WOMEN'S REPRODUCTIVE RIGHTS

Urszula Nowakowska


INTRUDUCTION

Women must have reproductive control over their bodies in order to exercise basic rights due to every human being. Limited access to family planning, including the right to terminate an unwanted pregnancy, violates basic human rights, as well as the right to freedom, protection of health, and life. The consequences of the lack of sexual education combined with restricted access to modern contraception and family planning methods deprived women of the right to control their own fertility. Women are being forced to give birth to unwanted children what seriously undermines their freedom to shape their lives. Early pregnancies often cause young women to end their education or enter unwanted marriages, which limits further educational opportunities or their chances on the labor market. Statistical data has indicated that marriages caused by unwanted pregnancies break up more quickly, and the psychological effects of ill-matched relationships are specifically born by children. Unwanted pregnancies usually have serious psychological effects: they may be the cause of depression or a nervous breakdown, which in turn may affect the way women care for their previously born children. Illegal abortions often result in complications thus undermining women's health.

Poland is one of the few countries where legislation concerning family planning and abortion has recently dramatically deteriorated. Since abortion on social grounds was banned, Polish law has become the second most restrictive in Europe, after Ireland. The Irish, however, have already started to liberalize its rigid abortion law, while Poland is moving in the opposite direction. Legislation and policies limiting access to information on family planning methods are particularly appalling in the country where the knowledge and the use of contraception is still at a very low level. Only a dozen or so percent of Polish women use modern contraceptives (oral contraceptives, intrauterine devices or spermicides etc.).

Reproductive health issues are not adequately recognized in governmental programs and policies. Health protection programs do not include family planning, sexual education for youth or the problem of reproductive health of older women. Government policy, the attitudes of numerous individual women and medical professionals has been clearly influenced by the Catholic Church.

Insufficient number of family planning centers is another cause of limited access to information about the methods of family planning. Gynecologists do not meet women's expectations in this respect either. Non-governmental organizations concerned with family planning lack sufficient resources and cannot be regarded as a substitute for the government in fulfilling its obligations relating to the protection of women's reproductive health and rights.

The Anti- Abortion Law History

A woman's right to seek an abortion was introduced in Poland in 1956. Abortion was legal on social grounds. However, neither sexual education nor campaigns advocating the use of contraceptives followed the introduction of this law. The lack of sexual education, information, and availability of contraceptives, accompanied by the negative attitude of the Catholic Church towards birth control, resulted in a high percentage of terminated pregnancies. The Catholic Church used the symptoms of liberalization in Poland in 1989, as an attempt to limit women's right to abortion. On 1 March 1989, at the initiative of MPs from the Polish Catholic and Social Association, a draft of the Law on the Legal Protection for the Conceived Child was filed. It was prepared in co-operation with experts from the Episcopate of Poland responsible for Family Matters and was intended to ban abortion (irrespective of a woman's health, living and economic situation, or circumstances in which she got pregnant). It also advocated punishment for abortion. The draft resulted in many protests, discussions, publications, and group presentations to the Seym (Parliament), however, it was never reviewed during the Seym's plenary sessions.

In 1990, the Ministry of Health passed an executive order requiring women who seek an abortion in a public hospital to present certificates from two gynecologists, a general practitioner, and a psychologist. The Code of Medical Ethics, adopted in May 1992, introduced further restrictions on women's access to abortion by allowing it only when a women's life or health are at risk, or their pregnancies resulted from crime, however did not include genetic deformation as an acceptable reason for termination. In November 1992, the Special Seym Commission accepted a draft of a law that imposed even more stringent requirements to terminate a pregnancy. This bill only allowed pregnancies that endangered a woman's health or life to be terminated and made illegal a number of contraceptives. The bill provided that if an unauthorized abortion is performed, both the woman and the doctor are liable to two years in prison, a provision that even provoked those members of political parties that previously refrained from participating in the discussions. The Labor Union suggested a referendum on the penalties for unauthorized abortions and collected over a million signatures in its campaign. The legislature, however, ignored these pleas, as well as the results of a public opinion poll that found that over 60% of Poles disapproved of the limitations to the access to abortion. Nonetheless, the success of the social movement which advocated the referendum influenced the Seym's vote on the Anti-abortion Law. A far more lenient version was adopted, allowing for abortion in state hospitals when a mother's health or life is at risk, the fetus severely damaged, or the pregnancy resulted from a crime.

After the change in ruling coalitions, those who supported women's reproductive rights sought to widen the law. The Polish Seym invited a number of women's organizations, both those for and against a woman's free choice, to participate in the commission responsible for the abortion law's reform, one of the few cases where women's organizations were invited to participate in commission meetings. After several months, the Commission passed a more liberal version of the law, legalizing abortion for particular social reasons. The law also requires consulting a doctor or other competent body, other than the doctor who would perform the abortion and enforces an obligatory three-day period between the consultation and the day of the operation. The Seym passed the law on 30 August 1996. The Senate, however, rejected this liberal version on 3 October of that year. On 24 October, the Seym managed to overrule the Senate's veto and President Kwaœniewski signed the law on 20 November 1996. The Law entered into force on 4 January 1997.

