Department of Management and Engineering
Division of Political Science
MA in International and European Relations
Reproductive Rights are Women’s Human Right
The Case Study of Restrictive Abortion Legislation in Poland
Aslı KIRAZOGLU
Supervisor: Helen Lindberg
Linköping, 2013
Word Count: 24.268
1
Abstract
This thesis will present the abortion legislation in Poland that has been a political and
social debate with its 20 year background. Within a historical framework then and now
the in sexual and reproductive rights of women will be the focus area in this work. The
concept of political culture, transition theory and movement and counter movement
theories frame the theoretical considerations. The main purpose is to find out the Polish
way of abortion legislation and the impacts of restrictive abortion laws to polish women.
Key Words: Transition, political culture, pro-life, pro-choice, termination of pregnancy,
restrictive abortion laws, sexual and reproductive rights
2
Contents
Abbreviations ..............................................................................................................................................5
1.Introduction .............................................................................................................................................6
1.1 Aim of the Study ...............................................................................................................................7
1.2 Methodology ....................................................................................................................................9
1.3 Limitations ..................................................................................................................................... 12
1.4 Literature Review ........................................................................................................................... 13
2. Theoretical Framework ........................................................................................................................ 14
2.1 Transition theory-democratic transition ....................................................................................... 14
2.2 The Concept of Political Culture .................................................................................................... 16
2.3 Movement and Counter Movement.............................................................................................. 17
3. International Political Framework on Sexual and Reproductive Health .............................................. 19
3.1 The International Covenant on Social, Economic and Cultural Rights (ICSECR) ............................ 19
3.2 The Convention on the Elimination of All forms of Discrimination against Women -1979 .......... 20
3.3 International Conference on Population and Development- Cairo ............................................... 21
3.4 Fourth World Conference on Women, Beijing Declaration and the Platform for Action-1995 .... 24
4. International Reflections on Reproductive Rights in Poland ............................................................... 25
5. Regional Organizations ........................................................................................................................ 31
5.1 Council of Europe (CoE) ................................................................................................................. 31
5.2 European Union (EU) ..................................................................................................................... 32
6. General information on Pro-life and Pro-Choice Discourses ............................................................... 33
7. Case Study of Poland ........................................................................................................................... 35
7.1 The Communist Heritage and its impacts on abortion legislation ................................................ 35
7.1.1 Gender dimension of Socialist era .............................................................................................. 35
7.1.2 Changing role of Eastern women in the post-communist era .................................................... 36
7.1.3 Anti-feminist structure of the transition period ......................................................................... 38
8. Abortion legislation in Poland.............................................................................................................. 40
8.1 Liberalization of abortion under the Communist regime- 1956 .................................................... 40
8.2 Anti-abortion Law of 1993 ............................................................................................................. 41
9. The Roman Catholic Church and Abortion Discourse .......................................................................... 44
9.1 Importance of the Roman Catholic Church in Poland ................................................................... 44
3
9.2 Transition to Democracy and the Church’s Influence on Abortion Law ........................................ 46
9.3 Accession to EU .............................................................................................................................. 48
9. Family Planning Services ...................................................................................................................... 51
9.1 Access to sex education ................................................................................................................. 51
9.2 Access to contraception................................................................................................................. 52
10. The Impacts of the Restrictive Abortion Legislation .......................................................................... 53
10.1 Illegal Abortions ........................................................................................................................... 53
10.1.1 Abortion Underground ............................................................................................................. 54
10.1.2 Abortion Tourism ...................................................................................................................... 55
10.2. Access to legal abortion .............................................................................................................. 56
10.2.1 Tysiac Case ................................................................................................................................ 57
10.2.2 R.R Case .................................................................................................................................... 60
10.2.3 P. and S.v Case .......................................................................................................................... 62
11. Latest Developments ......................................................................................................................... 63
12. Analysis .............................................................................................................................................. 66
12.1 Research Findings ........................................................................................................................ 66
12.2 Theoretical Considerations .......................................................................................................... 71
12.3 Conclusion.................................................................................................................................... 74
13. Final Words ........................................................................................................................................ 75
Bibliography ............................................................................................................................................. 76
4
Abbreviations
Beijing PoA
Beijing Platform for Action
CEE
Central and Eastern European
CoE
the Council of Europe
CEDAW
the Convention on the Elimination of All forms of Discrimination
against
Women
CESCR
United Nations Committee on Economic, Social and Cultural Rights
CRR
Centre for Reproductive Rights
ECHR
European Convention on Human Rights
ECHR
European Court of Human Rights
EP
European Parliament
EU
European Union
FCWC
Fourth World Conference on Women
FWFP
Polish Federation for Women and Family Planning
HFHR
Polish Helsinki Foundation for Human Rights
ICESCR
International Covenant on Economic, Social and Cultural Rights
ICPD
International Conference on Population and Development
ICPD PoA
ICPD Program of Action
RFSU
Swedish Association for Sexuality
SRHR
Sexual and Reproductive Health Rights
UN DESA
UN Department for Economic and Social Information and Policy
Analysis
UNPFA
United Nations Population Fund
WHO
World Health Organization
5
1. Introduction
International political frameworks on sexual and reproductive health rights recognizes
reproductive rights as human rights and invites the signatory countries of rights based
conventions to practice international standards in their national health legislations. When
considering the importance of United Nations’ Conventions and Conferences, the case of
Poland attracts attention in relation with having one of the most restrictive abortion
legislation in Europe.
The end of Communist era in 1989 was a milestone not only in the communist bloc but
also in the international arena with its political, economic, social and cultural impacts. The
new era brought new challenges and developments to the former Soviet States that led to
the making of new and fundamental reforms in each and every aspect of the citizen’s
social environment.
In the restructuring of new systems of the former communist period, women’s condition
in the transformation period was a crucial event from the aspects of women’s rights and
their harmonization to the new liberal system of the post-communist countries. Funk
describes the importance of abortion discourse in Poland during the transition period as
follows “even though communist abortion legislation was problematized and altered in
the whole of East Central Europe, nowhere did that process generate such controversy as
in Poland.1”
The issue became a vocal point of domestic political and moral debates in Poland, which
in turn created incentives for wide debates on rights-based approaches to abortion
Zielinska states; “of the Parliamentary struggles that have dominated public life in the
independent Republic of Poland since 1989, none has more divisive than the “abortion
battle”2
The Communist and post-communist attitude towards women are very crucial in the
evaluation of restrictive abortion laws in Poland and were put at the centre of the political
agenda in the transition period. The impacts of the transition to democracy on Polish
1
(Funk N. , 1993, p. 11)
2
(Zielinska, 2000, p. 23)
6
women’s reproductive rights and the development of pro-choice movement are vitally
interrelated issues that will be regarded in terms of a feminist movement.
The reproductive rights of women in Poland have been a central issue in the Polish
society, not only from political and religious aspects but also from the feminist
perspective and became the starting point of pro-choice based NGO’s.
Abortion debate has been on the feminist agenda for more than twenty years in Poland
since the fall of communism. In the period of transition to democracy and accession to the
EU, Polish women’s right to have an abortion came to the top of the political agenda. In a
political sense, Poland practiced liberal democracy with the overthrow of communism
and fifteen years later became a member country of the European Union, where the
abortion debate continued to be on top of the political agenda.
As the case is focused on Polish women’s reproductive rights, the study will be conducted
in accordance with the current abortion legislation and its impacts on Polish women’s
rights.
1.1 Aim of the Study
My aim is to get a deeper understanding of the current restrictive abortion legislation in
Poland which introduced in 1993 after such a short while when Poland gained its
independence from former communist rule.
As the current law dated back to first years of Republic of Poland, the communist heritage
and ideology on abortion legislation has been of great importance in the political
transition period in order to evaluate the attitude of Polish government transformation in
relation to national abortion legislation.
To get a deeper understanding of the existing anti-abortion law, I intend to ask these
questions;
Why have liberal norms on abortion legislation been difficult to implement in
Poland?
What are the impacts of restrictive abortion legislation on Polish women’s health
and rights?
7
First question will help us to investigate the reasons that have shaped the current
discourses and concepts on abortion legislation together with transition to democracy
and accession to European Union with its historical framework.
The second question aims to understand the practice of restrictive law on abortion and its
impacts on women’s reproductive health and rights. In this regard, international
institutions and their political framework on reproductive rights comes into play
considering Poland’s attitude as a country signatories to the international conventions
and agreements that promised to empower women’s reproductive health and rights to
see whether Poland as a democratic country has been in compliance with the necessities
of Polish women.
As this thesis is about practice of restrictive abortion legislation in Poland, the positions of
Pro-choice and Pro-life discourses, which are two main counterarguments of the abortion
debate, are integral part of the on-going discussions. Showing the arguments and attitude
of newly developed pro-choice movement against the restrictive abortion law and their
struggle in awareness rising in a country with a strict Catholic ties and a more dominant
Pro-life environment is crucial upon reflecting upon contemporary arguments on
abortion legislation.
In this sense, the emergence of rights based approaches, which the pro-choice arguments
is built upon, is a crucial aspect to evaluate with the environment between the communist
rule and patriarchal culture of Poland that awakened again with the collapse of the
communist system.
Answering the first question will help us to focus on the second question which covers the
contemporary problems arising from the restrictive abortion law and its human rights
dimension. The attitudes of the Polish Government, international institutions and civil
society movement which cover both counter movements are the essential parts of this
thesis and will be used in order to answer the research questions.
8
1.2 Methodology
This thesis constructed as a single case study considering the political and historical
frameworks of abortion debate in Poland. In relation to critical political transformations
of Poland in the last twenty years, post-communist transition and the EU accession, the
legal status of abortion became one of the most challenging political and social debates in
Poland.
Considering the long term discussions on abortion legislation with the involvement of
wide range of actors, a single case study was considered as the appropriate method. At
the same time, the critical evaluation of abortion legislation in Poland requires a deep
understanding of all variables, where comparative analysis would not give enough room
for a in depth analysis, which is required in order to understand the implications of Polish
women’s struggle for reproductive rights.
A comparative case study would also be possible in relation to other EU member
countries where restrictive abortion legislations have been in force like in the cases of
Ireland and Malta but the communist heritage of Poland which covers more than four
decades of legal abortion legislation makes the Polish case special.
Vennesson describes the significance of case studies as follows “a significant part of what
we know about the social and political world comes from case studies.3 This thesis will be
oriented towards providing a descriptive account of abortion legislation and important
historical components while also providing interpretive elements in order to critically
evaluate the impacts of polish abortion legislation. As mentioned by Vennesson in relation
to practice of descriptive case studies;
“In any type of case study there is an unavoidable descriptive
dimension. Case studies sometimes explore subjects about which
little is previously known or phenomena in need of an
interpretation that shed lights on known data, and their
descriptive aspect is invaluable.”4
3
4
(Vennesson, 2008, p. 223)
(Vennesson, 2008, p. 227)
9
Flyvbjerg also acknowledges the scientific importance that purely descriptive case studies
may provide;
“That knowledge cannot be formally generalized does not mean
that it cannot enter into the collective process of knowledge
accumulation in a given field or in a society. A purely descriptive,
phenomenological case study without any attempt to generalize
can certainly be of value in this process and has often helped cut a
path toward scientific innovation. This is not to criticize attempts
at formal generalization, for such attempts are essential and
effective means of scientific development; rather, it is only to
emphasize
the
limitations,
which
follow
when
formal
generalization becomes the only legitimate method of scientific
inquiry.”5
However, this thesis will incorporate elements of interpretative case studies because as
Vennesson states “the interpretative case study uses theoretical frameworks to provide
an explanation of particular cases, which can lead as well to an evaluation and refinement
of theories.”6 This is essential, since I have chosen certain lenses since these viewpoints
provide important elements to take into account when trying to understand underlying
factors of social, cultural and political aspects. The dependent variable in this thesis is
reproductive rights and with the help of descriptive case study we will explore
surrounding important independent variables.
The basis of this choice derives from the significant importance of using diversified views
that can be put the debate on reproductive rights into a right context. With the help of
retrospective historical frameworks and highlighting elements such as path dependence,
goes together with historical institutionalism as a tool of inquiry, which will be explained
further in detail down below together with the concept of political culture, transition
theory and movement and counter movement theories.
The empirical data to be used in this study consists of related UN reports and the cases of
Polish government that had been to European Court of Human Rights together with the
5
6
(Flyvbjerg, 2006, p. 227)
(Vennesson, 2008, p. 227)
10
reports of Pro-choice organizations as a primary data and in the descriptive case study
secondary data to be used from the literature.
Since this study puts a special emphasis on the role of institutions in structuring
behaviour, historical institutionalism is used as a method for the conduct of the research.
What meant by institutions are the Polish Government during the communist and postcommunist era, the Roman Catholic Church, EU, UN, civil society organizations and their
influences on the reproductive rights of Polish women as Steinmo states “whether we
mean formal institutions or informal rules and norms, they are important for politics
because they shape who participates in a given decision and, simultaneously, their
strategic behaviour7”.
Steinmo puts emphasize on two aspects to explain the importance of history. The first
aspect is the direct relation between historical context and consequences of the decisions
or events. In this study, the transition from authoritarian rule to democracy and then
Poland’s accession to the EU are main historical contexts and the key aspects of the case.
Secondly, Steinmo makes a point to the importance of history for actors and agents to get
a deeper understanding of behaviour, attitudes and strategic choices that occur in a
particular social, political and economic and cultural framework8. This aspect is useful to
understand historical period with all dimensions, which will let us to have a deep
understanding of the variables of the moment.
Steinmo adds that “taking history seriously ultimately means that the scholar is sceptical
of the very notion that variables are independent of one another9” this is the reason why
the author suggests paying attention explicitly to important variables considering the fact
that they often shape one another.
Waylen states historical institutionalism can be used in answering big questions of
feminist political analysis depending on the research question, like ‘how certain
institutions and regimes are gendered’ or ‘how they came into being’ and to understand
the connection between different actors and institutional context.10
7
(Steinmo in Della Porta and Keating, 2008, p.124)
Steinmo in Della Porta and Keating, 2008, p.127)
9
(Steinmo in Della Porta and Keating, 2008, p.128)
10
(Waylen, 2009, p. 3)
8
11
Path dependence is an essential aspect of historical institutionalism. Waylen cited from
Thelen in 2003 notes “path dependence, ranging from the very loose to the more rigidly
determining, to look at the ways in which slow moving casual processes are linked11”, in
showing the interconnected relation of the institutions, ideas and actors to be presented
in the thesis, path dependence shows the necessity of using historical institutionalism as a
method.
Another important aspect is the critical junctures that is explained by Collier and Collier
as follows; “as a period of significant change, which typically occurs in distinct ways in
different countries (or in other units of analysis) and which is hypothesized to produce
distinct legacies12”. Again here institutional changes and its impacts on the actors will be
classified in terms of critical junctures which are in this study, transition to democracy
and EU accession of Poland where the country showed its intention to follow more liberal
norms and values.
1.3 Limitations
As the subject focus of this work is abortion legislation in Poland, this case study covers
the significant historical events for instance post-communist transition and EU accession
of Poland in relation to reproductive rights and their impacts on abortion legislation.
Actors are determined as; the Polish State, the Roman Catholic Church, pro-life and prochoice organizations and the UN as an international legal normative actor.
In relation to focus area of the work, the scope is restricted according to influence of the
actors and historical periods on the abortion legislation in Poland.
In regards to primary source, access to documents of pro-life organizations is limited in
contrast to pro-choice organizations which give broad access to reports and documents.
One another limitation is derived from the language barrier as some of the documents are
solely in Polish and can therefore not be taken into account.
11
12
(Waylen, 2009, p. 4)
(Collier, RB and Collier,D , 1991, p. 29)
12
1.4 Literature Review
When the subject focus is gender issues in Poland, the issues on Polish reproductive
rights are one of the most researched areas, in relation to restrictive abortion legislation
Heinen and Portet’s work “Reproductive Rights in Poland: when politicians fear the wrath
of the Church” or Ruether’s “Women, Reproductive Rights and the Catholic Church” are
some of the examples.
As the subject matter has a background of twenty years and as a leading development
which led start of women’s movement in Poland, for feminist literature the case of Poland
has been an attractive field; Occhipinti’s work “Two steps back? Anti-feminism in Eastern
Europe” and Funk’s work “Feminism and Post communism” are the examples of field
search.
At the same time, abortion legislation in Poland has been in the focus of international
arena, especially considering the EU membership of the country Czerwinski’s work on
“Sex, Politics and Religion: The Clash Between Poland and the European Union” and
Anderson’s “European Union Gender Regulations in the East: The Czech and Polish
Accession Process” are some of the related examples.
Different than the researches on gender, political power of the Polish Catholic Church in
the transition period has been a research area, Ebert’s work “The Roman Catholic Church
and democracy in Poland” and Borowik’s “The Roman Catholic Church in the Process of
Democratic Transformation: The Case of Poland” and Zuba’s “The Political Strategies of
the Catholic Church in Poland” are some of the examples from the broad literature.
This thesis covers those mentioned issue areas from a point of historical framework.
Transition period, accession to the EU, the power of Church, civil society movements and
international frameworks on reproductive rights are the crucial elements to critical
evaluation of the abortion legislation and their impacts on restrictive abortion legislation
is our focus in this work.
