Even Legal Abortion Is Hard to Access in Poland


Poland is one
of a very few European countries with highly restrictive anti-abortion
law; it could be compared only with regulations existing in Ireland
and Malta. The currently binding Act on Family Planning,
Protection of the Human Foetus and Conditions for Termination of Pregnancy
defines the conditions
permitting the termination of pregnancy. It stipulates, above all, that termination can occur with the consent of the woman only in
the following three cases: (a) When the pregnancy constitutes a risk
to the life or health of the pregnant woman; (b) Prenatal tests or other
medical evidence indicate a high probability of severe and irreversible
disability to the fetus or an incurable illness threatening its life;
(c) The existence of a justified suspicion that the pregnancy arose
as a result of a crime.

Having such
a strict law in force, the Poles’ opinions about the legal regulation
of abortion are intriguing; even more so if you take into consideration
the fact that Poland is a Catholic country and a Catholic doctrine prohibits
abortion without any exceptions. The most recent public opinion polls
show
that proportions
of those who believe that abortion should be legal (overall 47%) and
those who are oppose legalization (45%) are almost equal. Thirty-five percent of respondents think that abortion should be legal, although with certain restrictions, and 12% oppose any restrictions. For those who think abortion should be outlawed, 32% believe there should be certain exceptions, and 13% opt for an absolute
ban on terminating pregnancy. Public
opinion polling from September 2007 shows that half of Polish adult population
accepts that a woman – if she so decides – should have a right to
abortion during the first weeks of her pregnancy.

So
generally Poles accept terminating pregnancy in the situations in
which the current regulations allow it. The belief that abortion should
be possible when the mother’s life or health is in danger is almost
universal. A vast majority of the respondents also believe that abortion
should be legal when pregnancy is a result of rape or incest. Moreover,
the opinions about acceptability of abortion when the mother’s life
or health is in danger or when the pregnancy is a result of rape or
incest practically did not change between 1992 and 2007. A clear majority
have always supported the view that abortion should be legal in such
cases.

But, even though
the law allows for three fundamental reasons to legally terminate
pregnancy, and the majority of Polish population supports legal abortion in certain circumstances, in practice,
women do not have real abortion access. Because there is still a social stigma attached to performing abortions, very often doctors refuse care using a "conscience clause." They are also afraid to perfom abortions because it is a criminalized
action, if perfomed outside a specified exceptions. Doctors tend not to refer women to other doctors and there is no clear
mechanism in place which would help women to get an urgent assistance
and where they could apply for a final decision.

The practical application
of the existing law has been dealt with many times by the United Nations
organs: the UN Human Rights Committee, which monitors state compliance
with the International Covenant on Civil and Political Rights, has been
stating in its reports that the despite legalization in certain circumstances, actual access to abortion
has not been changed. Just recently, in April 2008, the
UN Human Rights Council
put pressure
on Poland with regard to abortion — Norway
requested elaboration on what is done to facilitate access to abortion
for women who qualify for this under the Polish law.

Looking closer
at the recent cases pursued both by the national as well as international
courts, we see that the limited access to abortion may be somehow ‘cured’ by
applying the court rulings which also directly constitute a guideline
as to how women whose rights have been violated can exercise their rights.
Here, the ruling of the European Court of Human Rights in Tysiąc
vs. Poland
, could serve as an example of a successfully resolved case on the protection
of reproductive health.
Alicja Tysiac was denied abortion because doctors
couldn’t see the direct link between her pregnancy and deterioration of
her eyesight. But because the anti-abortion law mentions a ‘threat’ to health and not
certainty, the European Court of Human Rights ruled that Alicja’s right to private life was violated. She
should have been able to decide whether or not to have an abortion because her health was at stake.

But execution of the judgment includes also making appropriate changes
in the law to guarantee that similar violations of human rights will
not occur in the future. The European
Court of Human Rights found that the Polish legal framework did not
provide an effective mechanism to resolve disagreements as to the availability
or legality of therapeutic termination in any case, either between a
pregnant woman and doctors or between medical staff themselves. Therefore, an effective appeal
mechanisms which would make it possible to obtain binding and final
decisions related to termination of pregnancy should be introduced in
the Polish system. The Polish Government has not yet presented
any plan of reform, but the case inevitably created a firm basis for
further developments in this area.

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