PLANNED AMENDMENTS TO ABORTION LAW IN POLAND – CONTROVERSIES

Publication date: April 15, 2024

The issue of the right to abortion in Poland is currently a lively topic of political discussions aimed at changing existing regulations in a way that gives women the right to decide about their own body. Currently, attention is focused on four projects (drafts) bringing changes in the analyzed topics:

A project about conscious parenting

The parliamentary bill on conscious parenthood was submitted to the Polish Sejm on January 24, 2024. According to the justification for the project, the act aims to protect women’s rights, including the right to choose, decide about themselves, respect for freedom, and the right to protect the health and life of people living in the territory of the Republic of Poland. The most important provisions contained in the project concern the issue of termination of pregnancy. In the current legal situation, the possibility of performing a legal abortion in the Republic of Poland is limited to cases in which the pregnancy threatens the woman’s health or life or is the result of a prohibited act. However, in the justification for the project, it is argued that despite precisely defined premises that performing an abortion is not a prohibited act, due to doctors’ fear and uncertainty, conscience clauses are often invoked. This situation poses a huge threat to the health and life of women who, despite the conditions for legal abortion, are unable to seek medical assistance. Therefore, the project provides, in accordance with Art. 5(1) that every pregnant person has the right to health services in the form of termination of pregnancy during the first 12 weeks. Moreover, after the expiry of the 12-week period in accordance with section 2, a woman also has the right to terminate a pregnancy if the pregnancy constitutes a threat to life or health (for the entire duration of pregnancy), there is a high probability of severe and irreversible defects of the fetus or an incurable disease that threatens its life (termination is permissible up to the 24th week of pregnancy, while when this defect is intended to prevent the fetus from living independently and there is no possibility of cure (interruption is permissible throughout the entire pregnancy), there is a suspicion that the pregnancy was the result of a prohibited act (interruption is possible up to the 18th week of its duration). Termination of pregnancy may be performed either in a medical facility as well as outside it. However, if a woman decides to terminate her pregnancy in a medical facility, it should be carried out at the earliest possible stage, as a rule, within 72 hours of expressing the will to terminate the pregnancy, except in cases where the pregnancy constitutes a threat to life or health, it should be stopped immediately.

In the above project, both the Supreme Chamber of Nurses and Midwives and the National Council of the Judiciary expressed their opinions. According to it, the legislator should withdraw the concept of “outside the medical facility” from the project because it is an ambiguous, undefined concept which may lead to abortions in inappropriate conditions, therefore it is postulated to change the current expression to “in other entities authorized to provide medical services”. In the case of the National Council of the Judiciary, no position was taken on the grounds that, in accordance with Art. 3(1)(6) of the Act of 12 May 2011 on the National Council of the Judiciary (Journal of Laws of 2021, item 269, as amended), it does not fall within the scope of the advisory competences of the council.

Amendment of the Penal Code Act

A draft amendment to the Act – Penal Code was submitted to the secretariat of the Speaker of the Sejm. The aim of the project was to change the wording of the currently applicable Art. 152 penalizing termination of pregnancy with the woman’s consent. In the current legal situation, in accordance with Art. 152 § 1 who, with the woman’s consent, terminates the pregnancy in violation of the provisions of the Act (Act of January 7, 1993 on family planning, protection of the human fetus and conditions of admissibility of pregnancy (Journal of Laws 2022.1575, i.e. of 2022/07/27), i.e. in cases when pregnancy:

• does not pose a threat to health or life
• there is a justified assumption that the pregnancy was the result of a prohibited act;

is liable to imprisonment for up to 3 years, but the draft proposes a change to replace the penalty of deprivation of liberty with a fine or restriction of liberty. Currently, any person who helped a pregnant woman to terminate her pregnancy contrary to the provisions of the Act (the same as in the case of a person performing an abortion) or persuaded her to do so (penalization of inappropriate form of action) is also subject to the penalty of deprivation of liberty for up to 3 years. The draft amendment to the Act proposes excluding the punishability of such an act. In addition, it is proposed to add two paragraphs to the current Article 152, under which a person who terminates a pregnancy with the woman’s consent does not commit a prohibited act if 12 weeks have not elapsed since the beginning of the pregnancy, and a person who terminates a pregnancy with the woman’s consent within when prenatal tests or other medical conditions indicate a high probability of severe and irreversible impairment of the fetus or an incurable disease that threatens its life. These changes are intended to make it possible to exercise, at least in part, the constructive rights such as the right to self-determination (Article 47 of the Constitution of the Republic of Poland) and health care (Article 68 of the Constitution of the Republic of Poland), which is related to inherent human dignity (Article 30 of the Constitution of the Republic of Poland).