13
2. Theoretical Framework
2.1 Transition theory-democratic transition
Transition theory is one of the applicable theories that this thesis will use in order to
explain the political, economic and social transformations and changes that were
happening after the collapse of the Berlin Wall. Jović states “transition as a concept came
into being in the late 1960s and early 1970s and has its origins in ‘theories of democracy’,
probably the most productive branch of political science since its production”13
Guo defines political, economic and social transformations of Eastern European countries
and the Former Soviet Union as an undeniable success of democratic transition.14 System
theory, political culture theory, decision theory, modernization theory, structuralfunctionalism and institutionalism are the social science disciplines which shaped the
theoretical framework of transition theories.15
In his critical overview on the theory of democratic transition, Guo classifies the theory
under four theoretical approaches as; ‘structure oriented approaches, process oriented
approaches,
institutional
context
-oriented
structures
and
political
economy
approaches.’16 In doing so, Guo takes various analytical frameworks into consideration
that have been covered with different theoretical approaches together with the
importance for comparative study of regime transitions or in explaining the outcomes of
particular transformations in regards to identified factors or variables. The focus of this
thesis will be concerned with structural and institutional context oriented approaches of
the transition theory.
Guo underlines the importance of economic development, political culture, class conflict,
social structures and other social conditions in clarifying outcomes of the transition in
relation to structural approaches. The author explains the necessity of structural
approach as follows; “these scholars were preoccupied with macro-level social conditions,
or socioeconomic and cultural prerequisites of democracy, and sought to explain the
causes of democracy and clarify the nature of their relationships.”17
13
(Jović, 2010, p. 46)
(Gou, 1999, p. 133)
15
(Gou, 1999, p. 133)
16
(Gou, 1999, p. 134)
17
(Gou, 1999, p. 135)
14
14
Institutional context-oriented structures put forward the influence of institutions in
structuring policies and patterns of political actions and it is given as an important
element of ‘shaping and constraining’ the ‘objections and preferences’ of political actors. 18
State-society relations are given as an example by the author considering their crucial
role of civil society in democratic transition especially in the collapse of former
communist states in Eastern Europe; “different patterns of interaction between state and
society explained the different processes and outcomes of democratic transition.19
In his critical review Guo remarks the strengths and weaknesses of these approaches and
according to the author, the weakness of structure oriented approach is derived from its
limited capacity in explaining the different choices of political actors and their
preferences of change and policy choices.20
On the other hand institutional context oriented approach would fill this gap as the model
gives opportunity to analyse strategies and choices of ‘confined’ party leaders in relation
to pre-existing structures, Guo explains the importance of analysing ‘confined context’ as
follows; “confined context,” which determines the parameters of political action, will
enhance the predictability and be conducive to the analysis of the why and how of the
elite choices.21
Jović defines post-1989 transition theory as; ‘it is based on the assumption that there is a
Universalist trend in history, one which inevitably brings societies from their ‘backward’
phase of authoritarianism to the developed phase of liberal democracy.’22 Jovic, was
under the impression that transition as a journey which should bring ‘progress’ and
‘development’ on the contrary to ‘regression or repeating the same’ which would make
the liberal oriented democracies to follow human rights.23
Based on the ‘theories of democracy’, transition theory is applicable to evaluate the postcommunist conditions which was on its way to establishment of democracy.
18
(Gou, 1999, p. 137)
(Gou, 1999, p. 137)
20
(Gou, 1999, p. 141)
21
(Gou, 1999, p. 143)
22
(Jović, 2010, p. 58)
23
(Jović, 2010, pp. 58-59)
19
15
2.2 The Concept of Political Culture
Another important aspect is political culture that will help us to estimate the differences
between the communist era and post-communist period within the terms of political
culture norms that were effective in the authoritarian rule and in the democratic
transition.
Political culture is essential to understand norms, beliefs and values of a state in a
changing political structure. Almond explains the theory as follows;
“Political culture theory imputes some importance to political
attitudes, beliefs, values, and emotions in the explanation of
political, structural, and behavioral phenomena- national cohesion,
patterns of political cleavage, modes of dealing with political
conflict, the extent and the character of participation in politics, and
compliance with authority.”24
Almond puts emphasize on the importance of political culture in the communist regimes,
considering these regimes as a “natural experiments in attitude change”. In a time period
of political, economic and social changes, to understand the success or failures of a state
in transforming the attitudes, political culture is an essential part of the work.
Brown’s definition;
“Political culture will be understood as the subjective perception of
history and politics, the fundamental beliefs and values, the foci of
identification and loyalty and the political knowledge and
expectations which are the product of the specific historical
experience of nations and groups”.25
In his comparative study of the USSR and Poland titled ‘Political Stability and Political
Culture’ Skrobacki mentions the importance of political culture especially for communist
countries. Skrobacki defines, in the light of Brown who introduces the distinction between
official and dominant (traditional) political cultures, the official political culture in the
communist countries promoted by the authorities in terms of values, beliefs, symbols,
expectations and behavioural patterns, while dominant political culture is the one
24
25
(Almond, 1983, p. 127)
(Archie Brown and J.Gray eds., 1979, p. 1)
16
represented by the vast majority of population.26 This distinction has a crucial importance
especially in the issue areas which are directly related with norms and values.
The relation between theories of transition and political culture is another important
factor in the evaluation of construction of democracy and liberal values in Poland. Haynes
who uses the term ‘transitional democracies’ explains this term as ‘transitional
democracy is a country falling roughly midway between an established democracy and a
non-democracy’27 adding this term is applicable to use in the countries of Asia, Central
and Eastern Europe and Latin America.
Haynes classifies the political system as established democracy, transitional democracy
and non-democracy and in accordance with their national political culture characteristics
shows the impacts of international norms on the political culture. In terms of national
political culture features, Haynes underlines the potential of an established political
culture to obstruct the development of pro-democracy political culture in transitional
democracies and that is additionally applicable to understand the conservative structure
of the current Polish society.
Considering the impact of international norms on transitional democracies Haynes states
that ‘norms about politics and political values underpin political cultures of transitional
democracies. Over time, they can be remade- partly in response to external influences’.28
In terms of democratic transition in Eastern Europe and Europeanization of Poland with
the EU accession, we can see the interdependent relation between the transition
processes and political culture.
2.3 Movement and Counter Movement
Social movement theory is an essential dynamic to understand necessities in developing
and shaping actions in a society. Fuszara who defines a social movement as a combination
spontaneity and organisation lays stress on existing values and norms; “A social
movement…..expresses a protest against existing values and norms and often attacks the
structure of the power.”29
26
(Skrobacki, 1986, p. 21)
(Haynes, 2005, p. 38)
28
(Haynes, 2005, p. 191)
29
(Fuszara, 2005, p. 1058)
27
17
On the other hand Rucht emphasizes the importance of collectivism in a social movement
which works by means of an action system where that system is “comprised of mobilized
networks of individuals, groups and organizations which, based on a shared collective
identity, attempt to achieve or prevent social change, predominantly by means of
collective protest.30
Meyer and Staggenborg address the issue of movement-counter movement interaction as
an on-going feature of contemporary social movements and contemporary politics.31 The
authors who define certain movements and counter movements relation as a ‘veritable
fixture’ of contemporary social movement challenges, by considering Western societies as
‘social movement societies’ like Tarrow suggests they believe the necessity of opponents
of challenging movements other than the State.32
‘Fight over abortion’, ‘gay rights’, ‘animal rights’, ‘gun control’, ‘cigarette smoking’,
‘marijuana use’, ‘racism’ and ‘pornography’ are some of the issue areas that the authors
define for mobilization of movement and counter movements.33
In the mobilization of a counter movement as Meyer and Staggenborg state “movements
create their own opposition34” so a counter movement emerges as a response to the
original movement which defined by the authors as “it makes contrary claims
simultaneously to those of the original movement35”.
In the evaluation of the conditions of an emerging counter movement, comparison across
movements, time, and outcomes of movement actions are the important features that
needs to be answered as suggested by Meyer and Staggenborg. At the same time
responses of the state are essential parts due to the reasons whether a state generate or
fail to generate counter movements.36
Considering conflicts between the movement and countermovement interactions Meyer
and Staggenborg, cited from Zald and Useem, highlight the role of states in intervening to
the conflict; “the state may occasionally intervene on one side or the other or
30
(Rucht, 1999, p. 207)
(David Meyer, Suzanne Staggenborg, 1996, p. 1628)
32
(David Meyer, Suzanne Staggenborg, 1996, p. 1654)
33
(David Meyer, Suzanne Staggenborg, 1996, p. 1630)
34
(David Meyer, Suzanne Staggenborg, 1996, p. 1632)
35
(David Meyer, Suzanne Staggenborg, 1996, p. 1631)
36
(David Meyer, Suzanne Staggenborg, 1996, p. 1655)
31
18
governments and sub governments may intervene on behalf of opposing sides”37. State
intervention into a conflict is such an important feature in a social movement to assess
the position of a state especially for the movements emerged in order to fight existing
values and norms.
To address a specific issue with the help of a social movement theory, movement and
counter movement interaction would be helpful to make the content more specific and to
evaluate the circumstances in its own sphere. Movement and counter movement
interaction would be a vital element in this work due to the Pro-life and Pro-choice
movements and their discourses in the case of Poland.
3. International Political Framework on Sexual and Reproductive Health
3.1 The International Covenant on Social, Economic and Cultural Rights (ICSECR)
United Nations Committee on Economic, Social and Cultural Rights (CESCR) is an
international body formed by independent experts, working as a monitor of the
implementation of the International Covenant on Economic, Social and Cultural Rights
(ICESCR).38 The Covenant was signed in 1966 and with its broad human rights issues it is
a legally binding treaty.
Article 12 of the Treaty covers the issues concerning health and recognizes “the right of
everyone to the enjoyment of the highest attainable standard of physical and mental
health.”39 CESCR published general comments on the right to the highest attainable
standard of health in Article 12 of the Treaty, regarding the substantive issues arising
from the implementation of the Covenant in 2000.
Under the title of normative content of Article 12, the meaning of right to health specified
as “The right to health is not to be understood as a right to be healthy. The right to health
contains both freedoms and entitlements. The freedoms include the right to control one's
health and body, including sexual and reproductive freedom…40”
37
(David Meyer, Suzanne Staggenborg, 1996, p. 1632)
http://www2.ohchr.org/english/bodies/cescr/
39
http://www2.ohchr.org/english/law/cescr.htm
40
(CESCR, E/C.12/2000/4.General Comments, 2000)
38
19
At the same time, the article 11 of the general comments points out the access to healthrelated education and information; “The Committee interprets the right to health (...) as
an inclusive right extending not only to timely and appropriate health care but also to the
underlying determinants of health” including “access to health-related education and
information, including on sexual and reproductive health”41.
Access to health services, education and information are the issue areas mentioned that
State parties are required to remove all the barriers in the realization of women’s right to
health under the article 21 of the General Comment on health.42
Due to the specific legal obligations, the States are under the obligation to respect the
right to health and Article 34 of the General Comments explains that “States should
refrain from limiting access to contraceptives and other means of maintaining sexual and
reproductive health, from censoring, withholding or intentionally misrepresenting healthrelated information, including sexual education and information, as well as from
preventing people's participation in health-related matters.”43
3.2 The Convention on the Elimination of All forms of Discrimination against
Women -1979
Special emphasis regarding women’s right to reproductive choice is an essential issue in
the Convention. CEDAW has a unique characteristic, as it’s the only human rights treaty
that puts emphasis on family planning. Article 10 of the Convention draws attention to the
importance of access to education regarding health and the well-being of families,
comprising information and advice on family planning.44
In terms of elimination of discrimination against women, under the Article 12, measures
related to health are mentioned as follows;
“States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of health care in order to
41
(CESCR, E/C.12/2000/4.General Comments, 2000)
(CESCR, E/C.12/2000/4.General Comments, 2000)
43
(CESCR, E/C.12/2000/4.General Comments, 2000)
44
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article10
42
20
ensure, on a basis of equality of men and women, access to health
care services, including those related to family planning.45”
ICSECR and CEDAW are fundamental human rights treaties in providing legal support for
the issues of reproductive health.46
3.3 International Conference on Population and Development- Cairo
International Conference on Population and Development (ICPD) was held in Cairo /
Egypt in 1994 by United Nations. United Nations Population Fund (UNPFA) and the
Population Division of the UN Department for Economic and Social Information and
Policy Analysis organized the conference with the participation of delegations from 179
states.47
As noted in the work of the Swedish Association for Sexuality (RFSU), “ICPD changed the
world’s perspective on population issues forever.”48 The conference provided the issues
regarding the sexual and reproductive health, to come into focus in the international
arena for the first time. By signing the PoA, the countries promised to improve sexual and
reproductive rights.
ICPD definitions of reproductive health and rights are of crucial importance to human
rights advocacy in terms of sexual and reproductive health issues through NGO’s and
supranational institutions.
ICPD definition of reproductive health;
“Reproductive health is a state of complete physical, mental and
social well-being in all matters relating to the reproductive system
and to its functions and processes. It implies that people have the
capability to reproduce and the freedom to decide if, when and how
often to do so. Implicit in this is the right of men and women to be
informed and to have access to safe, effective, affordable and
acceptable methods of family planning of their choice, as well as
45
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article12
(Zampas, 2004, p. 89)
47
(un.org)
48
(Bergman, 2004, p. 6)
46
21
other methods of their choice for regulation of fertility, which are
not against the law, and the right of access to health-care services
that will enable women to go safely through pregnancy and
childbirth. Reproductive health care also includes sexual health, the
purpose of which is the enhancement of life and personal
relations.”49
Reproductive rights definition of ICPD;
“Reproductive rights embrace certain human rights that are
already recognized in national laws, international human rights
documents and other relevant UN consensus documents. These
rights rest on the recognition of the basic right of all couples and
individuals to decide freely and responsibly the number, spacing and
timing of their children and to have the information and means to
do so, and the right to attain the highest standard of sexual and
reproductive health. They also include the right of all to make
decisions concerning reproduction free of discrimination, coercion
and violence. Full attention should be given to promoting mutually
respectful and equitable gender relations and particularly to
meeting the educational and service needs of adolescents to enable
them to deal in a positive and responsible way with their
sexuality.50”
ICPD Program of Action (POA) is in opposition to promotion of abortion as a method of
family planning and expresses the importance of giving highest priority to prevention of
unwanted pregnancies. Considering the key goals of the ICPD, access to safe abortion had
a special emphasis in the PoA and it was the first time in an international document that
unsafe
abortion
was
described
as
the
major
contributer
to
maternal
mortality.51Paragraph 8.25 as follows;
49
http://www.un.org/ecosocdev/geninfo/populatin/icpd.htm
http://www.un.org/ecosocdev/geninfo/populatin/icpd.htm
51
(RFSU, 2004, p. 18)
50
22
“Any measures or changes related to abortion within the health
system can only be determined at the national or local level
according to the national legislative process. In circumstances in
which abortion is not against the law, such abortion should be
safe52.”
The Chair of the Main Committee at the ICPD Fred Sai, states the objection of the Vatican
and its groups against the term safe abortion as “there was no such thing as safe abortion,
since the fetus always died in any abortion”53and there were countries who refused to
accept the phrase of reproductive health and even did not want to use the word ‘abortion’.
ICPD had expanded its recognition of reproductive health and rights in the international
arena as Bergman notes “Population issues could no longer be treated from a top down
perspective with pre-set goals, but had to be regarded in light of individual’s needs and
rights.”54
The ICPD is not a legally binding treaty so the signatory countries are only morally
binding to the document therefore this situation makes it possible to provide stipulations
in terms of country’s cultural and religious circumstances. Bergman interprets this
situation in two different ways; “This might be interpreted as giving countries an excuse
to avoid striving to attain controversies goals. Or, it may be the only way for the UN to
reach consensus on difficult issues.”55
For international and regional non-governmental organizations ICPD has a vital
importance in advocating reproductive freedom of women all over the world. Bergman
notes that “Also, the ICPD became a global governmental conference where nongovernmental organizations were permitted to play a larger role……Women’s right issues
were in focus in the debate on human rights, and several governments accepted such
organizations as partners.”56
52
http://www.un.org/ecosocdev/geninfo/populatin/icpd.htm
(Bergman, 2004, p. 10)
54
(Bergman, 2004, p. 5)
55
(Bergman, 2004, p. 10)
56
(Bergman, 2004, p. 9)
53
23
3.4 Fourth World Conference on Women, Beijing Declaration and the Platform for
Action-1995
Fourth World Conference on Women: Action for Equality, Development and Peace was
held in Beijing in 1995 and declaration and the Platform for action was adopted in this
conference as a means of women’s empowerment by 194 delegations.57
By recognizing the health impact of unsafe abortion as a major health concern, issues
regarding the abortion and access to safe abortion were remained same in the light of
8.25 paragraph of the ICPD PoA in the article 160 of the Beijing PoA.58
Reaffirming the Cairo’s provisions and definitions, Beijing PoA further advanced the
women’s right platform on reproductive health and Paragraph 96 states;
“The human rights of women include their right to have control over
and decide freely and responsibly on matters related to their
sexuality, including sexual and reproductive health, free of coercion,
discrimination and violence. Equal relationships between women
and men in matters of sexual relations and reproduction, including
full respect for the integrity of the person, require mutual respect,
consent and shared responsibility for sexual behaviour and its
consequences.”59
In general terms, the UN Conferences, ICPD and FCWC had a considerable impact on
international arena by considering reproductive and sexual health issues from a different
angle which is a rights-based approach. Different than the previous demographic
concerns these conferences put forward human rights framework on the agendas by
declaring reproductive and sexual health is part of fundamental human rights.
