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Abortion law in Poland – Conscience clause prevents legal abortions

From advertising bans to conscience clauses – the abortion law within the EU shows some enormous differences. Medical professionals who do not perform abortions should also be aware of the regulations in order to be able to advise patients with corresponding concerns in accordance with the law. In a three-part series of articles, we give an overview based on the examples of Poland, Lithuania and Germany.

Polish abortion law is one of the strictest in Europe. Abortion on request is illegal.

An interruption of pregnancy (with the consent of the woman) is in principle punishable by imprisonment for up to 3 years. The same penalty applies to persons who assist or persuade a pregnant woman to abort a pregnancy. A qualified offence applies to the commission of these acts if the fetus has already acquired the ability to live independently from the body of the pregnant woman. Here the penalties range from 6 months to 8 years imprisonment.

There are certain exceptions to the above general ban on abortion. Abortion is only permitted in three cases:

  • pregnancy is a threat to the life or health of the pregnant woman (without restrictions as to the age of the fetus)
  • prenatal tests or other medical measures indicate a high likelihood of severe and irreversible impairment of the fetus or an incurable disease threatening its life (until the fetus reaches the ability to live independently of the body of a pregnant woman)
  • there are reasonable grounds to suspect that the pregnancy is due to a criminal offence (up to the end of the 12th week of pregnancy)

The circumstances that make the abortion necessary must be confirmed by a doctor other than the one who is to abort the pregnancy. An exception applies if a pregnancy directly threatens the woman's life. If a third justified abortion is already necessary for a woman, the competent public prosecutor must first approve it (in this case, however, an abortion would only be possible if no more than 12 weeks have elapsed since the beginning of the pregnancy). The law imposes high hurdles on the professional qualifications of doctors who are entitled to carry out an abortion.

The abortion procedures vary depending on the stage of pregnancy and the institution carrying out the abortion. Both the suction method and the scraping method as well as drug abortion are permitted by law.

The costs of legal abortion and related treatment are borne by the National Health Fund.

Although under certain conditions, the possibilities of abortion are guaranteed by law, this guarantee is rarely granted in practice. The state medical institutions in Poland are heavily dependent on politics. Doctors, however, fear consequences under labour law if they make abortions possible. For this reason, they often refuse to provide information to patients on which other doctors carry out abortions.  They invoke the so-called conscience clause in Article 39 of the Doctor and Dentist Professions Act, according to which they do not have to provide health services incompatible with their conscience. In fact, doctors would also be obliged to refer the patient to another doctor or medical institution. However, in 2015, the Polish Constitutional Court declared this requirement to provide information unconstitutional if it imposed an obligation on the doctor.

As a result, the search for a doctor and the procedure often take longer than 12 weeks or the moment “until the fetus is able to live independently of the body of a pregnant woman” is exceeded and abortions are no longer possible.

Sources:
Polish Penal Code
Polish Doctor and Dentist Professions Act
Judgment of the Polish Constitutional Court of 7 October 2015 (sygn. akt K 12/14)

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