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Caring for the welfare of the youngest – Ordo Iuris report for the UN

Published: 25.08.2021

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The 88th session of the Committee on the Rights of the Child is approaching – a unit of the United Nations whose task is to supervise the observance of the provisions of the Convention on the Rights of the Child by the countries that have ratified it.

Poland acceded to the Convention in 1991 and is obliged to periodically report on the implementation of its provisions.

Caring for the welfare of the youngest, the Ordo Iuris Institute sent the Committee a supplementary report, containing proposals for solutions that could realistically improve the situation of the youngest in our country.

The experts commented, for example, on the issue of the ban on eugenic abortion and the problem of surrogacy.

The session will be held from 6 to 24 September.

Until 15 August, non-governmental organisations could submit supplementary reports to the UN Committee on the Rights of the Child concerning the status of implementation of the Convention on the Rights of the Child by its signatories. The Ordo Iuris Institute also prepared its own document, in which it presented an assessment of the solutions implemented by Poland, and proposed changes that could further improve the standard of children's rights in our country.

In its report, the Institute stressed in particular the importance of the judgement of the Constitutional Tribunal of 22 October 2020 (ref. no. K 1/20), by virtue of which the so-called eugenic premise, allowing abortion due to a suspicion of illness or disability of the conceived child, was removed from Polish law. This judgement is undoubtedly an expression of Poland's fulfilment of obligations resulting, in particular, from Article 6 of the Convention – recognition that every child has an inalienable right to life and also ensuring to every child, without exception, conditions for life (survival in the first place) and development. The report also stresses that the elimination of the eugenic premise of abortion is in line with the content of the prohibition of discrimination formulated in Article 2 of the Convention. This provision clearly prohibits the signatories of the Convention from any discrimination against children, including on the grounds of disability. The judgement of the Constitutional Tribunal in the matter of eugenic abortion also confirms the steps taken by the Polish State towards full implementation of Article 23 of the Convention, according to which States/Parties are to ensure that mentally or physically disabled children lead full and normal lives under conditions guaranteeing them dignity.

In a supplementary report, the Institute presented an assessment of the assumptions and implementation of the government programme 'Za życiem' (i.e. Pro Life), as an element of the state policy aimed at improving the situation of children with disabilities and their families. In its recommendations, however, it indicated that the programme, in order to function efficiently, requires changes, which were broadly discussed in the earlier Ordo Iuris report 'How to support people with disabilities in a systemic way?' (the text is available in Polish).

In its report for the Committee on the Rights of the Child, the Institute raised the issue of combatting violence against children, referred to in Article 19 of the Convention. The experts presented specific solutions concerning, e.g. stricter criminal liability for perpetrators of domestic violence, as well as the assumptions of the programme developed by the Institute to support persons affected by domestic violence, the adoption and implementation of which they recommended. In addition, the Institute drew attention to practical problems arising from the application of Article 9 of the Convention, resulting from national legislation allowing children to be removed from the family home by social workers and placed in foster care.

The Institute also assessed solutions resulting from Poland's obligations under Article 18 of the Convention, i.e. the requirement for the state to provide assistance to parents and legal guardians in performing their duties related to raising children. Also in this case, proposals of legal changes were presented, which would allow, for example, longer direct contact between mothers and young children during maternity leave, as well as tax changes which would provide real benefits for the finances of families, especially with many children.

As part of the supplementary report, the Institute also touched on the very current problem of surrogacy. The lawyers pointed out that – according to the provisions of the 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography – the legal definition of child trafficking includes commercial surrogacy, and the states accepting the Protocol (including Poland) are obliged to combat this practice on their territory. It was emphasised that in our country, despite the existence of criminal provisions prohibiting surrogacy, in practice their application is not very frequent, and the phenomenon of intermediary surrogacy remains without adequate response from state authorities. In its conclusions, Ordo Iuris recommended to apply changes in the law providing for the criminalisation of surrogacy mediation – organisation or advertisements of the practice of surrogacy.

'We presented the Committee on the Rights of the Child with our independent assessment of the implementation of the provisions of the Convention on the Rights of the Child in Poland and proposals for specific changes aimed at the welfare of the youngest. We trust that they will be noticed and taken into account in the course of the Committee's work', noted attorney-at-law Katarzyna Gęsiak, Deputy Director of the Centre of the International Law at Ordo Iuris.

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