(unauthorized translation)
THE STATEMENT OF THE CONSTITUTIONAL COURT CONCERNING ABORTION
The entire committee of the Constitutional Court on the 27th of May 1997, during the hearing of the case concerning the motion of the group of Polish senators in the presence of the plenipotentiary representatives of the participants of legal proceedings: moved that, the Polish Seym and General Public Prosecutor investigate the consistency of article 1 point 2, point 4 b) & c), point 5 in the area concerning the article 4a item 1 point 4, article 2 point 1 & 2 and article 3 point 1,2 & 4 of the Act dated on the 30th of August 1996 about the change of the Act on family planning, the protection of the foetus and the conditions allowing for abortion and about the change of some other acts (Official Gazette of Current Legislation no 139) from the article 1, article 67 item 1 & 2 and article 79 item 1 of the constitutional rules being in force on the basis of article 77 of a constitutional Act dated 17th of October 1992 concerning the mutual relations between legislative and executive powers in Poland and concerning territorial self-government, stated on the 28th of May 1997 (signature article K.26/96):
1.Article 1 point 2 in the scope in which it subjects the protection of the foetus to the decision of a common legislator, is not in consistency with the article 1 and article 79 item 1 of constitutional rules being in force on the basis of article 77 of a small constitution in the way that it violates the constitutional warranty of the protection of human life in each phase of its development.~
2. Article 1 point 4 b),c) is not consistent with article 1, article 67 item 1&2 and article 79 item 1 of the constitutional rules being in force on the basis of article 77 of the small constitution.
3.Article 1 point 5 in the area concerning article 4a item 1 point 4 of the Act dated 7th of January 1993 about the family planning, the protection of human foetus and the condition allowing for abortion (Official Gazette of Current Legislation no 17) is not consistent with article 1 and article 79 item 1 of constitutional rules being in force on the basis of article 77 of the small constitution in the manner in which it legalises abortion without the satisfactory justification of the necessity of the protection of the other value, law or constitutional freedom and it uses indefinite criteria in this legalisation, violating in that way constitutional warranty for human life.
4.Article 2 point 1 is not consistent with article 1, article 67 item 1 & 2 and article 79 item 1 of constitutional rules being in force on the basis of article 77 of the small constitution.
5.Article 2 point 2 is not consistent with article 1, article 67 item 2 of constitutional rules being in force on the basis of article 77 of the small constitution in the way that while depriving a child of the possibility of claiming a right to its legacy from its mother, it limited its rights in the way that is contradictory to the democratic rule of a legal country and to the rule of equality.
6. Article 3 point 1 is not consistent with article 1 and article 79 item 1 of constitutional rules being in force on the basis of article 77 of the small constitution in the way that it violated the constitutional warranty concerning the protection of the health of unborn children and their undisturbed development.
7. Article 3 point 2 is not consistent with article 1 and article 79 item 1 of constitutional rules being in force on the basis of article 77 of the small constitution.
8.Article 3 point 4 is not consistent with article 1 and article 79 item 1 of constitutional rules being in force on the basis of article 77 of the small constitution in the manner in which it limited the legal protection of the health of unborn children to the extent that other legal means do not fulfil the requirements of the satisfactory protection of this constitutional value.
JUSTIFICATION
Movers' arguments:
The movers claimed the questioned rules of the Act violate the rule of the democratic country under the rule of law expressed in article 1 of the constitutional rules. It results from the rule that legal order must respect inviolable and innate human rights, including above all the human right to life. The change included in the article 1 point 2 practically excludes the right to life as an innate right of each human being from the moment when life begins, and gives to the common legislator the regulations for the protection of the right to life. The analysis of the subsequent questioned rules leads to the conclusion that the legislator not only deprived an unborn child of the status of a human being but he also deprived an unborn child of legal protection as far as penal law and civil law are concerned. The movers stated that to deprive children conceived of their legal protection has an arbitrary character and that to deprive children conceived of legal ability violates their vested interest which must result in the violation of the rules of a country under the rule of law.
The movers stated that this rule allowing for abortion in the case of hard life conditions or difficult personal situation of a woman violates article 1 of the constitutional rules by violating the rule of social justice. According to the movers a legislator violating rules of justice, granted priority to a mother and her life conditions and personal situation before a child’s right to life. Such choice guarantees the protection of less important values at the expense of very important ones. And such choice violates the rule of justice.
Besides, against the rule of justice, a legislator treated in a completely different way the rights of subjects depending on their stage of life. The assignation of these stages is completely free and does not have any confirmation in empirical premises.
According to the movers, the questioned rules violate article 67 passage 1 of constitutional rules according to which Poland should strengthen and expand civil rights and liberties. The questioned rules deprive a certain group of people of their innate rights, which results in the drastic lowering of the standards of the protected human rights.
Moreover, the movers stated that the questioned rules violate the rule of equality, expressed in article 67 item 2. They drastically differentiate in terms of legal protection unborn and born children.
Article 79 item 1 of the constitutional rules concerning the constitutional protection of motherhood was also violated. Motherhood constitutes the relationship between a mother and her child. Legal rules can neither aim at breaking this relationship nor stimulate it.
The questioned regulation of the Act also effects the family, which in article 79 item 1 is considered as a constitutional value. In this context a common legislator cannot establish legal regulations, which would legalise an attempt on a necessary, personal and structural part of family - a child. To deprive a child of its legal protection is equivalent to depriving a family of its legal protection as well. Besides, the discrimination of some family subjects is contradictory to the constitutional warranty for family. The questioned rules have such a character if they legalise the killing of unborn children in order to secure the interests of a mother connected with her personal situation and life conditions.
The movers put into question article 1 point 4 b) c) from the point of view of article 79 item 1, stating that the introduction of the obligatory subject to schools - sex education - which programme is established by the Ministry of Education after the consultations only with the Ministry of Health, violates the parents' rights to raise their children according to their moral and religious beliefs, targeting simultaneously the constitutional protection of family.
According to the General Public Prosecutor
1.2. The General Public Prosecutor in his statement dated on the 12th of February stated that all the rules accused by the movers are not inconsistent with article 1, article 67, item 1 & 2 and with article 79, item 1 of the constitutional rules being in force.
Presenting the arguments for such a statement, the General Public Prosecutor emphasised that the constitutional rules, and penal rules do not include norms saying in a straightforward way that human life should be protected from conception to natural death. Besides he also added that international legal acts, particularly article 2 of the convention protecting human rights and basic liberties and article 6, item 1 of the International Convention of Civil and Political Rights, though they are not always read in the same way, according to the majority they do not introduce a ban of abortion in the first stage of the foetus’ life. This position was also supposed to be confirmed by the statement of some European constitutional courts.
The General Public Prosecutor emphasised that consistent implementation of the position expressed by the movers about the unity of human life, also in the social context, would require legal solutions similar to the ones being in force in Ireland, providing homogeneous penalties for killing a human being from its conception to natural death. According to the General Public Prosecutor the Act dated on the 7th of January 1993, before it has been amended, despite the fact it guaranteed in article 1 full legal protection of a human being, it simultaneously allowed for abortion in the first stage of a foetus’s life in case of therapeutic, genetic or legal recommendations, which caused its inner inconsistency. The legalisation of abortion because of social and personal reasons in the questioned act was only a follow-up to the existing tendency and was supposed to give consistency to the act.
