MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-25

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-25 Tysiąc and R.R. (Applications Nos. 5410/03, 27617/04), P. and S. (Application No. 57375/08) v. Poland Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1050, CM/ResDH(2021)44, CM/Del/Dec(2021)1398/H46-18

 

Application	Case	Judgment of	Final on	Indicator for the classification
5410/03	TYSIĄC	20/03/2007	24/09/2007	Complex problem
27617/04	R.R.	26/05/2011	28/11/2011
57375/08	P. AND S.	30/10/2012	30/01/2013

Case description

These three cases concern the lack of effective access to lawful abortion in Poland.

The Tysiąc and R.R. cases concern the lack of effective procedural mechanisms in 2000 and 2002 to enable women to effectively access lawful abortion on grounds of maternal or foetal health where the doctor disagrees that such grounds exist (Tysiąc) or that prenatal tests are justified to assess this within the time limit for lawful abortion or to make other decisions (R.R.) (violation of Article 3 in the R.R. case and Article 8 in both cases). By the time of the European Court’s judgments, both applicants had given birth. The child in the R.R. case was affected by a genetic disorder and the eyesight of the applicant in the Tysiąc case significantly deteriorated and she was registered severely disabled.

The case of P. and S. concerns the authorities’ failure in 2008 to provide reliable information on the conditions and procedures for accessing lawful abortion to the applicants, a minor (P.) and her mother (S.), when the former became pregnant as a result of rape (violation of Article 8). It also concerns the unlawful disclosure to the press of information about the applicants’ case by the public hospital to which P. was admitted for a lawful abortion (violation of Article 8). In addition, prior to her admission to hospital, by order of a Family Court, P. was placed in a juvenile shelter for 10 days and separated from her parents with the aim of preventing her from obtaining a lawful abortion (violation of Article 5 § 1). Lastly, the Court found that P. was treated by the authorities in a deplorable manner, notably due to the institution of criminal proceedings against her on charges of unlawful intercourse and the lack of proper and objective counselling and information (violation of Article 3). The abortion was finally performed in a public hospital at 500 kilometres from her home, after the intervention of the Ministry of Health.

Status of execution

Individual measures:

In all three cases the Committee found that no further individual measures appeared necessary.

General measures:

The latest information submitted by the authorities is summarised below (see submission received on 13 October 2021, DH-DD(2021)1050).[1]

1)    Last examination by the Committee of Ministers

At its March 2021 meeting (DH), in the absence of substantial progress in the adoption of the outstanding general measures the Committee adopted an interim resolution in all three cases. 

The Committee strongly urged the authorities to adopt clear and effective procedures on the steps women need to take to access lawful abortion, including in the event of a refusal of abortion on grounds of conscience and to ensure that they are provided with information on these procedures. It also urged them to ensure effective access to lawful abortion and pre-natal examination throughout the country without substantial regional disparities and without delay caused by a refusal to perform it due to the use of conscience clause or to restrictions due to the COVID-19 pandemic. Moreover, the Committee strongly urged the authorities to adopt the necessary reforms of the objection procedure without further delay and urged them to include in legislation an obligation for hospitals to refer a patient to an alternative healthcare facility if a medical service is refused on the grounds of conscience and to effectively monitor its observance in practice. In addition, the authorities were urged to ensure effective monitoring of contractual obligations and functioning of contractual liability mechanism if lawful abortion or pre-natal examination contracted by a hospital is not performed, including on the grounds of conscience, and that every instance of such breach of contractual obligations is adequately responded to. Finally, the Committee also called on the authorities to present their assessment of the impact of the Constitutional Court’s judgment of 22 October 2020 on the availability of pre-natal examination and to ensure that it is not limited as a result of this judgment.

2)    The latest submission from the authorities

The authorities maintain their position that the procedure to access lawful abortion is clear, and results from the 1993 Law on the Family Planning. In this respect they referred to previously submitted information, notably as concerns the contractual obligation of hospitals to perform abortion, the consequences of non-compliance with this obligation and patients’ rights to information.

