Litigation Briefing Series

RR v. Poland¹

During the 18th week of RR’s pregnancy, an ultrasound performed by her gynecologist detected a cyst on the fetus’s neck. To determine whether this was indicative of a severe fetal malformation, further tests were needed. If done in a timely manner, these tests would have enabled RR to make an informed decision on whether to terminate her pregnancy. However, instead of being issued a referral for genetic screening, RR’s was told to see Dr. KSz. who lived 300 kilometers away. This was the beginning of an 8 week period during which RR saw 16 doctors, underwent 5 sonograms, and was hospitalized twice. Although she was legally entitled to prenatal genetic testing and doctors confirmed her need for it, she was consistently refused the testing and the necessary referral.

When RR was finally able to see Dr. KSz., he conducted an ultrasound and verified the diagnosis. A genetics specialist reviewed these results and concluded that the fetus could have Turner or Edward Syndrome. Without prenatal genetic testing it would be impossible to precisely diagnose the disease. However, Dr. KSz informed RR that he could neither perform the tests himself nor provide her with a referral as she would have to obtain these services from a doctor practicing within her region in order to get insurance coverage.

RR sought a referral from her gynecologist who refused to issue one on the basis of his belief that Turner syndrome was not serious enough to qualify her for an abortion. During the following weeks, RR visited several more doctors, underwent additional ultrasounds and was hospitalized for non-conclusive diagnostic testing on multiple occasions. Yet, recognizing her need for genetic screening, the physicians that treated RR all refused a referral.

Unable to find a doctor willing to provide her with access to the tests she was legally entitled to receive, and approaching the cut off for legal abortion, RR returned to Dr. KSz. who advised her that if she could not get the necessary referral, she should go to a hospital and state that she was in need of emergency care. When further attempts to obtain a referral failed, RR followed Dr. KSz’s advice. At last, in her 23rd week of pregnancy, she was able to undergo genetic testing. Although by law the testing fell under RR’s public health insurance plan, she had to cover the costs herself.

Obtaining results would take another two weeks, at which time RR would be 25 weeks pregnant. Increasingly concerned that the fetus would suffer from severe genetic abnormalities, RR submitted a written request for an abortion at a local hospital. Having received no response, she submitted another request 10 days later and was told that it was too late, as the fetus was now viable. On July 11, 2002 RR gave birth to a baby girl suffering from Turner Syndrome. 

In November of 2003, RR’s gynecologist disclosed information regarding her health and private life in a press interview. He also made negative and hurtful comments about her conduct and personality.

S & T v. Poland¹

In April 2008, T, then 14 years old, was raped by a classmate. T and her mother, S, reported the rape to the police the next day. T was referred to a health clinic for an examination. Despite her youth and the fact that she was raped, she was not offered emergency contraception, which could have prevented pregnancy. Several weeks later, when T found out she was pregnant, she decided to terminate the pregnancy after careful consideration and with the support of her mother. Although T was legally entitled to an abortion under Polish law because her pregnancy had resulted from rape, she was continuously harassed and denied timely and professional medical attention. 

T, after interrogation by the Family District Court, obtained a certificate stating that her pregnancy was the result of a crime, which she needed in order to undergo an abortion. However, neither the prosecutor nor police provided T with information on how to proceed. Her mother then visited a number of hospitals in Lublin, their hometown, to seek assistance.  She was told that a medical referral for an abortion was necessary and that only a few specialists could provide such a referral, however, these specialists all refused to do so. 

At one hospital, the Chief of Obstetrics and Gynecology told T and her mother that T needed a priest, not an abortion, and facilitated an unrequested meeting between T and a Catholic priest. T discovered that confidential information regarding her pregnancy had been disclosed to the priest without her consent. Desperate, T and her mother traveled to Warsaw, where representatives of the Federation for Women and Family Planning supported her in finding a doctor who could provide the referral. 

Although T did receive a referral, the doctor who was to perform the abortion expressed reservations when the priest and others contacted the hospital in Warsaw where he worked, falsely claiming that T was being coerced by her mother and did not want an abortion.  Hospital staff proceeded to manipulate the relationship between T and S, in order to force T not to have the abortion. 

After leaving the hospital, T and her mother were harassed by anti-abortion activists and sought police protection.  The Warsaw police responded by interrogating them for over six hours. They further violated Family Court orders by inappropriately removing T from her mother’s custody; she was placed in a juvenile center and remained under the custody of the state for a week.  At the juvenile center, T’s mobile phone was taken away, she was locked in a room, and was not provided with timely medical treatment when she complained of severe pains and bleeding.  Eight hours after she first complained, she was finally taken to the hospital for treatment, where she again faced harassment by journalists and anti-abortion activists.

Weeks after the rape occurred, and only a few days before the 12 week cut off for abortions in cases of rape, the Ministry of Health intervened and T was able to get an abortion in a hospital 500 kilometers away from her home.  Although the abortion was legal, the hospital refused to register T as a patient and the abortion was conducted in a clandestine manner.  T was given anesthesia without warning and was not given information about the procedure or post-abortion care.  T was also told to leave the hospital immediately after the procedure.