In his written statement the General Public Prosecutor referred to views expressed in jurisdiction of the Constitutional Court according to which the control of the constitutionality of the acts does not include their purpusefulness and their rationality and consistency with a constitution is presumed.
Concluding his statement the General Public Prosecutor stated that though a democratic country is obliged to protect human life, the scope and methods of this protection might be differentiated depending on the preferred social attitudes and on the degree of the efficiency of the existing rules. The General Public Prosecutor admitted the lack of premises to accept that the questioned rules violate the article 67, item 1 & 2 of the constitutional rules if it is acknowledged that it concerns born ‘citizens’. Besides he stated that according to the legal order motherhood exceeds the institution of marriage and family and it means to be a mother of a born child.
During the hearing
2. On the hearing on the 27th of May 1997 the movers and the General Public Prosecutor confirmed their previous positions.
Seym’s representatives were against the inclusion of the motion, recognising that the accused act is consistent with the constitutional rules, which do not include an abortion ban. Seym’s representatives answered to the question asked by the Constitutional Court that according to constitutional rules currently being in force and according to the rules of a new constitution accepted by referendum on the 25th of May 1997 it would be consistent to introduce abortion on demand of a pregnant woman. They claimed that the act dated on the 7th of January 1993 was not able to prevent illegal abortion and was the cause of back-street abortions and abortion abroad. The dispute over the foetus’s personality is insoluble, and its status is doubtful. It is presumed that a foetus becomes a person while its mother is already a person The representative of this participant assumed that abortion is evil. The questioned amendments to the Act were to lead to the change of tactics in the fight for the reduction of abortions. It was also said that the Senate, rejecting the questioned Act passed by the Seym, did not question it on grounds of its unconstitutionality but its irrationality.
The representatives of the movers during the hearing provided the statement in answer to the General Public Prosecutor’s position. In this statement and also in their speeches, the movers acknowledged that the Act dated on the 7th of January 1993 was of essential and ‘constitutional’ character as it gave to a conceived child the right to life and treated it as a human being. The accused act is ,however, based on different axiological assumptions, it deprives a child in its prenatal stage of the attribute of a human being.
Protection in each stage of development
3. The Supreme Court stated:
The preliminary analysis of the rules questioned by a mover leads to the conclusion that the rules specify the legal status of a foetus and the limits of its legal protection, especially its health and life.
It seems that at the beginning of our considerations referring to the constitutionality of the rules questioned by the movers it is vital to determine whether and to what extent the life and health of a foetus are under the control of constitutional regulations. These settlements designate the constitutional grounds for the control of the majority of the questioned rules.
The constitutional regulations in Poland do not contain a rule of a direct protection of human life. It does not mean ,however, that human life is not characterised as a constitutional value.
The basic rule from which the protection of human life results is the article 1 of the constitutional rules being in force, especially the rule of the democratic country under the rule of law. Such a country can be realised only as a community of people and only persons can be true subjects of rights and duties. The basic attribute of a man is his life. Deprivation of his life annihilates a man as a subject of rights and duties. Provided the main rule of a country under the rule of law contains the group of basic instructions springing from the essence of a democratic law, warranting the minimum of its justice, then above all the respect for the value of human life from its conception, without which there can be no legal subjectivity, must be obeyed.
The democratic country under the rule of law gives priority to a man and the goods most valuable to him. Life is a value that in a democratic country must be constitutionally protected in its every stage.
Life is a value protected by a constitution and life in a prenatal stage cannot be differentiated. There are no satisfactorily precise and proved criteria allowing for such differentiation depending on the particular stage of human life. From conception, however, human life is a value constitutionally protected. It concerns the prenatal stage as well.
The fact of including this stage of human life finds its confirmation in the Convention of the Rights of the Child ratified by Poland on the 30th of September 1991 which preamble declares in the 10th paragraph that ‘a child because of its physical and mental immaturity requires a special care, especially legal protection before and after the birth.’ From this rule it results that the protection concerns the prenatal stage as well.
Besides the act on family planning, the protection of the human foetus and conditions allowing for abortion, either before or after the amendments, declares in its article 1 that human life is protected in its prenatal stage and abortion of a conceived child is forbidden and liable to a penalty. (a new article 152a and 152b of a penal code in the context of circumstances legalising abortion. )
The only reason for the prohibition of abortion referring to a pregnant woman must be the respect for the value of a conceived human being.
Other rules of law speak of the protection of a conceived life. In particular, the article 31 of a penal code from 1969 states that the death penalty does not refer to a pregnant woman. In this way the value of the life of human being in a mother’s womb is emphasised. The protection of a foetus receives the priority before all reasons justified by a penal code. The regulation of article 31 of a penal code clearly indicates the value which is given by a legislator to a human foetus.
Motherhood, the relation between a mother and a child.
The regulation on the basis of which a child’s life is recognised as a constitutional value is article 79, item 1 of the constitutional code indicating the obligation to protect motherhood and family. It is logical to think that the protection of motherhood cannot only mean the protection of a pregnant woman and a mother. The whole relation between a mother and a child, based on article 79, item 1 of the constitutional rules has the character of a constitutional value, including the life of a foetus, without which the relation would be broken. The protection of motherhood cannot be considered only from the point of view of a pregnant woman.
The similar conclusion can be drawn from the analysis of the word ‘family’ as a constitutional value. This word assumes the protection of a complicated social reality which constitutes a sum of relationships linking parents and children (though in a broader meaning it should include also other relationships resulting from the blood ties or from adoption). The basic, reproductive function of a family must recognise the protection of unborn children, the protection which the constitution guarantees for the family and the protection which becomes then a constitutional value. The relationship between parents and their born children should be protected in the same way as the relationship between parents and children in their prenatal stage.
The statement that human life in each stage of its development constitutes a constitutional value does not mean that the intensity of this protection at each stage and in all circumstances have to be the same. The intensity and kind of legal protection are not the mere consequence of a value of a protected good. The intensity and kind of legal protection depend on many factors of various nature which must be taken into consideration by a legislator deciding on the kind and intensity of legal protection. Nevertheless, the protection should be always satisfactory from the point of view of a protected good.
Constitutional warranty of the protection of a conceived child’s health results from the constitutional value of human life, also in the prenatal stage. The protection of human life cannot be understood as the mere protection of biological functions essential for existence but as a warranty of the correct development, good psychological and physical conditions appropriate for a given age. In spite of the number of factors essential from the perspective of these conditions, it is without doubt that it includes certain optimal (from the point of view of life processes) state of the organism of a given person, either in the aspect of physiological functions or psychological ones. Such a state can be identified with ‘psycho-physical health’. Constitutional warranty of human life must include protection of such health; the rules constituting the basis for this warranty are simultaneously the basis for the conclusion that there is a constitutional duty to protect human health irrespective of its physical, emotional, intellectual or social stage of development. Since human life in its prenatal stage is also a constitutional value, any attempts to limit the legal protection of health in the prenatal stage would indicate such differentiation. Current stage of knowledge does not give any grounds for the introduction of such a criterion.
