Safe Abortion: A WHO Technical Consultation

To develop Technical and Policy Guidance for Health Systems
18-22 September 2000
Geneva

Ethical Considerations on Anti-Abortion Law
Poland
 Wanda Nowicka

The following discussion paper on ethical considerations on anti-abortion law in Poland aims to present the multiple ethical issues and concerns around the anti-abortion law which affected strongly the autonomy of women by limiting substantially access to reproductive health services including safe abortion. The paper touches upon the ethical issues that have been raised during discussions that preceded and followed the introduction of this law as well as the issues that appeared during the law’s implementation. The paper intends also to address some implications of such regulations on women’s well-being, self-determination and other human rights.

In 1993 significant changes concerning women’s reproductive rights were introduced in Poland. The Polish Parliament passed an anti-abortion law called the Act on family planning, human embryo protection and conditions of permissibility of abortion. Under the Act, abortions on social grounds were delegalized. In practice, it meant that women in difficult life conditions, including financial situations, could not legally have abortions. The anti-abortion law was liberalized shortly in 1996 (enforced in 1997) to allow abortion until the 12th week of pregnancy if ”a woman is in hard life conditions or in difficult personal situation”. The law was restricted again in 1997 (enforced in 1998) by the 1997 Parliament in response to the Constitutional Tribunal’s decision holding that abortion on social grounds is unconstitutional. The Tribunal justified its decision on the ground that Poland is a democratic state of law, which it interpreted as meaning the protection of life at every stage. Although Article 38 of the Polish Constitution includes the vague provision of legal protection of life of every human being, the Tribunal’s decision and its justification comprised to be a major over-interpretation of the Constitution’s provision by many prominent lawyers.

The Federation for Women and Family Planning has been monitoring the implementation of the law since its very inception. The 2000 report will be published very soon. The main findings of the report are:

This conclusion is also supported by official data. According to the 2000 Government report on the implementation of the law on family planning, which is carried out on a yearly basis, in 1999 only 151 legal abortions were performed in public hospitals in the entire country, which constitutes 1/2 of abortions performed in 1998. Such numbers are striking, particularly if we realise that in Poland there are almost 9 million women of reproductive age and family planning is practised to a limited extent. Low numbers of official abortions indicate the existence of many barriers in service provision of legal abortion.

This situation has been notified by two UN Committees monitoring the implementation of human rights treaties – the Committee on Economic, Social and Cultural Rights and the Human Rights Committee. In considering the periodic reports of the Polish government both Committees raised concerns about the human rights implications of such law.

Concluding Observations of the Committee on Economic, Social and Cultural Rights (1998):

12. The Committee notes that the recent imposition of legal restrictions on abortion have excluded economic and social grounds. The Committee expresses its concern that because of this restriction, women in Poland are now resorting to unscrupulous abortionists and risking their health in doing so. The Committee is also concerned that family planning services are not provided in the public healthcare system so that women have no access to affordable contraception.

Concluding Observations of the Human Rights Committee (1999)

11. The Committee notes with concern: (a) strict laws on abortion which lead to high numbers of clandestine abortions with attendant risks to life and health or women; (b) limited accessibility for women to contraceptives due to high prices and restricted access to suitable prescriptions; (c) the elimination of sexual education from the school curriculum; and (d) the insufficiency of public family planning programmes. (Arts. 3, 6, 9 and 26)

The State party should introduce policies and programmes promoting full and non-discriminatory access to all methods of family planning and reintroduce sexual education in public schools.

The introduction and the de facto implementation of the anti-abortion law have raised many ethical problems affecting primarily women but also medical professionals. Certainly the situation of women under the law – the limited reproductive choices they have, health dangers and psychological traumas they experience as a result, and lower access to adequate services they are entitled to – raise a variety of ethical concerns. Medical professionals, on the other hand, who have direct contact with this issue, are exposed to many challenges, limitations and choices as well as temptations, with which they are often not able to cope in agreement with ethical standards.

Debates on abortion - ethical issues

Historical background

Before the new law was introduced there had been emotional public debates lasting almost four years in the name of ethics and morality.

