Infringement, fear, helplessness or abortion in Poland. Caught in the machine of protection.
The Polish and British law on the protection of fetus is the same. Howerver the Polish women travel to Great Britain to terminate a pregnancy because in Poland the protection of fetus is under the supervision of an unique system of informers, prosecutors and moralizers.
In Poland as well as in Great Britain it is permitted to terminate a pregnacy when it poses a threat to a woman’s health. The British define it according to the World Health Organisation. The health is a state of complete physical, mental, and social well-being. According to that interpretation the British doctors treat depression, suicidal thoughts or difficult social situation as the health reasons qualifing a woman for abortion.
In Poland it is difficult to find a hospital where a legal abortion can be performed even if a fetus is irretrievably damaged. The courts for years conduct trials against the doctors who performed the legal abortions but at the request of women they did it in their private offices. Among the doctors, judges and prosecutors a post abortion syndrome (PAS) is extremely popular. The PAS is a syndrome of alleged mental suffering that according to the pro-life individuals would torment a woman who had an abortion untill her death. According to the serious medical researches PAS is considered to be a suggested syndrome at most.
However the Lublin District Court’s judge Marian P. in September 2009 cited the PAS passing a two-year suspended sentence on a mother of a 16-year-old girl for accompaning her daughter during an abortion. In that case the abortion was legal because an investigation whether the girl had been raped was conducted and the law states that a suspicion that the pregnancy resulted from unlawful act gives a woman the right to terminate it. The experts in the family law emphasize that a parent cannot be brought to justice for taking together with his child an important decision for him because it is what the partens’ custody is about (in case their opinions about an issue are completely different the decision for a child is made by a family court).
In the Lublin Court’s opinion the mother had been urging her daughter to the abortion exposing her to PAS. In a consequence it sentenced the mother - bringing up two children, who recently had become a widow and was left with nothing to live on, who had borrowed money for the abortion from Provident when her daughter had said that she would kill herself. And the court also sentenced the doctor who had agreed to perform the abortion because the girl’s mother had known him from a hospital. Once, years ago she was a midwife in that hospital so she dared to ask him. „In a direct visual and verbal contact the judge has an impression that a child is standing in front of him” - was written in the court’s justification of the sentence about the girl who had had an abortion, a few pages ahead the judge emphasized that such an innocent child could not be able to kill another child what means that the blame bears the heartless, conformist mother. She had prefered an abortion to „waiting joyfully for the birth of her grandson” (a quote from the justification).
In that case the key and most credible prosecution witness was a perpetrator of the pregnancy. The partner - the court wrote, however this epithet raises doubts considering a several dozen-year age difference and the fact that the man had been lending probably the girl to his friends what was investigated by a prosecutor but after six months he stoped the investigation because the girl „was not interested in finding the perpetrators” (a quote from the justification). The girl’s mother did not have enough money for a lawyer so she did not lodge an appeal. She defended herself. In a consequence the sentence is legally valid. It is a legislative paradox that in Poland a close family of the accused can deny testifying against him and can even with impunity help a close relative who has a warrant for his arrest to hide out but advisinig a beloved woman - wife, sister or daughter when she is making an extremely difficult decision weather or not she will continue a pregnancy is punishable by up to 3 years’ imprisonment. If it is revealed the crime is prosecuted even if a pregnancy is not terminated in the end.
In 2009 for urging to or helping in an abortion 22 persons were sentenced to jail and most of them were the memebers of a close family.
In Poland every year the prosecutors conduct approximetely 300 abortion proceedings. However the proceedings against the doctors who make their living performing illegal abortions which cost even 6000 - 8000 zloty are very rare. Most of the cases brought to court are revealed by a third party - disappointed fiancé, authoritarian parent - who is in conflict with a woman or doctor. Such a person is determined enough to wade into a trial defending a pregnacy which usually has been already terminated.
