25 Apr, 16 | by BMJ
Guest post by Dr Atina Krajewska, University of Sheffield
A couple of weeks ago news hit the headlines about attempts to introduce a total ban on abortion in Poland. The legislative proposal that caused outrange among women’s rights organisations has been drafted by a citizen’s initiative, “Stop Abortion”, and is the fourth attempt to restrict abortion access to have been given a parliamentary hearing in Poland in the last 5 years. The proposal must be supported by 100 000 signatures before it can be voted in Parliament. However, as this threshold has been easily met in the past, it is worth reflecting on its causes and possible legal and social consequences for Poland and Europe.
Poland is well known for its conservative approach towards reproductive rights. The current Act on Family Planning, from 1993, extends the protection of the right to life to the prenatal phase of human life. It allows doctors to perform lawful abortions in only three sets of circumstances: when a) the pregnancy constitutes a danger to the life or health of the mother; b) prenatal tests suggest a high risk of a serious and irreversible abnormality or a severe life-threatening illness of the foetus; c) there is a justified suspicion that the pregnancy is a result of a criminal act (rape or incest). A lawful termination can take only place within the first 12 weeks of pregnancy. The Act has been often criticised as one of the most restrictive in Europe.
Nevertheless, despite popular belief, it is not the current law that seems to lie at the root of the problem. The reason for the limited access to abortion services for women is not the restrictive legislation, but its highly limiting and narrow interpretation and incorrect implementation. Poland has recently lost three major cases before the European Court of Human Rights (Tysiac, R.R., and P & S) due to the lack of adequate procedures guaranteeing the full exercise of statutory rights and medical practice substantially limiting access to lawful abortions. For the first time in the abortion context, the Court found that the actions of Polish authorities and medical professionals have met the threshold of inhumane and degrading treatment, set in Article 3 of the European Convention on Human Rights. Poland is the best example of how social, historic and political circumstances led to the bifurcation of different forms of legality, i.e. to discrepancies between formal and informal rules, between law and other – ethical and social – norms.
The new proposal
The new bill “on the general protection of human life and preparation for family life” defines “prenatal life” as starting from the moment of conception, which is described as “the fusion of the female and male gametes”. The same definition applies to the term “conceived child”, used in the Polish criminal code.
Crucially, the Bill proposes to delete all three conditions under which lawful abortion is currently permitted. This, of course, constitutes a dramatic departure from the current legal framework, and converts the current legislation into an administrative tool setting general directions for (limited) sexual education and social care necessary for families affected by the new regulation. At the same time, and more importantly, the new proposal sets out changes to the Polish criminal code, according to which ‘the causation of the death of a conceived child’ would carry a sentence between 3 months and 5 years of imprisonment. The same sanction would apply if someone were to assist with, or incite, abortion.
There is only one exception. more…