Z v. Poland¹

Z’s daughter, a Polish woman in her twenties, was repeatedly denied diagnostic care and necessary treatment for her ulcerative colitis (UC) while she was pregnant. UC is a disease that causes inflammation and sores in the rectum and colon; it is not a disease caused by pregnancy. Ignoring human rights and medical standards, doctors refused to give Z’s daughter the care she needed because they were afraid doing so might harm her fetus. Ultimately, after eight hospital admissions over a five month period during which doctors focused on Z’s daughter’s pregnancy and not on her disease, this led to a miscarriage and to her preventable death.

In May of 2004, about five months before she died, Z’s daughter was informed she was four to five weeks pregnant. It was a wanted pregnancy, and Z’s daughter was engaged to be married in July of 2004. Due to her illness and death, the wedding would never take place.

Around the time Z’s daughter became pregnant, she also began experiencing symptoms of UC such as nausea, abdominal pains, vomiting and diarrhea with blood. She first told a doctor about these symptoms a week after her pregnancy was confirmed, and was told they were pregnancy-related. Yet, her symptoms rapidly worsened and became so severe that she was admitted to a hospital from mid. May to early June. During her stay, basic tests were performed and UC was diagnosed. She received minimal treatment with steroids and was sent home.

A few days later, the condition of Z’s daughter again worsened, requiring another hospitalization. Her treating doctors failed to carry out further diagnostic tests, such as a full endoscopy, to determine the extent and location of her UC, and to decide on the proper course of treatment. Instead, she was transferred from hospital to hospital to be sent home again several weeks later, without steps having been taken to properly diagnose and provide care for her disease.

Z’s daughter’s condition only deteriorated and four stays, totaling six weeks in four different hospitals followed in the months of July and August. While she developed abscesses that had to be surgically removed, more extensive testing and aggressive treatment were denied. One doctor told Z that her daughter was “too interested in her own ass instead of being interested in something else,” the ‘something else’ being her pregnancy. Although abortion is not a consideration in giving proper treatment in this situation, other doctors told Z’s daughter they could not treat her because their “conscience did not allow” them. None of Z’s daughter’s doctors registered their conscientious objection. They also failed to refer her to a doctor that would give her the treatment she needed. The refusal to be treated effectively while she was in great pain and her life was at risk was humiliating and debasing.

In early September 2004, Z’s daughter was again hospitalized, this time with sepsis (blood poisoning) and symptoms of organ dysfunction. Doctors also diagnosed that her fetus was dead. Despite many surgeries removing pus, the sepsis became more severe and her kidneys failed. After months of extreme pain and humiliation received at the hands of her doctors, Z’s daughter died in late September of a condition that could have been controlled with proper and timely treatment.

The main law regulating abortion in Poland is the 1993 Family Planning Act. However, access to abortion is also influenced by the conscience clause, the Profession of Physician Act, the European Court of Human Rights (ECtHR), and judgments of the Polish courts. This section will highlight the major laws and decisions affecting women’s right to abortion in Poland.

Abortion Regulation: The 1993 Family Planning Act
Poland has one of the most restrictive abortion laws in Europe. Abortion is regulated by the 1993 Family Planning Act and is only allowed in three circumstances: 1) when the life or health of a woman is in danger, abortion is permitted at any stage of the pregnancy; 2) when there is a high probability of a severe and irreversible fetal impairment, abortion is permitted until viability; and 3) when the pregnancy is the result of a crime, abortion is permitted during the first 12 weeks. When the pregnancy results from a criminal act, the woman needs a certificate from the public prosecutor to be able to undergo an abortion.¹ This means that women who are victims of sexual violence have to go to the police to report and relive what happened to them, which can be extremely traumatizing. Moreover, the proceeding to obtain the certificate can take so long that the 12 week term limit is often exceeded.²

Penalizing Abortion: The Criminal Code
Although under Poland’s Criminal Code a woman is not subject to punishment for aborting her pregnancy outside the scope of the law, a doctor or anyone else who assists a woman with the unlawful termination of her pregnancy, including providing transport, advice or information faces up to three years imprisonment.³  The ECtHR has recognized that these harsh penalties have a “chilling effect” on medical professionals.⁴ Fear of repercussions makes some doctors unwilling to perform legal abortions, or even certify a woman needs an abortion unless it is 100% certain she will not survive birth.⁵

Conscience Clause: The Profession of a Physician Act
Another law that has a great impact on access to abortion in Poland is the Profession of a Physician Act, which allows doctors to object to performing abortions based on their conscience. Facing pressure from the Catholic Church hierarchy and hospitals to not be associated with abortion services, and fearing criminal sanctions for terminating pregnancies, doctors frequently invoke the conscience clause. The Act requires practitioners who do so to refer their patient to another doctor or facility where they can undergo an abortion.⁶ Yet, enabled by the lack of oversight of the practice of conscientious objection, doctors often refuse to make referrals. In addition, it is not uncommon for hospitals as a whole to invoke the conscience clause, even though such a provision is only meant to apply to medical professionals and not to institutions.⁷ This makes it extremely difficult for women to access abortion, even when legal.⁸