These kind of cases are sucked in by the system and cannot be let out easily. In Poland the abortion case is always treated with special attention and the first system’s wheel are the prosecutors. Only in these cases - differently to the murders, kidnappings or any other crimes - the appellate prosecutors after the case is closed meticulously analyse all documents checking whether the proceedings were not dismissed groundlessly or too fast. If the proceedings were dismissed too fast the case is reinvestigated and the prosecutors receive the disciplinary notes written down in their personal records. That may stand in the way of the further career. Consequently it is better to be overzealous than to fall so foolishly into disfavour. - We are obliged to conduct these analysis by the law on the protection of fetus - explains Maciej Kujawski - the Prosecutor General’s spokesman. But maybe they are rather the results of it’s interpetation and long-standing habit: a health minister has to prepare annual raports on the law implementation based on the prosecutors’ analysis.
Consequently the number of dismissals declines. The law on the protection of fetus has been in effect for 17 years and nowadays only 10% of the abortion cases are dismissed. It is a thought-provoking number considering that these cases are usually based on the testimonies of witnesses who were not present at the scene of the crime (but are emotionally involved against a woman or doctor). Only 10% of these accusations prove to be true later in court. Hovewer even the cases where the accused is found guilty often raise doubts.
To gather the substantial evidence the investigators use more and more creative solutions. In Lubliniec a woman-witness- victim was forced to undergo a gynaecological examination to find an evidence that she had had an abortion (it was not proved in the end). In Józefów in March 2007 the police entered the gynaecological office and remove from a chair a 18-year-old girl because her fiancé had suspected her of planning to commit a crime and had informed the police. „The lack of some instruments cannot work to these doctors advantages” - the judge wrote in the justification of the sentence - „because the medical procedure is not complicated and the experienced doctor does not need a special equipment”. The doctors got a 1,5 year sentence suspended for 4 years and a fine of 75 000 złoty.
From 2008 the police also tried to find the culprits abroad. The police officers demanded a medical documentation of the Polish patients who had the abortions in the British clinics. When they were met with refusal the police probably used the helpful doctors who followed the police asking for documentation. The doctor should give the medical documentation to the other doctor. The police has abandoned these kind of actions because they were of doubtful legality.
A woman terminating a pregnancy is not liable for punishment but if the police finds out she did it she is always questioned as a witness. The police hopes to get the names of persons who helped her - lending money for a ticket for example. Caught in a crossfire of questions the woman often points somebody out because the investigators are meticulous, persistent and sometimes question a witness many times knowing that every interview will be analysed in details by their superiors. If the investigators manage to get a name of some doctor he usually pleads not guilty. The only way to find out if he performed an abortion is the situation when the woman lands in hospital because she developed complications after abortion.
Sometimes the investigators decide to put the suspect in jail to make him confess. They did so in case of the doctor from Rybnik who was incriminated by his ex-fiancée and his assistant at the same time in a private clinic. She was a close person so very reliable for a prosecutor’s office. The doctor spent in jail almost 2 years although abortion is punishable by up to 3 years’ imprisonment. In spite of that he did not plead guilty. All his patients, more than 200 women, were questioned. Based on their testimonies the prosecutor issued an indictment and the court decided to toughen up penalty: 5 years of absolute imprisonment instead of 3 years provided for in the law and a fine of 100 000 zloty. The doctor has appealed and the trial has already lasted for 5 years.
The judges are the second wheel of the system. In Poland a court is independent and decides basing on his own life experience and opinions. Those when it comes to abortion are as sharp as divisions in the society. In some circles the views on abortion amount to a declaration of morality or the lack of it. Consequently in those cases, unlike any others, the judges have a tendency to go in for journalism in the justifications of the sentences.
The judge from Lublin who judged the mother of 16-year-old girl said that in his opinion terminating a pregnancy is an exceptional crime considering the fact that so many couples make continuing sacrifices trying to have a baby. The other judge from the same city said that a conceived baby is defenceless and therefore the law should protect it more than a woman. It was also said that in these kind of crimes a team of patient and doctor must be broken up (Rybnik), that these cimes must be stigmatized (about a doctor sentenced for terminating a pregnancy that was legal because the pregnancy resulted from an incestuous rape and the perpetrator had been already sentenced in an independent trial - Nowa Sól).