The statement , according to which human health should be legally protected in the prenatal stage, is confirmed in the Convention of the Rights of the Child. The article 24, item 24 of this convention states that a country should recognise children’s rights to the best health care. In item 2 of this article it is stated that countries will try to ensure this right and will undertake appropriate actions in order to quarantee mothers good prenatal and postnatal care. In addition, paragraph 10 of the preamble to the convention, according to which a word “child” includes an unborn child as well, article 24 indicates that the right to “the best health care” is also the right of a conceived child. Only in this way can the obligation resulting from article 2 to quarantee mothers prenatal care be explained. The recognition of ensuring prenatal care for mothers was not introduced only because of a pregnant woman but to give the quarantee of health protection to a conceived child. (article 24 item 2).
As it is written in the article 79, item 1 motherhood and family are also constitutional values. Motherhood means the necessary relationship between a mother and a child. And this is a biological, emotional, social and legal relationship. The correct development of a child, especially in the primary stage of its life, is the main function of this relation. Nobody but a mother is able to sustain the life of a child in this stage.
As it was mentioned before the constitutional protection is not only undertaken in a mother’s interest. A child, and its development, is an equal subject of this protection. It includes obviously the protection of a conceived child’s health and the ban on harming the developing foetus.
The above arguments clearly indicate that the constitutional rules guarantee the protection of health of an unborn child and that it is a legislator’s duty to introduce an appropriate legal protection of health of an unborn child.
What is not allowed for a common legislator
4.1 According to the article 1 point 2, the previous article 1 of the Act dated on the 7th of January 1993 was given a new version:
‘The right to life is protected, including the prenatal stage in the scope specified in the act.’
Before the amendments were introduced article 1, item 1 stated:
‘Each human being from conception has an innate right to life.’
in item 2:
‘The life and health of a child from its conception are legally protected’
Article 1 of the Act dated on the 7th of January 1993, prior to amendments, clearly indicated a conceived child’s right to life, declaring this right to be innate. Besides, stating that the life and health of a child are legally protected, the article confirmed that both life and health are legal goods.
After amending the Act dated on the 7th of January 1993, the new Act admits the legal protection of the right to life, including the prenatal stage in the scope specified in the Act.
The difference is the following:
a) the declaration about the innate right to life was deleted
b) the way specifying the period in which the right to life is protected was modified; the wording ‘from conception’ was replaced with ‘in prenatal stage’,
c) the protection of a child’s health, including the health of an unborn child, was deleted,
d) the difference is that article 1 of the act dated on the 7th of January 1993 prior to amendments did not characterise closely ‘the legal protection’ which included the life and health of a conceived child. The same rule after being amended indicates that life in a prenatal stage is protected in the scope specified by the Act.
The assessment of the constitutionality of article 1 after it has been amended can be reduced to independent questions:
a) whether the import of orders or prohibition resulting from this rule is contradictory to a given constitutional value.
b) whether this value was violated by the annulment of the previous rules.
Article 1 point 2 of the Act after being amended carries double normative meaning: introducing a new legal regulation, it abrogates the previous rules. Both actions are under the control of Constitutional Court from the point of view of Constitutional standards.
As far as a new reading of article 1 is concerned, according to which “right to life is under protection, including the prenatal stage in the scope specified by the Act”, the wording that life in its prenatal stage is under protection in the scope specified by the Act gives rise to doubts, expressed by the movers. It means that unborn life is protected only in the scope specified by a common act.
The wording “scope of protection” includes either the rule forbidding the violation of specific goods, in this case the life of the unborn or the means enforcing the observance of this rule. A stipulation that the unborn life is under the protection specified by the Act means that the rule of a common act constitutes a possible source forbidding the violation of the unborn life. Similarly only a common act can contain the means enforcing the observance of this rule.
As in the latter situation there is the obvious competence of a common legislator to specify the means to protect the unborn life, then the concession of the exclusive competence in the scope to decide on a ban cannot be agreed with a duty resting with a legislator to protect constitutional values.
The consequence of the subjection of the rule forbidding the violation of the life of the unborn to the regulations comprised in common acts must be a protection of this life in a situation when a legislator would forgo the introduction of the relevant prohibiton or would limit its scope.
The current edition of article 1 of the Act gives to a common legislator the right to specify whether and in what scope the unborn life is under legal protection. In consequence it means that in a legal system it is vital to have a statutory base for such a prohibition.
Such competence, however, violates the constitutional rules referring to the protection of life.
If human life, including life of a conceived child, is a constitutional value, a common act cannot censor and undermine the constitutional rules being in force. The prohibition on violating human life, including unborn life, results from the constitutional rules. In that case a common legislator cannot determine the conditions of this prohibition, simultaneously making constitutional rules conditional. The prohibition cannot be subjected to the regulations comprised in common Acts. It is contradictory, however, to constitutional rules to provide such regulations which would lead to a conditional fulfilment of constitutional rules.
Since life, including life in its prenatal stage, is a constitutional value, article 1 of the existing abortion act, giving the right to decide about the conditions of abortion to a common legislator, violated constitutional regulations which are the basis for the protection of life in its prenatal stage, it violated especially article 1 and article 79, item 1 of constitutional rules being in force.
A common legislator is entitled only to specify possible exceptions, arising in the case of a collision of constitutional goods, rights or liberties, and when it is necessary to sacrifice one of the colliding goods. A legislator’s agreement to sacrifice one of the colliding goods for another does not take away the attribute of a protected constitutional value.
Considering the normative analysis of the changed article 1 it results that its contents now have a wider range. The new Act does not say anything about the health of a child, including a conceived child, does not contain a declaration about the innate right to life and makes a different specification as to the period in which the right to life is protected.
The annulment of the declaration that a right to life is innate cannot be recognised as a normative change. The innate character of a given law does not depend on a legislator’s will and such a law cannot be abrogated by a different Act. A legislator is not competent to rescind the right to life as a constitutional value. Independently of the fact of whether a legislator expresses it indirectly in legal regulations or does not, it cannot influence the innate character of the right to life.
Since a legislator in a new Act used a different wording to specify the period in which human life is legally protected, one may conclude that he wanted to modify the scope of this protection. The change of terminology, however, does not make any vital difference. As article 1 of the Act prior to amendments used the wording ‘from conception’ a new Act says ‘in prenatal stage’. The latter phrase indicates that the protection of human life includes the period prior to birth, it does not specify the beginning. From the change of terminology one cannot conclude that a legislator wanted to shift the moment from which human life is protected. In that case constitutional rules are to decide on the scope of this protection and the change of article 1, item 1 cannot be interpreted as an attempt to specify a new moment from which human life is legally protected.
As it was noted human health, including the health of a conceived child, has the character of a constitutionally protected value. All actions undertaken against human health must be considered as actions violating a legal right. The annulment of a rule merely confirming the constitutional protection of human health, including the health of a conceived child, cannot be interpreted as a legalisation of violations or as a resignation from penal sanctions for actions violating the right. However, the abrogation of the satisfactory means of this protection must be recognised as a violation of a constitutional warranty of this right.