57
http://www.un.org/womenwatch/daw/beijing/platform/plat1.htm#statement
http://www.un.org/womenwatch/daw/beijing/platform/health.htm
59
http://www.un.org/womenwatch/daw/beijing/platform/health.htm
58
24
4. International Reflections on Reproductive Rights in Poland
International human rights bodies have a crucial importance both for the Polish civil
society in advocating women’s right to have legal abortion. In this part, key aspects that
have been declared through their reports will be given together with the international
reflections on the situation of Poland.
In accordance with the ICESCR, Poland’s conformity to the Convention was criticised in
the 1998 report of the Polish Federation for Women and Family Planning60 to CESCR. The
major element of the report is to demonstrate the impacts of anti-abortion law.
Delegalizing abortion on social grounds had enormous impacts on Polish women
especially to poor and uneducated ones and the law did not stop women to obtain
abortion services but pushed them to look for alternative illegal ways. 61
Another important aspect is criticising the approach of the Polish government which
introduced the restrictive law without having any transitional period that would give time
to polish women to get accustomed to the new order with the help of family
programs.62Inadequate family planning services and access to contraception were
mentioned as the main obstacles that Polish women had to face.
The Government’s attitude towards sex education at schools was another important
aspect, as it was stated in the report “government does not fulfil this task in accordance
with best international standards and practices” Due to the lack of practical sex education
the number of teenage pregnancies grew up which covers 4 per cent of all births in 1994.
The number of births by mothers under 18 was equal to 18.800 births of 481,300 and
20.500 was the number of women at the age of 19.63
60
Polish Federation for Women and Family Planning (FWFP) is one of the leading civil society based organizations
and has been working as a defender of the right to legal and safe abortion in Poland since 1992. Pro Femina
Association, Neutrum (Association for Ideologically Free State), Polish YWCA (Young Women Christian
Association), League of Polish Women, Democratic Union of Women (Pozna Branch), Association (Assistance
Centre for Families) and Family Development Association are the member organizations of the Federation,
which have been advocating reproductive health as a basic human right in Poland. At the same time, the
Federation received the special consultative status with the Economic and Social Council of the United Nations in
1999.
61
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 1998)
62
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 1998)
63
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 1998)
25
Considering the difficult life conditions of poor people, introducing legal regulations
which allows women to make their own reproductive decisions and family planning and
sex education based on international standard to cope with teenage pregnancies were
given as the recommendations by the Federation. Financing family planning services
together with legalization of sterilization as a family planning are the other suggestions of
the civil society.64
The reflections of the CESCR will be given in terms of concluding observations of the
Committee’s on the third periodic report submitted by the Poland government about the
implementation of the Covenant.65
The Committee presents its concerns about the impacts of restrictions of the abortion law
and states “women in Poland are resorting to unscrupulous abortionists and risking their
health in doing so.”66 The second aspect that the Committee shared its concerns was
about the health care system which was lack of providing family planning services and
affordable contraception.67
Under the title of suggestions and recommendations, the Committee emphasizes the
importance of actions to be made to guarantee women’s right to health issues regarding
to reproductive health. Access to family planning services and informative sex education
are the other important aspects mentioned by the Committee under the Article 20.68
In 2002, the Federation submitted another periodic report to be considered by CESCR
during 29th Session in November 2002.69The Federation stressed the commitments of
Polish government regarding to the ICESCR in which sexual and reproductive health and
rights are considered as integral part of the Committee’s obligations.
In this report, General Comments No.14 of the Committee, concerning to substantive
issues emerging in the implementation of the Convention was used by the Federation to
highlight the deficiencies of Poland in meeting the commitments related to sexual and
reproductive rights.70 Removal of barriers in access to health services, sexual education
64
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 1998)
(CESCR, Concluding Observations on Third Periodic Report of Poland, 1998)
66
(CESCR, Concluding Observations on Third Periodic Report of Poland, 1998)
67
(CESCR, Concluding Observations on Third Periodic Report of Poland, 1998)
68
(CESCR, Concluding Observations on Third Periodic Report of Poland, 1998)
69
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 2002)
70
(CESCR, E/C.12/2000/4.General Comments, 2000)
65
26
and contraceptives are the essential parts that the Federation was in need of Committee’s
help to ensure State Parties’ attention.
The Federation expressed their disappointment due to the lack of actions to improve the
situation of women in terms of reproductive and sexual health and adds “Due to lack any
satisfactory policies which would comply with the Concluding Observations of the CESCR,
the situation became even worse than before.”71
In relation to the right to safe abortion services, the Federation puts emphasize on the
difficulties in access to safe abortion in terms of certain circumstances as protected under
the law; “Legal abortion is rarely, if ever, available in public hospitals. In 2001 only 124
legal abortions have been performed in the whole country where there are over 10
million women in reproductive age.”72 The Federation points out the difficulties in
receiving prenatal tests in public healthcare as clinics are reportedly refusing referrals for
these tests on the basis that it could result in a future abortion.73
The Committee embraces the issues regarding sexual and reproductive health in the
articles 28 and 29 of the Concluding Observations in 2002.74 The Committee mentioned
its concerns again on the issues concerning family planning services, no access to
affordable contraception, sexual education and clandestine abortions that arising from
underground abortions.
Under the title suggestions and recommendations, the Committee recommended family
planning services to be provided in the health care system, women’s access to affordable
contraceptives and sexual and reproductive health education to be involved in the
national school curricula in the article 50 of the Concluding observations.75
2009 report of the Federation to the Committee touches on the same aspects as they have
mentioned in the previous reports of 1998 and 2002. Different than the former reports,
the last report focuses on the violations in regards to sexual and reproductive rights. In
relation to restrictions to abortion, denial of the therapeutic abortions, the conscience
71
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 2002)
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 2002)
73
(FWFP, to the UN Committee on Economic, Social and Cultural Rights, 2002)
74
(CESCR, Concluding Observations E/C.12/1/Add.82. , 2002)
75
(CESCR, Concluding Observations E/C.12/1/Add.82. , 2002)
72
27
clause, inaccessibility of abortion owing to criminal grounds, and limited access to
prenatal tests were the leading problems mentioned in the report.
Access to therapeutic abortion is a vital issue considering physicians refusal in giving a
certification even when there is a legitimate basis for such requests. Besides, woman may
encounter problems when she goes to a physician for a service, the validity and
competences of a physician who ordered the certificate would be questioned by the other
physician. FWFP complains not having a guideline to specify threats to a woman’s health
or life.
On the other side, restrictive anti-abortion enforcement had negative impacts not only in
legal abortion services but also in health care services for pregnant women. In such cases
when pregnant woman needs to consider abortion as an option due to health risks she
can face obstacles in receiving the treatment.
The Federation shows the significance of the problem with a case “this phenomenon can
be best illustrated by a case of a 25-year-old pregnant woman from Pila who died of septic
shock caused by sepsis before being fully examined and properly diagnosed by a
doctor.”76 The Federation stated certain examinations to make proper diagnosis were not
executed as the doctors did not want to risk the life of the foetus and the doctors did not
inform the pregnant woman about the threat of her illness.
Conscience clause was given as one of the reasons of restricted access to the therapeutic
abortion. The conscience clause was protected under article 39 of the Act of 5 December
1996 as follows;
“the doctor may abstain from accomplishing medical services
discordant with his/her conscience, (…) nevertheless s/he is obliged
to indicate real possibilities of obtaining the service from another
doctor, or in another medical institution and justify his/her decision
and mention about the refusal in the medical documentation.”77
The Federation laid stress on abuse of conscience clause in terms of therapeutic abortion
supporting the idea that, procedural requirements were not achieved by the physicians
and healthcare institutions, in terms of protecting the rights of patients due to conscience
76
77
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
28
clause. Besides physicians and director of hospitals, anaesthesiologists and auxiliary
medical personnel (midwives, nurses) are also the ones who avoid performing
therapeutic abortions.78
Annual number of legal abortions, due to rape incidents, is another indicator to illustrate
the problems in access to abortion due to criminal grounds. As the Federation stated,
while the official number of abortions performed on criminal grounds were no more than
2-3, in reality unreported rape statistics show several thousand rape cases per year.79
Considering the deadline to obtain a legal abortion in the meantime of 12 weeks of
pregnancy, long procedures were given as an obstacle for woman to terminate pregnancy
in the cases of criminal grounds. The Federation mentions the necessity of offering
emergency contraception or anti-retro retrovirus drug at the police stations to raped
women to minimize the risk of unwanted pregnancy or HIV infection.
Access to prenatal tests in public healthcare is another problematic issue in Poland, as
stated in the 2009 report of the Federation, “Poland ignores the universally accepted age
indication of 35 and have been increased to 40”80 which cut the access of pregnant
women between 35 to 40 to prenatal tests and to use the legal abortion right on the
grounds of fetal abnormality.
Additional to the problems stated in the previous years, in terms of access to
contraceptives, economic reasons poses an obstacle to women to receive doctor’s
prescription due to the costs of private gynaecological visits, as there is no contraceptive
counselling in primary health care system. Moreover, conscience clause emerges again as
an obstacle to contraceptive counselling and especially on emergency contraception.81
In 2009 UN Special Rapporteur Anand Grover, who is working on the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health, paid a
visit to Warsaw and Gdansk. Grover’s observations are crucial to evaluate Poland’s
commitment on sexual and reproductive rights through human rights monitoring system.
Considering the importance of sexual and reproductive health rights as the integral part
of the right to health Grover reminds States’ binding obligation on the matters rising from
78
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
80
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
81
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
79
29
right to health due to the reason the concept of right to health covers issues freedoms,
freedom from discrimination and freedom to control one’s health and body.82
The commitments of Polish Government in regards to Cairo and Beijing Conferences were
reminded by the Rapporteur and expressed his belief in rights based approach to
overcome obstacles and to recognize ‘effective’, ‘equitable’ and ‘evidence based’ policies
in the issues related to sexual and reproductive health.83
The Rapporteur by reminding the Polish Government’s ratification of human rights
treaties conveyed his concerns regarding the problems, women’s access to reproductive
health services, contraception, pre-natal testing and abortion and stated these services
are hindered in Poland.
Grover pointed at the problems in access to abortion even in circumstances abortion is
legal and emphasized;
“A woman’s need to have an abortion is not dependent on whether
abortion is legal or not. However, her access to safe abortion is
impacted by criminalization of abortion. I must emphasize and add
that - when abortions are legal, they must be, apart from being safe,
made accessible.”84
Grover expressed his concerns regarding the lack of information on SRHR among children
and adolescents and criticised the Government’s attitude on access to sexual education
while education for life in the family is taught at schools as a compulsory education but
courses on sexual education are not. Access to evidence-based, scientific and ageappropriate education were given by the Rapporteur that children and adolescents must
have access to.85
One other issue that Grover emphasized uncertainty of extent of illegal abortions and
their impacts on women as the authorities could not provide information on the issue.
82
(Grover, 2010)
(Grover, 2010)
84
(Grover, 2010)
85
(Grover, 2010)
83
30
The estimated number of illegal abortions performed in Poland varies between 80.000
180.000, that the Rapporteur described this situation as ‘very worrying’.86
Considering the delicacy of termination of pregnancy in Poland, Grover first states his
appreciation about Poland’s long and deeply traditions and then states; “question of
abortion raises complex issues for the Government to which there are no quick solutions.
However, these issues need to be addressed.”87 The Rapporteur expressed his belief that
understanding of human rights and enjoyment of highest attainable standard of health
will be promoted with a continuing dialogue.
5. Regional Organizations
5.1 Council of Europe (CoE)
The Council of Europe works towards uniting the Member Countries in the field of
democracy, human rights and rule of law. Recommendations and resolutions have
significant importance even if they are not legally binding like the Conventions ratified by
the Member States of the Council of Europe, they are essential in setting international
standards88.
The report of Committee on Equal Opportunities for Women and Men on Access to Safe
and Legal Abortion in Europe (2008) invites the Member States of the Council of Europe
to take major steps regarding the ban on abortion.
Taking into consideration the variation of abortion practices in the Member Countries, the
concern of the Council is to invite Member States to respect women’s physical integrity
and to control their own bodies. Article 36 states “In this context, the ultimate decision on
whether or not to have an abortion should be a matter for the women concerned, and she
should have the means of exercising this right in an effective way.” 89
The Committee specifies the impacts of ban on abortion, causing clandestine abortions
that are more traumatic and dangerous hence invites the States to decriminalise abortion.
Removing the obstacles that hinder women’s access to safe abortion and respect to
86
(Grover, 2010)
(Grover, 2010)
88
Council of Europe/ webpage/
http://www.coe.int/t/dg4/education/historyteaching/Results%5cAdoptedTexts%5cAdoptedTextsIntro_en.asp
89
(WURM, 2008, p. 8)
87
31
freedom of choice are the points to be considered. At the same time, access to
contraception should be more affordable to the general public and providing compulsory
sex education to spread knowledge among young people to combat unwanted
pregnancies.90
5.2 European Union (EU)
Policies regarding the reproductive health are considered under national health
legislation of the Member Countries in the European Union. EU’s position on the issues
concerning sexual and reproductive health was expressed clearly in the report of
European Parliament Committee on Women’s Rights and Equal Opportunities that voted
to adopt Van Lancker report on sexual and reproductive rights in 2002.
EU puts emphasize on its supportive role through the exchange of practices as policies
regarding the reproductive health are under the sphere of Member States’ competence.
In the resolution, the issues regarding contraception, unwanted pregnancies and abortion,
adolescent sexual and reproductive health and sexuality education, were underlined and
recommendations expressed by the Union.
Effective and responsible methods of family planning, access to contraceptive methods
and fertility awareness methods are recommended by the Union in developing national
policy on sexual and reproductive health. The EU advises Member Countries to provide,
better access to sexual and reproductive health services and contraception choices for
people living in poor conditions.91
In the case of unwanted pregnancies and abortion, the EU stresses that abortion should
not be promoted as a family planning method and unsafe abortion is mentioned as a
major health concern. On the other hand, the EU’s recommendation on abortion is a vital
element that shows the Union’s pro-choice stance as affirmed in the Article 12 of the
resolution was stated; “in order to safeguard women’s reproductive health and rights,
abortion should be made legal, safe and accessible to all.”92
In terms of adolescent sexual and reproductive health and sexuality education, the Union
calls upon the governments of Member States and accession countries to attach
90
(WURM, 2008, p. 8)
(Lancker, 2002, p. 8)
92
(Lancker, 2002, p. 9)
91
32
importance to sexuality education through ‘formal and informal education’, ‘publicity
campaigns’, ‘social marketing for condom use and projects’ and draws attention to the use
of peer educators in sexuality education.93
Van Lancker report touches on the importance of international political and legal
framework and significance of ICPD and FWCW as a turning point of sexuality and
reproductive issues by changing the perception into a human rights framework than a
population growth and demographic policies.94
ICPD and Beijing action programs had a special role in shaping EU’s perspective in the
issues related to sexual and reproductive health. In the events leading up to ICPD, the
European Parliament (EP) attached particular importance to creation of networks,
research and information exchange on reproductive health care. In the meantime, the
Beijing PoA had a major role which urged specific attention to be given to the right to
reproductive health and especially in the areas related to prevention of unwanted
pregnancies and contraceptive use and accessibility of sex education for young people95.
The Van Lancker report had a crucial importance especially in the period before Poland’s
accession to the EU. Sexual and reproductive issues are under the national legislation of
the EU countries, the report was an important attempt to remind accession countries,
which were already the signatories of the UN Conferences, about implementation of the
ICPD PoA and human rights dynamics regarding reproductive health issues.
6. General information on Pro-life and Pro-Choice Discourses
Pro-life and anti-abortion movements are the main counterparts of pro-choice and
abortion rights movements in the abortion debate regarding issues such as the
termination of pregnancy. It is important to mention the perspectives of these two
counter arguments before analysing the contemporary situation of abortion rights in
Poland.
In general terms, the stand point of pro-life activism can be explained as an opposition to
legal abortion, whereas pro-choice activism supports women’s right to have a legal
93
(Lancker, 2002, p. 10)
(Lancker, 2002, p. 13)
95
(Lancker, 2002, p. 13)
94
33
abortion. Anti-abortion movement and its counter movement abortion rights have
different moral grounds in shaping the abortion debate.
Pro –life interest groups are advocates of the right to life, so they take cognizance on
“unborn” than women. According to pro-life activism life begins from the moment of
fertilization and as Woliver noted by naming fetus as “unborn”, it is an identification and
personification of the fetus as an individual from the moment of conception.”96
Woliver puts emphasize on other terms used by pro-life activists other than using fetus
but; “unborn children”, “unborn life”, “prenatal life”, “children in the womb”, “human life
before birth”, “unborn grandchildren”, “viable unborn”, “minor child” and “unborn human
life”.97 The usage of these terms reveals that termination of pregnancy is equivalent to
killing innocent children or as simply as murder from the perspective of pro-life activists.
The most important counterargument of anti-abortion groups is about the definition of
‘life’ as Kaplan asserts these arguments “mostly fiercely promoted in Italy”. This argument
allows women to make a choice about her own life but in case of a pregnancy, women
have no right to decide upon the life of a child. Kaplan cited from Pateman and points out
the definition of life; “medically, ethically, philosophically, and legally no clear definition
of ‘life’, or more aptly independent life, has so far emerged. There has never been
apparently a philosophy of birth98” as Pro-choice lobby states fetus is not yet a child but
an organism with a potential to become one.