Contrary to the law a woman was punished for not carrying properly about a conceived life: the girl had tried to commit suicide so a court sentenced her for an attempt to kill an unborn baby. The court in Bochnia did not object when a prosecutor categorized the act of 19-year-old boy who had tried to help his girlfriend to terminate a pregnancy as a murder what is punishable by 25 years’ imprisonment or life sentence. The story was: a 17-year-old girl got pregnant with a 19-year-old boy. They were afraid of their parents. The boy found out in internet that an orthopaedist may prescribe a medicine for joints which causes a miscarriage. But they had to wait long for the appointment and by that time the pregnancy was advanced. The baby was born prematurely, in a bath. The girl and the boy not knowing what to do took the baby to a hospital - in a plastic bag. The experts said that right after being born the baby was alive. Consequently it was not an attempt of late abortion but a murder. The court in Bochnia agreed with it sending the boy to a jail. The girl can probably rely on a mild sentence: only 5 years for killing a baby being under the influence of shock resulted from a childbirth. The trial is in progress.
The attitudes of judges, prosecutors, mass media and even priests who read the names of the law liberalization’s supporters from the pulpit would be a side issue if a behaviour of the doctors was different. That is probably the most important wheel of the system.
In Switzerland despite a very strict abortion law the doctors had a liberal attitude towards it what leaded to a change of the law. There the doctors clearly understood that only a doctor can assess whether a woman’s health is in danger or not and they sided with the women who came to ask for a help - says Marek Balicki Ex-Minister of Health who has been fighting for years to leave a decision about abortion to a woman. - In Poland there would be no need to change the abortion law if the doctors wanted to interpret it like their fellow doctors in Great Britain.
In Poland even in the private clinics a conscience clause applies. What’s more in 2008 a legal article saying that in a case when a hospital citing the conscience clause refuses to perform an abortion a patience has to be informed where she can have it, was quietly removed from the law. In the private conversations the doctors’ opinions are similar to the Polish average - more than a half of them think that a decision about abortion should be left to a woman herself but there was not even a one case when the fellow doctors have stood up for a doctor who performed an abortion even if it was legal. The doctors’ self-governing council usually initiates proceedings, independent from a lawsuit, that leads to depriving or suspeding the doctor of the right to practise his or her profession. There was already a case of depriving for life the gynaecologist of the right and later she tried to commit a suicide.
The doctors publicly accused of abortion are not promoted any more. It was a case of the doctor from Lublin who performed an abortion on a 16-year-old girl (the Provincial Obstetrics Consultant in this region boasts about having only one woman who decided on the prenatal diagnostic tests in 2008). Or the doctor from Nowa Sól who terminated the pregnancy resulted from an incest.
Prof. Paweł Łuków, ethicist who lectures students of the Medical University in Warsaw emphasis that the Polish doctors understand their role very traditionally. They see themselves as a moral authority with a patriarchal attitude according to which a doctor knows better what is good for a patient. A doctor whose life is an example to the others. A doctor with a mission to fulfil. - In 1990s the Catholic Church provided a natural ethical example for most of the Polish people - says Prof. Paweł Łuków. - And many of the doctors have taken it’s mission for theirs.
However the Polish Church does not urge a man to ask himself the ethical questions. It only answers to the questions. Prof. Łuków remembers his surprise when he noticed that the medical students who had already had a religion class at schools can recite from memory the Ten Commandments but they cannot say the cardinal virtues which are essential to understand the Christian ethics. - What’s more the way the ethics is taught in the Church links to our culture where it is deeply rooted that so called obvious truth is not subject to negation - the ethicist explains - For example: about the dead only well.But why? Always and about everybody? Someone who asked such questions would be immediately cautioned that he crossed an impassable border.
While the British finance a huge research to know all about a foetal growth and development to be able to answer a question when it is still ethically accepted to terminate a pregnancy, in Poland the majority (according to the surveys) who as private persons thinks that it is a barbarity to sacrifice a woman’s health and life for the utopia of happy continuation of every pregnancy - is silent. The Polish majority does not comment on the photo exhibition placed on the busy streets which shows the battered bodies of late foetuses mixed with the photos of war victims and old people probably the potential victims of euthanasia. The majority is silent when the local newspaper in Trzcianka makes a series about a history of abortion performed by the senior registrar who trying to get the name of John Paul II for his hospital publicly announced that his hospital never would perform any abortion even a legal one.