Failing to Implement Tysiąc: The Patient Rights Ombudsman Law
In its 2007 Tysiąc v. Poland decision the ECtHR recognized that access to abortion in Poland is obstructed by the country’s failure to have a framework in place that guarantees women’s right to terminate their pregnancy in the limited circumstances permitted by law. The Court held that in order to comply with the European Convention on Human Rights (ECHR), Poland should establish an appeals mechanism to review cases when there is a disagreement between a woman and her doctor about whether the legal conditions for abortion have been met. It also made clear that such a mechanism must consist of (1) an independent body (2) that takes the views of the woman into consideration and (3) issues decisions in writing (4) within a reasonable period of time.⁹ In an attempt to appease the Court, Poland adopted the Law on the Protection of Patient Rights and the Patient Rights Ombudsman, which entered into force in 2009. Under the new law, any patient who disagrees with her doctor’s decision on provision of healthcare, including on abortion, may lodge an appeal with a Commission of Physicians, which then has to issue an opinion within 30 days. Commenting on the problems with the new law, the U.N. Special Rapporteur on the Highest Attainable Standard of Health noted that “a panel composed exclusively of medical professionals has an inbuilt structural bias, affecting its impartiality.”¹⁰ Moreover, because of the strict time limits for abortion in cases of fetal impairment and when the pregnancy resulted from a crime, a 30 day period to issue an opinion is excessive and undermines women’s legal right to access abortion.¹¹ It is also unclear whether a woman has the opportunity to be heard in person and whether the Commission has to issue written grounds for its opinions. For these reasons, the Committee of Ministers overseeing the implementation of judgments of the ECtHR is, to date, not satisfied the new law complies with the Court’s decision.¹²

Polish Case Law: Decisions Protecting Women’s Right to Abortion
While Poland thus remains in violation of its obligation under the ECHR, and women’s access to abortion is severely restricted, national courts have in limited circumstances recognized women’s right to lawful abortion and have issued some positive decisions. In 2005, the Polish Supreme Court awarded damages in the case of B. Wojnarowska, who was refused prenatal testing by her doctors when she became pregnant with her second child, despite her firstborn child having a genetic disorder. The Supreme Court agreed with the lower court’s opinion, which, referencing Article 47 of the Polish Constitution, held that Wojnarowska’s “right...to decide about her personal life as well as the right to family planning, not excluding the right to terminate pregnancy” were violated by denying her tests on the basis of which she could have decided on the legal possibility of abortion. Two years earlier the Supreme Court decided the case of M.A., who was denied an abortion after she was raped because the age of her fetus was wrongly calculated as 14 weeks. The Court held that the constitutionally protected freedom to decide over one’s private life was violated by forcing a woman to carry a pregnancy to term that resulted from rape.¹³

International and regional accountability bodies have increasingly been highlighting the issue of abortion as well as other sexual and reproductive rights issues in Poland. A common theme that emerges from the concerns and recommendations voiced by these bodies is the problems posed by clandestine abortions and the unregulated exercise of conscientious objection.  

In 2009, the Committee on Economic, Social and Cultural Rights, which monitors state compliance with the UN Convention on Economic Social and Cultural Rights,  expressed concern that women in Poland in “alarming numbers” “resort to clandestine, and often unsafe, abortion because of refusal of physicians and clinics to perform the legal operations on the basis of conscientious objection.” It called on the state “to take all effective measures to ensure that women enjoy their right to sexual and reproductive health, including by enforcing the legislation on abortion and implementing a mechanism of timely and systematic referral…”¹

In 2007, the CEDAW Committee, which monitors state compliance with the Convention on the Elimination of All Forms of Discrimination Against Women urged Poland to “take concrete measures to enhance women’s access to health care, in particular to sexual and reproductive health services.” . . . It also urged the country “to ensure...women seeking legal abortion have access to it, and that their access is not limited by...conscientious objection...”²
 
In 2004, the Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights, voiced its concern about “the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions.”³

In 2009, the UN Special Rapporteur on the right to the highest attainable standard of health visited Poland to inquire into status of sexual and reproductive health rights in the country. In the report on his mission the Rapporteur “note[d] with regret that women in Poland face numerous obstacles in accessing abortion...even when they are legally entitled to [it].” He also expressed concern that “non-State actors, such as priests, interfere with access to legal and safe abortions.” The Special Rapporteur further reiterated that medical professionals’ conscientious objection to provide certain health services “should not entail interference with sexual and reproductive health rights, which are fundamental.” He emphasized that Poland must eliminate the legal, social, cultural and religious obstacles to women’s access to abortion when legal.⁴

In 2007, the Council of Europe Commissioner for Human Rights, in a report on the status of human rights in Poland, remarked that “[t]he very low number of legal abortions is a warning signal to the...authorities that illegal abortions are taking place in high numbers,” and that such abortions “increase the risks for the woman undergoing the intervention and carry with them the stigma of breaching the law.” He noted that “access to legal abortion for women...is frequently hindered,” and urged the “government to ensure that women falling within the categories foreseen by the law are allowed, in practice, to terminate their pregnancy without additional hindrance or reproach.”⁵