Polish Court's Ruling on Abortion: A Violation of the International Human Rights Law

By: Akshita Tiwary

Akshita Tiwary is a 3rd year law student at Government Law College, Mumbai, India. She serves as an Assistant Editor for JURIST, University of Pittsburgh, and is keenly interested in international law, human rights and constitutional law. She may be reached at [email protected].

INTRODUCTION
On October 22, 2020, a constitutional tribunal in Poland ruled that abortions in case of fetal abnormalities are illegal, as it violates the constitutional right to life of the fetus [1]. This decision has resulted in mass protests across the nation [2]. The ruling effectively tightens abortion laws further in a country which already has one of the strictest abortion regulations in Europe.

While pronouncing the decision, the tribunal’s President, Julia Przylebska, stated that terminating a pregnancy due to fetal defects legalized “eugenic practices with regard to an unborn child, thus denying it the respect and protection of human dignity.” Since the Polish Constitution guarantees the right to life to every individual, abortions in such cases would constitute “a directly forbidden form of discrimination”. Henceforth, abortions will only be allowed in cases of rape, incest or where the mother’s health is at risk [3]. 

Banning abortions in the case of fetal deformities contravenes several women’s rights enumerated under international human rights law treaties. In this article, I will elaborate on these rights and explore how Poland’s recent ruling has violated them. 

CONCEPT OF REPRODUCTIVE AUTONOMY UNDER INTERNATIONAL HUMAN RIGHTS LAW
The Convention on the Elimination of All forms of Discrimination against Women, 1979 affirms women’s right to reproductive choice and autonomy. Article 16(1)(e) guarantees women the equal right to “decide freely and responsibly on the number and spacing of their children” [4]. Poland, having ratified this Convention without any reservations, is legally bound to enforce this right domestically [5]. 
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The International Conference on Population and Development, 1994 (ICPD) played a major role in recognising the concept of reproductive autonomy. Women’s reproductive autonomy, which was earlier the subject of population control, metamorphosed into a personal choice to exercise their own sexual and reproductive rights [6]. Poland was amongst the 180 countries that participated in this conference [7]. 

Chapter VII of the Programme of Action adopted at the ICPD elaborately discussed reproductive rights and health. Paragraph 7.2 of the Programme of Action explains how reproductive health implies that “people have the capability to reproduce and the freedom to decide if, when and how often to do so.” This depicts the right of women to make all decisions pertaining to reproductive health.

Thus, reproductive autonomy entails that a woman is independent to make informed choices regarding her sexual and reproductive health. Coercing a woman to give birth to a child with development issues infringes the right to reproductive autonomy. Such a situation can severely affect the mother’s mental health and well-being, which would stand in violation of the right to health provided under Article 12(1) of the International Covenant on Economic, Social and Cultural Rights [8]. 

VIOLATION OF OTHER RELATED RIGHTS OF WOMEN 
In order to preserve the unborn child’s right to life, the ruling failed to take into account the impact on other related rights of women. General Comment No. 22 (2016) analyses the right to sexual and reproductive health as a fundamental component of right to health [9]. Paragraph 10 elucidates on the interdependence between the right to sexual and reproductive health, and other civil and political rights like right to life, personal liberty and security. Criminalising abortion forces women to resort to illegal abortions, which are often unsafe and risk the mother’s health significantly. Hence, it leads to an increase in maternal mortality and morbidity, which consequently contravenes women’s right to life, liberty and security. Paragraph 8 of General Comment No. 36 (2018) on right to life, given under Article 6 of the International Covenant on Civil and Political Rights, evaluates this issue [10]. It stipulates that states should provide access to safe abortion so that women are not compelled either to resort to unsafe methods, or to undergo substantial pain and suffering. 