Abortion had been legal in Poland since 1956 and abortion services were widely available, both in public hospitals free of charge and in private clinics on a fee-basis. When the public debate on anti-abortion law started in 1989, the gynaecologists were increasingly stigmatised as those who make fortunes performing abortions. They became isolated within the medical community. That was one of the reasons why they kept silent with little exceptions during all the debates on abortion.

Women, on the other hand have been portrayed as reckless and irresponsible citizens, who treat abortions as another form of birth control and do them carelessly one after another.

Other arguments used by the opponents to liberal abortion regulations were based on the assumption that such law is a remnant of the communist system and it should be withdrawn because Poland is building a new democratic system.

Another argument used by anti-choice groupings was based on demographic reasons – the birth rate is low in Poland and systematically decreasing. This argument continues to be quite appealing, although the up-to-date practice of the anti-abortion law shows that birth rates are systematically decreasing in spite of restrictive regulations in place.

Medical Code of Ethics

Since the early nineties the medical community was influenced strongly by the Roman Catholic Church. That is certainly one of the reasons why the medical community, even before abortion was restricted by state law, got involved in anti-abortion policy and campaigns. In 1991 during the Extraordinary National Assembly of Physicians, the Medical Code of Ethics was adopted. The Code adopted a strong anti-abortion position, according to which only abortion to save a woman’s life and health and abortion on criminal grounds were ethically accepted.

Since such a statement was apparently at that time against Polish law - abortion was still legal – the Polish Ombudsman for Human Rights asked the opinion of the Constitutional Tribunal whether such a Code is in agreement with Polish law. The Constitutional Tribunal confirmed the contradiction of the Code with Polish law; however, it abstained from assessing of its ethical substance. As a result, the Code was changed in 1993 (effective from 1994), and although presently it includes only the general provision of a doctor’s responsibility for the transmission of human life, the anti-abortion law was at that time in force and there was no need to mention limitations to abortion in the Medical Code of Ethics.

Moreover, the Medical Code of Ethics includes respect for human rights, including the right of the patient to participate in decision-making concerning her/his health, obliges the doctor to provide full information about modern fertility regulation to those who are interested. The practice shows that not all doctors comply with the Code.

Attitudes towards abortion

While analysing what has happened in the medical community, it seems quite obvious that in spite of all the divergent attitudes, the opinionated medical establishment promotes the concept of abortion which complies with Catholic teaching that abortion is per se highly immoral.

According to this position, one predominant opinion is justified, i.e. to protect the foetus’s life. Women’s autonomy, integrity and well-being are not treated with equal value. The life situation of a woman, even the most difficult one, is not seen as sufficiently justified ethical grounds for abortion. According to this position, keeping pregnancy in spite of everything is seen as the only justified and ethical position. Many physicians believe that by keeping an unwanted, unplanned pregnancy a woman would behave responsibly and will bear due consequences; abortion is seen as an irresponsible, immature act. Quite often physicians choose paternalistic and judgmental attitudes towards women, give themselves the right to moralise, influence women’s decisions and tell them what they should do.

Even those doctors who are more sensitive to a woman and her problems, usually want to pass their own responsibility related to abortion onto someone else, and they send her away to another doctor. They usually do not want to engage much with the woman and do not want to know what she will do. One of the interviewed doctors ,when asked about his own attitude towards abortion, said that he is in favour of the restrictive law, because before he had to talk to a woman about what she was going to do; now he can just say that abortion is forbidden by law, and for him, the whole issue is over.

Practical implications

Conscientious objection

According to Polish law, physicians can refuse to perform abortion on the grounds of conscientious objection. However, they have to refer a woman where she could get services to which she is entitled. The rule of conscience clause does not apply in life-threatening situations.

Nota bene some Polish physicians practice the conscience clause also to refuse prescribing contraception.

a) Individual level

The experience of the Federation shows that the conscientious objection clause and the way it is exercised in Poland have become a significant barrier to accessing services by women to which they are entitled. Physicians do not see that access to certain reproductive health services is a patient’s right. Their main concern and bias is to protect their right to deny services they perceive as unconditionally unethical. Moreover, those physicians who do not want to perform abortions or prescribe contraception by themselves, usually do not refer women to other doctors. They often behave as if their main goal is not to individually object to the service, but to make sure that a woman does not receive the much-desired service at all. For such behaviour, they do not bear any legal or professional consequences.