The amendment to the Act – Penal Code is dictated by the protection of the safety of pregnant women who, as a result of tightening the penalization of termination of pregnancy after the “judgment of the Constitutional Tribunal” of October 22, 2020, forces women to seek help abroad and use dangerous abortion practices without appropriate control and threatening conditions.

The current wording of Article 152 of the Penal Code

Proposed wording of Article 152 of the Penal Code

Art. 152. [Abortion with the woman’s consent] § 1. Whoever terminates her pregnancy with the woman’s consent in violation of the provisions of the Act, is punishable by imprisonment for up to 3 years. § 2. Anyone who helps a pregnant woman terminate her pregnancy in violation of the provisions of the Act or encourages her to do so shall be subject to the same penalty. § 3. Whoever commits the act specified in § 1 or 2 when the conceived child has achieved the ability to live independently outside the body of the pregnant woman, is punishable by imprisonment from 6 months to 8 years.

Art. 152. [Abortion with the woman’s consent] § 1. Whoever terminates her pregnancy with the woman’s consent in violation of the provisions of the Act, is subject to a fine or restriction of liberty. § 2. (repealed) § 3. Whoever commits the act specified in § 1 when the conceived child has achieved the ability to live independently outside the body of the pregnant woman, is punishable by imprisonment from 6 months to 8 years. § 4. A person who, with the woman’s consent, terminates her pregnancy does not commit an offense if no more than 12 weeks have passed since the beginning of the pregnancy. § 5. Whoever terminates her pregnancy with the woman’s consent shall not be punished if prenatal tests or other medical grounds indicate a high probability of severe and irreversible impairment of the fetus or an incurable disease that threatens its life.

Draft bill on safe termination of pregnancy

The draft bill on safe termination of pregnancy was submitted to the secretariat of the Speaker of the Sejm on November 11, 2023. According to the justification, the act aims to guarantee the residents of Poland the implementation of reproductive rights, and above all, the right to health protection and respect for reproductive freedom and privacy. Pursuant to Art. 2(1) every person has the right to provide abortion services up to the 12th week of pregnancy. Moreover, after the 12th week of pregnancy, this right is also available to a person whose pregnancy:

• constitutes a threat to the life or health, in particular the physical or mental health of the pregnant person;
• the results of prenatal diagnosis or other medical indications indicate that there are developmental or genetic abnormalities – until the end of the 24th week of pregnancy;
• there are reasonable suspicions that the pregnancy is the result of a prohibited act – until the end of the 24th week of pregnancy.

However, if identified abnormalities in the fetus prevent it from later being able to live outside the body during pregnancy, termination of pregnancy may occur after the 24th week of its duration.

As a rule, termination of pregnancy should take place within 72 hours of submitting the request by the pregnant person.

Another important point of the Act is Art. 6, which proposes the complete removal from the Penal Code of June 6, 1997 of Art. 152 penalizing termination of pregnancy with the woman’s consent.

A draft bill about family planning

The bill was submitted to the Polish Sejm on February 23, 2024. The draft bill aims to reverse the changes introduced by the Constitutional Tribunal’s ruling of 2020 on the admissibility of termination of pregnancy. The draft primarily amends the wording of the existing Art. 4a of the Act of January 7, 1999 on family planning, protection of the human fetus and conditions for the admissibility of termination of pregnancy (Journal of Laws of 2022, item 1575) by amending the article as presented in the table below (only fragments of the amendments have been included):

