Mass protests in Poland, sparked by the Constitutional Court's scandalous decision to ban abortion, have shown that the issue of women's right to abortion remains relevant even in democracies.

There is an ongoing "Abortion debate" in the world - a debate over the moral, religious and legal status of abortion.

It distinguishes two main groups: "for choice" (for the right of women to choose, give birth to a child or not) and "for life" (for the right of the fetus to life from conception). Each group seeks to influence public opinion and legislators to gain legal support for its position.

Today there is no single approach to abortion in the world. The legality of this medical procedure, the grounds and conditions of its conduct belong to the competence of each individual state.

How is this issue addressed in the legislation of different countries of the world and what is the approach of the European Court of Human Rights?

World practice

Countries around the world can be divided into four groups, depending on the legal regulation of women's right to abortion:

Countries where there is a complete ban on abortion. Abortions are completely prohibited, as a rule, except in cases of saving a woman's life, in Andorra, Angola, Bangladesh, Vatican, Venezuela, Guatemala, Honduras, Dominican Republic, Egypt, Indonesia, Iraq, Libya, Malta, Mauritania, Nepal. , Paraguay, Papua New Guinea, El Salvador, San Marino, Syria, Chile, the Philippines.

In most of these countries, abortion is considered a crime against life.

Countries where abortion is allowed in exceptional cases: Algeria, Argentina, Bolivia, Brazil, Ghana, Kenya, Costa Rica, Morocco, Monaco, Liechtenstein, Nigeria, UAE, Pakistan, Peru, Poland, Uruguay.

In this group of countries, abortion is usually allowed only in the case of pregnancy as a result of rape or in case of threat to the life and health of women and only on medical grounds.

Countries where abortion is allowed, in addition to medical indications, also on socio-economic indicators. This group of countries includes Israel, India, Luxembourg, Finland, and Japan.

In these countries, abortion is also allowed in cases of rape.

Countries where abortion is allowed at the woman's request: CIS and Baltic countries, Australia, Austria, Albania, Belgium, Bulgaria, Vietnam, Greece, Denmark, Italy, Spain, Ireland, Cambodia, Canada, China, Cuba, Netherlands, Germany , Norway, South Africa, Romania, Singapore, Slovakia, Tunisia, Turkey, Hungary, France, Czech, Sweden

In the most liberal group of countries, the legislator proceeds from the recognition of a woman's right to independently decide on pregnancy and childbirth. The legislation of these countries sets the period of pregnancy before which a woman can exercise her right to abortion (in most countries, including Ukraine, this period is set at 12 weeks).

Criminal law in these countries is aimed at protecting women's health, ie unqualified abortions and abortions performed after the permitted period of pregnancy are punished.

In countries where abortion is prohibited, there is a phenomenon of "abortion tourism" in other countries, where abortion can be done without hindrance.

One of the most negative phenomena caused by the ban on abortion is the so-called "criminal abortion" or "abortion underground".

In the absence of a legal opportunity to perform an abortion, women are forced to look for other ways to address the issue, resulting in abortions being performed by persons who do not have the right to do so, lack medical education and the necessary skills, leading to women's deaths, infections and inability to have children. future.

Studies show that criminal abortions cause the deaths of 70,000 women worldwide each year.

The experience of Poland

On October 22, 2020, the Constitutional Tribunal (CT) of Poland declared unconstitutional the provisions of the law on the possibility of abortion in cases where the fetus is found to have a developmental defect or an incurable disease that threatens the life of the child after birth.

This decision of the CT reflects the ideological superiority of conservative forces in the current Polish government. Conservatives stand for traditional values ​​- religion and family.

Poland is one of the most religious countries in Europe, but current opinion polls show that the vast majority of the population is strongly against the ban on abortion. The decision of the CT has aroused the Polish people, mass protests continue throughout Poland, the movement under the slogan "Moje ciało - moja sprawa" (Ukrainian: "my body is my business") is spreading on social networks.