Pro-choice groups are the advocates of women’s right to choose. Democracy and rights
issues are the main arguments of the pro-choice movement. As Woliver states,
“Reproductive rights,” “liberty of all women,” “freedom of choice,” “women’s privacy and
liberty,” are the main elements of advocating women’s access to safe and legal abortion in
the pro-choice discourse.99 While pro-abortion lobby have been struggling and advocating
women’s freedom of choice on the other side pro-life lobby have never considered this as
a principled option as Kaplan states; “at no time, however, have any of the many western
96
(Woliver, 1996, p. 7)
(Woliver, 1996, p. 7)
98
(Kaplan, 1992, pp. 50-51)
99
(Woliver, 1996, p. 13)
97
34
European pro-abortion lobbies ever argued that women must have abortions, but instead
they have merely advocated freedom of choice for women”100
7. Case Study of Poland
7.1 The Communist Heritage and its impacts on abortion legislation
7.1.1 Gender dimension of Socialist era
Gender dimension of Central and Eastern Europe (CEE) countries is a crucial aspect both
in the evaluation of social attitude towards women’s rights after the socialist era and in
the process of development of women’s civil movements in advocating the right to have
an abortion.
It is important to understand women’s right in the socialist era in which state power
shaped the attitudes of its people while the cultural norms and conservative backlash
were arisen predominantly in post socialist era. Timár and Fekete note the negative
impacts of social attitudes which were undermined the development of women’s
organizations instead of taking the advantage of new democratization process, due to the
conservative standpoint of the societies and they add Gal’s description who précises the
meaning of feminism in that period as ‘dirty word’ in post socialist societies101.
To get a deeper understanding of socialist ideology on feminism Funk uses a striking
definition of feminism in the communist era; “‘Feminism’ was appropriate by state
socialism to connote spoiled Western women who hated men and could afford the luxury
of indulging themselves in very privileged societies.102”
The perception of socialist state towards gender equality was shaped in terms of women
employment during the communist era. High percentage of women employment was
regarded as the proof of gender equality. On the contrary, women employment was an
obligation of the state due to the economic concerns. Occhipinti portrays the ideal
100
(Kaplan, 1992, p. 51)
(Judit Timár & Èva G.Fekete, 2010, p. 777)
102
(Funk N. , 1993, p. 86)
101
35
socialist woman as “good worker and component professional, a caring mother and wife
and an enthusiastic comrade”103.
Women had to face extensive intervention of the state into their lives, which was a
burden on their shoulders counting the domestic responsibilities too. Ideal and proper
roles determined by the State, women had to live according to the fixed social attitude.
Moreover they were supposed to fulfil all the necessities of their roles as an employee and
as a mother to be an ideal ‘socialist woman’.
Gal and Kligman note “Women’s full time participation in the labour force was dictated by
the state, on which women were more directly more dependent than they were on
individual men.104” The communist system that made women obliged to the rule, did not
give a chance to women to realise and act on the behalf of their possible gender concerns
but on the contrary it spread blind gender sentiments in society.
Focusing on the development of Eastern feminism and women’s civil movement after the
collapse of the rule, ideology of the communist period on feminism and gender issues
continues to be a generally problematic case, especially taking political culture into
consideration.
7.1.2 Changing role of Eastern women in the post-communist era
The collapse of Berlin Wall in 1989, the experience of liberal democracy replacing to state
socialism in the CEE countries was a remarkable turning point for women in the region.
First and foremost, the awakening of the traditional religious norms was a significant
change that shifted the position of women in the social life. The patriarchal structure of
families and its dominance on the lives of women was one of the most crucial aspects that
led to the repositioning of the place of women in the post-socialist societies. Funk
describes changing position of women in the labour market across the CEE Countries as
“…in virtually all post-communist countries there is a tendency towards repositioning of
women away from the work place and into the family105”
103
(Occhipinti, 1996, p. 14)
(Susan Gal and Gail Kligman, 2000, p. 5)
105
(Funk N. , 1993, p. 85)
104
36
Women who had been part of the society as full time employees in the labour market
during the socialist period faced difficulties in holding their jobs due to the transition to
the liberal market economy. Women’s employment facilities turned into shrinking sectors
in comparison to old system the need for women labour started to decrease. Glass
compares the tendency of job loss between men and women in the economic
restructuring, during the transition period, due to the disproportionate growth in jobs
that were used to be female dominated sectors in the socialist period like trade, hotel and
tourism, retail, communications, banking, finance, and educational and health services. On
the contrary, male dominated sectors like manufacturing and industry stayed as
vulnerable sectors106.
Full employment of women in the socialist period was supported by the state assistance
that was compromised of protective maternity, nurseries, healthcare provisions, day-care
centres that enabled women’s full participation in the labour market. Occhipinti notes
that due to the privatization of state day-care centres many of the centres were closed and
even new private day-care centres could provide better services they were not accessible
as in the past but only for wealthy families.107
Considering the challenges that women had to face for their survival in the labour market
like occupational segregations as distinction of feminine and masculine jobs, women’s
lower salaries, discrimination against women with young children, plus the backlash of
family and traditional roles as a social pressure in the societies, decrease of women’s
interaction in the labour market would not be a surprising development. Occhipinti
describes the social pressure on women as “women, struggling to raise a family and hold a
job, face social disapproval and criticism in both roles”108
Occhipinti cited from Zillah who states “women were redirected to the home, but the
home is not being liberalized or democratized.”109 In the time of liberalisation and
democratization of CEE Countries, having no gender dimension in the social, political and
economic transition shows the urgent need of women’s civil society movement for the
preservation of already existing rights and to assist the adjustment of structural
development of women in terms of westernized norms
106
(Glass, 2008, p. 761)
(Occhipinti, 1996, p. 17)
108
(Occhipinti, 1996, pp. 16-17)
109
(Occhipinti, 1996, p. 16)
107
37
7.1.3 Anti-feminist structure of the transition period
Women’s capacity in struggling with the negative impacts of less favoured gender
dimension of the communist and post-communist era is an important aspect in the
evaluation of the need for women’s movements in the period of democratization of CEE
countries.
In this evaluation both the newly formed political culture of the socialist state in the
transition period is an essential figure of the period. The cause and effect relation
between these two periods shows the attitude of eastern women’s reaction to the
dominant position of anti-feminist environment in both of the periods.
After explaining the anti-feminist perspective of the socialist period and the role change
of women in the transition period, in this part it is necessary to assess the Eastern
women’s capacity in their struggle of anti-feminist environment of these two periods
before the renaissance of women’s organizations in the upcoming years.
Acsády states traditional structures of the societies make it difficult to construct a
feminist approach and adds women in Central and Eastern Europe were lacking of a
political group identity as women, “Womanhood does not constitute a “we” group for
them.110” Women considered their own problems as personal; they did not try to struggle
against the unequal position of women in the society.
In relation to political culture of the state socialist period, Acsády links this situation to
two main reasons; first of all due to the ruling of communist party in the region for forty
years from 1949 to 1989, oppositional voices or diverse views were not tolerated. Acsády
put emphasis on the absence of civil society depending on to state socialist heritage of the
region and this condition was not just comprised the women grass root associations but
all kind of civil society movements. The second reason was the position of state socialist
perspective on gender equality which was based on the obligatory participation of
110
(Acsády, 1999, p. 406)
38
women in the labour market. Full employment of women was the solution for the
emancipation of Eastern women in the communist period.111
It is possible to connect this situation with the political culture of the region thus citizens
of the socialist state did not have any gender concerns for a long time. Saxonberg notes for
theorists of the post-communist transition that there is a consensus on disregarding of
gender issues among citizens of Central and Eastern Europe.112
Saxonberg attributes this anti-feminist reaction to three main reasons; first is that the
communist legacy had blocked the progress of a feminist movement. In comparison to
Western women who had to struggle for their right to work, central and eastern women
experienced work as a requirement of the system rather than a privilege. The second
reason is that women enjoyed their role as mothers more than as employees. The third
reason, similar to Gal and Kligman’s who argued that women were more dependent on
the socialist state than individual men, Saxonberg generalized the position of citizens who
saw themselves as being united without a specific gender concern “against the common
enemy: the communists”113.
In the era of democratic transition due to the absence of gender concerns in the postcommunist societies and anti-feminist reaction in the societies, development of women’s
organizations was problematic. Occhipinti notes “the pervasive rejection of a feminist
consciousness, owing to its association with Communist rhetoric, disempowers women in
the political sphere and creates the absence of a progressive voice in society114”
On the other side, women’s return to their home was interpreted by Occhipinti as a
reaction to the ‘double burden’ that they had to face during the socialist period115.
Together with the patriarchal structure of families and the backlash of traditional norms
women were in the middle of two aspects. On the one hand, the new private market did
not give too much of a chance to employment for women and on the other hand their
families who had been in need of mother care for a long time due to the state’s obligatory
employment.
111
(Acsády, 1999, p. 406)
(Saxonberg, 2007, p. 87)
113
(Saxonberg, 2007, p. 88)
114
(Occhipinti, 1996, p. 17)
115
(Occhipinti, 1996, p. 18)
112
39
The structure of the some women’s organizations was shaped according to the antifeminist environment that was dominant in the region. Wolchik states that many of the
registered women organizations in the Czech Republic were concentrated on the
advancement of women’s domestic roles116. At the same time Occhipinti cited from
Einhorn states the concept of women’s right was focused on motherhood over work, in
one of the leading women’s organizations in the Czech Republic, Prague Mothers.117
8. Abortion legislation in Poland
In the previous parts we have seen communist approach to gender concerns which
guaranteed gender equality and women’s empowerment exclusively by women’s full
participation in the labour market. However, there was a crucial difference, comparing
the liberal democratic structure of today’s Poland and Poland in the communist era,
which was women’s legal right to obtain an abortion. In the next three parts, historical
background on Polish abortion rights will be given.
8.1 Liberalization of abortion under the Communist regime- 1956
In 1956 with the liberalization of abortion, the communist regime achieved long-termed
changes in the history of Polish women’s access to legal abortion. Before the communist
regime took the power in Poland, under the Criminal Code of 1932, abortion was only
legal under certain circumstances; if woman’s health and life at risk or pregnancy resulted
from a crime and this law remained in force until 1956.118 On the other hand, it is
necessary to mention, the 1932 law was interrupted for a while in 1942 due to the Nazi
occupations where abortion was made legal.119
The communist rule decriminalized the abortion laws for social reasons in contrast to the
Criminal Code of 1932 that allowed abortion solely on medical and criminal grounds.
116
(Sharon, 1994, p. 11)
(Occhipinti, 1996, p. 17)
118
(Nowicka, Sex Politics: Reports from the Frontlines, p. 169)
119
(Voice for Life)
117
40
In 1959, the Ministry of Health with its special regulation allowed abortion to be practiced
in public hospitals and private clinics on request. With this regulation women did not
need to consult with two doctors to obtain abortion.120
With the legalisation of abortion by the communist regime, women could obtain an
abortion both for medical and social reasons until the end of communist period. Heinen
and Portet explained the reasons for legal abortion due to the instrumentalist and needs
based materialistic approach which means communism did not consider women’s right to
sexual and reproductive self –determination but just aimed to prevent unwanted
pregnancies due to the economic concerns121. Heinen and Portet note that women’s right
to have an abortion was encouraged due to the need of female professional activity and to
alleviate women’s domestic tasks considering the need for work-force in the society.122
Like Heinen and Portet, Nowicka also correlates the reasons of almost 40 years of legal
abortion under communism with the instrumentalist and needs-based approaches of the
communist rule rather than recognizing women’s rights or human rights and adds
“abortion was never a right that women themselves fought for and won as a result of their
struggles”.123
Women who had a right to terminate a pregnancy were under the social pressure against
using their rights due to their strict Catholic ties, abortion continued to be a taboo.124 Still
it was a widely used choice as a means of termination of pregnancy in Poland. Polish
women’s right to have an abortion was a short-term right that disappeared with the end
of the communist rule. But the history of anti-abortion law in Poland stands the test of
time to the last years of communist period which lead us to focus on the role of the
Catholic Church in Poland.
8.2 Anti-abortion Law of 1993
After the overthrow of communism in Polish lands in 1989, one of the first legal
regulations that occurred in the Republic of Poland was against women’s right to obtain
an abortion. Nowicka states the first attempts to challenge the 1956 abortion regulations
120
(Nowicka, Sex Politics: Reports from the Frontlines, p. 169)
(Jacqueline Heinen & Stephane Portet, 2010, p. 1012)
122
(Jacqueline Heinen & Stephane Portet, 2010, p. 1009)
123
(Nowicka, Sex Politics: Reports from the Frontlines, pp. 167-168)
124
(Jacqueline Heinen & Stephane Portet, 2010, p. 1012)
121
41
occurred already during the communist ruling in 1988 and followed by the second
attempt in 1989 before the first democratic elections. “Many members of the anticommunist opposition became actively involved in the anti-abortion campaign which was
strongly supported by the Roman Catholic Church hierarchy and had the personal backing
of Pope John Paul II.125”
The role of medical community had a significant importance in supporting the pro-life
stance. The Ethical Code of Physicians which was adopted by the General Chamber of
Physicians in 1991, led to stop of abortions in the public hospitals.126 They showed their
support even before anti-abortion law was passed.
The Act on Family Planning, Human Embryo Protection and Conditions of Permissibility
of Abortion was passed in January 1993. With this act, Polish women’s right to have an
abortion on social grounds was delegalized. The communist heritage of the right to have
an abortion on the grounds of “difficult life conditions” was abolished.
The anti- abortion law which was passed in 1993 by the liberal government of the
Democratic Union allows for the ability to obtain an abortion just under three
circumstances; if there is a threat to the life and health of the mother due to pregnancy, if
there is a risk of severe and irreversible damage to embryo and if the pregnancy occurred
as a result of rape or incest, besides these circumstances abortion is not permitted on
social grounds as a method of family planning.127
At the same time unlawful termination of pregnancy is subject of Polish Criminal Code,
the law doesn’t include the woman but doctors and anyone else helping a women with
abortion may faces up to three years of sentence.128
Abortion policy has been shaped according to the political view of the ruling government
whether it is a right-wing government or a left-wing government. In 1996 with the return
of social democrats, Sejm liberalized the abortion Act to allow abortion on social grounds
and the act came into force in January 1997. But with the decision of Constitutional
125
(Nowicka, Sex Politics: Reports from the Frontlines, p. 170)
(FEDERA, Poland: Case Study on Legal Instability Concerning Abortion, 2010)
127
(Jacqueline Heinen & Stephane Portet, 2010, p. 1012)
128
(FEDERA, Federation's Cases in Strasburg, 2011)
126
42
Tribunal which asserted that abortion on social grounds was unconstitutional, the
possibility of abortion in social grounds was abolished. Tribunal’s decision was;
“Decision of the Constitutional Tribunal, May 28, 1997: …. A
democratic country under the rule of law gives priority to a man
and the goods must be value to him. Life is a value that in a
democratic country must be constitutionally protected at every
stage…Life is a value protected by a constitution and life in a prenatal stage cannot be differentiated. There are no satisfactorily
precise and proved criteria allowing for such differentiation
depending on the particular stage of human life. From conception,
however, human life is a value constitutionally protected. It
concerns pre-natal stage as well.”129
The tribunal’s decision was accepted by the new elected right-wing government in 1997
and this law is the current abortion law. The current law reflects the Catholic ideology and
Article 38 of the Polish Constitution that guarantees the protection of life as a value which
includes pre-natal stage as well.
According to Polish Federation of Pro-life Movement, the Polish Government set a
precedent by rejecting the abortion legislation and replacing it with a pro-life law in the
conditions of democracy and their hope is that Polish attitude would help to begin a new
trend in abortion law all over the world.130
Czerwinski notes the significant change in the number of legal abortions due to the
restrictive law after the communist period as, “while abortion rates were as high as
199,400 per year under communism, they dramatically fell during democracy from
82,137 in 1989 to only 140 in 2002”131.
To get a deeper understanding of the abortion discourse in Poland, we need to focus on
the political and social power of the Roman Catholic Church. It was the main actor in the
legalisation of anti-abortion law by intervening in the political debate during the postcommunist period of Poland.
129
(Nowicka, Sex Politics: Reports from the Frontlines, p. 171)
(Paweł Wosicki & Antoni Zięba)
131
(Czerwinski, 2004, p. 658)
130
43
9. The Roman Catholic Church and Abortion Discourse
9.1 Importance of the Roman Catholic Church in Poland
The reputation of the Polish Catholic Church in the Polish society is an important aspect
to evaluate because of its influence and dominance in the political and social debates.
Throughout history, due to the foreign occupations that occurred in the 19th century, the
Polish Catholic Church played an important role and became a shelter against the
enemies. Czerwinski explains the Catholic bond with Polish society by their reliance on
the Catholic faith and the Church by virtue of the fact that Catholicism has been an
important aspect to strengthen Polish identity and to rise of country’s stability132.
Heinen and Portet state; “the equation ‘Polish = Catholic’, which appeared in the second
half of the 17th century, took on new significance during the occupation of the country in
the 19th century.133” This equation also shows the link between Polish identity and
Catholic identity that has been bound to each other by connecting that Polish citizens
show their national values and identities with being Catholic.