As to ensuring effective access to lawful abortion throughout the country without substantial regional disparities the authorities referred to statistics available for 2020, demonstrating that a global number of lawful abortions slightly decreased in 2020 in comparison with 2019 (1,076 in 2020 and 1,110 in 2019), but remained much higher in comparison with 2008. In 2020, similarly to previous years, almost 98% of all lawful abortions were performed due to the high risk of severe and irreversible damage or incurable life-threatening ailment of foetus, a ground which since January 2021 is no longer valid. In the Podkarpacki Region in 2020 only one abortion was performed. Data for 2021 will be available in mid-2022. 

As regards the objection procedure, the authorities maintained their position that it constituted an efficient measure of legal protection for pregnant women, referring again also to competences of the Ombudsman for the Rights of the Patient, notably to launch clarification procedures and to provide information to patients. 31 objections were submitted in 2020, 18 of which were rejected as inadmissible on formal grounds. Five of the objections were related to refusals of lawful abortion: two of them were examined on the merits and one was withdrawn. In two other cases abortion had been performed in another healthcare facility before the objection was submitted.  

As to the effective monitoring of contractual obligations and functioning of the contractual liability mechanism, the authorities referred to a letter of the Minister of Health of 23 August 2021, requesting the President of National Health Fund to actively monitor the performance of contractual obligations concerning lawful abortion and its availability. According to the authorities, the Fund itself is responsible for ensuring the performance of contractual obligations and any indication of non-compliance should constitute a basis for initiation of an explanatory procedure by the Fund.

Concerning the availability of pre-natal examination following the publication of the Constitutional Court’s judgment of 22 October 2020, the authorities consider that it remains unchanged, especially as it should not be identified as a method to determine circumstances allowing for lawful abortion but served other medical purposes (prevention, diagnostics).

The number of women included in the Prenatal Testing Programme is systematically increasing (from 106,986 in 2017 to 110,844 in 2020) and in the period January – July 2021 was at the level comparable with previous years (72,601). Full data for 2021 will be available at the beginning of 2022.

3)    Rule 9 submissions since the last examination

-       Submission from the European Centre for Law and Justice, submitted on 27 July 2021
(DH-DD(2021)780).

According to this NGO, various measures implemented by the Polish authorities within the process of the execution of these judgments address the issues initially raised by the Committee of Ministers. The NGO claims that the process of the supervision has been instrumentalised due to various demands of the pro-abortion organisations to contest the entire legislation and Polish jurisprudence as concerns abortion. Therefore, Poland is no longer obliged to answer to new demands of the Committee and Poland’s engagement in the protection of life and defence of the human dignity in line with its international commitments should rather be welcomed.

-       Joint submission from the Center for Reproductive Rights and the Federation for Women and Family Planning, submitted on 21 October 2021 (DH-DD(2021)1139).

According to these NGOs, the Constitutional Court’s judgment of 22 October 2020 has exacerbated the chilling effect that highly restrictive abortion law and the criminalisation of abortion continue to have on the provision of lawful abortion care in Poland. As a result, the number of doctors reluctant to authorise or provide lawful abortion increased, also in cases where women’s life and health were at risk.

The NGOs repeated their position that official data on the number of lawful abortions constituted no evidence that the law is effectively implemented or that women who meet the legal requirements for access to abortion had obtained it in practice. The NGOs indicated that in 2021 the Federation for Women and Family Planning assisted so far around 300 women to find a hospital in Poland accepting certificates from psychologists attesting a serious risk for the pregnant woman’s health relating to a severe foetal impairment. According to them, important regional disparities in access to lawful abortion remain, especially as regards abortions on indication of a risk to life or health.

The NGOs submit again that the objection procedure is ineffective and rarely used. In 2021 the Federation for Women and Family Planning assisted several women who were denied lawful abortion but decided not to use the objection procedure wishing rather to urgently find a doctor to perform the abortion.

The submission points out that no national guidelines have been developed on the provision of information on lawful abortion, the requirements and steps that patients must follow, despite existing barriers in the access to such information. It indicates also that refusals of care based on the conscience clause by doctors continues to undermine women’s access to lawful abortion and is still not effectively monitored.