Judgment of the Constitutional Tribunal

In December 1996, a group of Poland's Senators filed a motion at the Constitutional Tribunal to examine whether liberalized abortion Law complied with the Constitution. On 27 May 1997, the Constitutional Tribunal ruled that the law's Article 1, Paragraph 2, making human life in its pre-natal stage dependent on the decision of the legislator, does not comply with Article 1of the (old) Constitution (The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice), and Article 79 (Marriage, as well as motherhood and the family, shall be placed under the protection and care of the Republic of Poland), because it violates constitutional guarantees for the protection of human life in each stage of its development. The Tribunal held that the democratic state considers the human being and her or his most important values to be the nation's greatest value and worth. Thus life requires constitutional protection at each stage of its development, from the very moment of conception. Legalizing abortion without sufficient justification aside from the protection of another value, right, or constitutional freedom, and the use of imprecise criteria to allow abortion, violated the constitutional guarantees of human life. The judges argued that no sufficiently precise and justified criterion exists to differentiate the stages of human life's development The court emphasized that constitutional protection of family and motherhood was intended to protect mother, but also of her baby. Thus, the Tribunal ruled that protection of a woman's right to control her life should not lead to infringement of the fundamental value of human life.

Opponents criticized the Constitutional Tribunal ruling, claiming it too ideological in nature. Even the Tribunal's Chairman expressed doubts over the judgment; in an interview, he claimed that if a comma had been used in a particular legal provision, the judgment would have been different. The timing of Tribunal's decision suspiciously corresponded with the Pope's visit to Poland. Those who support a woman's right to freely choose abortion shared the view that Tribunal's judgment was made to please the Pontiff. These assumptions were supported by the fact that the Tribunal, which normally requires several months to issue a judgment, ruled on the subject of abortion very quickly.

Pregnancy Termination - Legal Rules in Force

The Seym of the Republic of Poland approved the Constitutional Tribunal's judgment on 17 December 1997. The Law on Family Planning, Protection of Human Fetus, and Conditions Permitting Pregnancy Termination adopted on 7 January 1993 (Official Journal No. 17,P.78) with the later amendments constitute the main legal background as concern reproductive rights.

The preamble to the law states that life is a fundamental human value, and care for life and health is a basic duty of the state, society, and citizens. The law, however, recognizes the right of every human being to make responsible decisions on having children, and the right to information, education, counseling, and instruments to assist in family planning.

The commonly called so called "anti-abortion law" currently enforced allows abortion to be performed in three cases:

  1. when pregnancy endangers mother's life or health;
  2. when pre-natal tests or other medical findings indicate a high risk that the fetus may be severely and irreversibly damaged, or to be suffering from an incurable disease dangerous to its life;
  3. when there are strong grounds for arguing that the pregnancy is a result of criminal activity.

A pregnancy that risks a woman's life or health, or where the child suffers from a genetic defect, may only be terminated by a physician in a public health service institution. A physician other than the one who is to perform the operation must issue the certificate stating the risk to a woman's health

When a pre-natal test or other medical findings indicate a high risk of damage to the fetus, or if it suffers a dangerous and incurable disease, the pregnancy may only be terminated before the fetus reaches the stage of development where it becomes capable of living outside its mother body. If the pregnancy resulted from criminal activity, it may only be terminated by the end of its twelfth week and the prosecutor must issue the certificate stated that there is a probability that pregnancy is a result of a crime. A pregnancy resulting from criminal activity, however, may be terminated in a private clinic.

Women are required to write a statement in which they agree to the operation. Juveniles and women that are incapacitated also need to present an agreement written by their statutory representative. Girls over thirteen years of age are required to sign their statements; whereas, those under thirteen must be authorized by the family court, although she has the right to express her own opinion. In cases of full incapacitation, a woman's written agreement is still required, unless her mental condition makes it impossible. The women entitled to use services of the National Health Service institutions have the right to have their pregnancies terminated in state hospitals without charge.

The Law on Family Planning, Protection of Human Fetus, and Conditions Permitting Pregnancy Termination, however, is not the only law de facto dealing with termination of pregnancy. The new language of Article 157, 1,2 of the Penal Code, adopted on 8 July 1999, introduced harsher penalty (two years imprisonment) for “causing bodily harm or health damage endangering the life of a conceived child". The only circumstance excluding prosecution under this article is dealt with in Paragraph 2, which states that “a physician does not commit a crime if a bodily harm or health damage caused to a conceived child resulted from medical treatment procedures necessary in order to avert the danger to the health or life of a pregnant women or conceived child. The new provision does not exclude criminal responsibility "if a bodily harm or health damage is caused to a conceived child" during abortion resulting from rape, or pregnancies where there is a high risk that the fetus may be severely and irreversibly damaged. Thus, in practice, contrary to the provisions of The Law on Family Planning, Protection of Human Fetus, and Conditions Permitting Pregnancy Termination, under Polish law, pregnancy may be legally terminated only if it endangers women's health or life. Women, however, who decide on the operation are not liable to any punishment. If a woman has her pregnancy terminated against her will, or an abortion results from any violent action, illegal threat, or deceit, the actor is liable to penalty of six months to eight-year imprisonment.