As it was noted, the constitutional warranties of a given value, right or liberty mean that this value is considered as a legal good. This value requires a legal protection which must be provided by a common legislator. The basic instrument warranting this protection is a specification of orders and prohibitions aiming at protecting inviolability of a given good. The existence of orders and prohibitions causing a particular action to violate a constitutional value is considered to be illegal.
The protection of this kind, however, is not sufficient. In order to protect constitutional values in common legislation it is necessary to introduce relevant consequences, ensuring the efficiency of essential regulations and the efficiency of procedures enforcing the regulations and the consequences of failure to observe them.
It should be claimed that a constitution might be and actually is a direct source of prohibitions and warrants existing in a legal order, referring to certain constitutional values. Different freedoms, for example, of expression, of association and certain prohibitions, result from a constitution. Simultaneously in order to specify the violation or limitation of a constitutional value it should be considered whether it is satisfactorily justified with regard to another constitutional value. For example the violation of an aggressor’s life is justified by the protection of a victim’s life.
In spite of the power of constitutional rules, a common legislator has to constitute essential norms referring to the protection of constitutional values, in particular, he should judge the general collisions resulting from the practical realisation of constitutional rules. Besides, a common legislator should specify the means of enforcement of the essential norms by constructing the legal consequences of their violation and the procedures of their enforcement.
In this context one has to estimate the normative sense of the annulment of article 1, item 1 of the Act dated on the 7th of January 1993 in the scope of the protection of a child’s health. The annulment means that article 1 ceased to be the basis for prohibiting the violation of a child’s health, including the health of a conceived child. And this action is not contradictory to the constitutional rules. However, the regulations introducing legal means for the protection of the health of unborn children will determine the consistency of the act with a constitution.
Ministry of Education
4.2. The questioned article 1 point 4 b) which changed article 4, item 2 of the Act dated on the 7th of January 1993, states that the Minister of Education will introduce to schools a new subject “Sex education”.
In fact the new rule repeats the old one, apart from the fact that article 4, item 2, prior to amendments, talked about the introduction of specific knowledge to schools’ curriculum, while the new rule introduces new obligatory subject concerning knowledge about human sexual life. The new rule does not annul the duty resulting from article 4 item 1 of the Act dated on the 7th of January 1993 introducing a subject concerning knowledge of responsible parenthood, the value of family, of a conceived life and knowledge of methods and means of conscious reproduction.
Either before or after the amendments were introduced, article 4 item 1 still constitutes authoritative norm for modifications of a school curriculum. After the amendments were introduced, however, this authority was modified by obliging the Minister of Education to introduce a particular subject.
It does not seem that such authority of the Minister of Education violates constitutional rules.
The general rules of introducing new subjects to schools and of modifying the existing ones are specified in the Act of the Educational System. The Minister of Education is competent to decide on the contents of new subjects. However, he is not completely free in doing it, as the activity of educational institutions has to take into account parents’ rights to raise their children according to their own beliefs and hierarchy of values. Primary education is realised by the institution of educational duty. The duty of education, like other duties imposed by the authority, is under the control of a constitution.
The obligation of the Minister of Education to introduce the new subject - sex education - does not constitute an autonomous authoritative basis. The implementation of this duty must take into consideration all rules resulting from the Act on the Educational System which specifies the general contents and aim of education and the way of making a school curriculum. The competence of the Minister of Education specified in article 4, item 2 has to be consistent with constitutional values.
Unless the Minister of Education performs his competence as far as the introduction of a new subject is concerned, there are no premises to state about the inconsistency of the authorisation. No matter how sex education subject touches axiological questions, which cannot be resolved into pure empirical knowledge or subjected to moral judgement, it does not yet mean that the introduction of this subject to school will lead to the violation of relevant constitutional values, above all to the parents’ right to raise their children according to their philosophical and religious beliefs. (article 2 sentence 2 of the first protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms).
It should be acknowledged that the specification in article 4 item 1 in reading determined by article 1 point 4 b) about the obligation of the Minister of Education to introduce into the school curriculum the new subject - sex education - does not violate constitutional values.
Basic questions
The questioned regulations of the Act dated on the 30th of August 1996 introduced to the Act dated on 7th of January 1993 a new regulation according to which abortion may be performed only by a doctor when a pregnant woman suffers hard life conditions or difficult personal situation (article 4a item 1) up to the 12th week of pregnancy (article 4a item 2). A formal condition for abortion is the written agreement of the woman (article 4a item 4) and a declaration referring to hard life conditions or a difficult personal situation and also a confirmation of a consultation with a doctor other than the one performing the abortion or with some other person entitled to this. (article 4a item 6) The period between consultations and abortion cannot be less than 3 days. Abortion can be performed in a public hospital as well as in a private one. A legislator declared in article 4b that people entitled to a social insurance or entitled to free health care on the basis of other regulations have a right to free abortion in a public health care centre.
As far as a normative meaning of the regulation of article 1a, item 1 point 4 is concerned it should be concluded that it legalises certain actions aiming at abortions. It allows then for the actions forbidden by general rules. In the context of other rules of the act, especially article 152a and 152b of a penal code it should be concluded that on the base of new regulations concerning a conceived child, its life is under protection from the conception and all actions aiming at the deprivation of its life, especially abortion, are generally forbidden.
Article 4a item 1 point 4 restricts abortion ban in a way that it allows a doctor to abort a foetus up to the 12 the week provided a woman presents documents required by article 4a item 4 & 6 and the period between the consultation and abortion is not less than 3 days.
The legalisation of actions undertaken by a doctor aiming at abortion must also concern all assistant actions done by a medical staff and mother’s actions aiming at abortion performed by a doctor.
Article 4a item 1 point 4 does not constitute a base for legalisation of actions aiming at abortion performed by a mother.
A motion legalising a regulation comprised in article 4a item 1 point 4 results from the fact that a legislator assumed financing of abortion, performed in public hospitals, from public means and besides article 4b gave a pregnant woman a right to abortion in public health centres.
On the basis of current legal rules it cannot be stated that social abortion performed be a doctor specified by article 4a item 1 point 4 indicating hard life conditions or difficult personal situation of a woman has the character of a circumstance excluding the possibility to apply penal sanction, not judging about the legality or illegality of abortion itself.
Such an interpretation could be pernitted on condition that article 4a item 1 point 4 constitutes an integral part of a penal code, completing the annulled article 149a paragraph 3, including a catalogue of circumstances in which a causer of a death of a conceived child does not commit a crime. Including this regulation in a separate Act, which does not specify the types of penal actions, imposing on public institutions, an obligation to undertake the activity connected with abortion and to finance abortions from the public means makes it clear that the rules being in force since 4th of January 1997 legalise abortion in the conditions specified by article 4a item 1 point 4.
Abortion which is permitted by a legislator in article 4a item 1 point 4 aims at the elimination of a developing foetus from a mother’s womb. This regulation refers to the situation up to the 12th week of a foetus’s life, considering contemporary level of medical knowledge, it is equal to the death of a foetus. A legislator does not specify whether a foetus dies in a mother’s womb or outside it.