Currently applicable Art. 4a

Proposed change to Art. 4a

Art. 4a. [Conditions for the admissibility of termination of pregnancy] 1. Termination of pregnancy may only be performed by a doctor if: 1) pregnancy poses a threat to the life or health of the pregnant woman, 2) (lost power), 3) there is a reasonable suspicion that the pregnancy was the result of a prohibited act, 4) (lost power). 2. In the cases specified in section 1 point 2, termination of pregnancy is permissible until the fetus is able to live independently outside the body of the pregnant woman; in the case specified in section 1 point 3 or 4, if no more than 12 weeks have passed since the beginning of pregnancy. 3. In the cases referred to in section 1 point 1 and 2, the termination of pregnancy is performed by a doctor in a hospital.     5. Occurrence of the circumstances referred to in section 1 point 1 and 2, is confirmed by a doctor other than the one who terminated the pregnancy, unless the pregnancy directly threatens the woman’s life. The circumstance referred to in section 1 point 3, is stated by the prosecutor. 6. In the case referred to in section 1 point 4, the woman submits a written declaration and, in addition, a certificate of consultation with a primary health care physician other than the one who terminated the pregnancy, or with another authorized person of her choice. Termination of pregnancy may be performed if the woman maintains her intention to terminate the pregnancy 3 days after the consultation. 7. The purpose of the consultation referred to in section 6, is in particular to determine the woman’s health and life situation, help in solving her problems, among others by indicating the available forms of assistance to which women are entitled in connection with pregnancy and after the birth of a child, informing the woman about the legal protection of life in the prenatal phase, about the medical aspects of pregnancy and termination of pregnancy, as well as about contraceptives and methods. With the woman’s consent, her partner, family members or another close person may participate in the consultation. 9. The Minister of Health and Social Welfare, after seeking the opinion of the Supreme Medical Council, shall determine, by way of a regulation, the professional qualifications of doctors entitling them to terminate pregnancy, and the qualifications of doctors referred to in section 5. 10. The Minister of Health and Social Welfare, in consultation with the minister responsible for social security, will determine, by way of a regulation, the qualifications of persons other than a doctor authorized to conduct consultations referred to in section 6, the method of creating lists of consulting persons and the method and procedure of conducting consultations.

Art. 4a. [Conditions for the admissibility of termination of pregnancy] 1. Termination of pregnancy may only be performed by a doctor if: 1) pregnancy poses a threat to the life or health of the pregnant woman, 2) the results of research indicate a high probability of severe and irreversible defects of the fetus or a life-threatening disease, 3) there is a reasonable suspicion that the pregnancy was the result of a prohibited act, 4) 2 (lost power). 2. In the cases specified in section 1 point 2, termination of pregnancy is permissible until the fetus is able to live independently outside the body of the pregnant woman; in the case specified in section 1 point 3, if no more than 12 weeks have passed since the beginning of pregnancy. 3. In the cases referred to in section 1 point 1 and 2, the termination of pregnancy is performed by a doctor in a hospital.   5. The occurrence of the circumstances referred to in section 1 point 1 and 2 is confirmed by a doctor other than the one who terminated the pregnancy, unless the pregnancy directly threatens the woman’s life. “5a. The minister responsible for health matters will determine, by way of a regulation, the professional qualifications of doctors authorized to determine the circumstances referred to in section 1 point 1 and 2, and a detailed procedure for determining these circumstances, taking into account current medical knowledge, the need to properly determine the grounds for termination of pregnancy, in particular the woman’s mental health, easy availability of licensed doctors and statutory deadlines related to the process of termination of pregnancy. 5b. In the case referred to in paragraph. 1 point 3, the determination of pregnancy as a result of a prohibited act is made by the prosecutor at the request of the injured party or her legal representative by way of a decision within 3 calendar days from the date of submitting the application. The decision may be issued on the basis of the woman’s unquestionable statement. 5c. The injured party or her legal representative may appeal against the prosecutor’s decision refusing to confirm pregnancy as a result of a prohibited act to the district court in whose district the proceedings are pending in accordance with Art. 465 § 1 of the Code of Criminal Procedure, provided that the complaint should be considered within 3 calendar days from the date of receipt of the complaint, and the case files should be transferred within 2 days from the date of submission of the complaint.”;   6. (repealed) 7. (repealed)   9. (repealed) 10. (repealed)

Opinions on the proposed changes were expressed, among others, by the Office of Expertise and Regulatory Impact Assessment of the Chancellery of the Sejm, according to which articles on the conditions for termination of pregnancy are not contrary to European Union law. The Supreme Chamber of Nurses and Midwives also expressed its position on the project, mainly expressing its concern about the proposal to change the content of Art. 4a section 1 point 2, where there is no connection between the period of becoming aware of the probability of a defect or an incurable disease and the date by which termination of pregnancy is possible – it should be noted that this period may be long, and there is no definition of an incurable disease.

The draft bills will currently be debated and put on voting.