At present no system of referral exists and there is no institution which will secure women’s rights to services or will build such a referral system to guarantee that every woman in need of legal abortion will have access to adequate services. Complaint procedures have not been established and women have no place to go to make formal complaints.

b) At the hospital level

It also happens quite often in Poland that conscientious objection is ”practised” by the entire hospital, not by individual doctors, which opposes the individuality-based concept of the conscience clause. If the head of a particular hospital is against abortions, he declares on behalf of the whole personnel that abortions are not performed in this hospital. Individual doctors who have different opinions will never speak in favour of abortions, because they do not want to risk losing their jobs. Doctors participating in the two studies by the Federation confirm that such practices exist to a great extent. However, without more in-depth study, it is hard to assess whether doctors realise simultaneously that their right to professional self-determination is also infringed upon.

This phenomenon was most visible in 1997, when abortion law was liberalised for one year to allow abortions on social grounds. Decision-making bodies of many regions (including former voivodships Katowice, Tarnów, Poznań, Rzeszów, Kraków, Suwałki, Nowy Sącz) declared that their hospitals do not perform abortions on social grounds. What is striking is that many testimonies show that, for example in the Katowice region, illegal abortions were widely available in the underground and were performed by the same doctors, who refused to perform abortions in public hospitals on the grounds of the conscience clause. Such a situation raises serious ethical concerns.

It also happened in some places that doctors willing to perform legal abortion could not do it because nurses or midwives or even anaesthesiologists objected.

These examples clearly demonstrate how conscientious objection can be abused by the system and that the conscience clause plays an important role in further limiting women’s access to abortion services to which they are entitled.

Objections to family planning

Family planning is another area where doctors often object, which is particularly questionable in the context of illegal abortion and further limiting women’s reproductive health options. Denying contraception and endangering women for unwanted pregnancy when abortion is illegal is perceived generally as unethical. In 1999 the public opinion was shocked by a story of a woman who was denied a prescription for contraceptive pill by a gynaecologist in Warsaw. He behaved in an offensive way and did not refer the woman to another doctor. The woman-in-question made a complaint to the Medical Court, which did not find her claim justified. The doctor was found guilty and received reprimand only for making offensive remarks towards other doctors who prescribe modern contraception.

Almost at the same time the Medical Journal (Gazeta Lekarska) published an article by the Head of Medical Court, who fully justifies the position of doctors who do not prescribe contraception. He argued that contraception is not a cure, therefore doctors are not obliged to prescribe it; and since doctors’ right to the conscience clause is much older and better grounded than patient’s rights, doctors are fully entitled to deny contraception if they believe it is wrong for women. These two examples show clearly that such attitudes of many doctors in Poland are fully supported by medical establishment and are in agreement with their policy, although they are against the provisions of the above-mentioned Medical Code of Ethics.

Confidentiality

The implementation of the human right to confidentiality in medicine is far from being satisfactory with regards to the anti-abortion law.

The first important ethical question is whether doctors who are obliged to keep confidentiality about their patients can report to the police in case their patient has had an illegal abortion. The Medical Code of Ethics obliges doctors to keep confidentiality about their patients’ health. However, the confidentiality provision of the Code includes the disclosure of not-defined legal provisions.

There is evidence that at least some medical professionals believe that their obligation to the state to report the ”crime” is superior to the right to keep confidentiality about their patient. In 1999 the police registered 66 cases of infringing the anti-abortion law. Most of these cases were reported by healthcare centres. Although we suspect that there might be cases when health professionals do not report to the police, it is striking that so many do.