The State also washes its hands of the whole affair. It has assigned the whole sphere of public ethics and the sphere of private man’s life to the Church. Consequently, instead of a sexual education promised by the authors of the law limiting the abortion’s admissibility we have a Catholic preparation for a family life. We have the calendar-based contraceptive methods instead of contraceptives refunded by the State. There are easy answers what to do with conceived children. The baby hatches where a mother can leave a newborn baby; the experiment carried out nowhere but in Poland which is considered risky by psychologists because it deprives a child of any knowledge about his or her own identity. Besides, the baby hatches operate in tandem with the Catholic adoption centers where a child can be given only to a married in church Catholic couple. There are more than 100 centres and a half of them is already a Catholic one. In the Church’s ethics abortion does not exist, so the State does not even bother itself with the women who should be provided a legal abortion according to even the most strict interpretation of the law.
The progress in that field of medicine during the last 20 years has missed Poland. In the world a vacuum abortion or a medical abortion, both of them are much safer for a woman, are used nowadays but non of them are in a curriculum of the medical schools. None of the Polish hospitals has bought so far a vacuume device although the device is not expensive and might be used to cure other afflictions - like endometriosis. The pharmaceutical drugs used for a medical abortion cannot be even sold legally in Poland - unless to cure joints (so the doctors just in case do not prescribe young women these drugs not to be accused of helping in abortion). Two years ago Marek Balicki officially asked the Parliament for a reason behind such a situation and how long it would last but up to now he did not receive an honest answer. Every of these about 500 women who every year legally terminate a pregnancy in Poland, mainly because of an irretrievably damaged foetus, may count only on dilation and curettage - like 20 years ago - exposing oneself to pain and greater chance of complications.
When in September 2010 Federation for Women and Family Planning organised the public hearing at the Parliament to enable the members of Parliament to hear the doctors from the foreing clinics telling about the Polish women and to get some knowledge about an abortion tourism on a large scale, only two of them, women, came. The doctors told the stories: only in one small clinic in Prenzlau, not far from the Polish border, about 600 women will terminate a pregnancy this year. For 400 euros, having a guarantee of the highest medical standards. Pro-life supporters saw the hearing as encouraging to abortion and helping in it by telling that it is possible to have an abortion abroad. Or even as the action aimed at organising the abortion tourism. They brought the case for prosecution reminding that all those crimes are prosecuted based on a public prosecution. And we have an another case which got into the system. It will be examined by another prosecutor who then will be vetted not to dissmis the case too fast. The prosecutor’s office has not taken the decision yet but basing on former pracitces several persons will be questioned in ralation to a trivial case.
It is time to think over what we benefit from the system like described above apart from a sustained practice of the faith. Is it worth investing in a mass witch-hunting? Shouldn’t be fairer to the citizens to show interest in the women’s situation who athough are not brought to the court for having an abortion but are not protected at all against the results of a decision taken in their names by the State. In the Polish penal code there is not an article which would allow to judge a man responsible for a pregnancy who ran away and left a woman with nothing to live on. It is even difficult to make a man pay alimony.
And it is not even about these eight women in ten years who died as a result of a backstreet abortion or about these several dozen lives which are ruined every year by a guilty verdict because such small numbers do not rather make an impression on people. Buying the pills causing a miscarriage through the legal websites cannot be banned (on the Women on Web the pills will be sent together with a doctor’s advice). The Polish woman will terminate a pregnancy any way but the pregnancy will be more advanced, she will do it in a fear, without a psychologist’s counselling and a medical care.
But Poland is not a country behind an Iron Curtain any more and it does not apply only to a free trade. Our country is a part of a wider system of legal culture. The abortion cases which are in progress in the Polish courts may be eventually brought to Strasburg.
Authors: Martyna Bunda and Maciej Perzanowski