Another powerful symbol that Polish people has been attaching importance on is Matka
Polka, the ‘Polish Mother’ –mother of God and the nation134”. This symbol displays the
Polish sensitivity towards family paints the crucial figure Matka Polka as “the silent
protector of the family and the guardian of the nation”135 during the foreign interventions
to the country.
The Polish Catholic Church has been an important aspect that helped the Polish nation to
be united against the outsiders in the previous years of Polish history and during the
communist period, their bond to the Church was another way of showing their resistance
against the communist rule. Heinen and Portet note the value of being a Catholic that ties
citizens as a national identity.
132
(Czerwinski, 2004, p. 655)
(Jacqueline Heinen & Stephane Portet, 2010, p. 1008)
134
(Jacqueline Heinen & Stephane Portet, 2010, p. 1008)
135
(Kulczycki, 1995, p. 490)
133
44
“Thus, in the most common representations of Polish people, the
Church was not only considered to be part of the Polish nation, but
the Polish nation. It was and still is regarded as ‘us’ in opposition to
‘them’- the occupiers and the communists.136”
The position of the Church in Poland during the communist period is such an important
factor considering the importance of the Polish citizens’ Catholic identity, to evaluate the
role of religion and the authority of the Church regarding the post-communist abortion
debate.
The autonomy of religion in the CEE Countries, in the course of the communist ruling, was
not same for all the countries. In the Polish case, the Catholic Church preserved its
position in the society and was different than the other countries under the communist
ruling as Czerwinski notes “the Church in Poland retained a significant level of autonomy
and retained total freedom to practice”.137
Lukács also points out the privileged position of the Catholic Church in Poland by
comparing other countries with a communist heritage, saying that despite the fact that
the communist ideology and party system were basically same, but when it comes to
positions of Churches in different countries, it was not the same. Lukács naming the
autonomy of Polish Catholic Church as an extreme example stating “Poland where the
church has always been very strong, with fervent Christian faith and a marked influence
on society (second only to Ireland in Europe)”138
Strong position of the Catholic Church proceeded with the permission of Polish citizens to
practice religion during the communist period. Close relation between the citizens and
the Church helped them to unify against communist rule and the Church managed to
protect its power in society and as Czerwinski notes “the Church gained strength during
period and contributed to the public’s high dissatisfaction of Soviet controlled
institutions.”139
Polish Solidarity movement is an historical movement in the history of Poland that led by
Lech Walesa. Its leading role to end the communist rule in Poland shows the importance
136
(Jacqueline Heinen & Stephane Portet, 2010, p. 1009)
(Czerwinski, 2004, p. 656)
138
(Lukács, 2000/3, p. 97)
139
(Czerwinski, 2004, p. 656)
137
45
of collaboration between the Solidarity movement and the Catholic Church due to the
position and the meaning of the Church to polish citizens. Czerwinski states “Walesa
recognized the Catholic Church’s important role in promoting solidarity and believed
“Solidarity wouldn’t have survived without the Church”.140
With the collapse of communism, the Republic of Poland proved the authority of the
Church with a Concordat signed by the Holy See and the Republic in 1993 and ratified in
1998141. The Concordat admits the role and power of the Church as an indispensable part
of the Polish society.
Considering the religious attitude of the Polish people throughout history, a women’s
right to have an abortion has been a controversial case and just the opposite of Catholic
dogma that Poles had been taught. Even legal abortion right was a new instance for the
Polish citizens within the communist rule, the existing role of the Catholic Church and
Poland’s bond to its dogmas was not a new situation, instead as a resistance against the
communist power the Church went from strength to strength. In the next part the role
and impact of the Catholic Church in terms of issues regarding termination of pregnancy
will be given.
9.2 Transition to Democracy and the Church’s Influence on Abortion Law
The Roman Catholic Church as a leading power of the anti-choice movement in Poland,
therefore the Pro-Life discourse in Poland will be given in this context; as Zolkos noted
“[t]he Pro-Life approach to the abortion issue has been represented in Polish contexts by
conservative and national- Catholic positions142”. Hence to get a deeper understanding of
Pro-Life activities in Poland, we need to clarify the Catholic attitude towards the abortion
concept.
The Catholic belief advocates the concept of the right to life. The Vatican’s 1974
declaration on procured abortion in the Sacred Congregation for the doctrine of the faith
states in the Article 12;
“From the time that the ovum is fertilized, a life is begun which is
neither that of the father nor of the mother, it is rather the life of a
140
(Czerwinski, 2004, p. 657)
(Jacqueline Heinen & Stephane Portet, 2010, p. 1009)
142
(Zolkos, 2005, p. 8)
141
46
new human being with his own growth. It would never be made
human if it were not human already.”143
Article 12 of the declaration supports the idea that a life begun with the fertilization of the
ovum and attaches a crucial importance to respect the new life. Catholic dogma describes
the concept of abortion in terms of divine law and natural reason that rejects any reason
would be an excuse to have an abortion. Article 14 specifies the possible reasons as
follows;
“It may be a serious question of health, sometimes of life or death,
for the mother; it may be the burden represented by an additional
child, especially if there are good reasons to fear that the child will
be abnormal or retarded; it may be the importance attributed in
different classes of society to considerations of honour or dishonour,
of loss of social standing, and so forth.144”
Article 14 of the declaration makes it clear that no reason is admissible to have an
abortion even if a mother’s life in risk. The Catholic dogma proclaims no matter what the
reasons parents have the right to dispose of another’s life even if it is in the embryonic
stage. The Catholic attitude towards the abortion shows once again the importance of the
reactions of Catholic Church against abortion legislation during the communist rule in
Poland.
In the Polish case efforts of the Church in terms of anti-abortion laws dated back to the
communist period. Activities of the Church during the communist period were
establishing the traditional role of woman as a mother in opposition to communist rule.
Solidarność, which was the first independent trade union in Eastern Europe, was
established by the support of Catholic priests and activists spread the perception of
‘women-mother145’
The Church’s attempts to abolish 1956 abortion regulations which had already started in
the last years of the communist era, the Church succeeded to draw more attention to the
143
http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19741118_declarat
ion-abortion_en.html
144
http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19741118_declarat
ion-abortion_en.html
145
(Jacqueline Heinen & Stephane Portet, 2010, p. 1009)
47
case of abortion before the first democratic elections after the collapse of communist rule.
Anti-abortion laws became a sensitive and crucial topic which was used to show loyalty
and respect to the Catholic Church against the communist opposition of the time.
With the introduction of courses on religion, priests had a chance to give lectures at the
schools and thus accelerate their influence on the reconstruction of social norms and
practices. Especially in the case of abortion, priests tried to convince the students to be
the supporters of Pro-life ideology in their early ages. In the interview of Heinen and
Portet with Agniezska Graff states “my students have been educated with films such as
the Silent Scream, showing pictures of embryos during abortion operations.146” Priests’
direct access to school education was an important attempt to change the communist
approach on abortion rights to educate young Polish generations in terms of Catholic
norms and values.
9.3 Accession to EU
In regards to Poland’s accession to the EU there were divisions in the society about the
possible impacts of EU membership. One side considered EU membership would be a
boom in terms of social liberalism where the other side was concerned about the EU
influences on traditional norms and religious values as Gerber explains these segments as
“[t]he discourse of the international gender equality regime is read as foreign, even antiPolish”.147
Issues regarding termination of pregnancy beyond doubt came once more on the public
debate in the period of EU accession. The left wing coalition which came to power in 2001
promised to liberalize access to abortion during the electoral period, preferred to change
their attitude as they did not want to confront with the Catholic Church so they postponed
the debate on abortion as Nowicka states “a position that confirms that women’s rights
were sacrificed for political gain”148.
Jankowksa states the power of Church in the politics after the collapse of communism in
terms of attitude of political parties who have been aware of the power of the Church by
calling themselves ‘Christian’ and putting the principle of “defense of unborn life” into
146
(Jacqueline Heinen & Stephane Portet, 2010, p. 1015)
(Gerber, 2009, p. 36)
148
(Nowicka, Sex Politics: Reports from the Frontlines, p. 185)
147
48
their programs. Jankowska summarized the position of the Church in politics as “the
Church has succeeded in filling the ideological vacuum left after the overthrow of the
Communist regime”149
As mentioned before, EU promotes freedom of choice in regards to reproductive health
and rights. But on the other hand, the EU lacks direct legislation legalizing abortion and
cannot regulate national abortion laws as they are under the mandate of national
administrations. Närlid criticizes EU’s attitude on sexual and reproductive rights as
reproductive health is regarded as a health issue, by giving mandate to the national
authorities and notes “Sexual and reproductive rights are regarded as a health issue
within the EU- and, as such, actually a non-issue, since the mandate in this area is
national.”150
As Czerwinski states “although the Polish government initially agreed to liberalize
reproductive rights upon admission in the EU” contrary to expectations Poland’s EU
accession witnessed a Pro-life success.151 Before the National Referendum on European
Accession, the left-wing government entered a deal with the Catholic Church and as
Nowicka states the government postponed the abortion debate in order to get the support
of Catholic Church for the EU accession.152
Hopes to construct a liberal abortion law turned into a false down as the EU accepted the
government’s demand to preserve reproductive rights under the Polish ‘cultural
exception’. This development knocked all of a heap in the women’s organizations that had
been waiting EU membership as a hope to for the construction of liberal abortion
legislation in Poland. ‘100 Women’s Letter’ which was signed by well- known Polish
women, submitted in a press conference, Nowicka remarks this letter was to “criticize the
left for selling out women’s rights, especially their right to abortion and for making a deal
with the Church behind women’s back.”153 The Open Letter as follows;
"A peculiar agreement has been reached by the Catholic Church and
the government concerning Poland’s admission into the European
Union. Namely, the Church will support integration with Europe in
149
(Jankowska, 1993, p. 292)
(Närlid, 2004, pp. 75-76)
151
(Czerwinski, 2004, p. 659)
152
(Nowicka, Sex Politics: Reports from the Frontlines, p. 185)
153
(Nowicka, Sex Politics: Reports from the Frontlines, p. 185)
150
49
return for the government’s closing the debate on the revision of
the anti-abortion law….[W]women’s rights are bought and sold
behind the scenes of Poland's integration with the European Union.
This is accompanied by a characteristically biased way of speaking.
Protection of unborn life is treated as an objective dogma, while
abortion on social grounds is spoken of in quotation marks and
treated as an ‘ideological’ claim made by feminists, who attempt to
legalize murder. There has recently been an escalation of hate
speech.
Izabela
Jaruga-Nowacka,
the
new
government’s
plenipotentiary for gender equality, who is considering the need to
introduce reliable sexual education at schools and to relax the antiabortion law, has been called by a high Church official, bishop
Tadeusz Pieronek, ‘feminist cement which will not alter even if
treated with acid.’
Reactions to the Open Letter as Graff noted by the Right-wing commentators who called
the letter “a disgrace, a call to murder, while voices from center to left suggested it was a
grave strategic mistake, and clear proof that feminists have no grasp of politics and no
sense of humor (the bishop’s joke about cement had not amused us).”154
From the EU’s perspective, Poland’s accession to the community was interpreted by
Czerwinski as the EU had recognized Poland as a “central player” in its enlargement
plan155 and considered the Poland’s Catholic population, the government could able to
turn the situation on their sake without confronting the relationship with the Church and
protecting the reproductive rights according to Polish cultural expectations. Like in the
previous political transition period, the Polish Catholic Church used the process to its
advantage and proved its position and power once again.
154
155
(Graff, 2003, p. 110)
(Czerwinski, 2004, p. 659)
50
9. Family Planning Services
Family planning services have a crucial importance especially in a country where
restrictive abortion laws are under strict control. Access to sex education and
contraceptives are the major elements which help us to evaluate the contemporary
challenges arising from repudiation of necessary policies of the SRHR. Lack of access to
family planning services in Poland is an important element to cope with in relation to
preventive measures in cases of unwanted pregnancies.
9.1 Access to sex education
Sex education at early ages is one of the important preventive measures in awareness
rising, especially in the cases of teenage pregnancies and sexual health teaching. Sex
education has a vital importance for civil society in Poland where the struggle has been
going on for years against the dominant Catholic teachings in the schools.
This has in turn created an institutionalized setting for socialization of religious beliefs
and pro-life sentiments in the Polish society. Moreover, since the state is obliged to
finance all levels of education with pro-life oriented teachings, Poland is financially
obliged to enter into a form of morally tainted path dependence.156 The Ministry of
Education who has the obligations under the anti-abortion law to introduce sex education
into the school curricula has orchestrated its duties in a ‘’highly unsatisfactory’’ manner,
as stated in the 1996 report of FWFP.157
Furthermore, the FWFP report provides numbers from Maria Trawinska who researched
707 schools and came to the conclusion that “61.7% teachers of primary schools (41% - in
cities, 20.7% in villages), 15% of secondary comprehensive schools and 22.5% of
vocational schools” provide sex education in their curriculum.158 The report was also very
critical of the Ministry’s work given its duties in regard to sex education where the sex
education program provided by the Ministry did not cover any preparatory training
process of teachers or introduction of related text books.159
156
(Nowicka, Sex Politics: Reports from the Frontlines, p. 184)
(FWFP, The effects of the anti-abortion law, 1996)
158
(FWFP, The effects of the anti-abortion law, 1996)
159
(FWFP, The effects of the anti-abortion law, 1996)
157
51
The text books that were provided and which were influenced by the Catholic Church on
family planning, showed to be both inaccurate, biased and bluntly ignored contemporary
knowledge about contraception in the report of Federa and adds “They strengthen
stereotypical convictions about human sexuality. They are particularly harmful since they
are directed to the youngest who are the most vulnerable to propaganda.160”
The problems stated in 1996 continues regarding sex education to be an issue even today
and more issues concerning this area will be mentioned in the chapter further down
regarding human rights.
9.2 Access to contraception
Women’s access to contraceptive methods is an integral part of family planning services
thus counselling and availability of birth control methods are the indispensable features
of a functioning system. Githens and Stetson point out the patterns of communist regime
that the system “permitted abortion while making access to contraceptives difficult” 161
and especially in a system with restricted abortion laws, women’s access to
contraceptives is a primary need to prevent unwanted pregnancies.
The data from the World Health Organization (WHO) presents the frequency of modern
contraceptive methods (the pill, the contraceptive patch, IUDs), which shows the 19% of
Polish women use modern contraceptive methods while the rate in Great Britain is 81%
Italy 38.9% and Romania 29.5%162, women’s access to contraceptives in Poland become
more of an issue.
In relation to frequency of modern contraceptives use, the Federation defines Poland’s situation
as “being departed from European standards in the area of family planning and reproductive
health” and explains this situation in relation to problems in public health care services,
especially limited access to information and counselling and lack of refunding.163
As contraceptive counselling is not included in the public health care system, the health
funds do not compensate contraceptive advice hence private visits to gynaecologists
becomes the only option, on the basis of medical prescription, which increases the costs
160
(FWFP, The effects of the anti-abortion law, 1996)
(Marianne Githens and Dorothy McBride Stetson, 1996, p. 3)
162
(UNDP, 2007)
163
(FWFP, Reproductive Rights in Poland, the effects of the anti-abortion law, March, 2008, p. 34)
161
52
for Polish women and doctor’s requirement for monthly visits to prescription is another
factor that makes women’s access to contraceptives due to the economic reasons.164
On the other hand, as it is stated for various times in the reports of the Federation, many
women have complained about the attitude of private doctors; either doctors are lacking
in information about modern contraceptive methods or they tend to impose their
‘religious based biases’ during the counselling services.165
Higher costs also make women’s access to emergency contraceptives almost impossible,
considering the waiting period for an appointment at private doctor and plus the amount
the patients need to pay for the costs of the pills.166At the same time, voluntary
contraceptive sterilization is illegal both for men and women.167 The impacts of economic
and social barriers exposed to the Polish women in access to contraceptive methods will
be discussed in the next parts.
10. The Impacts of the Restrictive Abortion Legislation
10.1 Illegal Abortions
With the legislation of anti-abortion law in 1993, the termination of pregnancy has
become a chaotic problem that led women to seek alternative ways of abortion services.
“Abortion underground” and “abortion tourism” are the main areas of issue in this regard.
Because abortion is illegal, women in Poland have been seeking out alternative ways of
terminating their pregnancy, which has resulted in women risking their life and health
when seeking out non-official treatment facilities at private clinics.
164
(FWFP, Reproductive Rights in Poland, the effects of the anti-abortion law, March, 2008, p. 34)
(FWFP, Universal Periodic Review of Poland, April 2008)
166
(FWFP, Reproductive Rights in Poland, the effects of the anti-abortion law, March, 2008, p. 34)
167
(FWFP, Universal Periodic Review of Poland, April 2008, p. 5)
165
53
10.1.1 Abortion Underground
Abortion underground or what is called ‘back street abortions’ are common in Poland.
Women’s access to underground abortion has been available through press
announcements.
Federa evaluates the advertisements of individual doctors and cooperatives in both
national and local press, as a proof of developed back street abortion facilities.
‘Gynaecologists - full range of services’, ‘gynaecologist– services’, ‘cheap/modern services
using the vacuum method)’, ‘modern/non-invasion methods of causing a period’, ‘services
for women’ are some of the instances which have being published indifferent
newspapers168.