Reproductive autonomy additionally comes within the domain  of the right to privacy. All decisions pertaining to an individual’s body remain private in nature. The constitutional tribunal’s judgment to prohibit abortions in cases of fetal defects breaches the right to privacy by pressurizing women to give birth, thus taking away their right to make an independent choice regarding their bodily integrity and dignity. Therefore, the ruling, revolving around a biological function, discriminates against women by encroaching upon the principle of equality and non-discrimination that is codified in innumerable international instruments. 

ANALYSING THE DECISION THROUGH A EUROPEAN LENS 
The European Convention on Human Rights (ECHR) envisages reproductive rights as part of the right to privacy given under Article 8 of the Convention [11]. This includes an access to abortion, when sought for reasons of health and/or well-being [12]. In the case of R. R. v. Poland, the European Court of Human Rights (ECtHR) recognised that carelessness on part of medical authorities to inform a woman in time of certain fetal deformities, which deprived her of the option of abortion, constituted a violation of Articles 3 (no one shall be subjected to inhuman or degrading treatment) and 8 of the ECHR [13]. Since the woman could not get an abortion within the legally specified time-frame, bringing up the severely ill-child had a distressing impact on her personal and family life. Furthermore, in the case of Vo v. France, the ECtHR upheld that it was not really possible or desirable to determine if an unborn child is a person, and if the fetus can be entitled to the right to life guaranteed under Article 2 of the ECHR [14].

Applying these principles to the present scenario demonstrates how the Polish tribunal gravely endangered women’s rights. It consciously chose to uphold the right to life of an unborn fetus over the right to life, health and privacy of the woman carrying the child. In doing so, the tribunal itself transgressed Article 47 of the Polish Constitution which embodies the right to make decisions about one’s personal life [15]. It also overlooked the fact that providing for a child born of fetal deformities requires excessive emotional and financial investment, which not every woman can afford [16]. This further marginalizes certain sections of women, in addition to causing them the mental trauma of bringing up a handicapped child when they are not ready. The mistaken ruling thus completely discards women’s power to make choices regarding their own bodies, thereby disrupting their private and family life. 

CONCLUSION
As specified in paragraph 28 of General Comment No. 22, it is the duty of states to liberalize restrictive abortion laws. The obligations of respect, protect and fulfil requires state entities (like judiciary) to not defy the right of women to make autonomous decisions regarding their reproductive health. Previous periodic reports on Poland by international bodies too have suggested the liberalisation of restrictive abortion laws [17, 18].