Abortion then is indispensably connected with the death of a developing foetus. And the essence of an existing regulation in article 4a item 1 point 4 is the legalisation of actions aiming at abortion in a specified conditions. The subject of the constitutional assessment of such legalisation is to specify:
a) whether the good which is violated by a legislator is a constitutional value
b) whether the legalisation of the violation of this good can be justified on the basis of constitutional values, deciding about the collisions of certain constitutional values, rights or liberties warranted by a constitution
c) whether a legislator kept constitutional criteria responsible for deciding about collisions, and in particular, whether he preserved the requirement of the proportionality while deciding about the collisions between constitutionally protected rights, goods and liberties.
Disqualified regulation
The acceptance of the fact that human life, including life in its prenatal stage, is a constitutional value does not deny the question that in certain circumstances the protection of this value can be limited or excluded because of the necessity to protect other constitutional values, rights or liberties.
The decision of a common legislator abandoning the protection of certain values or legalising rules aiming at violation of these values must be justified by a collision of constitutional goods, rights or liberties. However, a legislator is not entitled to decide freely on these collisions. In particular he should take into account the results of comparison between the colliding values, rights or liberties. Criteria specifying the scope of their violation should be adequate with the essence of a given collision.
From this point of view regulation from article 1 point 5 in the scope of legalisation of abortion when a pregnant woman is in hard life conditions or difficult personal situations does not fulfil the above mentioned conditions.
As it can be concluded from article 4a item 1 the reason for legalisation of abortion is: “hard life conditions”, and “difficult personal situation” of a pregnant woman. A confrontation with other bases of abortion mentioned in article 4a item 1 leads to a conclusion that hard life conditions and especially difficult personal situation of a pregnant woman does neither mean mother’s life is endangered (as it is regulated in point 1) nor is the result of genetic defects of a foetus (point 2), nor is connected with the fact the pregnancy results from a forbidden action (point 3). Point 4 then had to be constituted for situations not included in other rules specified in article 4a item 1.
As far as “hard life conditions” are concerned, they include material situation, which might be worsened due to a child birth. “Difficult personal situation” is probably identified with a given psychic state connected with the fact of pregnancy which might result from the violated relationships with other people (family or others) or resulting from the limitations of a woman’s certain needs, including her rights and personal liberties.
No matter how the premises specified in article 4a item 1 point 4 are extremely vague (which will be further considered) the conclusion is that a new regulation is to protect certain material status of a pregnant woman which might be worsened or cease to be better due to a pregnancy and a child birth, or to protect the existing relationships between a pregnant woman with other people and the scope of realisation of her needs and personal liberties.
The premises specified in article 4a item 1 point 4 must be interpreted in the light of item 6 of the same act. It results from the regulation that only a woman herself is entitled to decisions expressed in point 4, presenting adequate declaration. In this case a subjective conviction of a woman becomes a legal good.
The premises specified in article 4a item 1 point 4 do not refer to the extreme circumstances which might be recognised as contradictory to the rule of the protection of human dignity. According to the preamble of the act it was concluded that the premise for the regulations was “everyone’s right to responsible decisions about having children”.
The comparison of values of such goods being in conflict from the point of view of constitutional standards disqualifies the regulation from article 4a item 1 point 4.
Human life is “a fundamental human good”. A woman’s right to not worsening her material state results from the constitutional protection of her liberties to shape her life conditions and fulfil her and her family needs.
However, this protection cannot go further than the protection of the fundamental good of human life in relation to which existential conditions are secondary and changeable.
As it was mentioned in the case of the premise indicating on “difficult personal situation” in a collision with the protection of human life in its prenatal stage may appear to be a range of different legal goods connected with someone’s good name, appropriate personal relationships with others, the possibility to take advantage of numerous rights and liberties. A legislator did not specify, however, what particular value he had in mind. The wording used by a legislator “difficult personal situation” does not allow, even in approximation, for particular designations. It is even more complicated to define this term in the context of rules resulting from a legal interpretation. Difficult personal situation is not connected with dangers to mother’s health or life (which is specified in article 4a item 1 point 1), it is not caused by poor life conditions as this is expressed by the wording “hard life conditions”. Besides, difficult personal situation define a status which is not a mere consequence of pregnancy, as these regular difficulties are not sufficient for abortion. Attempts to define this term might lead to a conclusion that its general idea is to limit a pregnant woman in the scope of rights and liberties. The impossibility to define these rights and liberties is the consequence of indefiniteness of the term used by a legislator.
The indefiniteness of the premises specified by a legislator is the reason for the impossibility to determine the character of constitutionally protected values which form a base for the legalisation of violation of other constitutional values. It is inadmissible that on their base it is allowed to abort a child, which means to violate the fundamental human good as specified in the preamble of the act.
The indefiniteness of words “difficult personal situation” disqualifies them from the point of view of the constitutional requirements comprised in article 4a item 1 point 4 of the act after amendments were introduced. It allows for a new regulation aiming at depriving a child of its life without the recognition of other constitutional values. The indefiniteness of this premise leads to undermining of the rule protecting human life in its prenatal stage.
As human life is recognised as a constitutional value, the rights of a pregnant woman should be limited. A developing life does not only use mother in regard to its biological needs, but it can also restrict its mother in her rights and liberties. Also in a legal sphere, given duties imposed on a mother and father, which increase in the moment of a child’s birth, constitute a correlative of a developing child. The conception of a child and its legal protection in a prenatal stage is indispensably connected with the new duties of a child’s father and mother. The constitutional rules assuming a legal protection of motherhood and family believe that parental duties cannot influence the scope of a protection of a conceived child’s life.
Even the act dated on the 7th of January 1993 after the amendments were introduced assumes that the limitation of rights and liberties of a pregnant woman, following the new situation and duties, cannot justify the abortion of a child.
The premise specified as a “difficult personal situation” is an indispensable condition for the legalisation of abortion. However, can this premise justify abortion on constitutional grounds?
It has to be stated that it is not possible. It has to be emphasised that difficult personal situation may also appear after the child’s birth and may result from the necessity to look after a child. The similar situation may refer to the necessity to look after our parents or a spouse. In none of these situations may a new burden of duties be a premise to deprive an unborn child of its life whose conception brought these conditions about.
Since, in relation to a foetus, these circumstances are sufficient to legalise abortion, then it must mean that the life of a conceived child is valued by a common legislator in a different way than after its birth.
Right to parenthood
It should be now considered whether the regulation of article 4a item 1 point 4 may be justified by the right to responsible decisions about having children.
The right to parenthood must be interpreted in two ways. Firstly as actions aiming at the limitation of number of children and secondly as actions forcing people to have children.
This right particularly refers to the decision of having a child. Any interference of a legal authority into this sphere must be considered as an inadmissible violation of a basic human right. There is however a question whether a decision of having a child can be understood in a broader meaning as a decision of giving birth to a child. In this case it would be inadmissible to forbid legally to give a birth to a conceived child. Similarly, it would be inadmissible to settle any legal negative consequences connected with the fact of giving birth to a child. Any public or private interests which would justify the introduction of such regulation, should be contradicted by a prior value of a conceived life and parents’ right to have children.
However, there is another question to be considered, the right to have a child in a negative aspect, which means a right to abortion. In this situation, because of a developing life, the right to have a child would be resolved into the right to not have a child. The decision of not having a child cannot be made when a child already exists. In that case a right to having a child can be interpreted only in its positive aspect and not as a right to kill a developing child.
