I. Main premises
II. The law prior to the publication of the Ruling
Pursuant to Articles 152 to 154 of the Act of 6 June 1997 — the Criminal Code (Journal of Laws /Dz.U./ of 2020, item 1444 as amended; hereinafter: C.C.), abortion performed in violation of the provisions of an act of law is in Poland – as well as in many other European States – a felony.[1] It should be noted that legal liability extends to an individual performing abortion with a pregnant woman’s consent and in violation of the provisions of the act of law (Article 152 §1 of the CC) as well as to an individual who helps a woman have an abortion in violation of the provisions of the act of law[2] or persuades a woman to have an abortion (Article 152 §2 of the CC), and an individual who uses violence or otherwise makes a pregnant woman terminate pregnancy without her consent or threatens or deceives a woman to make her terminate pregnancy (Article 153 of the CC). Meanwhile, the woman herself may not be the perpetrator[3]. The legislator differentiates the intensity of penal repression depending on the stage of development of the conceived child (Articles 152 §3 and 153 §3 of the CC), and introduces a type qualified by the consequences of the above-mentioned felonies in the event they result in the death of not only the unborn child but also its mother (Article 154 of the CC).
Prior to the publication of the Ruling of the Constitutional Tribunal of 22 October 2020, abortion – pursuant to Article 4a(1) of the Act on Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion of 7 January 1993 (hereinafter FPA) – was permissible in Poland in the following three cases: (1) when pregnancy posed a threat to the health or life of the child’s mother, (2) when prenatal tests or other medical considerations suggested a high likelihood of severe and irreversible impairment or terminal disease of the child in utero, (3) when pregnancy resulted from an offence (such as rape – Article 197 of the CC, sexual intercourse with a minor under 15 years of age – Article 200 of the CC, incest – Article 201 of the CC and other). The former law was the effect of the Ruling of the Constitutional Tribunal of 28 May 1997, case no. K 26/96, stipulating that the social circumstance of the admissibility of abortion was contrary to the principle of the democratic rule of law.
The legal nature of the circumstances making abortion permissible has been discussed in the legal literature. Contrary to popular opinion, they do not establish the ‘right to abortion’ (which is unknown to the Polish legislation)[4], neither do they constitute a countertype (only the need to protect the life and health of the mother could be considered as a special variant of the countertype of a state of higher necessity). Rather, they should be classified as negative indicators of the felony of abortion not governed by the code of law, marking the border of criminality of termination of pregnancy[5].
Most abortions were performed in Poland for reasons of eugenics (embryo pathology)[6]. Since 2016, when specific medical reasons for termination of pregnancy were first added to the Ministry of Health reports, Down syndrome has been, on average, the reason for 37% of all abortions performed annually. It is common knowledge that, unless in the event of early miscarriage, this is not a lethal defect or one that prevents normal functioning in the society[7]. Rather, most of the inherent defects, in which trisomy 21 manifests itself, are minor somatic defects that do not affect the quality of life, i.e. so-called dysmorphic features[8]. The other most common chromosome aberrations are trisomy 13, leading to Patau syndrome, and trisomy 18, i.e. Edwards syndrome – these two disorders represented the total of 13.5% abortions for reasons of suspected impairment of the conceived child or terminal disease posing a threat to the child’s life (including 6% without coexisting somatic defects and 7.5% with coexisting defects).
III. Scope of appeal in case K 1/20
The proceedings concerning admissibility of eugenic reasons for abortion were initiated by a group of Members of Parliament represented by Doctor Bartłomiej Wróblewski and Piotr Uściński. The applicants questioned the constitutionality of the circumstances referred to in Article 4a(1)(2) of the FPA as legitimating eugenic practices involving an unborn child, in this way depriving the child of its right to human dignity. They also identified a number of other circumstances affecting compliance of the above-mentioned provisions with the Constitution. First and foremost, the conceived child’s right to life is conditioned by its health, which is direct discrimination, also termination of pregnancy is legitimated without being sufficiently substantiated by the need to protect another value, right or constitutional freedom and, finally, the criteria of legitimation are unclear, which violates the protection of human life guaranteed by the Constitution. The motion did not concern other circumstances in which abortion is permissible. It should be noted that the Tribunal is bound by the scope of appeal determined in the motion[9]. Thus, only eugenic abortion was analysed in terms of its compliance with the constitution.
By law, the parties to the proceedings were the Sejm (lower chamber of the Parliament) of the Republic of Poland and the Prosecutor General[10]. In their respective statements, boththe Sejm and the Prosecutor General claimed that eugenic abortion was contrary to the Constitution of the Republic of Poland. The Ombudsman did not join the proceedings, despite being entitled to[11]. Two opinions of amici curiae(‘friend of the court’) were also submitted by Ordo Iuris, one of which – concerning noncompliance of eugenic abortion with numerous international legal instruments – was supported by 30 social and expert organisations, incl. from the United States, Germany, the United Kingdom, France, Colombia and Hungary.
