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. 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.
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. The ECtHR has recognized that these harsh penalties have a “chilling effect” on medical
professionals. Fear of repercussions makes some doctors unwilling to perform legal abortions, or even
certify a woman needs an abortion unless it is 100 percent certain she will not survive birth.
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. 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. This makes it extremely difficult for women to access abortion, even when legal.
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. 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.”
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. 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.
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.
Poland, Law of Jan. 7, 1993 on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination amended as of Dec.
23, 1997, art. 4a.1 (1-3).
Federation for Women and Family Planning (FWFP), Reproductive Rights in Poland: The Effects of the Anti-Abortion Law, p. 23 (Wanda Nowicka ed.,
2008), available at http://www.federa.org.pl/publikacje/report%20Federa_eng_NET.PDF [hereinafter FWFP, The Effects of the Anti-Abortion
Criminal Code, arts. 18, 152-154 (Pol.).
Tysiąc v. Poland, No. 5410/03, Eur. Ct. H.R., para. 116 (2007).
FWFP, The Effects of the Anti-Abortion Law, supra note 2, at 21.
The Profession of a Physician Act of Dec. 5, 1996, art. 39 (Pol.).
FWFP, Report to CESCR 8-9 (2009), available at http://www.federa.org.pl/?page=article&catid=879&lang=2; see Council of
Europe, Commissioner for Human Rights,
Memorandum to the Polish Government: Assessment of the Progress Made in Implementing the 2002 of the Council of Europe Commissioner for Human
, para. 95, CommDH (2007) 13, June 20, 2007; Kontakt-information-Therapie and Hagen v Austria, ECHR, admissibility decision, 11921/86.
, Committee on Economic, Social and Cultural Rights, Concluding Observations: Poland, para. 28, UN Doc. E/C.12/POL/CO/5 (2009).
Tysiąc v. Poland, supra note 4, paras. 117-118.
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
, Report on Mission to Poland, para. 45, U.N. Doc. A/HRC/14/20/Add.3 (2010).
Human Rights Committee, Concluding Observations: Poland, para. 12 ,CCPR/CPOL/CO/6 (2010).
Council of Europe, Current State of Execution, http://www.coe.int/t/DGHL/MONITORING/EXECUTION/Reports/Default_EN.asp?dv=1&StateCode=POL (last
visited Dec. 22, 2010).
FWFP, The Effects of the Anti-Abortion Law, supra note 2, at 46-47.