Another aspect of this issue is that health professionals quite often do not observe the rule of confidentiality in the provision of services when it is particularly harmful in such a stigmatised and taboo area as reproductive and sexual health. Women in small communities and rural areas are specially vulnerable. Many women testified that their medical problems have leaked to their community. 20 per cent of women surveyed in the survey on the attitudes and behaviours of rural women in reproductive health, including abortion admitted that they know women who went to a doctor in a distant healthcare centre because they were afraid that their medical problems might become known to the public. 1/3 of the respondents stated they heard health professionals discussing illnesses or pregnancy-related issues of other women. Lack of confidence of many patients in the ability of doctors to keep confidentiality and the infringement of the Medical Code of Ethics raises serious ethical concerns; it may have significant medical consequences and should be seriously addressed by health professionals.

Abortion on medical grounds

The implementation of abortion services with respect to medical grounds raises numerous concerns. The law allows abortion on medical grounds, however, the medical reasons allowing abortion are not clearly defined. That means that it is up to the individual doctors to decide. As a result, doctors increasingly refuse to give permission for abortion even when a woman has serious health problems. Since usually it is not finally known what medical consequences may happen to a pregnant woman, doctors tend to be rather optimistic, encourage her to carry on pregnancy rather than to warn her about the possible risks and let the woman decide. Sometimes they ignore the opinion of other doctors and deny the service. Some doctors behave as if what really matters is that a woman survives the pregnancy, not her health state and well-being afterwards. The Federation knows many examples of such malpractice. It is not surprising then, that last year only 94 abortions were performed to save women’s life and health, although health statistics did not improve last year. To compare with 1994, there have been 689 on medical grounds.

Concerns for the future

The Federation shares serious concerns on many aspects of the reproductive health of women. One addresses the issue of reproductive technologies and medical progress.

To our knowledge abortion skills are hardly taught at medical academies. It may lead to the situation that young doctors will not know how to perform abortions even in emergency situations. It raises the issue of women’s safety since abortions will always be made one way or the other. The main method of abortion used in Poland is still D&C. There is no objective to improve technical skills and to implement vacuum aspiration and RU-486 in accordance with modern standards. It means that women in Poland are denied access to modern technologies and medical progress, not because Poland is a poor country, but due to purely political and ideological reasons.

As a matter of fact, politicians decide not only about abortion and contraception, they also make laws on other aspects of reproductive health such as prenatal examinations. Last year they introduced legal changes that may affect their accessibility.

Sterilisation is still criminalised by the Penal Code.

Emergency contraception is hardly accessible in Poland.

The issue of abortion in Poland must be seen in the broader context of reproductive health and the limited choices women have.

Moreover, medical students study ethics as one of the subjects of the medical academies. Ethics has been gradually more and more influenced by the Catholic teaching and relevant manuals and is also provided by Catholic ethicists. Our fear is that in the future, most doctors will be convinced to have only one “ethical” position, will be more strongly opposed to abortions than now and they will not be able to perform them.

On the other, hand it is striking that doctors object mostly to services women need. It could be seen as unethical to choose a certain specialty and have crucial objections to its performance. Could we imagine a doctor who is against blood transfusion or a professional soldier who is against killing? Should not it be one of the criteria for a gynaecologist not to have objections against abortion and contraception? Should not a candidate for gynaecology be encouraged to choose rather another medical speciality which does not raise conscientious dilemmas for him/her?

The analysis of the impact of anti-abortion regulations on the accessibility of reproductive health services for women has led to the following recommendations:

Recommendations:

Hospitals and supervising public institutions should guarantee that every woman receives medical services to which she is entitled in accessible distance;

Supervising public institutions should establish an easily accessible complaint system that functions on emergency basis in case of difficulties in getting abortion and other reproductive health services;

Medical grounds for abortion should be understood and implemented in agreement with the WHO definition of health, which includes not only the state of illness or infirmity, but also the state of well-being;

Doctors practising conscientious objection should be made professionally responsible in case they do not refer women for services they need;

Medical schools should strengthen the promotion of human rights and ethical standards in the training of health professionals with particular emphasis on the right to information, patient decision-making, confidentiality and dignity;

Medical training should include all safe and modern reproductive health technologies;

Medical profession should be promoted rather as service provision not calling and the refusal of certain services should be treated as lack of professional competence than mainly moral issue.