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Evolution of the Abortion Law and Its Practice in Poland Against the Background of the Current Legal Framework in New Zealand

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Evolution of the Abortion Law and Its Practice in Poland Against the Background of the Current Legal Framework in New Zealand National Security Journal Published by: Centre for Defence http://nationalsecurityjournal.nz and Security Studies, Massey University ISSN: 2703-1926 (print) ISSN: 2703-1934 (online) Evolution of the Abortion Law and its Practice in Poland Against the Background of the Current Legal Framework in New Zealand Author: Eska-Mikołajewska, J. To cite this article: Eska-Mikołajewska, J. (2021). Evolution of the Abortion Law and its Practice in Poland Against the Background of the Current Legal Framework in New Zealand. National Security Journal, 3(1). doi:10.36878/nsj202100405.02 To link to this article: https://doi.org/10.36878/nsj20210405.02 View CrossRef data: https://search.crossref.org/?q=10.36878%2Fnsj20210405.02 Journal Article published 05 April 2021 in National Security Journal. EVOLUTION OF THE ABORTION LAW AND ITS PRACTICE IN POLAND AGAINST THE BACKGROUND OF THE CURRENT LEGAL FRAMEWORK IN NEW ZEALAND Justyna Eska-Mikołajewska1 The article presents a comparative study on abortion legislation in Poland and New Zealand. It includes a historical overview of the social and political influenc- es shaping the contemporary approach to abortion in these countries. The aim of the article is to discuss the changes to the Polish and New Zealand abortion legislation and the current procedures required to access abortion. This article highlights differences in approaches to this issue in both countries where abortion laws have evolved recently in opposite directions. In New Zealand, after removing abortion from the Crimes Act 1961, abortion ceased to be the subject to criminal law, while in Poland where one of the strictest anti-abortion laws had been in force already, a ban was imposed on abortion which made it practically impossible for women to access legal abortions. Keywords: Abortion Ban, Poland, Abortion Legislation Reform, Abortion Legis- lation Act, New Zealand Introduction Determining the initial moment of life creates some dilemmas not only for philosophers, theologians, representatives of the clergy, doctors or lawyers, but also for politicians who discuss and initiate changes to legal Acts concerning the protection of the right to life. This is of fundamental importance in the aspect of allowing termination of pregnancy. In contemporary legal systems there are two models of regulating the phenomenon of 1 Dr Justyna Eska-Mikołajewska is an assistant professor at the Department of Political Studies at the University of Economics, Krakow (Poland). She was hosted as a visiting scholar at the Centre for Defence and Security Studies on Massey University’s Wellington campus. During her stay in New Zealand, she worked on the research for a co-authored book on the national security of New Zealand in the chang- ing security environment of the Asia-Pacific region. She has been cooperating with academics from the Centre in various projects, including the portal Przemiany ustrojowe, which specialises in political and constitutional issues of contemporary states. Contact by email [email protected]. 2 NATIONAL SECURITY JOURNAL abortion. The first is characterised by granting ofnasciturus legal protection already in the period of its fetal life. According to this model, abortion is possible, but its availability is limited in the light of the mandatory legal provisions. In the second model, the fetus in the early stages of pregnancy is treated as part of mother’s body and therefore a woman can decide about its fate up to a clearly defined moment (most often up to 12 weeks).1 In Poland and New Zealand, termination of pregnancy was the subject to some significant limitations, which made both countries examples of the practical application of the first of the above-mentioned models. Abortions were the subject to a criminal sanction if they were performed outside the indicated grounds for termination of pregnancy. There were various reasons for criminalising abortion in these countries. Nonetheless, Poland as the only country in the former Communist Bloc and New Zealand were among the last developed countries - apart from mini-European states and Ireland – that are a stronghold of the restrictive abortion laws. According to the position of UN experts, having an ability to make their own decisions by women about pregnancy is at the very core of fundamental rights, including the right to equality, privacy as well as physical and mental integrity. In this perspective, the criminalisation of abortion could be considered a violation of a woman’s right to life, because it compels women to resort to unsafe abortion.2 Based on the World Health Organization data, criminalising the abortion and doctors’ fear of entering into conflict with the law, does not limit the number of abortions. On