The right to responsible decisions about having a child boils down to the negative aspect of the right to refuse the conception of a child. Nevertheless, when a child has been already conceived the right must be realised in its positive sense as a right to bear and raise this child.
The right to decide on having a child is a natural right of a mother and father. Only voluntary character of a decision to conceive a child constitutes a realisation of this right. In this context this right cannot be indicated as a constitutional base for the legalisation of social abortion as the act gives a mother a right to decide on a foetus’ life. Not only mother, however, is entitled to this right. And because of that reason the regulation of article 4a item 1 point 4 cannot be justified by the wish to create the conditions allowing for the realisation of this right.
As it was mentioned, from the essence of constitutional values, according to which one may try to justify the regulation accepted in article 4a item 1 point 4, does neither arise the priority of the values nor their equality to the value of human life, including its prenatal stage. Proving that human life has different value before and after a birth would be the only rational attempt of constitutional justification of the accepted solution. In such situation the comparison between conflicting values could contribute to the decision disadvantageous to the unborn.
As it was emphasised many times, while attempting to differentiate the value of human life one must specify a criterion from which the differentiation would result. In this case it is not sufficient to refer to specific legislative regulations which differentiate legal rights of a child before and after its birth referring to possessions.
Independently of the fact that in this case another category of rules should be referred to, common legislative cannot influence in a direct way on the scope of protection indicated by constitutional rules since it can wrongly recognise the hierarchy of values specified by a constitution.
The unfulfilled rule of inadequacy
Independently of the previous settlements, namely independently of the violation of a proportionality rule of constitutional values while deciding on a collision of values, concerning the legalisation of abortion in conditions specified in article 4a item 1 point 4, a legislator did not also obey to other constitutional rules binding while deciding on the collisions, especially the rule of an adequate specification of criteria allowing for the violation of a constitutional value.
A legislator, legalising actions aiming at the violation of a given constitutional value, is obliged to the adequate designation of the scope of circumstances in which the violation can be permitted. The adequacy must in particular refer to the essence of collisions of constitutional values which settlement will result in a legal regulation.
This condition was not fulfilled in the regulation resulting from article 4a item 1 point 4 of the act dated on the 7th January 1993.
A legislator, specifying the basic premises legalising abortion of a conceived child, expresses it as a situation of a pregnant woman. The circumstances specified in article 4a item 1 point 4 were not in any way connected with a pregnancy. According to this rule even if hard life conditions and difficult personal situation were not in any connection to the developing foetus and a future child birth they would anyway constitute premises justifying abortion. In this scope the premises included in the questioned rule were shaped in an utterly inadequate way towards the collisions of constitutional values which were to be their base.
Besides, the time of such circumstances was not exactly defined and then even temporary and short-lasting difficult circumstances specified in article 4a item 1 point 4 could be the reason to abort a conceived child. It does not befit to the essence of a presumed collision of constitutional values.
A legislator legalised abortion up to the 12th week of pregnancy in case of hard life conditions and difficult personal situation. This criterion in the context of the whole act is completely free. The essence of the collision between the constitutionally protected interests of a pregnant woman and a constitutional protection of life in its prenatal stage does not change whether before or after the 12th week. One can only indicate that the scope of real limitations and difficulties appearing after the 12th week of pregnancy might be even greater than in earlier stages of pregnancy.
A legislator then does not legalise abortion due to future hard life conditions or difficult personal situation which may appear because of the continuation of pregnancy but he links these circumstances with the moment of a woman’s decision to abort a child. In that case article 4a recognises abortion not as a means to avoid future danger to the interest of a woman but it aims at elimination of the existing violation of these interests even in the case when the circumstances are temporary and pregnancy and a child birth would not have to affect the future situation of a mother.
The legal ability of the unborn
4.4. Article 2 introduced 2 changes into a legal system. It deleted article 8 paragraph 2 of a civil code and it filled the content of article 446. The constitutionality of these changes should be considered separately.
The annulled rule was following:
“A conceived child has its legal ability, however rights and duties relating to property, requires on condition it is born alive”.
Since article 8 paragraph 1 stated that legal ability belongs to every human from the moment of birth, the annulment of a paragraph 2, giving such ability also to a conceived child, should be treated as an annulment of previously given legal ability to a conceived child.
The legal ability, stated in article 8, constitutes a condition for acquiring civil rights either related to property or not.
The annulment of article 8 paragraph 2 does not mean that a conceived child was fully deprived of its legal ability. Article 927 paragraph 2 of a civil code states that a conceived child may be the subject of the rules resulting from the legacy. According to article 182 of a family code a conceived child may be given a guardian. It results from this that a special rule, in scope of legal relationships regulated in it, nay create a legal ability of a conceived child.
A mere annulment of a general clause included in article 8 paragraph 2 of a civil code does not have to lead to automatic lack of legal ability of conceived children. The lack of this clause did not prevent courts before 1993 from constructing such ability in the scope of some rights assumed in a civil code, based on the interpretation of particular rules of a civil code. It is stated in principles that the introduction of article 8 paragraph 2 to a civil code did not constitute “essential novelty in regard to what jurisdiction and doctrine accepted on the base of rules of civil code.” (A. Maczynski, K. Zawada “Quarterly of Private Code” 3/1995, page 418) There are no bases to negate topicality of this output after the annulment of article 8 paragraph 2 of a civil code. Certain claims (e.g. towards so-called combatants’ cases referred to by the movers) might be based, as it was mentioned by a representative of a general prosecutor, on article 446 of a civil code.
The decision of a legislator to annul the clause giving the legal ability to a conceived child is justified because of the fact that the psycho-physical status of a foetus to “be” a subject of regulations specified in the civil code is quite limited. The legal ability specified in a civil code has purely functional character and refers only to the institution of civil code. Especially legal ability of the article 8 of a civil code cannot be justified with the legal ability of the whole legal system. The legal ability belongs to every human being. Legal ability in scope of a civil code may be depended on the stage of human life development. In no way can this decision be considered as a complete deprival of the legal ability of the unborn. The resignation of a general clause admitting legal ability in the scope of a civil code does not influence in any way the legal protection of legal goods such as life, health of the unborn, and especially its dignity (point 10 of the recommendation 1046 European Council requiring to treat human embryo or foetus in all circumstances with respect rightful to human dignity). As it was said before, the bases of this protection are rooted in the constitutional rules.
Against doubts expressed by the movers, the annulment of article 8 paragraph 2 does not violate the rights of conceived children who were born prior to the act dated on the 4th of January 1997.
Above all, as it was said, the annulment of a general clause admitting a legal ability to the unborn does not mean that they are not entitled to certain laws relating to property or others on the base of relevant rules.
However, referring to intertemporal rules included in the IIIrd part of the act dated on the 23rd of April 1964 - the Rules introducing civil code (Official Gazette of Current Legislation, no 16, ...94) it can be concluded that because of the content of article XXVII paragraph 1, according to which “since the day the civil code becomes in force, a legal ability and ability to legal actions should be estimated according to this code”, all conceived children and also these who had legal ability before the 4th of January, become deprived of a legal ability on this day.