Underground abortion and abortion services can mainly be found in big cities because the
doctors are too afraid to get caught in smaller cities where the social pressure is larger
and there is a bigger chance of recognition. However, even in the bigger cities, abortions
are carried out when the doctors know that there is a safety-net, assuming that they know
who is getting the abortion and that it is some kind of acquaintance. These decisions are
according the 1996 report initiatives taken for humanitarian reasons or sentiments and
not just for financial reasons. The report quotes an anonymous doctor who stated that: "I
have been performing abortions for a year. In our cooperative there are only two doctors
who do it, the rest are scared. But you cannot send away a despairing woman. This is how
I understand the Hippocratic Oath.”169
The report prepared by Federa in 2008 shows the different attitude towards abortion
underground in 12 years which states back street abortions are mostly carried out by
doctors who have financial priorities Nowicka states “we rarely hear of a doctor who
could terminate a pregnancy for anything other than financial reasons.”170
The quality of the underground abortion services is depended on the price and due to its
illegal character; the cost of abortions is very high. Average prices for illegal abortion
services in 1996 ranging from 400$ to 800$171 shows the delicacy of the matter that
168
(Nowicka, The Anti-Abortion Law in Poland, the Functioning, Social Effects and Behaviours, 2000, p. 11)
(FWFP, The effects of the anti-abortion law, 1996)
170
(Nowicka, Reproductive Rights in Poland, the Impacts of Anti-Abortion Law , 2008, p. 23)
171
(FWFP, The effects of the anti-abortion law, 1996)
169
54
illegal abortion has become a developed market. For this reason, especially for women
without enough financial stability or mainly poor women are forced to take the only
option available, which is trusting non-professional or cheap illegal abortion services.172
10.1.2 Abortion Tourism
Abortion tourism has been used as another alternative way of termination of pregnancy
by Polish women. Considering the low costs, women’s tendency to go to neighbouring
countries have been popular and in the 1996 report of Federa abortion tourism described
as highly developed. Trips to Ukraine, Lithuania, Russia, Byelorussia, Czech Republic and
Slovakia were given as women in these countries were more easily able to obtain an
abortion. In Kaliningrad (Russia) where Polish women could obtain abortion services for
200$, had the chance to get the services for lower prices, but due to bad sanitary
conditions the risk of medical complications were high.173
Regarding the cost of abortion services abroad, women preferred to choose Eastern and
Southern neighbour countries than Western Countries where abortion services were
much expensive but better quality. Holland, Germany, Belgium and Austria were the most
frequently visited countries and where the abortion services cost from 400 through
1.300$.174
Federation’s report touches on a crucial point to represent attractiveness of abortion
tourism for Polish women, by representing information from an anonymous agency that
was organising abortion trips to southern neighbours of Poland. After the law came into
force, the demand for trips to abroad emerged due to the doctor’s refusal to give abortion
services. Agency representative describes the situation in the first months after the law
came into force as follows “At that time in one of the neighbouring countries we could use
the services of 2 private doctor's surgeries, one private clinic, 2 state hospitals, 6
172
(Nowicka, Reproductive Rights in Poland, the Impacts of Anti-Abortion Law , 2008, p. 23)
(FWFP, The effects of the anti-abortion law, 1996)
174
(FWFP, The effects of the anti-abortion law, 1996)
173
55
gynaecologists, 3 anaesthesiologists and several nurses and we facilitated about 220-250
abortions."175
Safety and professional services are the priorities of women who have been in need of
termination of pregnancy in other countries and Poland’s accession to the European
Union can be called as a turning point for abortion tourism. It is possible to classify the
impacts of the EU accession under two circumstances. First one is by removing the
borders, the mobility of Polish women increased, the survey conducted by Federa
presents that clinics in Holland, Austria and Sweden are the only ones that they haven’t
had clients from Poland.176
The second one is the change occurred in the type of trips; abortion tourism has gained an
individual character other than previous organised abortion tourism177. The reason
behind the end of agency based abortion trips is also related to police operations and a
couple of court cases between the years of 1995-1997 which brought the end of an agency
organizing178.
10.2. Access to legal abortion
The Polish Family Planning Act allows women’s access to lawful abortion under three
circumstances; which first two related to therapeutic reasons threat to the life and health
of the mother and a risk of severe and irreversible damage to embryo. And the last one
related to criminal grounds if the pregnancy occurred as a result of rape or incest as
mentioned before.
Even 1993 Law seems to protect the rights of women to terminate pregnancy on
therapeutic and criminal grounds, in practice women’s access to lawful abortion is a
complicated procedure. The Federation defines the 1993 Law as “[t]he anti-abortion law
is much stricter de facto that it is de jure”179 due to the denials of termination of
pregnancies of women who are entitled to legal abortion.
175
(FWFP, The effects of the anti-abortion law, 1996)
(Nowicka, Reproductive Rights in Poland, the Impacts of Anti-Abortion Law , 2008, p. 26)
177
(Nowicka, Reproductive Rights in Poland, the Impacts of Anti-Abortion Law , 2008, p. 26)
178
(Nowicka, The Anti-Abortion Law in Poland, the Functioning, Social Effects and Behaviours, 2000, p. 14)
179
(FWFP, to the Human Rights Committee, 2004)
176
56
In this part stories of R.R and Tysiac will be presented whose cases were appealed to the
European Court of Human Rights (ECHR).
10.2.1 Tysiac Case
Alicja Tysiac was a mother of two children at the time when she got pregnant for the third
time in 2000 and had been suffering from serious vision impairment and degeneration of
the retina since her childhood.
In the publication of the Federa, Contemporary Women’s Hell- Polish Women’s Stories,
where she told her experiences, Tysiac explains the reasons why she was in need of
termination of pregnancy; due to her health conditions and her financial problems cause
her husband and she both unemployed and living in a one-room flat without central
heating, she says “I did not feel I had the strength to give birth to a child, and I did not
want to.”180 Tysiac wanted to use to right to legal abortion for health reasons and her
condition was classified as a second-degree disability before the labour.181
Tysiac could not get the certificate, which was necessary for termination of pregnancy
from ophthalmologists as the doctor stated he was not sure of the certainty that her
pregnancy would lead to blindness. But then the general practitioner, whom she called
‘brave enough to provide a certificate’,182 issued the certificate due to the additional
dangers of her third caesarean. However, Tysiac’s right to have legal abortion was
hindered by Doctor D. who was working at the gynaecology and obstetrics clinic, who
stated there were no contraindications for continuing the pregnancy and the decision was
taken without examining the patience or consulting other doctors. 183
Tysiac was forced to give birth to a child and after the labour she was classified as a
person with a first-degree disability and she requires constant care and support of
another person in her everyday assistance. 184
180
(Tysiac, 2005, p. 9)
(Tysiac, 2005, p. 9)
182
(Tysiac, 2005, p. 9)
183
(Tysiac, 2005, p. 9)
184
(Tysiac, 2005, p. 9)
181
57
After a long struggle with the District and National Medical Practitioners Boards, her
investigation was closed as they didn’t find any failures on the part of the doctor then she
decided to file a complaint at the ECHR with the support of the Federa and Centre for
Reproductive Rights (CRR).
Tysiac claimed the violation of Article 8 of the European Convention on Human Rights
(ECHR). As stated in the Article 67 of the Court decision;
“Her right to due respect for her private life and her physical and
moral integrity had been violated both substantively, by failing to
provide her with a legal therapeutic abortion, and as regards the
State’s positive obligations, by the absence of a comprehensive legal
framework to guarantee her rights.”185
ECHR proclaimed its final decision on 20th of March 2007, deciding Poland’s violation of
Article 8 of the Convention and Poland is urged to pay compensation to Tysiac. Article 8 of
the Convention as follows;
1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”186
Tysiac’s Case witnessed the counterarguments on termination of pregnancy between prochoice and pro-life groups and their statements make it clear how these two groups
evaluate the Article 8 of the Convention in a different way. In the case Pro-choice side was
supported by CRR, Federa and the Polish Helsinki Foundation for Human Rights (HFHR)
while the Forum for Polish Women and the Association of Catholic Families were on the
side of Pro-life arguments.
As it is stated in the Article 91 of the Court’s final decision, in their 2005 submission HFHR
and FWFP, defended inadequate access to therapeutic abortion and physician’s attitude
185
186
(CASE OF TYSIĄC v. POLAND, 2007, p. 15)
(CASE OF TYSIĄC v. POLAND, 2007, p. 15)
58
towards issuing a certificate in Poland and in the cases which a patient obtains a
certificate the validity and the competence of the certificate are questioned which causes
getting a certificate after the time-limit for obtaining a legal abortion.187 Regarding the
current practice of legal abortion in Poland pro-choice group stated; “as regards the
application of the guarantees provided for by section 4a of the 1993 Act ran counter to
the requirements of Article 8 of the Convention.”188
On the other hand, the Forum for Polish Women argued in their submission in 2005 based
on the idea that human life has to be legally protected at all stages of development, they
don’t consider pregnancy belonged exclusively to the sphere of private life; “Even
assuming that the legal issues involved in pregnancy could be assessed under Article 8 of
the Convention, the States could enact legal restrictions in the private sphere if such
restrictions served the aim of protecting morals or the rights and freedoms of others.”189
The Forum for Polish Women also supports the idea in regards to applicable Polish
legislation, there is no right to have an abortion and they do not except the exceptions
stated in section 4a of the 1993 Act which gives women the legal right to abortion and
states;
“This provision had not conferred on a pregnant woman any right
to abortion, but only abrogated the general unlawfulness of
abortion under Polish law in situations of conflict between the
foetus’s right to life and other interests. In any event, the mere fact
that abortion was lawful in certain situations, as an exception to a
general principle, did not justify a conclusion that it was a solution
preferred by the State.”190
Moreover, Pro-life group supports physician’s attitude and not performing an abortion on
grounds of conscience clause and states; “a patient could not bring a doctor to justice for
refusing to perform an abortion and hold him or her responsible for deterioration in her
health after the delivery.191” The second Pro-life group, the Association of Catholic
Families mentioned that “the applicant had erred in law in her contention that the
187
(CASE OF TYSIĄC v. POLAND, 2007, p. 20)
(CASE OF TYSIĄC v. POLAND, 2007, p. 21)
189
(CASE OF TYSIĄC v. POLAND, 2007, p. 21)
190
(CASE OF TYSIĄC v. POLAND, 2007, pp. 21-22)
191
(CASE OF TYSIĄC v. POLAND, 2007, p. 22)
188
59
Convention guaranteed a right to abortion” supporting the idea that the Convention did
not guarantee such a right but Article 2 of the Convention guaranteed the right to life.192
10.2.2 R.R Case
RR, pregnant to her third child, had an ultrasound and a cyst on the fetus’s neck was
detected during the 18th week of her pregnancy in February 2002. But additional tests
were needed to define the severity of the situation since the cyst would be a sign of fetal
malformation. RR needed to have a genetic screening and her struggle to get a genetic
screening took 8 week, at that time, she saw 16 doctors, underwent 5 sonograms, and
hospitalized twice.193 But regrettably her demand was refused even she was legally
entitled to genetic testing.
During her visit to Dr. KSz who lived 150 kilometres away from her home, she had
another ultrasound and the doctor concluded that the fetus could have Turner or Edward
Syndrome, but prenatal genetic testing was essential to diagnose the disease precisely.
But the doctor informed her that he could not perform the tests or provide her a referral,
in order to get the insurance coverage she would have to find a doctor from her region.
Dr. KSz advised her to go to a hospital and state she was in need of emergency care if she
could not get a referral. At the end of 5 week struggle, RR could able to get genetic testing
in her 23rd week of pregnancy and she had to cover the costs herself even the service was
under her insurance plan. It was the 25th week of her pregnancy when she finally could
get the results with concerns of genetic abnormalities; RR sent a written request to a
public hospital for termination of pregnancy for two times. But at time she was told that it
was too late for legal abortion and in July 2002 RR gave birth to a baby suffering from
Turner Syndrome. Moreover, RR’s gynaecologist gave negative and hurtful statements
about her in a press interview in 2003.194
RR started her legal actions in Poland and first sought to file a criminal case against the
doctors but the District Prosecutor ceased the investigation on the grounds there were no
crimes had been committed and as stated by Federa “the Court upheld the prosecutor’s
decision, rejecting her claim that the doctors were acting as public agents who were
192
(CASE OF TYSIĄC v. POLAND, 2007, p. 22)
(FWFP, Polish Federation for Women and Family Planning, 2011)
194
(FWFP, Polish Federation for Women and Family Planning, 2011)
193
60
obliged to protect her rights.”195 Her second attempt was to file a civil case against the
doctors and hospitals and RR was awarded a relief due to the attitude of her
gynaecologist who violated her rights by publishing confidential information about her
private life.196Like in the Case of Tysiac, RR filed a complaint to the ECHR with the help of
Federa, University of Warsaw Law Clinic and the CRR.
The woman’s right to respect for private and family life which is protected under the
Article 8 of the Convention was violated by Poland as the pregnant woman had been
denied reliable information and prevented from deciding about the continuation of her
pregnancy. The Court stated in the article 214 of the final decision; “the authorities failed
to comply with their positive obligations to secure to the applicant effective respect for
her private life and that there has therefore been a breach of Article 8 of the
Convention.”197
The Court’s verdict on Poland’s violation of the Article 3 of the Convention (prohibition of
inhuman or degrading treatment) was interpreted by CRR as a ‘ground-breaking’ decision
as for the first time in the history, the Court passed such a decision in an abortion related
case.198Due to RR’s struggle during her pregnancy the Court stated “the applicant’s
suffering reached the minimum threshold of severity under Article 3 of the
Convention.”199
Another crucial point addressed by the Court for the first time was about the State’s
regulation on the practice of conscientious objection in the cases where patients are
entitled to receive health care services.200 In article 206 the Court states, the freedom of
conscience does not encompass “each and every act or form of behaviour motivated or
inspired by a religion or a belief” and reminds states obligation to organise the health
services “in such a way as to ensure that an effective exercise of the freedom of conscience
of health professionals in the professional context does not prevent patients from
obtaining access to services to which they are entitled under the applicable legislation.”201
195
(FWFP, Polish Federation for Women and Family Planning, 2011)
(FWFP, Polish Federation for Women and Family Planning, 2011)
197
(Case of R.R.v.POLAND, 2011, p. 49)
198
(CRP, 2011)
199
(Case of R.R.v.POLAND, 2011, p. 35)
200
(CRP, 2011)
201
(Case of R.R.v.POLAND, 2011, pp. 47-48)
196
61
10.2.3 P. and S.v Case
ECHR announced its judgement on 30th of November 2012 on the case of P. and S.v Poland
Case.202 This case is the latest development at the ECHR regarding access to abortion in
Poland.
Different than the other cases at the Court, P. and S.v Case shed lights on the difficulties in
access to abortion in the events of rape which was granted by the Polish law. At the same
time this case involves the issues regarding teenage pregnancies as the applicant who
became pregnant at the age of 14 as a result of rape by her classmate in 2008.
As required by the law, P. obtained a certificate from the public prosecutor in order to
exercise her legal right to have an abortion as her pregnancy resulted from unlawful
sexual intercourse. Although the applicant P. had the relevant document she had been
denied legal abortion. She was taken to see a Catholic priest by the head of the
gynaecological ward of one of the hospitals to convince her to carry the pregnancy.
Moreover mother S. was requested to sign a consent form due to the reasons that a
possible abortion could lead to P.’s death. 203
P.’s pregnancy came up against the interest of Polish media that various articles were
published on local and national newspapers and became a subject of discussions on the
internet due to the press release issued by the Lublin Hospital stating they would not
terminate the pregnancy. Besides the public pressure about P.’s pregnancy she was also
taken to juvenile shelter according to the decision by Lublin Family Court as the mother S.
was accused of forcing her daughter to have an abortion. After staying one night at the
juvenile shelter due to pain she was taken to a hospital where she stayed for one week P.
could terminate her pregnancy finally through a clandestine operation, after having
complained to the Ministry of Health.204 The Federation notes that due to the national
media attention they received an intervention from the Ministry and added; “most
women, whose cases would not be public, would not experience same ministerial
support.”205
202
(P. and S.v.Poland Chamber Judgement, 2012)
(P. and S.v.Poland Chamber Judgement, 2012)
204
(P. and S.v.Poland Chamber Judgement, 2012)
205
(FWFP, to the UN Economic, Social and Cultural Rights, 2009)
203
62
Like in the previous cases, the case of P and S. v. was committed to the ECHR with the
involvement of Federa from the very beginning of the case. 206The sentence of the Court
announced the violations of Article 8 of ECHR in terms of right to respect for private life
and family life in terms of “the determination of access to lawful abortion in respect of
both applicants (by six votes to one) and as regards the disclosure of the applicants’
personal data (unanimously).”207
Depending upon the Article 5 § 1 of the Convention, the Court determined the violation of
right to liberty and security in respect of P. and the violation of Article 3 in terms of
prohibition of inhuman or degrading treatment again in respect of P.
The Court ordered the Polish state to pay 30,000 euros (EUR) to P. and 15,000 to S. in
respect of non-pecuniary damage and 16,000 euros to be paid to both applicants in
respect of costs and expenses.208
The statement of S. after the decision of the Court shows the importance of pro-choice
support in their fight to justice as the Federa was the only organization asked for
assistance and S. states that the Federation made it possible her daughter to exercise her
rights in an atmosphere in her own words “What we experienced later was hell for us and
we faced complete insensitivity of everyone except the Federation for Women and Family
Planning.”209 S. stated her hope that “their case would empower women and show them
that there are organizations that can help them” at the same time she hopes “the
government to understand violating women’s right and its consequences”210.