IV. Ruling of the Constitutional Tribunal in case K 1/20 – content and entry into force
In its Ruling of 22 October 2020 issued in case K 1/20, the Constitutional Tribunal determined that Article 4a(1)(2) of the FPA is inconsistent with Article 38 in conjunction with Article 30 in conjunction with Article 31(3) of the Constitution of the Republic of Poland. The Ruling of the Tribunal entered into force and became effective on 27 January 2021 upon publication in the Polish Journal of Laws (item 175). Consequently, abortion for eugenic reasons (embryo pathology) has become illegal in Poland. The other two circumstances legitimising abortion have remained in force, namely medical (saving the mother’s life and health) and criminal (pregnancy as a result of an offence).
The Tribunal, analysing Article 38 of the Constitution of the Republic of Poland (which guarantees the right to life to every person), in conjunction with Article 30 of the Constitution of the Republic of Poland (which states that inherent and unalienable human dignity is the source of rights and freedoms which public authorities are obliged to respect and protect), maintained the opinion it had previously expressed in the historic Ruling of 28 May 1997, case no. K 26/96. According to the Ruling of 1997, human life is a value at every stage of its development and, being a value arising from constitutional provisions, it should be protected by the legislator. The Tribunal also determined that an unborn child, as a human being with inherent and unalienable dignity, has the right to life, and the system must guarantee due protection of this central good.
Thus, the Ruling of 22 October 2020 is a continuation and logical development of the Ruling of 28 May 1997 and other decisions of the Tribunal regarding protection of human life. It should be noted that the Ruling of the Constitutional Tribunal of 27 January 2004, case no. K 14/03, determined that the Constitution provides for interpretative directive in dubio pro vita humana, according to which “all and any doubts concerning protection of human life should be settled in favour of that protection”. In the same Ruling, the Tribunal emphasised the fact that “human dignity is not protected if sufficient foundations to protect life have not been established”. In its Ruling of 30 September 2008, case no. K 44/07, the Tribunal determined that it would be unacceptable “to restrict the legal protection of human life for the purpose of protecting goods situated on a lower level in the constitutional hierarchy, e.g. property and other material rights, public morality, environmental protection or even the health of other people”. In its signalling decision dated 18 April 2018, case no. S 2/18, the Tribunal noted that the principles of the legal system of the Republic of Poland, expressed i.a. in the Constitution of the Republic of Poland, guarantee the right of the embryo to life and the prohibition of treating any embryo as an object.
V. Procedural issues
According to Article 190(1) of the Constitution of the Republic of Poland, rulings of the Constitutional Tribunal are final and binding. Accordingly, there is no procedure in Polish law to question the rulings of the Constitutional Tribunal (no entity is identified anywhere in the legislation as legitimate to initiate such proceedings, neither are such proceedings described anywhere and there are no authorities competent to evaluate the possible defectiveness of such Ruling). Because the status of some of the judges who participated in issuing the above-mentioned Ruling is challenged[12], and it is claimed that one of the judges should be excluded from adjudicating because that judge had signed a motion whose wording is identical to the wording of the initial motion in the proceedings in case K 1/20 during the previous term of office of the Sejm, it should be noted that even if those judges were excluded (and replaced by judges elected by the Sejm of the 7th term of office, assuming they would object to the Ruling) as well as judges who expressed a dissenting opinion, the Ruling would still be the same (assuming the judges whose status is not challenged would maintain their respective opinions). Only the content of the statement of reasons and number of dissenting opinions would differ.
VI. Consequences of the Ruling
The Ruling of 22 October 2020 extends the legal protection of life to children in the prenatal stage of development suspected of having an illness or disability. At the same time it does not in any way interfere with situations of a threat to the life or health of the pregnant woman. Consequently, it should be clarified that if her life or health is in danger, a pregnant woman may seek medical intervention to protect these goods – even if such intervention may inevitably result in the death of the child. This applies both in cases when the illness or severe defect of a child poses a threat to the mother’s organism, and a situation in which pregnancy is hazardous due to the mother’s serious health condition. Also, general provisions of the criminal law concerning circumstances of higher necessity allow waiver of a child’s protection when the child is diagnosed with a genetic defect that poses a threat to its siblings during multiple pregnancy.
Thus, a physician is fully authorised to perform medical procedures intended to save the life or health of the mother. Meanwhile, the terms ‘risk’ and ‘hazard’ used in the above provisions explicitly rule out any mental ailments (such as depression). Contrary interpretation could lead to abuse and distortion of the principle of legal protection of life and, in some cases, to ‘elective abortion’, which is illegal in Poland.