Analysis by the Secretariat

The latest submission from the Polish authorities mostly repeats information that has already been presented to the Committee and provides no new elements showing substantial progress in the adoption of general measures since the last examination of these cases.

Effective procedures to access lawful abortion and information thereon

The authorities maintain their position that the existing procedures on the steps women need to take to access lawful abortion are clear and effective. They refer to the provisions of the Law on the Family Planning and the contractual obligation of hospitals to perform abortion. However, these provisions do not indicate the steps women need to take to access lawful abortion, including in the event of a refusal of abortion on the grounds of conscience. The submission of the authorities does not demonstrate neither that women seeking lawful abortion are provided with adequate information on these steps beforehand (e.g., in a practical guide).

At the same time, the necessity to put in place unified and clear procedures to be followed by all hospitals and to provide women with adequate information on them is even more important following the Constitutional Court’s judgment of October 2020 which declared that foetus’ condition and heath is no longer a ground allowing lawful abortion. It appears indeed that new factual or legal situations related to risks for maternal health may arise, which could have been previously dealt under the ground of foetal impairment, causing additional uncertainty for pregnant women and doctors.

For instance, as evidenced from one of the recent NGOs submission, women started seeking lawful abortion on account of a serious risk for their health due to a severe foetal impairment. The conditions and certificates required for this situation need also to be clearly determined to ensure that women receive equal treatment and no additional requirements are imposed on them by hospitals.

More generally, the situations involving risks for pregnant women’s health referred to by NGOs require special attention by the authorities. In particular, they must ensure that doctors’ assessment of such risks as a ground for lawful abortion, are guided solely by the genuine need to protect the life or health of the woman and are not compromised by pressure from other possible factors, such as the risk of criminal liability associated with the more limited scope of situations in which a lawful abortion is currently permitted.

In this respect it is worth noting the communiqué published on the website of the Ministry of Health, following the recent death of a pregnant patient in hospital. It clarified that a risk to a woman’s health constitutes a sufficient ground for lawful abortion and that “doctors providing care in such situations must not be afraid of making obvious decisions based on their experience and knowledge.”[2]  The communiqué also indicates that the Minister of Health has asked the President of the National Health Fund for ongoing monitoring throughout the country of all situations in which the health and life of a pregnant woman may be at risk.

Publication of the communiqué and the invitation to conduct ongoing monitoring appear to be ad hoc steps aimed in particular at protecting the lives of women within the current purview of the health system. However, the need to clarify the current situation in a more consolidated and stable manner to avoid the evident risks, remains.  

In view of the this, the Committee could again strongly urge the authorities to put in place clear and unified procedures to be followed by all hospitals on the conditions and requirements for access to lawful abortion, including when abortion is refused on grounds of conscience or when the woman’s life or health might be at serious risk, and to ensure that women are provided with adequate information on these procedures and the steps they need to take beforehand.

Effective access to lawful abortion when the doctor invokes the conscience clause

Despite the Committee’s repeated calls to the authorities to include in the legislation an obligation for hospitals to refer a patient to an alternative healthcare facility if a medical service is refused on the grounds of conscience, no action was taken by them in this respect. In addition, information is still needed on how the authorities effectively monitor the observation of this obligation, which according to them already exists, in practice. More generally, information seems necessary on the functioning of the conscience clause and the procedure followed in such situations. 

Availability across the country

The data which is available now confirms that lawful abortion is very rare in the Podkarpacki region, where only one abortion was performed in 2020. Such information, without additional analysis, seems to support the conclusion about continuing existence of regional disparities in the access to this procedure, notably due to doctors’ use of the conscience clause, referred to also by the Center for Reproductive Rights and the Federation for Women and Family Planning in their rule 9 submission. Further information is needed therefore to explain the disparities in the number of lawful abortions by region and the action taken to ensure that lawful abortion is easily accessible across the country. Additional information would also be necessary to allow the Committee’s assessment whether regional disparities are also visible in the access to prenatal examinations.