In connection to this regulation there is a possibility of its double interpretation:
a) because article XXVII categorically orders to observe the new rules while estimating a legal ability, also towards the people who acquired this ability under the previous rules, and due to this, the loss of legal ability is followed by consequences of losing rights and duties connected with this ability. In such case, however, the deprival of these rights would be the violation of the rule of a democratic country of law, stated in article 1 of constitutional rules, by violating the protection of rights justly acquired, resulting from the rule;
b) different interpretation is also possible. Article XXVI of Rules introducing a civil code expresses the general rule, according to which “one is to apply hitherto law towards legal relationships which existed before civil code came into force unless rules state differently”. This clause in the context of article XXVII might be interpreted in the way that people deprived of legal ability on the base of new rules cannot take advantage of the clause since the day these rules are in force, or they cannot become a subject of “new” rights and duties. Nevertheless, according to article XXVII, they preserve a legal ability in the scope of legal relationships which existed before the new rules came into force.
Such interpretation is fundamental in the light of intertemporal rules included in the act - rules introducing a civil code - and besides it respects constitutional protection of rights justly acquired.
Due to these reasons it must be admitted that the annulment of article 2 point 1 .......did not result in the violation of constitutional rules pointed out in the motion. Constitutional Court is not appointed to investigate into the rationality of the decision of a legislator from the point of view of the consistency of a legal system.
Claims towards a mother
4.5 The rule of article 2 point 2 introduced a change into the existing reading of article 446 of a civil code by adding a new sentence:
“A child cannot claim its rights (concerning harms which affected it before a birth) from its mother.”
Normative meaning of this rule is clear. It restricts a child’s possibility to claim its rights towards its mother concerning harms which affected it in its prenatal stage. The harms can be resolved into the violation of its health and corporal integrity. They however can concern its welfare aspect, especially in the scope in which due to a person obliged to protect its life, a child in its prenatal stage was deprived of its rights (targeting at child’s interests: rejection of legacy or its dissipation).
An objection that can be raised against the regulation accepted in article 2 point 2 could be boiled down to two questions.
The constitutional obligation of “satisfactory protection” of specified constitutional values obligates a common legislator to introducing particular means aiming at protection of these values and this obligation cannot certainly be boiled down to settling rules forbidding its violation. A legislator should also introduce such means which would satisfactorily quarantee the obedience and enforcement of the bans. The warranties can be of a different nature - both civil and administrative or eventually penal. A constitution does not specify, apart from general rules, the way of determination of these warranties - it is necessary, however, for them to ensure sufficient protection in particular cultural, social and economical conditions.
Estimating, from this point of view, the new regulation introduced to article 446, one may conclude that it constitutes the decrease in standards of the protection of a conceived child’s goods, especially its health, in the sphere of the actions of a pregnant woman, the person who is a warranty of these goods. A pregnant woman is not only a subject, who has the greatest chances of violation a child’s goods but simultaneously she plays a role of a legislative representative of a child deciding for example on the application of certain protective actions presumed by a law in the case of violation or threatening foetus’ goods.
In the situation when a mother of a conceived child undertakes faulty actions violating child’s goods, the possibility of child’s claiming its rights after its birth constitutes the only real instrument ensuring legal protection of a foetus towards its mother.
The deprival of the possibilities of claiming its rights towards a mother constitutes the restriction of child’s rights referring to possessions and this restriction lacks satisfactory justification based on constitutional values. Due to this reason the Constitutional Court recognised that the restriction of child’s rights relating to property by narrowing the scope of article 446 violates the rule of a democratic country of law.
The deprival of the possibilities of claiming its rights connected with harm which affected a child before its birth towards its mother also violates the rule of equality expressed in article 67 item 2 of constitutional values. One cannot then, on the base of essential constitutional values, explain why a mother - a causer of harms - is to be excluded from legal responsibility, while other persons (e.g. child’s father, doctors) are responsible for committing the same harm. Another argument confirming the fact that the rule of equality was violated is that after a child’s birth a mother bears the same responsibility as others. The moment of committing a harm (before or after the birth) cannot be recognised as a vital criterion discriminating in the case of the claim for damages.
Drastic decrease in standards
4.6. The rule of article 3 item 1 derogated article 23b of a penal code. .The latter regulation stated that “a conceived child cannot be a subject of actions other than these which can contribute to the protection of its or its mother life and health, except for the actions specified in article 2”. This objection referred to experiments on embryos which did not increase the risk of miscarriages, undertaken in a case when a child belonged to a family with genetic defects or there was a suspicion of a genetic disease possible to cure or limit its effects in the foetal stage or there was a suspicion of a serious foetal deformity.
The rule of article 23b of a penal code clearly stated a ban to violate corporal integrity of a foetus or to disturb development’s processes, apart from the cases of prenatal researches connected to eugenic aspects, however these researches could not be dangerous to a foetus’ life either.
The annulment of article 23b leaves an open question whether current violations of a foetus’ corporal integrity or disturbances of its development, violating especially the health of a foetus, are still forbidden, or whether they are admissible in spite of the aim of these actions and in spite of the motivations of people undertaking them.
Because of
a) the annulment of article 1 item 2 of the act dated on the 7th of January 1993 in the reading prior to amendments, and especially the annulment of a phrase saying that a child’s health is protected from conception,
b) the annulment of article 156a of a penal code presuming penal responsibility for damaging a body of a conceived child or for affecting its health in the extent threatening its life without keeping in force other means of protection,
and besides,
c) limited responsibility for harms done to a child before its birth
one may conclude that the existing legal system does not presume the means for the protection of a foetus’ health and its undisturbed development.
Simultaneously however, the above mentioned goods are under the constitutional protection, especially a health of a conceived child.
In our legal order until an act, concerning a profession of a doctor, dated on the 5th of December 1996 comes into force (Legal Gazette of Current Legislations, 1997, no 28, ...152), the annulment of article 23b of a penal code gives rise to the lack of any legal protection of the unborn against experiments in a mother’s womb, including experiments unfavourable to a child’s health. The annulment of this rule causes a resignation from a legal protection of a living foetus outside a mother’s womb. Such state of a legal protection is not adequate with European standards. One may in this moment refer to a convention, not yet ratified by Poland but essential for a level of legal protection, concerning the protection of human rights and dignity of human beings in regards to modern biology and medicine accepted by the Ministers’ Committee on the 19th of November 1994. Article 18 of the convention forbids to create human embryos for the sake of scientific researches and ensures appropriate protection for embryos. European acts follow similar direction (e.g. a French act dated on the 29th of July 1994 introducing among others a ban to create human embryos for the sake of scientific researches or experiments and for trade or industrial aims and also a German act dated on the 13th of December 1990 forbidding cloning, creation of chimeras and hybrids and creation of embryos for other reasons than to induce a pregnancy.) Poland lacks legislative regulations in bioethical sphere.
In this context the annulment of this rule, which forbade actions violating the good of human foetus, must be considered as a drastic decrease in minimal standards required by constitutional regulations due to the rights of a conceived child, warranted by these regulations, to protection of health and corporal immunity specified in article 1 and 79 item 1 of constitutional regulations being in force.