the contrary, it causes more illegal abortions.3 As a result, the termination of pregnancy becomes the third most common cause of death in pregnant women in the world.4 In this context, de-criminal- isation in the form of removing criminal sanctions against abortion and establishing a broad and strictly defined legal framework for legal abortions becomes - with access to sex education in schools and partially refunded or free contraception - one of the most effective tool to reduce the number of illegal (and often dangerous) abortions.5 From the most liberal laws to the “abortion compromise” The provisions of the abortion law in Poland have evolved over the years. It should be emphasized that Polish abortion legislation in the 1930s, although very restrictive, as both the mother and the abortionist were punished, was one of the most liberal in Europe.6 There were only two exceptions to punishment: due to medical indications or when pregnancy occurred as a result of rape, incest or sexual intercourse with a minor under 15 years old.7 Pursuant to the ordinance of the President of the Republic of Poland of September 25, 1932 on the performance of medical practice, it became obligatory to determine a medical reason for termination of pregnancy verified by two doctors other than the one performing the procedure.8 The only period when abortions could be performed to an unlimited extent (“on demand”) were the years of the Nazi occupation (1943-1945).9 The Nazi’s rationale for such a liberal approach to abortion EVOLUTION OF THE ABORTION LAW 3 was based on paradigm of “Social Darwinism” that considered to be scientific. The aim of Nazi policy on abortion was to ensure the extermination of those nations whom were referred to as “inferior genetic stock.” They included the communities of Eastern Europe, including the Polish, and Jews.10 The next stage of liberalisation of the abortion law was the period of the People’s Re- public of Poland, officially initiated by the introduction of the new constitution in 1952, according to which the equal rights of women and men were guaranteed by the care of the mother and child and the protection of the pregnant woman.11 Shortly after the adoption of the Basic Law, on July, 1954, the Minister of Health issued an instruction that changed the criteria for determining the necessity of an abortion to the health of the pregnant woman. Pursuant to this Act, a hospital medical committee consisting of two to three doctors decided on the necessity to terminate the pregnancy for the health of the woman.12 Apart from Yugoslavia, where abortion laws existed since 1951, Poland, along with Hungary and Bulgaria, was one of the first countries in the former Eastern Bloc to le- galise abortion. Thus, while termination of pregnancy for health reasons was allowed in the Soviet Union in 1955, Poland did so in 1956. The Act of 27 April 195613 on the conditions for the admissibility of termination of pregnancy introduced the possibility of performing an abortion in three cases: a) when medical indications were in favor of termination of pregnancy; b) when the pregnancy was a result of a crime, and c) the difficulty of the living conditions of a woman. In the brief reference to this Act, it was emphasised that its purpose is to protect the health of a woman against the negative effects of abortion, performed in inappropriate conditions or by non-doctors. Both the medical indications and the difficult life conditions of the woman could only be -de termined by a doctor, while the existence of a reasonable suspicion that the pregnancy resulted from a crime was confirmed by the prosecutor in the form of a certificate. In legal terms, the adoption of the 1956 Act also had certain effects as it repealed the previous articles 231-234 of the Criminal Code. They concerned the punishment of a woman for aborting a fetus or allowing another person to do so, committing such an act with the consent of the pregnant woman or assisting her in doing so, as well as aborting the fetus without the consent of the pregnant woman. It is noteworthy that the punish- ment facing a woman for abortion was more lenient than those of the third parties. The Act of 1956 introduced its own penal provisions concerning the penalisation of forcing a woman in any way to undergo an abortion and demanded doctors to perform the procedure only with the consent of the pregnant woman.14 The pre-World War Two Penal Code established broad grounds by excluding the pun- ishability of abortion in comparison with other European countries at that time. It used the term “fetus removal” which was different from the 1956 Act that called the same 4 NATIONAL SECURITY JOURNAL act “termination of pregnancy”. It was the mother’s health condition that became the subject of the new Act, and the protection of the child’s life began to be determined by her medical, legal and economic conditions. Under this law, an abortion could be performed at a woman’s request after submitting a statement concerning their life situation.
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