Civic Legislation Initiative: Equal legal protection for children before and after birth

Ordo Iuris Institute has prepared a draft and justification of an act, submitted on March 14th to the Speaker of the lower house of the Parliament, together with a notice of establishment of the Legislative Initiative Committee „Stop Abortion” aimed at changing the act of January 7th 1993 on the planning of family, protection of the human fetus, and conditions of permissible termination of pregnancy, as well as the Criminal Code of June 6th 1997.

The draft is based on the protection of life from the moment of conception (judgment of the Constitutional Tribunal, Ref. Act 26/69 K) and the principle of settling any doubt in this matter in favor of that protection - in dubio pro vita humana (judgment of the Constitutional Tribunal, Ref. Act 14/03 K). Both principles derive from the Polish legal system and are established by the Polish Constitutional Tribunal.

The authors also cite the Declaration of the Rights of the Child and UN Convention on the Rights of the Child. This stipulates that children, by reason of physical and mental immaturity, need special safeguards and care, including appropriate legal protection before and after birth.

The proposed draft ensures that all children, before and after birth, have equal rights and protection of life and health. It removes the three existing circumstances under which an abortion is currently permitted. The initiative requires the state to support families raising handicapped children or children conceived in in circumstances related to the commission of an offence.

The initiative involved a number of social organizations, including the Right to Life Foundation (Fundacja Pro- Prawo do życia), the Ordo Iuris Institute for Legal Culture, the Centre for Supporting Initiatives for Life and Family, the Piotr Skarga Institute, and the Life Foundation.

Misinformation regarding the „Stop Abortion” committee initiative

Recently, some journalists and social media have begun falsely describing the proposed abortion draft. The articles inaccurately suggest that the draft would imprison women for inadvertent miscarriages. They also wrongly claim that the doctors will not be able to save women’s lives because of the protection of the unborn child.

Firstly, according to the draft, a woman will never be liable for inadvertently miscarrying her child. Thus, the draft does not change anything with respect to mothers who have miscarried. Moreover, even if a mother deliberately deprives her conceived child of life, judge have discretion to waive punishment in the case of extenuating circumstances. The penalty is first and foremost directed at those who conduct the abortion, provide the woman with abortive resources, or those who force her to abort.

Secondly, the bill makes it clear that doctors are permitted to undertake any medical treatment necessary to save the life of the mother, even if they may result in fatal consequences for the child (eg. in the case of ectopic pregnancy). When women face the choice of sacrificing their own lives or saving their unborn children, it is up to them to make the final decision.

The reports that the civic draft denies parents the right to perform prenatal tests are also false. The justification of the project confirms that, „Access to prenatal testing is guaranteed by legislation regulating the access to medical services.”

THE ACT
of ...................................... 2016
To amend the Act of 7 January 1993 on the Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion and of the Act of 6 June 1997 the Criminal Law Code

Article 1. The Act of 7 January 1993 on the Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion (J.L. no. 17, item 78 with subsequent amendments) is amended as follows:

1) the title of the Act shall read as follows:
“on comprehensive protection of human life and on family life education”
2) the preamble shall read as follows:
“Recognizing that the principle of legal protection of life of every human being as expressed in the Constitution of the Republic of Poland is related to the inherent and inalienable human dignity regardless of stage of his/her human development, it is decided as follows:
3) article 1 shall be amended as follows:
“Article 1. Every human being has the inherent right to live from the moment of conception, i.e. the fusion of a female and male gametes. The life and the health of a child since its conception are protected by the law.”
4) article 2:
a. paragraph 1, subparagraph 1 shall read as follows:
“1) medical care for the pregnant woman and for the conceived child”
b. paragraph 2a shall read as follows:
“2a. Public administration and local self-government bodies, within the limits of their respective competences, as specified in particular regulations, shall be obliged to provide material assistance and care to families raising children who are seriously handicapped or who suffer from a life-threatening illness, as well as to mothers and their children when there are reasons to suspect that the pregnancy is a result of an unlawful act.”
5) the article 4, paragraph 1 shall read as follows:
“1. School curricula shall include family life education including the knowledge on the principles of responsible parenthood as well as family values and the value of human life since conception until natural death. The education in this field shall respect moral norms of parents and students’ sensitivity. Participation in classes requires the written consent of parents or adult students.”
6) article 4a shall be repealed,
7) article 4 b shall be repealed,
8) article 4c shall be repealed.

Article 2. The Act of 6 June 1997 the Criminal Law Code (J.L. no. 88, item 553 with subsequent amendments) shall be amended as follows:

1) Article 115, § 24 shall be added after § 23 as follows:
“§ 24. A conceived child means a human being in the prenatal stage of development, since the fusion of the female and male gametes.”
2) article 152 shall read as follows:
“Article 152. § 1. Anyone who causes the death of a conceived child, is liable to imprisonment for between three months and 3 years..”
“§ 2. If the offender of the act specified in § 1 acts unintentionally, is liable to imprisonment for up to 3 years
§ 3. Anyone who is helping to commit the offence specified under § 1 or incites to commit it is liable within the limits of the penalty provided for the given offence.
§ 4. A physician is not deemed to have committed an offence set out in § 1 and 2 if the conceived child’s death is the consequence of treatment necessary to remove an imminent threat for the life of the mother of the conceived child.
§ 5. If the offence set out in § 1 is committed by a mother of a conceived child, the court may apply an extraordinary mitigation of penalty, or even issue an absolute discharge.
§ 6. A mother of a conceived child who commits the offence set out in § 2 shall not be subject to any punishment.
3) Article 153 shall read as follows:
“Article 153. Anyone who, through the use of violence towards a a mother of a conceived child causes the conceived child’s or induces her by force, an illegal threat, or deceit to deprive the conceived child of life, is liable to imprisonment from 1 year up to 10 years.
4) Article 154 shall read as follows:
“Article 154. § 1. If the act specified in Articles 152, §1 results in the death of the mother of the conceived child, the offender shall be subject to the penalty of deprivation of liberty from 2 up to 12 years.”
5) art. 157a shall read as follows:
“Article 157a. § 1. Anyone who causes a bodily injury or an impairment to health threatening the life of a conceived child, is liable to imprisonment up to 3 years.
§ 2. If the offender of the act specified under § 1 or 2 acts unintentionally, is liable to a fine, the restriction of liberty or imprisonment for up to one year.
§3. A physician is not deemed to have committed an offence set out in § 1 and 2 if the bodily injury or an impairment to health of a conceived child are consequences of treatment necessary to remove an imminent threat for the health or life of the mother of the conceived child or of the conceived child.
§4. If the offence set out in § 1 is committed by a mother of a conceived child, the court may apply an extraordinary mitigation of penalty, or even issue an absolute discharge.
§ 5. A mother of a conceived child who commits the offence defined under § 2 shall not be subject to any punishment.

Article 3. The Act shall enter into force after 2 weeks since the day of its publication.