Reintroduction of article 23b of a penal code to a legal order may give rise to a problem of its consistency with article 4a item 1 point 2 of the amended act. Since article 23b of a penal code carries a meaning exceeding the abortion problem, article 4a item 1 point 2 should be treated as a particular rule in relation to article 23b of a penal code.
Penal responsibility
4.7. On the strength of the rule of article 3 point 2, article 149a and article 149b of a penal code.
Because of the annulment of article 149b, no normative change took place - as a new article 152a, introduced to a penal code, practically repeats the contents of the annulled article, changing only terminology for the deprival of foetus’ life, which however does not influence the scope of penalisation.
Article 149 a paragraph 1assumed penal responsibility for causing a death of a conceived child, specifying in paragraph 2-3 the situation in which this act was not liable to a penalty (if a mother of a conceived child was the causer of the act) or in which its criminality was excluded.
The annulment of article149a did not give rise to the fact that acts included in the rule ceased to be liable to a penalty after the act came into force. Especially many similar behaviours are still under the legal responsibility on the base of new article 152b paragraph 1-3 of a penal code. In both cases the rule excluded penal responsibility of a pregnant woman, however acts aiming at abortion undertaken by others should be penalised.
The difference in the scope of penal responsibility connected with killing a foetus can be boiled down to the resignation from penalising the incitement of a pregnant woman to killing a conceived child by herself, and besides to annulling penality where the scope of legal abortions was widened - especially abortions performed in the circumstances specified in article 4a item 1 point 4 of the act, it also concerns abortion of a child resulting from a forbidden act performed in private clinics (what so far has been forbidden and liable to penalty). Nevertheless, broadening of the scope of these premises legalising this was not the subject of movers’ plaint.
In fact the essential difference between the scope of penality assumed in the annulled article 149a of a penal code and in new article 152 b of a penal code is that the former penalised also for killing a child conceived outside a mother’s womb and not implanted to mother’s organism. Currently the reading (abortion) of the rule in article 152b paragraph 1 excludes the opportunity of including such behaviour.
The issue of a legal protection of a foetus developing outside a mother’s womb constitutes a separate issue - it does not only concern the question of annulment of article 149a, but also influences the constitutionality of other questioned rules (point 4.6. of this justification).
As far as the scope of penality, resulting from the modification of penal rules, is concerned, it is difficult to detect violation caused by this modification (replacement of article 149a by article 152b) of any constitutional rules. The problem of shaping legal and penal protection of rights and liberties quaranteed by a constitution gives much freedom to a legislator, especially because the application of penal instruments is regulated by many rules which are not connected directly with the fact of a violation of specific rights and liberties. The rules concern particularly the aims of penalty, and because of it they have criminal and political character. Political and criminal considerations constitute the domain of a common legislator.
It does not mean, however, that a legislator has full freedom in shaping the protection of specific, basic rights and liberties and in shaping legal and penal protection. From the perspective of constitutional criteria the protection should be proportional to the importance of the endangered interests. Such an assessment, however, requires complex analysis of legal means, assumed by a legal system for the protection of specific rights. Then, the lack or limitation of legal and penal means do not necessarily mean that the protection, from the point of view of constitutional values, is unsatisfactory.
Considering the above conclusions it must be admitted that article 3 point 2 did not violate constitutional rules pointed in the motion.
There is no justification
4.8. On the basis of article 3 point 4, article 156a of a penal code was derogated. The latter rule assumed penal responsibility for causing harm to a body of a conceived child or affecting its health in the way that it is dangerous to its life. This rule constitutes the only clear base for penality of actions aiming at violation of health of a conceived child. Its annulment means depenalisation of a significant scope of these actions. It cannot be omitted that part of actions aiming at violation of a child’s health, in particular, actions which would endanger child’s life, might be included as liable to a penalty as abortion, specified in article 152a or 152b, if the cause acted with the intention of causing a foetus death.
It has to be mentioned that undisturbed development and health of a conceived child as goods directly resulting from the constitutional value of human life, including life in its prenatal stage, are also under the constitutional protection.
A question then arises whether the annulment of penality for actions with such consequences violate the constitutional warranty of the protection of a health of a conceived child.
The derogation of article 156a should be considered in the light of all means assumed by a legislator for the protection of a foetus’ health and it should be concluded that a legislator annulling legal and penal warranties, did not keep the conditions of satisfactory protection of constitutional values.
Causing a disorder of health or harming a body constitute a violation of essential legal goods. Such actions may cause permanent disability of a child after a birth. There are no circumstances, rooted in any way in constitutional values, which could justify this violation. Causing a disorder of health or harming a body of a conceived child affect an innocent being, however able to feel pain. Such behaviour might be frequently characterised as “cruel and inhumane” treatment, which is utterly forbidden by regulations of international laws. Simultaneously actions aiming at harming child’s health or body are treated as brutal interference into women’s right, who does not agree to such behaviour.
Possible rules of civil law, assuming possibility of telling to stop actions violating personal goods and allowing a child to claim its rights related to property because of damages which affected it before birth (article 446) cannot be recognised in this case as sufficient instrument for the protection of child’s interests. Above all, the possibility to protect child’s rights, assumed in a civil law, is limited by the necessity of representing a child by its mother (or in some cases by a father). Such configuration practically excludes the possibility to protect a child against actions of its mother (especially when article 446 after amendments excludes the possibility to claim by a child its rights for the damages from its mother). While there are no reasons why a child should not be protected by the deliberate actions of its mother (or its father) aiming at a child’s health disorder or harming its body.
The annulment of penalty of deliberate actions violating a health of a conceived child, which might be performed with or without its mother consent, constitutes drastically limitation of the protection of child’s health which belongs to it especially in relation to its mother’s actions. The limitation of the scope of this protection cannot be justified by constitutional premises of penal policy or by any other way.
The annulment of article 156a gave rise to the limitation of intensity of the protection of a child’s health as legal means left after the article’ derogation did not fulfil the requirements of “satisfactory protection”. This is the reason why the annulment of article 156a should be considered as violation of constitutional warranty for the protection of a health of a conceived child, having the base in article 1 and article 79 item 1 of constitutional rules being in force.
According to rules
4.9. Movers raised the discrepancy of all questioned rules from article 67 item 1 and 2 of constitutional rules. Constitutional Court admitted that the constitutionality of the questioned rules, with the exception of article 2 point 2, should have been looked into from the point of view of the satisfactory protection of life and health of a conceived child as goods which are constitutional values. The scope of the plaint, and incomplete stage of constitutional rules being in force did not give the base for the investigation of rules included in the motion from the point of view of basic rights of a conceived child. Both indicated constitutional rules, concerning basic rights, cannot constitute a model for the investigation of the constitutionality of the questioned rules. And the discrepancy of article 2 point 2 of the questioned act with article 67 item 2 of constitutional rules was discussed above.
Constitutional Tribunal based its final decision on the constitutional rules being in force. The Constitution resolved on the 2nd of April 1997 confirms in article 38 legal protection of human life of every man. Constitutional grounds, which formed the base for the decision of Constitutional Court, have their confirmation in Polish Constitution.
Three judges: Zdzislaw Czeszejko-Sochacki, Lech Garlicki, and Wojciech Sokolewich did not agree to the decision of Constitutional Court.