The claim that the Ruling of the CT in case K 1/20 could result in the limited availability of prenatal examination is unsubstantiated. To the contrary, given the fact that the Tribunal recognised a higher than ever level of legal protection of conceived life, all legal initiatives aimed at ensuring the right to comprehensive prenatal diagnosis and prenatal and neonatal surgery are justified. The purpose of prenatal diagnosis is first and foremost to identify defects or diseases of unborn children in order to provide early treatment (including intrauterine treatment). Moreover, prenatal examination may help parents ensure the therapy their child might need after birth. It should be noted that the above opinion is confirmed by current (i.e. adopted before the entry into force of the Ruling of the Constitutional Tribunal in case K 1/20) ‘Terms and conditions for financing the prenatal examination programme’ constituting an annex to the Order of the President of the Polish National Health Fund (NFZ) no. 78/2018/DSOZ: “Identification of the risk of chromosome aberrations and detection of multiple developmental defects at an early stage of pregnancy makes it possible to ensure safe pregnancy and start treatment at the prenatal stage. It also allows the parents to prepare for immediate implementation of specialist medical treatment following the child’s birth”[13].
Even though the eugenic reason was eliminated from the Polish legal system upon publication of the Ruling in the Journal of Laws, according to the statement of reasons of that Ruling, the legislator should ensure that regulations intended to protect families with ill or disabled children comply with constitutional requirements. In this context, the Tribunal noted that the legislator might not shift the burden of raising a child that is severely or terminally disabled solely to the mother, because the main responsibility to care for the individuals in the gravest distress rests with the public authorities and the entire society. In this respect the relevant legislative work is in progress, though it is not systematic. Proposals for systematic solutions were submitted to the President of the Republic of Poland by the Ordo Iuris Institute for Legal Culture[14].
[1] This is contrary to the situation in the USA, where the Ruling of the Supreme Court of 22 January 1973 in the case Roe vs. Wade introduced the ‘right to abortion’ under the right to privacy. Regarding the case law of the European constitutional courts in this matter, see J. Roszkiewicz, Prawo nasciturusa do życia w prawie konstytucyjnym i prawie międzynarodowym, „Forum Prawnicze” (2017), pp. 102-103.
[2] This includes an individual who sells early medical abortion pills in order to help pregnant women terminate pregnancy in violation of the provisions of the act of law – cf. Ruling of the Appellate Court in Szczecin of 14 April 2014, case no. II Aka 36/16.
[3] M. Budyn-Kulik, commentary to Article 152, [in:] Kodeks karny. Komentarz aktualizowany, [ed.] M. Mozgawa, LEX/el. 2021, note 5.
[4] W. Borysiak, Gloss II to 13 X 2005, IV CK 161/05, „Państwo i Prawo” 7 (2006), p. 118.
[5] A. Zoll, commentary to Article 152, [in:] Kodeks karny. Część szczególna, vol. II, part. I, Commentary to Article 117-211a, [ed.] W. Wróbel, A. Zoll, WKP 2017, note 16.
[6] More specific information on this issue: F.M. Furman [ed.] et al., Audyt aborcyjnego pozbawiania życia. Na jakie nieprawidłowości odpowiada wyrok TK K 1/20? – available at: https://ordoiuris.pl/sites/default/files/inline-files/Audyt_aborcyjnego_pozbawiania_życia_w_polskich_szpitalach.pdf (accessed: 8 March 2021).
[7] Cf L. Sadowska et al., Diagnostyka i terapia dzieci z zespołem Downa w świetle badań własnych i przeglądu literatury przedmiotu, „Przegląd Medyczny Uniwersytetu Rzeszowskiego”, 1 (2009), p. 8 et seq.
[8] L. Korniszewski, Dziecko z zespołem wad wrodzonych. Diagnostyka dysmorfologiczna, Wydawnictwo Lekarskie PZWL, 2005, p. 30.
[9] Cf. Article 67(1) of the Act on the Organisation and Mode of Proceedings before the Constitutional Tribunal of 30 November 2016 (Journal of Laws /Dz.U./ of 2016 item 2072 as amended, hereinafter: AOMPCT).
[10] Cf. Article 42(3) and 42(7) of the AOMPCT.
[11] Cf. Article 42(10) of the AOMPCT.
[12] With reference to the Ruling of the Constitutional Tribunal of 3 December 2015, case no. K 34/15.
[13] Annex No. 5 to the Order of the President of the Polish National Health Fund (NFZ) on the terms and conditions for executing and performing contracts of the health programmes type within the scope of disease prevention programmes of 7 August 2018, no. 78/2018/DSOZ.
[14] Cf. Ł. Bernaciński, T. Zych [ed.] et al., Jak systemowo wspierać osoby z niepełnosprawnościami? Propozycje i kierunki zmian, Warszawa 2020 – available online at: https://ordoiuris.pl/sites/default/files/inline-files/Jak_systemowo_wspierać_osoby_z_niepełnosprawnościami_0.pdf (accessed: 8 March 2021).
© 2016 ORDO IURIS - Instytut Na Rzecz Kultury Prawnej