11. Latest Developments
206
(FWFP, ECtHR Judgment in P. and S. v. Poland Case Announced, 2012)
(P. and S.v.Poland Chamber Judgement, 2012)
208
(P. and S.v.Poland Chamber Judgement, 2012)
209
(S., 2012)
210
(S., 2012)
207
63
2012 autumn witnessed important parliamentary and social debates concerning
reproductive rights in Poland. When abortion became a continuing political debate with
the collapse of communism, 20 different draft bills were sent to the Parliament.211
The latest developments were the continuation of events from last year when a pro-life
civic initiative gathered more than 100.000 signatures for a total ban of abortion which
was rejected in the Parliament by 5 votes. On the other side, “The Bill on conscious
parenthood and other reproductive rights” was prepared by pro-choice civic initiative but
failed to collect enough signatures to bring the bill to Parliament last year.212
On 26th of September, the Polish Parliament voted on two draft bills concerning
reproductive rights in Poland. The first bill’s purpose was to liberalize the current
abortion law which was submitted to the Parliament by Palikot Movement Party and the
second bill submitted by conservative, right wing party Solidary Poland for a total ban of
eugenic abortions.
The Bill on conscious parenthood and other reproductive rights was an attempt to
liberalize the current abortion law and to make it possible abortion legal in all
circumstances up to 12 weeks. Articles 4, 6, 7 and 8 refer the contemporary problems
which cover sexual education, access to contraception and access to legal abortion.213
Article 4
1. Government administration bodies and local authorities guarantee the realization of
reproductive rights.
Article 6
1. A subject under the name of "knowledge of human sexuality" shall be introduced in the
school curriculum, with a minimum of one 45-minute class per week.
Article 7
1. Government administration bodies and local authorities shall ensure that everyone,
notwithstanding their capacity to perform acts in law, has access to methods and means
of contraception.
Article 8
1.
Every woman has a right to terminate her pregnancy during the first 12 weeks.
2.
Every woman has a right to terminate her pregnancy after the first 12 weeks if:
211
(FWFP, Two draft bills regarding abortion debated on September 26th by the Parliament, 2012)
(ASTRA, 2012)
213
(FWFP, Two draft bills regarding abortion debated on September 26th by the Parliament, 2012)
212
64
1)
The pregnancy imperils the life or health of the pregnant woman;
2) There is a high likelihood of severe and irreversible impairment in the fetus or an
incurable, life-threatening disease;
3)
The pregnancy results from an unlawful act.
CRR, working as an international human rights non-governmental legal advocacy
organization, showed their support to the draft bill with a press release before the voting
and stated the importance of the bill “conscious parenthood” as; “it is the first Polish bill
ever introduced that addresses sexual and reproductive health rights broadly and
recognized reproductive rights as human rights”.214
At the same time the CRR sent a statement to the Polish Parliament in urging the
Members to support the conscious parenthood bill;
“The Centre strongly urges the Polish Parliament to support the Bill
as it is necessary to ensure the basic reproductive rights of Polish
women. If adopted this law would yield widespread positive
outcomes for women's health and wellbeing and thus for the
wellbeing of the Polish population in its entirety.”215
In addition to statement of the CRR, Members of the EP and a group of Swedish
Parliamentarians showed their support to the bill with letters to the Polish Parliament.
Regardless the support from international arena and pro-choice activists in Poland, the
attempt to liberalize current law was of no use. Civil Platform, Polish Peasants Party, Law
&Justice and Solidary Poland rejected the draft bill while Democratic Left Alliance and
Palikot’s Movement were only the supporting parties to the liberalization of abortion law
that comprised of 70 MPs.216
This adverse event announced with a title “Black Day for Polish Women” by Federa.
Additionally the rejection of the draft bill interpreted by the strongest pro-choice
organization in Poland as; “It means that this battle for liberalization of abortion law is
over”217
214
(CRR, Polish Parliament Deliberates Groundbreaking Sexual and Reproductive Health Bill, 2012)
(CRR, Letter to the Marshall of the Sejm of the Republic of Poland, 2012)
216
(FWFP, Black Day for Polish Women, 2012)
217
(FWFP, Black Day for Polish Women, 2012)
215
65
Contrary to the attempt to liberalize the abortion law, the other draft law debated at the
Parliament aimed at having more restrictive abortion law in cases of serious fatal damage.
Conservative, right wing party Solidary Poland (Solidarna Polska), proposed total ban of
eugenic abortions which means; “a high likelihood of severe and irreversible impairment
in the fetus or an incurable, life-threatening disease of fetus will be no longer implication
for abortion”.218The attempt of the ring wing party failed, 245 MPs were against and 184
were in favour to the law.219
12. Analysis
Transition period from authoritarianism to liberal democracy and EU accession are the
major historical events in the last twenty years of Poland which direct us to cause and
effect relation between the time periods retrospectively on the grounds of path
dependence.
The research questions in this work were set in order to allocate the reasons of not
applying liberal abortion legislation and the impacts of the current law to Polish women’s
health and rights.
Research findings section addresses the issues concerning the status of abortion
legislation and its impacts on Polish women. In this sense, the developments that have
been mentioned in the previous chapters will be critically evaluated, according to
historical dimension.
Theoretical consideration is the section where Polish way of abortion legislation will be
discussed according transition theory, the concept of political culture and movement and
counter movement theories.
12.1 Research Findings
Reproductive culture and practices of the communist period are essential elements of
understanding the Polish attitude in the transition period. First of all, policies on abortion
were built on needs-based approach other than rights based approach in the period of
communism.
218
219
(FWFP, Two draft bills regarding abortion debated on September 26th by the Parliament, 2012)
(FWFP, Polish Sejm Against Further Abortion Restrictions, 2012)
66
Decriminalization of the abortion laws for social reasons, contrary to previous Polish
system, made access to termination of pregnancy easy; especially considering free
practices in public hospitals. Hence this method became so common regarding women’s
easy access to abortion services therefore abortion considered as the primary means of
birth control.
Full employment of women was an integral entity of the socialist system in an
atmosphere where State’s intervention to women’s lives was prevalent together with the
domestic responsibilities of women, no matter how the state contributed to women’s
daily life in terms of protective maternity, nurseries, healthcare provisions and day-care
centres. Abortion was a broadly used method that women used to fall back upon,
considering the poor family planning services of the communist period.
The Communist ideology and its impacts on the basis of not structuring rights-based
approach in women’s reproductive issues became obvious especially in the transition
period. Transition period in a society where the absence of gender concerns were evident,
the dramatic change took place with the backlash of traditional norms and values in the
Polish society.
The abolishment of Soviet style abortion policies was used as a reaction to the
authoritarian rule especially in a country where national identities were identified with
being a Catholic citizen; the restructuring of dominant and traditional political culture in
the Polish lands was an urgent need from the perspective of newly elected government.
Repositioning of women, away from the labour forces back to home in the transition
period, can be described as the last straw with traditional and cultural norms coming into
light. The overall picture describes the refusal of women’s participation in the labour
market which led women to remember their traditional roles as mothers.
With the transition of economic, social and political aspects in the polish society, the antifeminist position of the post-communist societies can also be explained in terms of a
reaction to pre-dominant power of the communist ideology and the emergence of
traditional and religious values.
At the same time, the communist regime without real gender based concerns in the
period of ruling facilitated the Church’s target, as in social bases there were no
67
established gender equality norms and women’s movement to advocate reproductive
rights of Polish women.
The period of transition from totalitarian rule to democracy with the collapse of
communist state was an essential instance for the Pro-Life movement in Poland. The role
of Catholic Church during the Solidarity movement and afterwards with the Concordat
signed by the Holy See and the Republic of Poland, the Catholic Church became more
powerful.
The end of communism which was a crucial step to democracy and respect to human
rights in CEE Countries, contrary to what is believed; women’s right to have legal abortion
was one of the first subject areas where restrictive measures were taken by the Polish
State.
The existing laws on the termination of pregnancy and its consequences have crucial
importance in regards to impacts to women’s lives in Poland. Contemporary problems can
be classified in two dimensions; first one is related with the restrictive abortion
legislation and its impacts, second one is the implementation of the existing law, which
allows Polish women’s access to legal abortion on grounds of medical and criminal
reasons.
The construction of restrictive abortion laws has not limited the need of abortion but on
the contrary it opened to road to illegal abortions. Abortion underground and abortion
tourism have been the alternative ways of terminating unwanted pregnancies while
women have been forced to put their life and health under risk. Women’s access to illegal
abortions is also depended on the financial stability of families which leaves poor women
without any option to non-professional or cheap illegal services.
Issues concerning reproductive health and rights have been emphasized by the
international and supranational institutions, especially by changing the perspective about
the issues regarding women’s health and its human rights dimension by UN and Council
of Europe. In a world where commitments of the States, especially on the issues more
related with human rights have been guaranteed by international agreements, Poland’s
attitude on women’s reproductive rights have been drawing reactions in the international
arena.
68
International legal framework puts forward respect to human rights and realization of the
commitments of the signatory countries. Poland as a signatory of ICSECR promised to
guarantee right to health with the Article 12 and access to health related education and
information, comprising sexual and reproductive health.
Moreover, Poland is a signatory country of CEDAW which has a specific characteristic
putting stress on family planning. In regards to international agreements and the
commitments have been made in the international arena, the impacts of the restrictive
abortion law are contradictory with the current situation in Poland as the country has
ratified a number of international human rights treaties on the enjoyment of the right to
health and to improve Polish women’s reproductive health and rights.
Cairo and Beijing Conferences and their Program of Actions concentrated women’s right
to have control over and decide freely and responsibly on the issues regarding sexual and
reproductive health and even if the documents are only morally binding, Poland is a
signatory country of these conferences’ program of actions. Sex education and women’s
access to contraceptives are the issues which were mentioned by the action plans that
Poland has been lacking necessary implementations. As stated for many times in the
judgements of ECHR and reports of CSECR, the State’s responsibility is very essential on
the issues in terms of access to sex education and contraceptives, especially in a country
where restrictive abortion legislation has been in practice.
At this point, Poland’s accession to the EU, which means accepting and implementing
liberal norms, did not change the abortion legislation of the country. Despite the fact that,
Poland is a signatory country to the program of actions of Beijing and Cairo, which the
Union trusts, but unfortunately commitments are not the proofs of compliance to the
program of actions.
While the existing laws on termination of pregnancy is so clear in restricting abortion on
social grounds, women’s access to legal abortions is such a controversial issue, when it
comes to access to legal abortions. The three cases that had been appealed to ECHR are
the evidences of difficultness in access to legal abortion and the unclear legal framework
of abortion legislation in Poland. The cases of Tysiac and R.R set examples of women who
tried to use their legal rights on the basis of therapeutic reasons. Tysiac’s case was related
69
with a threat to the life and health of the mother who had been suffering serious eye-sight
problems, her labour resulted with first-degree disability on her eye-sight.
On the other side R.R’s case was connected the situations when there is a risk of severe
and irreversible damage to the embryo, which is a right protected under the Polish law,
but her demand to get prenatal genetic testing was refused until the 23rd week of
pregnancy and the time when she got the results it was too late to perform legal abortion
so she was forced to give birth to a baby who was suffering from Turner Syndrome.
The cases of Tysiac and R.R are instances of the violation in relation to Article 8 of the
Convention which protects the women’s right to respect for private and family life, as
both of them had been denied reliable information about their health conditions and
barriers were put to decide about the continuation of their pregnancies.
At the same time, these two cases highlight the problems arising from conscience clause
which gives doctors the right to ‘abstain from accomplishing medical services discordant
his/her conscience’ and which shows that the doctors had been given an option not to
perform therapeutic abortions. Doctor’s perspective on abortion is more superior to the
women’s health and conditions considering the acts of Criminal Code. The attitude of
ECHR, regarding the State’s regulation on the practice of conscientious objection is also a
striking example that the Court draws attention to and remarks the inappropriate
behaviours of doctors in shaping their attitudes in accordance with their religious beliefs.
The case of P. and S.v was another striking case as an example of barriers in accessing
legal abortion in the cases of unlawful sexual intercourses. Despite the fact that, the
applicant to the ECHR had the chance to terminate her pregnancy after a long standing
effort, her case can be defined as a proof that pro-life involvement works as a barrier
against the use of legal rights in termination of pregnancies. In a case where the mother of
14 years old girl was being accused of forcing her own daughter to use her legal right, the
victim was put under the exposure of the Priest and even made her stay in a shelter,
which shows the severity of connection between the medical and religious personnel in
their pro-life struggle.
In the cases of R.R and P. and S.v, besides their struggle to overcome the obstacles in
reaching their legal rights, another important issue was the attitudes of the doctors who
judged the patient’s demands to terminate their pregnancies and made their stories
70
public. This attitude is also the proof of dominant pro-life atmosphere and the possible
impacts of the criminal code, doctors try to prove their pro-life stance as a selfjustification. But on the other hand, these three cases shows the efficiency of pro-choice
support in the situations when women are lacking the support in relation to violations of
their rights.
12.2 Theoretical Considerations
Theoretical framework is an essential element of understanding the reasons behind the
developments in an elaborate way with the help of appropriate theoretical aspects. The
research questions of the thesis were constructed according to a historical framework,
which makes the critical evaluation of the abortion legislation first on the grounds of
change in abortion legislation with the transition from authoritarian rule to democracy.
The second aspect is recognized in relation to regulation of restrictive abortion legislation
and its impacts in a democratic country.
First of all, to understand the attitudes of right-wing governments and the Catholic
Church as the actors that have been shaping the pro-life sentiments in Poland, the concept
of political culture is one the most essential factors. Considering the definition of Almond,
political culture is an essential factor in the explanation of political and structural aspects
in relation to attitudes, beliefs and values.
In this sense, Brown’s distinction between official and dominant or national political
culture becomes prominent in understanding the political culture of Poland, especially in
the subject area of abortion legislation which is closely related with norms and values.
The official political culture of the communist rule which shaped the norms and values of
the authoritarian rule in Poland between the years of 1945 to 1989 is an essential factor
in understanding the attitudes of Poland in the transition period.
The official political culture promoted termination of pregnancy as a family planning
method and moreover abortion became the first option that Polish women considered
during the rule. Promotion of abortion as a family planning method was completely in
opposition to the dominant Polish political culture.
71
The equation Polish = Catholic stated by Heinen and Portet is such a crucial factor in
understanding the norms of national political culture of Poland, in which religion played a
significant role and helped the Polish citizens to be united against the outsiders during
history. Matka Polka, the Polish Mother has been the role that Polish women gained as a
Catholic identity concurrently with Polish identity.
Considering role of the Church in the Solidarity Movement, the Church involved and
supported the process of ending authoritarian rule and its role in reshaping the national
political culture, the Church had already gained power in the restructuring of political
structures. The description of Heinen and Portet ‘the Church not being a part of the Polish
nation but the Polish notion’ defines the foregone conclusion of pro-life involvement in
the abortion legislation of the democratic Republic of Poland.
The tendency of Polish citizens in showing their national identities with being Catholic
and their strong ties to the Catholic Church made Church’s work to reconstruct the
dominant political culture in relation to women’s reproductive rights in the light of
Catholic dogma much smoother.
As mentioned by Jović, transition theory was seen as a trend in changing the structures of
the countries from one phase to another, namely from backward phase of
authoritarianism to liberal democracy. Indispensable figures of democratic transition are
‘progress and development’ instead of ‘regression or repeating the same’ in their
adjustments to new liberal system but Poland’s attitude on the abortion legislation shows
the contrary.
Abortion issue has been a subject matter in Poland that is associated with the dominant
political culture which is based on the Catholic values and norms. This fact presents the
reaction in applying liberal norms especially in the areas that have been so connected
with traditional norms and values but at the same time legal abortion had been a subject
matter which was brought to the country due to the foreign occupations, both by Nazi and
Communist rule, it was never been something related to Polish political culture. Instead,
the foreign policies of authoritarian regimes were seen as a threat to the polish people
and its national political culture which is directly related to Catholic identity.
72
Structural approach of transition theory emphasizes the significance of political cultures,
social structures and social conditions and this link shows us that the democratic
transition helped to restructure national political culture in Poland.
In the light of institutional context-oriented structure of transition theory, it is possible to
evaluate the political power of the Church as a leading body in structuring and shaping
the anti-abortion law. At the same time, considering the importance of ‘confined context’
as a tool which shows the parameters of political actions of the pre-existing confined
leaders, transition was a big opportunity that helped to the Church to gain its power
again.
Transition to democracy has opened a way to civil society movements; especially for
women’s social movements. The rebirth of civil society movements is an essential entity
in understanding the developments regarding women’s reproductive health and rights
and the capacity of Pro-choice activism in defending reproductive rights. Fuszara defines
social movement theory as attacking the structure of the power by protesting the existing
values and norms; civil society movements are important dynamics in the evaluation of
the current situation in Poland.
Meyer and Staggenborg point out the necessity of opponents of challenging movements
other than the State, in regards to movement-counter movement interaction which direct
us to the position of abortion rights and anti-abortion activists in the Polish case.
Taking
into
consideration
author’s
explanations
on
the
mobilization
of
a
countermovement, pro-life activism created its own opposition and transition period
made way for pro-choice movement as a response to the original movement. As
mentioned before, the subject area of this thesis makes us to follow a retrospective
perspective considering the interrelated links of the institutions, ideas and actors in terms
of path dependence.
