that resulted in the babies being switched, but also about the state's response after the error came to light and whether it fulfilled its positive and procedural obligations toward individuals whose identity and family life had been so profoundly affected.

- Particularly concerning is the passive attitude of the competent state authorities and the defendant hospital, which directly calls into question whether the complainants will ever learn the truth about their biological origins and the fate of their biological child or parents - the Constitutional Court said.

Claims of „commercialisation“ of compensation constitutionally unacceptable

The Constitutional Court noted that the Basic Court in Herceg Novi awarded the complainant €100,000 in non-pecuniary damages, while her father and sister were each awarded €50,000.

The High Court in Bijelo Polje later reduced the awards to €40,000 for the complainant and €15,000 each for her father and sister. The Supreme Court subsequently dismissed their appeals and upheld that decision.

In its ruling, the Supreme Court stated, among other things, that compensation for non-pecuniary damage „is not intended for commercialisation“ but serves as fair satisfaction for emotional suffering.

The Constitutional Court found those references to the „commercialisation“ of the claimed compensation to be constitutionally unacceptable, given the nature and gravity of the violation and the consequences the baby swap had on the complainants' private and family life.

The Court stressed that compensation in such cases must take into account specific circumstances that distinguish them from ordinary claims for non-pecuniary damages.

- The most important factors include the period during which the individual was deprived of life with their biological family, the time that elapsed between the baby swap and the discovery of the truth about their biological origins, the fact that the person spent decades unaware of their true biological identity, and the consequences such an event had on their life - the Court said.

The Constitutional Court emphasised that the moral harm caused by such an event affects the most intimate sphere of a person's life and interferes with rights such as the right to the free development of one's personality, the right to family life, and the right to one's own identity.

- Knowing who one's biological parents are is not merely a matter of curiosity, but a fundamental element of an individual's personal history, psychological integrity, and self-understanding - the Court said in its ruling.

The fact that the complainant discovered the truth about her biological origins only as an adult does not diminish the importance of that right.

Referring to the case law of the European Court of Human Rights, the Constitutional Court noted that the right to know one's biological origins exists throughout a person's lifetime and does not expire with the passage of time.

The Court also acknowledged that the complainants had already been awarded financial compensation but found that compensation alone is insufficient if the seriousness of the violation has not been properly recognised and if the courts failed to provide adequate and sufficient reasoning demonstrating that the amount awarded corresponded to the specific circumstances of the case.

In that context, the Constitutional Court also referred to European judicial practice. It cited a judgment delivered on December 19, 2025, by the High Court of Justice of La Rioja in Spain, in which the defendants were ordered to pay €975,000 in compensation in a case involving a baby swap caused by failures in the public healthcare system.

The Constitutional Court stressed that it cited the Spanish case not to determine the amount of compensation that should be awarded in the Montenegrin case, but to illustrate the gravity of the violation suffered when a person is deprived, through failures of the healthcare system, of the opportunity to live with their biological family and spends decades unaware of the truth about their origins.

The Court concluded that the ordinary courts had failed to adequately recognise the constitutional dimension of the case and had not assessed the facts in the context of the complainants' rights to identity, dignity, and life with their biological family.

It found that the manner in which the ordinary courts had handled the case did not satisfy the state's positive and procedural obligations arising from the right to private and family life and that the complainants had not received effective protection in accordance with Article 40 of the Constitution of Montenegro and Article 8 of the European Convention on Human Rights.

For those reasons, the Constitutional Court overturned the judgment of the Supreme Court of Montenegro and remanded the case for a fresh hearing, instructing the Supreme Court to reconsider the matter in accordance with constitutional and Convention standards governing the protection of the right to private and family life.