Concurrently, similar changes were introduced to The Law on Medical Profession. The amendments replaced the term “fetus" with “conceived child." This change should be regarded as a yet another effort to subordinate the law of the state to the prevailing Catholic ideology, according to which a human being exists at the moment of conception and should be accorded all rights at that moment. Advocates of this ideology have never tried to conceal their intention to introduce full ban on abortion. Today, they constitute an influential group within the ruling coalition, so the recently adopted restrictions should be seen as a next step towards this final goal.

Penalty for infanticide has been also aggravated: Article 149 of the Penal Code included the crime of killing a newborn baby as a result of strong labor-induced emotions or causing severe deformation to the baby's body. This newly amended version of this article maintains the same punishment, imprisonment for up to five years; however, the possibility, time, and scope of this regulation have now been limited exclusively to labor induced infanticide at the time of birth.

The law in Poland does not provide men with the right to limit a woman's decision on abortion.

The reality of obtaining abortions

In practice, access to abortion has always been more difficult than what the law has stated. For example, since 1992, many hospitals have refused to perform the operation, invoking the articles of the Code of Medical Ethics, even in the periods when abortion on social grounds was legal. In addition, the pressure many doctors face forces them to refuse to perform abortions. Many hospital directors have announced that their hospitals would not carry out that type of operations at all. Some even refused women whose pregnancy endangered their health and life. Moreover, women are often sent from hospital to hospital, while the twelve-week period when abortion is legal elapses, because a doctor with a “clear conscience" refuses to perform the operation. As a result, the lives of many women have been endangered by operations performed too late. The media have highlighted a number of cases where hospitals have refused to perform abortions, such as the case of a woman who carried a dead fetus, or of a blind woman suffering from epilepsy. It also published information on an attorney who had refused to issue a certificate for a twenty-year old woman raped by her employer, stating that she “is an adult and she should realize that such situation may occur."

The Catholic Church also played a highly active role in organizing the campaign to limit access to abortion, contraceptives, and sexual education. Church representatives were active in campaigns to tighten the restrictions on abortion and many organized events to collect signatures in such a way that people found it very hard to refuse. The pressure imposed on small communities was particularly strong; one had to be very brave to refuse to put her or his signature on a petition. Signatures were also collected from children during religion classes. The language used in the campaign explicitly accused those who support free choice: they were referred to as murderers or Stalinists and abortion was compared to the Holocaust. Churchgoers were threatened that they would not be given Sacraments.

Estimations show that the legal limitations have not significantly affected the number of abortions performed. However, the illegal nature of the act causes difficulty in establishing the exact number of Polish women who have had pregnancy terminated in the country, or abroad. The number of legal abortions obviously declined (until 1988, over 100,000 abortions were performed each year, between 1994 and 1995, fewer than 1,000, and in 1997, 3047). However, because of the limitations to legal abortion, women instead pay a large fee for the operation in Poland's private clinics or abroad. Thus, despite the restrictive Anti-abortion Law, the birth-rate has shown a significant decline within the last few years; in 1997, it reached the lowest level since the end of World War II (412.6 thousand live births), indicating that the law is inefficient and that the “abortion underground" and "tourism" does exist.

It is very difficult to evaluate the health and social outcomes of the limitations to abortion. However, the restrictive law has caused many personal tragedies for women whose health or life was in danger. Out of concern that they might conceive an unwanted child, many women have refused to have sex with their partners, an approach that could result in an increasing number of men forcing themselves on women. In addition, operations carried out secretly or in poor conditions, both in Poland and abroad, can result in irreversible damage to a woman's health. Abortion caused many women to decide to give up the option of having pregnancy terminated legally. An atmosphere of fear and intimidation has also made it difficult to obtain information on doctors who perform the operation in private clinics. As many cannot afford the hefty fee, they decide to terminate pregnancy, using methods dangerous to their health or life. The media reported on three fatal cases of women who attempted to terminate their unwanted pregnancies themselves. The number of spontaneous miscarriages also increased, although their true number may be lower than official figures, as pregnancy termination operations are sometimes officially classified as spontaneous miscarriages.