Monitoring of contractual obligations of hospitals

The letter from the Minister of Health to the President of the National Health Fund of 23 August 2021 requesting active monitoring of how healthcare providers perform their contractual obligations as regards lawful abortion might have a positive effect, depending on the action taken by the Fund in response. The authorities should provide information on the monitoring effectively undertaken by the National Health Fund in 2020 and 2021 and its results, in cases where lawful abortion was refused, including on the grounds of conscience. To have a clear picture on this monitoring, information also appears necessary on whether the monitoring and the contractual liability mechanism function only upon complaint by a woman seeking lawful abortion or also on the Fund’s own initiative and whether the Fund receives reports from hospitals about refusals to perform lawful abortion and referrals of patients to alternative medical facilities.   

Objection procedure to resolve disagreements as to the existence of medical grounds for abortion or prenatal tests

Despite the serious concern expressed by the Committee as regards the effectiveness of the objection procedure, the authorities maintain their position that it constitutes an effective remedy to protect patients’ rights and do not envisage its improvement.

According to the data presented by the authorities, the number of objections rejected on formal grounds appeared to decrease (77% in 2019 and 58% in 2020) but this number still appears to be disproportionately high. In addition, the overall number of the objections decreased in comparison with previous years (101 objections in years 2018-2019), which may suggest that patients do not share the authorities’ view that this procedure is effective, and thus refrain from using it. This assumption appears to be supported by the example of women who preferred to look for alternative places to access a previously refused abortion rather than to resort to this procedure which moreover has no guarantee of a timely outcome, as indicated by the Center for Reproductive Rights and the Federation for Women and Family Planning. 

Assessment of the impact of the Constitutional Court’s judgment of 22 October 2020 on the availability of pre-natal testing

The Constitutional Court’s judgment of 22 October 2020 limiting further the grounds allowing for lawful abortion in Poland does not appears to have so far, a negative impact on the availability of pre-natal examinations, which is positive. Statistics provided for the first months of 2021 seem to demonstrate that, as underlined by the authorities, prenatal testing is no longer identified as a method primarily to determine circumstances allowing for lawful but serve other medical purposes. Indeed, the number of women included in the Prenatal Testing Programme in the period January – July 2021 (so, mostly within the period after the entry into force of the Constitutional Court’s judgment) do not appear to decrease (72,601 in 7 months) compared to 2020 (110,844 for the entire 2020). This information could be noted with interest and the authorities should be invited to continue their efforts to assist pregnant women with all forms of pre-natal examination and to constantly monitor the trends in this respect.

Statistical data on the number of lawful abortions

Statistics presented by the authorities in respect of the availability of lawful abortion in Poland is rather of historic importance as it concerns 2020, so the period before the entry into force of the Constitutional Court’s judgment of 22 October 2020 resulting in prohibition of the abortion on the ground related to the foetus’ health. As almost 98% of lawful abortions in Poland in 2020 were performed based on this ground only when data from 2021 is available a proper assessment of the current situation will be possible, for example as to whether the remaining ground for lawful abortion related to the risk to mother’s life and health is interpreted and applied in practice in a restrictive or more liberal manner. Information that some hospitals performed abortion following diagnosis of a severe foetal impairment to women who obtained a certificate attesting that continuation of pregnancy would pose a risk to their health, presented by the Center for Reproductive Rights and the Federation for Women and Family Planning appears to confirm that the ground related to the woman’s health is applied in a more liberal manner, but only full statistical data for 2021 would enable the assessment of this trend.

Conclusion

The information provided by the authorities since the last examination of these cases by the Committee in March 2021, do not respond to most of the issues raised in the interim resolution adopted at that meeting. Moreover, the authorities maintain their position that the current legislative framework and procedures as regards the access to lawful abortion are adequate and efficient and do not require any reform, which is of utmost concern. The Committee may therefore wish to reiterate, in the strongest possible terms, its calls to the authorities, underlining Poland’s unconditional obligation to abide by the Court’s judgments fully, effectively, and promptly. To explore possible solutions for the outstanding questions the Committee might also wish to urge the authorities to enter in high level consultations with the Secretariat.

Financing assured: YES