At the end of August 2024 at a press conference attended by the Prime Minister and the Minister of Justice, Minister of Health Izabela Leszczyna announced the publication of ‘Guidelines on the applicable legal provisions concerning access to the procedure of termination of pregnancy’, no one could have imagined that this act would so quickly lead to the tragedy that recently took place in a hospital in Oleśnica. However impossible it may seem, the intentional killing of a 9-month-old child just before the due date was in accordance with the letter of the Guidelines, but remained an unlawful and extremely unethical act.
The story with a tragic ending in Oleśnica
As a reminder, it should be mentioned that the story that ended in the tragic death of a 9-month-old unborn boy, identified in media reports as Felek, began in a hospital in Łódź, where, due to the child’s diagnosed illness and the severe mental state of his mother, the woman was offered an early termination of pregnancy by caesarean section, followed by highly specialised medical care for her and the child. The boy was already at an age that would have allowed him to live independently outside his mother’s body. However, the woman did not agree to this solution and, at the instigation of organisations promoting illegal abortion and organising illegal ‘abortion tourism’, she went to a hospital in Oleśnica to undergo an abortion, i.e. the killing of her child in the 37th week (9th month!) of pregnancy, under the pretext of mental health risks.
The tragedy that unfolded in the Oleśnica hospital rightly aroused public outrage. The few voices of support for the doctor’s actions from the left wing of the political spectrum were completely drowned out by expressions of disbelief that such situations could legally occur in Polish hospitals. This raises the most important question: are situations such as the one in Oleśnica really legal?
The Minister of Health’s guidelines are inconsistent with applicable law
The answer to this question is unequivocally negative. It can be stated briefly that the killing of a 9-month-old unborn child was unlawful and, at the same time, consistent with the Minister of Health’s recommendations contained in the Guidelines. The conclusion is obvious – the Guidelines go beyond what is legally permissible, introducing new practices related to abortion that are unknown to the law. The Act of 7 January 1993 on family planning, protection of the human foetus and conditions for the admissibility of abortion does provide for the admissibility of abortion in situations where the mother’s health is at risk (Article 4a(1)(1)), but it is not true, as stated by the Minister of Health in his Guidelines, that ’ from a legal point of view, the performance of a termination of pregnancy in these circumstances should not be (…) conditional on the duration of the pregnancy’. Given that in the Guidelines “termination of pregnancy” is synonymous with the killing of an unborn child, these “recommendations” cannot be treated in isolation from the relevant provisions of the Criminal Code. Contrary to appearances, the Guidelines are not industry instructions limited to technical issues related to abortion, but their content actually creates new, extra-legal exceptions to the legal protection of life in force in Poland, which is not only inconsistent with the Polish Constitution, but also transfers the assessment of the Oleśnica doctor’s actions to the criminal law in its section on crimes against life (Chapter XIX of the Criminal Code). It is obvious that the provisions of the Criminal Code protect unborn life, while the legal classification of this act remains to be decided. A child in the ninth month of pregnancy is already capable of life after being separated from the mother’s body, and therefore termination of pregnancy, if required by the woman’s health, is permissible, but – to put it simply – in conjunction with measures to save the child’s life. Polish law, including criminal law, absolutely does not allow the intentional deprivation of a child’s life, especially one that was capable of survival after termination of pregnancy. If we were to adopt a different interpretation, the criminal law protection of life before birth would become completely illusory.
Doctors have a duty to save the lives of the mother and child
However, the Guidelines are silent on the duty of doctors to save the life of a viable child who, as a result of the termination of pregnancy, requires specialised medical care. In essence, the Guidelines encourage doctors to terminate pregnancies, with additional severe financial penalties for any refusal to perform an abortion (amendments to the Annex to the Regulation of the Minister of Health of 8 September 2015 on general conditions for contracts for the provision of healthcare services). What is more, the Guidelines ignore the ethical obligations of doctors contained in the Code of Medical Ethics, including the one that explicitly expresses the doctor’s duty towards the unborn child – Article 39(1), according to which ‘when performing medical procedures on a pregnant woman, the doctor is also responsible for the health and life of the unborn child’.
This is how the destructive effect of the ministerial Guidelines on the medical profession manifests itself. Under the guise of practical guidance on medical practice in particularly sensitive situations, they in fact violate the law and undermine the very essence of the medical profession, which, according to Article 2(1) of the Code of Medical Ethics, is ‘the protection of human life and health, the prevention of disease, the treatment of the sick and the alleviation of suffering’. 1 of the KEL, is ‘to protect human life and health, prevent disease, treat the sick and alleviate suffering’.
Legal Advisor Katarzyna Gęsiak
Image source: Adobe Stock.