In 1996, immediately after the law was broadened, the opponents of free choice initiated activities aimed at illegalising the access to abortion on social grounds. The “Solidarity" movement threatened, for example, to launch the campaign of “civil disobedience," including a refusal to pay the full tax rates. The Chief Medical Council maintained its objections against legalizing abortion. In fact, many doctors, and even hospitals refused to perform the operation for social reasons. Abortions were not available in many voivodeships. When hospitals refuse to terminate a pregnancy, they violate the law. An individual physician can refuse the operation on conscientious grounds; however, he or she is not entitled to refuse on behalf of other physicians. When a state physician refuses to perform an abortion, he or she has an obligation to direct the patient to another institution where the operation can be carried out. Unfortunately, women often are not offered this kind of advice.

Many doctors who refuse to perform abortions in state hospitals do not object to performing them in private clinics. Even the Spokesperson for the Organization of Physician's Professional Liability agreed that doctors in state hospitals often abuse the “clause of conscience." However, although a woman's right to legal abortion is repeatedly violated, the institutions responsible for the law's implementation, the Ministry of Health and Provincial Governors have done nothing to combat the phenomenon. The Ministry was very late in establishing the rules to implement the law, significantly affecting many women wanting to assert their rights.

The analysis of the governmental report on the implementation of anti-abortion law shows that in 1998 there were only 310 abortions performed in public health service institutions: 211 pregnancies were terminated because they endangered women's health or life and 46 because of the severe fetal damage. In other 53 abortion cases, pregnancies resulted from incest or rape. In 1998, in Poland, there were 397000 newly born babies, of which their mothers in hospitals abandoned 594. The report does not provide information on the number of spontaneous miscarriages (in previous years there had been approximately 40000 cases per year); missing information could be helpful in estimating the number of abortion performed in hospitals.

The Federation for Women and Family Planning, as numerous other women's organizations, considers governmental report biased and unreliable, since it doesn't include information on the "abortion underground".

II. Pre-natal Tests

The law of 7 January 1993 on Family Planning, Protection of Human Fetus, and the Conditions Permitting Pregnancy Termination also regulates access to pre-natal exams.

The Article 2 of the law states,

“Central and local government administrative bodies are obligated, within their competencies laid down in specific regulation, to ensure free access to information and pre-natal tests, in particular in all situations where there is a high risk or suspicion of the presence of any genetic defect, any defect in the fetus's development, or an incurable disease which constitutes a threat to the fetus's life."

However, in practice, women have never been able to fully exercise this right, as they lack information or receive misleading information on the availability of pre-natal tests, or face difficulty in gaining access to them. Only three centers in Poland - in Warsaw, £ódŸ, and Cracow - offer pre-natal exams. Upper Silesia, a highly polluted region of Poland, does not provide these medical procedures, despite the high percentages of fetuses that suffer genetic defects, ostensibly due to pollution. Recently, gynecologists from the Cracow Medical Center have begun refusing pre-natal exams, on the basis of the “clause of conscience." The 1999 Report by the Council of Ministers, which evaluated the implementation of the law on Family Planning, Protection of Human Fetus, and the Conditions Permitting Pregnancy Termination, stated that in 1998, in Poland, only 1,612 pre-natal tests had been performed. Considering the fact that out of 412,600 births, in 1997, seven to eight percent presented a high risk of genetic defects paints a grim picture. Moreover, an increasing number of women decide to have their babies at older age (about 10% of Polish women have babies after the age of thirty-five), and the environment is increasingly deteriorating, both of which increase the risk of various types of pathology.

On 20 May 1999, the Seym updated the Penal Code and the Law on Medical Profession in order to tighten the restrictions on pre-natal tests. The Senate rejected the changes adopted previously by the Seym and put forward its own amendments aimed at restricting women's right to pre-natal health care. In accordance with Polish legislative procedures, the draft changes were sent back to the Seym, which passed them on 8 July 1999. The amended Article 157, 1 of the Penal Code introduced the penalty of two years imprisonment for “causing bodily harm or health damage endangering the life of a conceived child". Prior to the amendment, the perpetrators had been liable to a fine or restriction of liberty. There is no doubt that this provision will be regarded by physicians as a ban on pre-natal tests, as these medical procedures create certain minimal (lower than 1%) risk to the health and life of a fetus. Besides, the amended provision may result in doctors refusing to perform abortion even in fully justified cases.

Article 157a, 2 states that “a physician does not commit a crime if a bodily harm or health damage caused to a conceived child resulted from medical treatment procedures necessary in order to avert the danger to the health or life of a pregnant women or conceived child." So, doctors may be afraid that they would be prosecuted even for terminating pregnancies resulting from rape, or pregnancies where pre-natal tests showed the presence of a severe genetic defect in the fetus.

The Seym also amended Article 149 of the Penal Code (in force from September 1998) concerning infanticides committed as a result of strong labor-induced emotions. According to the new law the punishment inflicted on a woman killing her newborn child as a result of postnatal psychosis shall not be mitigated.

Some political commentators claim also that the Seym decided to withdraw from the planned legislative changes, because the originally proposed restrictions were not rigorous enough. In fact, they allowed access to pre-natal tests in three cases: when a family has a history of genetic disorders; when the doctors suspect a genetic disorder, which may be treated within the fetal period; and when the doctor suspects severe fetal damage. According to these sources, a new law on pre-natal tests, which has been drafted by the group of deputies from the ruling coalition, will soon introduce a full ban on pre-natal medical procedures.