The tribunal’s decision has attracted criticism worldwide, including denunciation by the Commissioner for Human Rights at the Council of Europe [19]. Given intense protests, the Polish government has delayed the implementation of the judgment [20]. However, it is important to realize the decision’s vastly adverse effects on women’s rights and empowerment. Implementing such a ruling can negate the persistent efforts undertaken over the course of several years to successfully grant women the right to personal autonomy. Therefore, it is in Poland’s best interests to liberalize its legal views on abortion in order to fulfil its commitments concerning women’s rights under international human rights law. 
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​REFERENCES
[1] Pronczuk, Monica. “Poland Court Ruling Effectively Bans Legal Abortions.” The New York Times. October 22, 2020. Accessed December 2, 2020. https://www.nytimes.com/2020/10/22/world/europe/poland-tribunal-abortions.html?searchResultPosition=5. 
[2] Pronczuk, Monica. “Why Are There Protests in Poland.” The New York Times. October 27, 2020. Accessed December 2, 2020. https://www.nytimes.com/2020/10/27/world/europe/poland-abortion-ruling-protests.html. 
[3] Shukla, Shivanjali. “Poland Constitutional Court tightens abortion restrictions.” JURIST. October 24, 2020. Accessed December 2, 2020. https://www.jurist.org/news/2020/10/poland-constitutional-court-court-tightens-abortion-restrictions/.
[4] “Convention on the Elimination of All forms of Discrimination against Women.” UN Women. Accessed December 2, 2020. https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article12. 
[5] “Convention on the Elimination of All forms of Discrimination against Women.” United Nations Treaty Collection. Accessed December 2, 2020. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en. 
[6] Shalev, Carmel. “Rights to Sexual and Reproductive Health- the ICPD and the Convention on the Elimination of All forms of Discrimination against Women.” International Conference on Reproductive Health, Mumbai (India). March 18, 1998. Accessed December 2, 2020. https://www.un.org/womenwatch/daw/csw/shalev.htm#:~:text=The%20right%20to%20autonomy%20in,fundamental%20human%20right%20to%20liberty.&text=Moreover%2C%20article%2015%20guarantees%20women's,and%20to%20full%20legal%20capacity. 
[7] “Report of the International Conference on Population and Development.” United Nations. September 5-13, 1994. Accessed December 2, 2020. https://www.un.org/development/desa/pd/sites/www.un.org.development.desa.pd/files/icpd_en.pdf. 
[8] “International Covenant on Economic, Social and Cultural Rights.” United Nations Human Rights Office of the High Commissioner. Accessed December 2, 2020. https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.
​[9] “General Comment No. 22.” United Nations Economic and Social Council. Accessed December 3, 2020. http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQfQejF41Tob4CvIjeTiAP6sGFQktiae1vlbbOAekmaOwDOWsUe7N8TLm%2BP3HJPzxjHySkUoHMavD%2Fpyfcp3Ylzg.
[10] “General Comment No. 36.” Human Rights Committee. Accessed December 3, 2020. https://www.ohchr.org/Documents/HRBodies/CCPR/CCPR_C_GC_36.pdf.
[11] “Guide on Article 8 of the European Convention on Human Rights.” European Court of Human Rights. Accessed December 3, 2020. https://www.echr.coe.int/documents/guide_art_8_eng.pdf. 
[12] Case of A, B and C v. Ireland, Application no. 25579/05 (2010). European Court of Human Rights. Accessed December 3, 2020. https://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22878721%22],%22itemid%22:[%22001-102332%22]}.
[13] Case of R. R. v. Poland, Application no. 27617/04 (2011). European Court of Human Rights. Accessed December 3, 2020. https://hudoc.echr.coe.int/eng#{%22dmdocnumber%22:[%22885774%22],%22itemid%22:[%22001-104911%22]}.
[14] Case of Vo v. France, Application no. 53924/00 (2004). European Court of Human Rights. Accessed December 3, 2020. https://www.globalhealthrights.org/wp-content/uploads/2013/02/ECtHR-2004-Vo-v-France.pdf.
[15] The Constitution of the Republic of Poland. April 2, 1997. Accessed December 3, 2020. https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm.
[16] “Termination of pregnancy for fetal anomaly.” British Pregnancy Advisory Service. Accessed December 3, 2020. https://www.bpas.org/get-involved/campaigns/briefings/fetal-anomaly/.
[17] “Concluding Observations of the Human Rights Committee on Poland.” United Nations Human Rights Committee. Accessed December 3, 2020. http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhstazfkB2WLZhxlPrVe5TzqNnRyOijUuCqK5T0EmzWPeEFHTMAa8FKMz5a%2BscJyDkNnjMPEsyr0Ex4coCfcKqJMutWG%2BztxRVCpnTAQ3Lz4SE.
[18] “Sixth periodic report of States parties: Poland.” United Nations Committee on the Elimination of Discrimination against Women. Accessed December 3, 2020. https://undocs.org/CEDAW/C/POL/6.
[19] Commissioner for Human Rights Tweet. Twitter. Accessed December 3, 2020. https://twitter.com/CommissionerHR/status/1319273573240893452. 
[20] Pronczuk, Monica. “Poland Delays a Near-Total Ban on Abortion.” The New York Times. November 4, 2020. Accessed December 3, 2020. https://www.nytimes.com/2020/11/04/world/europe/poland-abortion-law-delay.html. 

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