From the beginning, pro-choice movement were in an inferior position in contrast to the
dominant environment of pro-life movement. Pro-choice movement in Poland has been
filling the gap as an advocator of women’s reproductive health and rights and considering
the anti-feminist approaches of the national political culture; their struggle has been an
important dimension against the pro-life national political culture.
73
Supranational organizations and international agreements has been providing basis for
the pro-choice organizations. Especially the restrictive abortion laws and impacts to the
women’s reproductive health and rights are the grounds of their activism.
Meyer and Staggenborg draw attention to the state intervention in the conflicts between
the movement and countermovement interactions. In the Polish case, the right-wing
governments have been on the side of pro-life movement while in principle left-wing
governments seems to be on the side of pro-choice lobby. But in practice, the power of the
Church has been a disincentive factor of putting pre-electoral commitments into practice.
The attitude of the left-wing government before the accession to EU was a remarkable
proof of the dominant pro-life environment in Poland which causes a real disappointment
on the pro-choice side.
The impacts of national political culture emerge as a barrier to implement rights based
approach which argues for a fetus’ rights other than women’s rights. Poland’s accession to
the EU confirmed the pro-life stance one more time with the EU’s approval of Poland’s
‘cultural exception’, in contrast to its pro-choice standpoint. Integration with the EU did
not help to construct the liberal abortion legislation on the contrary it showed the
supremacy of the pro-life ideology once more in the Polish history.
Another important dimension of pro-choice struggle in Poland can be defined by
considering the dominant power of national political culture. Barriers in developing civil
society movement during the communist period in comparison to current situation, had
provided at least ‘more liberal abortion legislation’ to Polish women. But with the collapse
of communist rule, the liberally oriented country restricted its women’s right to terminate
pregnancy while transition to democracy opened the way to civil society movement
which created a strong pro-choice lobby, that have been advocating Polish women’s
reproductive rights.
12.3 Conclusion
Termination of pregnancy has been a controversial subject matter in Poland that involves
political and social conflicts in its own sphere. The Act on Family Planning, Human
Embryo Protection and Conditions of Permissibility of Abortion, dated back to 1993 and
74
which brought restrictive abortion regulations to Poland that is still in the center of the
debate with its divisions regarding women’s right to have abortion.
The latest developments concerning the two draft bills voted in September 2012 by the
Polish Parliament are the indicators of the on-going debate on abortion in Poland. The
intention of the pro-life lobby is to have more restrictive abortion legislation with a total
ban of eugenic abortions, can be interpreted in relation to the power that they get from
dominant norms and values. On the other hand, the impacts of the restrictive abortion law
on women’s health does not seem be to be taken into consideration by the pro-life lobby.
The cases that had been appealed to ECHR and reactions from international lobby haven’t
resulted in any changes from abortion legislation or even to construct a clear legal
abortion framework, which would stop unnecessary suffering of women who are entitled
to legal abortion on medical and criminal grounds.
13. Final Words
The fact of the matter is reproductive rights are human rights and individual freedom
requires in this case the freedom of choice. Unfortunately the religious dogmas and the
history of authoritarian occupations have shifted the scientific grounds of into moral
elements of the polish society and its political world.
Hopefully the future holds rights-based approach in a democratic country with my trust
to pro-choice lobby and their endless efforts towards change and advocating women’s
rights. It might finally happen.
75
Bibliography
CASE OF TYSIĄC v. POLAND, 5410/03 (European Court of Human Rights March 20, 2007).
Case of R.R.v.POLAND, 27617/04 (European Court of Human Rights May 26, 2011).
P. and S.v.Poland Chamber Judgement, 57375/08 (European Court of Human Rights Novemeber 30,
2012).
Acsády, J. (1999). Urges and Obstacles: Chances for Feminism in Eastern Europe. Women's Studies
International Forum, Vol.22, No.4, 405-409.
Alexander L.George, Andrew Bennett. (2005). Case Studies and Theory Development in the Social
Sciences. London: The MIT Press.
Almond, G. (1983). "Communism and Politcal Culture Theory". Comparative Politics, Vol. 15, No. 2,
127-138.
Archie Brown and J.Gray eds. (1979). Political Culture and Political Change in the Communist States .
London : Macmillan .
ASTRA. (2012, 2012 26). Polish Parliament to Debate Two Draft Bills Regarding Access to Abortion
Today. Retrieved 12 01, 2012, from astra.org.pl.
Baldez, L. (2003). Women's Movement and Democratic Transition in Chile, Brazil, East Germany and
Poland. Comparative Politics, 253-272.
Bergman, Y. (2004). ICPD Changed the World in Passion for Rights, Ten Years of Fighting for Sexual and
Reproductive Health. Stockholm: The Swedish Association for Sexuality Education.
CESCR. (1998). Concluding Observations on Third Periodic Report of Poland. Geneva: UN.
CESCR. (2000). E/C.12/2000/4.General Comments. CESCR.
CESCR. (2002). Concluding Observations E/C.12/1/Add.82. . CESCR.
Collier, RB and Collier,D . (1991). Shaping the Political Arena: A Critical Junctures, the Labor Movement
and Regime Dynamics in Latin America. New Jersey: Princeton University Press.
CRP. (2011, June 01). Center for Reproductive Rights. Retrieved October 16, 2012, from
reproductiverights.org: http://reproductiverights.org/en/feature/poland-a-victory-of-firsts
CRR. (2012, 09 26). Letter to the Marshall of the Sejm of the Republic of Poland. Retrieved 12 02, 2012,
from reproductiverights.org:
76
http://reproductiverights.org/sites/crr.civicactions.net/files/newsletter/CRR_letter_to_Sejm_E
NGLISH.pdf
CRR. (2012, 09 26). Polish Parliament Deliberates Groundbreaking Sexual and Reproductive Health Bill.
Retrieved 12 02, 2012, from reproductiverights.org: http://reproductiverights.org/en/pressroom/polish-parliament-deliberates-groundbreaking-sexual-and-reproductive-health-bill
Czerwinski, A. (2004). Sex,Politics, and Religion: The Clash Between Poland and the European Union
over Abortion. Denver Journal of International Law and Policy, 653-674.
David Meyer, Suzanne Staggenborg. (1996). Movements, Countermovements and the Structure of
Political Opportunity. The American Journal of Sociology, 1628-1660.
Eisenstein, Z. (1993). Eastern European male democracies: A Problem of Unequal Equality. In N. F.
Mueller, Gender Politics and Post Communism: Reflections from Eastern Europe and the
Former Soviet Union. New York: Routledge.
Europe, C. o. (n.d.). Council of Europe. Retrieved 10 01, 2012, from
http://www.coe.int/t/dg4/education/historyteaching/Results%5cAdoptedTexts%5cAdoptedTe
xtsIntro_en.asp
FEDERA. (2010, 11 25). Poland: Case Study on Legal Instability Concerning Abortion. Retrieved 01 04,
2013, from federa.org.pl:
http://translate.google.se/?hl=sv&q=sex+education+and+contraception+vikipedia&bpcl=4009
6503&biw=1517&bih=714&bav=on.2,or.r_gc.r_pw.r_qf.&um=1&ie=UTF8&sa=N&tab=wT#auto/en/Poprawiony%3A%20czwartek%2C%2025%20listopada%202010%20
09%3A41
FEDERA. (2011, 06 13). Federation's Cases in Strasburg. Retrieved 08 25, 2012, from federa.org.pl:
http://federa.org.pl/dokumenty_pdf/Strasburg2/Strasburg_cases_poland.pdf
Flyvbjerg, B. (2006, April ). Five Misunderstandings about Case- Study Research . Qualitative Inquiry ,
pp. 219-245.
Funk, N. (1993). Feminism and Post Communism. Hypatia, 85-88.
Funk, N. (1993). Introduction Part . In F. &. Mueller, Gender Politics and Post-Communism (pp. 1-14).
New York: Routledge.
Fuszara, M. (2005). Between Feminism and the Catholic Church: The Women's Movement in Poland.
Sociologický ústav AV ČR, 1057-1075.
FWFP. (1996). The effects of the anti-abortion law. Warsaw: Federa.
FWFP. (1998). to the UN Committee on Economic, Social and Cultural Rights. Warsaw: Federa.
FWFP. (2002). to the UN Committee on Economic, Social and Cultural Rights. Warsaw: Federa.
FWFP. (2004). to the Human Rights Committee. Warsaw: Federa.
77
FWFP. (2009). to the UN Economic, Social and Cultural Rights. Warsaw: FEDERA.
FWFP. (2011, June 13). Polish Federation for Women and Family Planning. Retrieved October 16, 2012,
from federa.org.pl:
http://federa.org.pl/index.php?option=com_content&view=article&id=723&Itemid=172
FWFP. (2012, 11 10). Black Day for Polish Women. Retrieved 12 02, 2012, from federa.org.pl:
http://www.federa.org.pl/index.php?option=com_content&view=article&id=963:black-dayfor-polish-women&catid=107:october-2012&Itemid=183
FWFP. (2012, 10 30). ECtHR Judgment in P. and S. v. Poland Case Announced. Retrieved 11 25, 2012,
from federa.org.pl:
http://federa.org.pl/index.php?option=com_content&view=category&layout=blog&id=78&Ite
mid=114&limitstart=3
FWFP. (2012, 10 25). Polish Sejm Against Further Abortion Restrictions. Retrieved 12 02, 2012, from
federa.org.pl:
http://federa.org.pl/index.php?option=com_content&view=article&id=1019:polish-sejmagainst-further-abortion-restrictions&catid=78:news&Itemid=114
FWFP. (2012, 09 28). Two draft bills regarding abortion debated on September 26th by the Parliament.
Retrieved 12 01, 2012, from federa.org.pl:
http://www.federa.org.pl/index.php?option=com_content&view=article&id=950:2-draft-billsregarding-abortion-debated-today-by-the-parliament&catid=78:news&Itemid=114
FWFP. (April 2008). Universal Periodic Review of Poland. Warsaw: FWFP.
FWFP. (March, 2008). Reproductive Rights in Poland, the effects of the anti-abortion law. Warsaw:
FEDERA.
Gerber, A. (2009). The letter versus the spirit: Barriers to meaningful implementation of gender
equality policy in Poland. Women's Studies International Forum, 30-37.
Glass, C. M. (2008). Gender and Work during Transition: Job Loss in Bulgaria, Hungary, Poland, and
Russia. East European Politics and Societies Vol.22 No.4, 757-783.
Gou, S. (1999, July/August ). Democratic Transition: A critical Overview. Issues and Studies 35, pp. 133148.
Graff, A. (2003). Lost between the Waves? The Paradoxes of Feminist Chronology and Activism in
Contemporary Poland . Journal of International Women's Studies , 100-116.
Grover, A. (2010, 10 26). UN Special Rapporteur Anand Grover's Visit to Poland, Press Release.
Retrieved 21 12, 2012, from federa.org.pl:
http://www.unhchr.ch/huricane/huricane.nsf/view01/F1269CA5311CDAF3C12575B50041AEB
E?opendocument
Haynes, J. (2005). Comparative Politics in a Globalizing World. UK: Polity Press.
78
J.Sodaro, M. (2008). Comparative Politics s Global Introduction . New York: McGraw-Hill Higher
Education.
Jacqueline Heinen & Stephane Portet. (2010). Reproductive Rights in Poland: when Politicians fear the
wrath of the Church. Third World Quarterly , 1007-1021.
Jankowska, H. (1993). The Reproductive Rights Campaign in Poland. USA: Women's Studies Int.Forum.
Jezerska, Z. (2003). Gender awareness and the national machineries in the countries of Central and
Eastern Europe. In S. M.Rai, Mainstreaming gender, democratizing the state? Institutional
mechanisms for the advancement of women (pp. 167-183). New York: Manchester University
Press.
Jolanta Plakwicz & Eleonora Zielinska. (1994). Poland. In B. R. Eggert, Abortion in the New Europe (pp.
199-213). London: Greenwood Press.
Jović, D. (2010). Problems of Early Post-Communist Transition Theory: From Transition from to
Transition to. Crotian Political Science Review, Vol 47 No.5, 44-68.
Judit Timár & Èva G.Fekete. (2010). Fighting for recognition: feminist geography in East- Central
Europe. Gender, Place & Culture, 775-790.
Kaplan, G. (1992). Contemporary Western European Feminism. UK: UCL Press.
Kulczycki, A. (1995). Abortion Policy in Postcommunist Europe: The Conflict in Poland. Population and
Development Review, 471-505.
Lancker, V. (2002). Report on Sexual and Reproductive Health and Rights (2001/2128 (INI)). Brussels:
European Parliament.
Life, V. f., & Voice for Life, V. (n.d.). Polish Federation of Pro-Life Movement. Retrieved 01 04, 2013,
from How The Law Protects Life:
http://www.prolife.com.pl/upload/how_the_low_protects_life.pdf
Lukács, L. (2000/3). Religion and Media. Concilium Religion During and After Communism, pp. 97-105.
Marianne Githens and Dorothy McBride Stetson. (1996). Abortion Politics, Public Policy in CrossCultural Perspective . New York : Routledge .
Närlid, M. (2004). Double Agenda in the new Europe in Passion for Rights, Ten Years of Fighting for
Sexual and Reproductive Health . Stockholm: RFSU.
Nowicka, W. (2000). The Anti-Abortion Law in Poland, the Functioning, Social Effects and Behaviours.
Warsaw: FEDERA.
Nowicka, W. (2008). Reproductive Rights in Poland, the Impacts of Anti-Abortion Law . Warsaw:
Federa.
Nowicka, W. (n.d.). Sex Politics: Reports from the Frontlines. Sexuality Policy Watch.
79
Nyström, J. (2004). The Opposition-how they work in Passion for rights, ten years of fighting for sexual
and reproductive health. Stockholm: RFSU.
Occhipinti, L. (1996). Two Steps Back?: Anti- Feminism in Eastern Europe. Anthropology Today Vol.12,
No.6, 13-18.
P.Petchesky, R. (2002). Human Rights, Reproductive Health, and Economic Justice: Why They are
Indivisible. In e. Holmstrom, The Socialist Feminist Project, a Contemporary Reader in Theory
and Politics (pp. 74-82). New York : Monthly Rewiev Press.
Paweł Wosicki & Antoni Zięba. (n.d.). How the Law Protects Life, the Polish Way to the Right to the
Right to Life Law. Poznan: Polish Federation of Pro-Life Movement.
RFSU. (2004). Passion for Rights Ten Years of Fighting for Sexual and Reproductive Rights. Stockholm:
RFSU.
Rucht, D. (1999). The Transnationalization of Social Movements: Trends, Causes and Problems. In H. K.
Ed.Donatella della Porta, Social Movements in a Globalizing Word (pp. 206-222). London:
Macmillan Press Ltd.
S., S. O. (2012, November 02). Federa. Retrieved 11 25, 2012, from federa.org.pl:
http://federa.org.pl/index.php?option=com_content&view=article&id=1030:statement-ofapplicants-after-ecthr-judgment-in-p-a-s-v-poland-case&catid=78:news&Itemid=114
Saxonberg, S. (2007). Post-Communist Welfare Attitudes: Was Czech Exceptionalism a Myth? East
European Quarterly, XLI, No.1, 81-115.
Sharon, W. (1994). Women and the Politics of Transition in the Czech and Slovak Republics. In M.
Rueschemeyer, Women in the Politics of Post-Communist Eastern Europe. London : ME Sharpe
Inc.
Skrobacki, W. A. (1986, October). Political Stability and Political Culture: a Comparative Study of the
USSR and Poland. A Thesis Submitted to the Univeristy of British Columbia. Canada.
Susan Gal and Gail Kligman. (2000). The Politics of Gender After Socialism. UK: Princeton University
Press.
Tysiac, A. (2005). Contemporary Women's Hell- Polish Women's Strories. Warsaw: FEDERA.
un.org. (n.d.). Retrieved 08 10, 2012, from http://www.un.org/ecosocdev/geninfo/populatin/icpd.htm
UNDP. (2007). Health of Women in Procreational Age 15-49 Report 2006. Warsaw: UN.
Vennesson, P. (2008). Case Studies and process tracing: theories and practices. In D. d. Keating,
Approaches and Methodologies in the Social Sciences (pp. 223-239). Cambridge: Cambridge
University Press.
Waylen, G. (2009). What Can Historical Institutionalism Offer Feminist Institutionalists? Manchester:
PSA Annual Conference.
80
Woliver, L. R. (1996). Rhetoric and Symbols in American Abortion Politics . In M. G. Stetson, Abortion
Politics, Public Policy in Cross-Cultural Perpective (pp. 5-28). New York : Routledge.
WURM, G. (2008). Report on Access to Safe and Legal Abortion in Europe. Strasbourg: Council of
Europe.
Zampas, C. (2004). Reproductive Rights are human rights in Passion for Rights, Ten Years of fighting for
sexual and reproductive health. Stockholm: RFSU.
Zielinska, E. (2000). Between Ideology, Politics, and Common Sense: The Discourse of Reproductive
Rights in Poland. In G. &. Kligman, Reproducing Gender, Politics, Publics and Everyday Life after
Socialism (pp. 23-57). New Jersey: Princeton University Press.
Zolkos, M. (2005). Human Rights and Democracy in the Polish Abortion Debates. Essex Human Rights
Review 3, 1-21.
81