The attempts to limit the access to pre-natal tests in Poland, in a country where the number of mothers undergoing the exam remains very low, must be seen as another attack on women's reproductive rights. The introduction of these restrictions attempts to further limit abortions from genetic disorders or severe fetal damage. The Seym's decision to limit access to pre-natal tests is an infringement on a woman's constitutional right to protect the health of her unborn child. It also violates several patients' rights, described in the law of 6 February 1999 on the National Health Insurance (Official Journal, 26 March 1997).

Many women's organizations protested against the limitations and petitioned the President not to sign the amendments to the Law on Medical Profession and the Penal Code. The President, however, signed the law-limiting women's access to pre-natal tests and aggravating the punishment for the killing of a newborn child by a mother under labor induced, strong emotions.

III. Special Protection of Pregnant Women

Article 2.1 of the Law on Family Planning, Protection of Human Fetus, and Conditions Permitting Pregnancy Termination (Official Journal, 1 March 1993) imposes on central and local government administrative bodies an obligation to ensure that pregnant women receive proper medical, social, and legal care, in particular, by offering:

  1. pre-natal care of the fetus and medical care of the pregnant woman;
  2. financial assistance and care for pregnant women who are in a difficult financial situation during their pregnancy, labor, and after the baby has been born;
  3. access to detailed information about their rights, social security benefits, and other forms of payment available to pregnant women, mothers, fathers, and their children, and information about institutions and organizations which help resolve psychological and social problems, and which assist in matters of adoption.

The legislature has also imposed another obligation on the central and local government by requiring them to co-operate and assist the Catholic Church, other churches and religious and social organizations involved in caring for pregnant women, organizing foster families, or assisting in matters of adoption. The obligation to help has been reserved only for these organizations which help pregnant women, organize foster families, or offer help in matters of adoption. The non-governmental organizations, which disseminate know-how on birth control and monitor compliance with the right of access to legal pregnancy termination, may not hope for any support by central and local government administrations.

Although statutory obligations imposed on the local and central government administrations require them to offer assistance to pregnant women, this assistance is, in fact, very limited. Although the legislature wants women to have children, including the ones they do not want to have, the authorities do not ensure adequate assistance for expecting mothers. Only every second women in urban areas and less than 50% of women in rural areas receive adequate medical care.

According to data presented in the Government's Report on the Implementation of the Anti-abortion Law, in 1997, a woman received children's benefits at the value of 138 zlotys (35US$) per child. Previously, the total amount of financial assistance a pregnant woman received was 531.48 zlotys (135US$), and only those women whose monthly family income is not higher than 316 zlotys per capita are entitled to claim this amount. Since 1 June 1999, benefits have increased to the sum of 348 zlotys, and the income per capita must not exceed 384 zlotys.

Finally, the amount of public money used to provide homes for single mothers is highly limited (at the end of 1997, only 660 spaces were available; these were fully or partly financed by provincial governors). In addition, centers run by churches, associations, and foundations, often do not meet women's needs. In some places, women's human rights are severely violated. In fact, human rights limitations are often included in the center's statutes. For example in some shelters, women may not leave the premises freely, or are made to work without pay. A large number of centers are managed by males who sometimes have criminal record. Women who remain in these places are often sexually abused.

IV. Contraception

Availability of family planning methods, its cost, and access to information, counseling, and services in this field, are the key elements that determine if citizens can successfully utilize contraception. Men have a limited range of contraceptive options available, causing women to face most of the problems related to family planning. Any limits on women's access to family planning methods seriously undermine their freedom to choose their way of life. The Polish Government has never implemented any policy on sexual education and birth control, and physicians have never provided relevant information at a satisfactory level.

Although Article 2.2 of the Law on Family Planning, Protection of Human Fetus and Conditions Permitting Pregnancy Termination (O.J., 1 March 1993) imposes on central and local government administrative bodies an obligation to ensure that nationals have free access to methods and measures of birth control, they do not meet the obligation.

A public opinion survey “Contraception. Availability and Barriers to Its Use", conducted in 1995 on a representative sample of the population by MARECO POLAND (member of the GALLUP INTERNATIONAL) indicated that most Poles learn about the use of contraceptives through friends and the mass media. Only every fifth respondent received information on contraceptives from a doctor and 23% of these felt the information was insufficient. The results of a survey of 1220 women conducted by the Federation for Women and Family Planning found that the doctors of 45% of the respondents have never offered them any contraceptives. Only 32% said that the information they had received from their doctors was sufficient. Although these numbers are alarming, the situation may be far worse. Ninety percent of the women polled lived in cities, 95% of which had at least secondary level of education.

The same survey indicated that only 11% of respondents (over 15 years of age) regularly used contraceptives, 44.3% of respondents “never" used them, and 41.5% use them only “from time to time." A correlation was found among the respondent's age, education level, and frequency of using contraception. About 18% of those under 40 years old and over 19% of post-secondary school graduate regularly used contraceptives. The less educated and elderly utilized contraception much less frequently. Inhabitants of large cities, and those who never or rarely participate in religious practices more often claim to use contraceptives (over 17%). Those who take part in religious practices several times a week usually do not use birth control (63%).

The survey established that following constitute the main barriers to the use of contraceptives:

  1. no habit of using them (41%),
  2. attitude presented by Church (39.2%),
  3. embarrassment when buying them (36.5%),
  4. fear of possible side effects (28%),
  5. lack of information on how to use contraceptives (23.1%),
  6. lack of information on types of contraceptives available (22.3%),
  7. mistrust in their efficiency (15.4%),
  8. embarrassment to use them (15.1%),
  9. high prices (9.2%),
  10. insufficient number of shops that sell contraceptives (5.1%).

Cultural barriers, in their broad sense, seem to be the most significant reason, followed by the lack of knowledge on both types of contraceptives available, and the lack of information on their use, efficiency and possible side effects. The consistent policy of the Catholic Church, which condemns all methods of contraception, including the sheath (condom), has also greatly affected attitudes towards family planning. The Church media has popularized the view that contraception is a sin, and that it is harmful to women's health. For a majority of Poles, the Church, their great moral authority, acts like an oracle. When some women were asked why they had not used contraceptives, they replied that if they had, they would have committed a greater sin than they would have if they had had an abortion. The Church solely propagates "natural methods" of birth control, which are highly unreliable. Catholic Church's attitude towards contraception seems especially drastic in respect of the use of condoms. When campaigning against the use of a condom, Catholic Church's representatives voiced an opinion that it does not protect from AIDS.

In 1996, the Central Statistical Office conducted a survey on the birth control methods used (“Health of Polish People" - 1996). Both married and divorced women gave the following answers:
Methods and Measures of Birth Control Number of Women who Used them (%)
Interrupted intercourse 45.8
Calendar based type of Method 35
Thermal Method 7.7
Ovulation Method 7.3
Condoms 31.8
Spermicides 5.3
Intrauterine devices 7.1
Contraceptive Pill 6.3
Sterilization 1.2

Access to contraceptives was regulated in 1991 by the Law on Pharmaceuticals, Medical Materials, Pharmacies, Wholesale Warehouses, and Pharmaceutical Supervision. This law requires every pharmacy to have in its stock all types of contraceptives, including those available without prescription. Some chemical and mechanical contraceptives are also available in non-pharmacies, and condoms may be purchased in a variety of stores. Hormone-based pharmaceuticals are sold only when prescribed by a physician. According to the Report on Pharmaceutical Supervision, 90% of the registered range of contraceptives are readily available in pharmacies. Condoms are the most widely available contraceptive (68.2%), followed by contraceptives applied inside vagina and the pill (43.2 and 42.7% respectively). Contraceptives that are applied inside the uterus (IUD) are the most difficult to access (34.2%).

In March 1998 the government withdrew the subsidies for five out of eight hormonal contraceptives. Following the Decision of the Minister of Health and Social Care, only three types of hormone-based birth control have been included in the list of contraceptives that can be purchased at 30% of their original price: Microgynon 21, Rigevidon, Stediril 30, which all have a uniform composition (levonorgestrel - 0.150 mg, ethynyloestradiol - 0.03). In comparison to numerous new generation pills, such as Cilest, Minulet, Femoden, Mercilon, and Marvelon, this formula is out of date. The Ministry's regulation severely limits women's access to effective and simple forms of contraception and, thus, violates women's right to family planning. In addition, it does not comply with the national and international law on the protection and assistance of the family, access to health service, and family planning (Article 2, Paragraph 2 of the Law of 7 January 1993, on Family Planning, Protection of Human Fetus, and Conditions Permitting Pregnancy Termination - Official Journal No. 17, P. 78 as amended; Art. 10 of the International Covenant on Economic, Social and Cultural Rights - Official Journal of 1997, No. 38, P. 169, Article 12, Paragraph. 1, and Article. 16, Paragraph 1; Convention on the Elimination of All Forms of Discrimination against Women - Official Journal of 1982, No. 10, P. 71), an opinion shared by the Ombudsman. The Ministry of Health and Social Care argues that due to limited funds, the decision cannot be changed, as the subsidized pharmaceuticals may be used both as contraceptives and as a medication for hormone-based treatment (Information issued by the Ombudsman, Prof. A. Zieliñski, referring to the period between 1 January 1998 and 31 December 1998).

The use of subsidized contraception is often further limited by the attitudes of many gynecologists who maintain that teenagers and youths should not use them.

Not only has the new generation of contraceptives not been subsidized, they also fall into to the group of the more expensive pharmaceuticals; with no refund system available. Thus, monthly purchases of these contraceptives may become a huge expense for a large number of women, particularly, that due to the specifics of hormone-based medication, they may not be easily replaced with less expensive alternatives. This treats the pill as a luxury good and limits women's right to use one of the most effective method of contraception (the lowest Pearl's ratio). According to the data released by the Health Department in 1995, the quantity of the pill sold leads us to believe that only about 3.4% of women use them. Compared to Western standards, this figure is very low.

Not all contraceptives are available in Poland. The female condom, for instance, is unavailable in this country, although it reduces the risk of contracting HIV and other sexually transmitted diseases. An injection with a hormone-based formula, which lasts up to 12 hours (Depo-Provera) is available, although it has not been registered. Contraceptives used in “emergency" situations are not common in Poland either.

Polish law does not permit operations that deprive a person of her or his ability to procreate (Art. 156.1 of the Penal Code). Anyone who performs an operation of sterilization, even on those opting for the procedure, is liable to penalty of one to ten years imprisonment. Nonetheless, this law has been violated on many occasions. Illegal sterilization operations are performed under various pretenses, usually when the doctor views the patient's situation as non-conducive to having children, such as a mental handicap. Polish law on this procedure is very restrictive and shows no regards to the many situations where the elimination of an ability to procreate would be in the interest of the people are concerned. It further infringes on the right to freely surrender one's own fertility.

Women's right to birth control is also limited by the difficulty in accessing information on the methods and measures for family planning. As indicated in the survey quoted earlier, the lack of access to information constitutes a major barrier to the use of contraceptives. However, only a few institutions and non-governmental organizations (NGO) are involved in education on family planning. The range of actions by NGOs has been additionally limited by lack of funding from central and local government bodies.

Family planning education is practically unavailable in either the hospital, or institutions of education. Schools and physicians often refuse to promote contraception; they do it on ideological grounds and, commonly, because of insufficient knowledge on the subject. Moreover, many Polish women do not have enough courage to speak openly to their doctors. Therefore, as certain cultural and religious conditions cause many women to feel embarrassed by any references to sexuality, it seems necessary for proper information on contraception to be disseminated by leaflets and guides. In the meantime, the right of citizens to free access to birth control has not been practically implemented. The government has subsidized no NGO dealing with the dissemination of information on family planning.

The attitude of many gynecologists towards the use of contraceptives often presents a barrier to their patients, particularly young women. Not only do they not receive information about contraceptives, they are often misinformed or discouraged to use them. The media reported on one young woman whose doctor in a local Warsaw hospital refused to prescribe her contraceptives, commenting on her manners and sexual life. This doctor's attitude is no exception; women's organizations have received similar signals from various regions of the country. Although this behavior may be tolerated in exceptional cases, it is inexcusable that the Minister of Health and the President of the Main Medical Chamber seem to support these attitudes and moralize over their patients. Wojciech Maksymowicz, Minister of Health from Jerzy Buzek's Cabinet, and Krzysztof Madej, President of the Main Medical Chamber, supported the doctor's right to refuse to prescribe contraception on the grounds that it is not medicine, and family planning counseling is not a medical service. Krzysztof Madej also claimed that a doctor has the right to moralize over her or his patients if the judgment stayed within the nature of her or his “medical consultation." This type of opinion violates Poland's international obligations that require counseling and other services relating to birth control must be considered a medical services that should be readily available (WHO-World Health Organization recommendations, and others).

Difficulties in accessing effective family planning methods and measures seem particularly shocking in a country like Poland, where legislation on pregnancy termination is so restrictive.

V. Sexual Education

In Poland, the subject of sexual education still evokes strong emotions. Sexual education in Polish schools has never been supported at a satisfactory level, although the framework program was introduced to Polish schools in the early seventies. Theoretically, “Preparation for Family Life" became a compulsory school subject in 1986. However, it was taught during class time reserved for general discussions between students and teachers, a time, which was not considered seriously by students. The textbook by Wieslaw Sokoluk, introduced in the 1987/1988 school year, caused a social uproar resulting from the clash between different worldviews. Both, the reasons for its introduction and its contents were questioned. After long consultations, in 1989, the textbook was withdrawn as a compulsory learning aid, although it was recommended as an additional source. Due to frequent changes in the subject's content, it is difficult to see how the Preparation for Family Life has been implemented in practice. Until 1990, the programs and teaching aids developed were implemented according to the discretion of the individual teachers. In 1992, a regulation by the Minister of Education canceled the classes reserved for general discussion, officially stamping out education on the “Preparation for Family Life" for good.

This state of affairs formally changed after the Law on Family Planning, Protection of Human Fetus, and Conditions Permitting Pregnancy Terminations was adopted on 7 January 1993 (Official Journal of 1 March 1993). The law (Article 4,2) imposed an obligation on the Minister of Education to introduce the subject titled “Knowledge of Human Sexual Life" into the school curriculum, and to provide, jointly with the Minister of Health and Social Policy, the syllabus on this subject; the syllabus was also to be included in the general education program, and the Ministers were obligated to introduce a system of training and skills' enhancement in the knowledge of human sexual life for teachers.

Following the enactment of the law, the Minister of Education passed a regulation to reintroduce the classes mentioned above, and mandated that schools include sexual education and family life in their educating and teaching activities. It was emphasized in the Program that “its implementation is not to introduce new educational materials, but to use their compulsory scope appropriately." Thus, the quality of teaching, issues presented, and methods of class organization, exclusively remain the subject of teachers' competencies and invention. Experts argued that the Ministry of Education's Program of Sexual Education was unprofessional and impossible to implement.

On 11 December 1996, a group of senators requested the Constitutional Tribunal review the constitutionality of a number of regulations established in the updated version of the Anti-abortion Law. The provision establishing the Ministers of Education and Health as responsible for the development and introduction of the “Knowledge of Human Sexual Life" was also questioned. Although the Constitutional Tribunal ruled the provision did not constitute an infringement of the Constitution, Parliament updated the Law. Then, the President vetoed the Article which repealed the provision introducing the subject “Knowledge of Human Sexual Life" to schools. Parliament did not manage to overrule President's veto.

Nevertheless, the Catholic opponents of sexual education did not abandon efforts to amend the Anti-abortion Law, and finally succeeded in persuading the Seym to repeal Article 4,2 of the law, which introduced the subject titled “Knowledge of Human Sexual Life" into school curriculum. The amended language of Article 4.3 provides that the Minister of Education shall determine, by ministerial order, the scope and the teaching method of the subject, referred to in Clause 1 (Knowledge of Human Sexual Life), contained in the general educational program. Moreover, the Minister shall include the issues, specified in Clause 1, into teachers training curricula. Thus, the knowledge of sexual life was withdrawn from schools only to be replaced with the subject titled “Education for Family Life" based on ultra-conservative and ultra-catholic dogmas on sexual and family lives. The Ministry of Education has recently issued a draft order, regulating the name and formal aspects of the new school subject. According to this draft, the scope of the program of the new subject shall be determined on the basis of syllabus contained in the general educational program (Order by the Minister of Education of 15 February 1999).

The program was based on the conservative vision of women and men's social roles and sexual needs, stressing that boys and girls should have different forms of education to highlight their particular needs and traditional functions. The idea of a human sex life is limited to marriage and motherhood, and even if extramarital sex is presented, it is only condemned. When presenting family planning, only natural methods are considered; if other methods of birth control are discussed, it is to stress potential side effects. Abortion is also exclusively discussed in the context of the risk it causes to a woman's physical and mental health.

The attitude presented by the Catholic Church is also very important in this respect: it remains conservative and uncompromising with respect to human sexuality and education on contraception. The incompatibility of the Catholic doctrine with liberal values and the alternatives offered by newly developed contraceptives, do not allow a common curriculum, acceptable to both Catholics and lay members of the Polish society, to be developed.

Conclusions

Current legislation and the way it is applied to family planning and abortion issues are in contradiction with international standards. International agreements concerning human rights and the status of women, including the Convention on the Elimination of All Forms of Discrimination against Women (ratified by Poland), the Beijing Platform of Action, and the final documents from the World Conference on Humanity and Development in Cairo, created a governmental responsibility to ensure that women of all ages have full access to counseling services and family planning measures. The Polish government has not yet met this obligation. The United Nations Committee on Economic, Social and Cultural Rights at the Human Rights Committee have expressed their concern over the fact that the Polish Government has not ensured access to family planning services, that it maintains rigid anti-abortion policy and removed sexual education from the school curricula. Committee's recommendations addressed to the Polish Government included ensuring the availability of family planning services, providing counseling on safe methods of contraception, and establishing reliable sexual education based on genuine information for children and school age youths. Despite these recommendations, the policy of the Polish Government has not changed and actually seeks to further limit women's rights.

Any change in legislation on abortion and family planning is currently very difficult not only because of political situation but also because of the Constitutional Tribunal's ruling according to which liberalization of abortion is incompatible with the Constitution. We hope, however, that legislation and government policy on women's reproductive rights will be liberalized after the change of government at the next general election.

NATIONAL PLAN OF ACTION FOR WOMEN

SELECTED RECOMMENDATIONS

Objective 1. Develop national strategies and policies regarding women's health and elaborate appropriate documents;

Actions to be taken:

Objective 2. Devise and implement preventive programs regarding women's health.

Actions to be taken:

Objective 3. Develop and implement social welfare and health insurance systems to ensure sufficient funding for women's health care services.

Actions to be taken:

Objective 4. Improve access to specialist and women-friendly (as defined by WHO) medical treatment and other services with particular attention given to women in rural areas and in small towns.

Actions to be taken:

Objective 5. Improve quality of life and health of menopausal and older women.

Actions to be taken:

References

WRC's REPORT
Raport CPK
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