Polish abortion legislation was quite strict even before this decision was made. In Poland, there was a 1993 law that provided for three comprehensive conditions for the legality of abortion:

- if the pregnancy threatens the life or health of the mother;

- if the medical examination shows that the fetus has a severe and irreversible defect or incurable disease that threatens his life;

- if the pregnancy occurred as a result of criminal acts (rape).

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The October decision of the CT declared the second of these conditions unconstitutional.

The court based its decision on the fact that an abortion based on the detection of a fetal defect violates the right to life of a child conceived but not born.

According to judges, the Polish constitution protects human rights from conception, not from birth.

Accordingly, severe fetal defects should be treated in the same way as diseases of newborns.

According to official data for 2019, 98% of all legal abortions were performed in Poland on the basis of fetal malformations. It is not difficult to understand that the decision of the Constitutional Tribunal is in fact a complete ban on abortion in Poland.

This decision of the CT contradicts not only the position of the majority of Poles, but also the practice of the European Court of Human Rights in cases against Poland.

 

Her body - her work?

The right to abortion belongs to the category of reproductive rights that belong to the so-called fourth generation of human rights.

Reproductive human rights are recognized in international and national law of the world's leading nations and are protected at the level of ECtHR practice. In addition to the right to legal abortion, reproductive rights include the right to artificial insemination, intrauterine medical tests, surrogacy, and so on.

The main international act that establishes and guarantees the observance of fundamental human rights is the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Convention does not contain a direct reference to the right of a woman to decide on abortion on her own, but Art. 8 guarantees the right to respect for private and family life, which is interpreted broadly in the case law of the ECtHR and includes the right to decide on the birth or non-birth of children.

The right of women to decide freely and responsibly on the number of children and the time intervals between their births and to have access to information, education, and the means to enable them to exercise this right, as enshrined in Article 1 para. 6 of the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women.

This act is often called the "Bill of Women's Rights." It has been ratified by 189 countries, more than 50 of them with reservations and restrictions.

Reproductive rights experts note that the right to abortion is inextricably linked to the right to family planning, which includes the right to prevent unwanted pregnancies.

According to the World Health Organization, family planning includes the prevention of unwanted pregnancies, the free choice of the number and time of birth of children depending on the age and health of the parents.

 

The ECtHR approach

Each sovereign state has the autonomy to authorize abortion and to determine the length of pregnancy during which abortion is possible. However, each country has an obligation to guarantee a woman the right to legal abortion, given the fact that pregnancy can potentially endanger a woman's health and life - this is the ECtHR's generalized approach to women's right to abortion.

In a number of decisions of the ECtHR, it was concluded that the establishment of a total ban on abortion may violate the right to life, which is guaranteed by Art. 2 of the Convention, as well as the right to respect for private and family life, guaranteed by Art. 8 of the Convention.

The ECtHR issued three public judgments against Poland on women's right to abortion in 2007, 2011 and 2013.

The ECtHR found that women in Poland had suffered multiple violations of their rights as a result of being denied timely access to health care.

In the case of R.R. v. Poland (statement № 27617/04) The ECtHR stated that private life is a broad concept that covers, inter alia, various aspects of a person's physical and social identity, including the right to personal independence, personal development and the establishment and development of relationships with others. people and the outside world.

According to the ECtHR, the right to respect for private life includes, inter alia, the right to personal autonomy and personal development and can be applied to decisions whether to have or not to have a child, or whether to become a parent.

In the case of Tysiac v. Poland (application no. 5410/03) The ECtHR found that the applicant had not been able to prove that her pregnancy and childbirth would cause irreparable harm to her body due to the unprofessional conduct of the medical staff and the lack of an effective and timely complaint mechanism.

In the present case, the applicant was in fact denied access to an abortion and had no choice but to continue the pregnancy, seriously endangering her health. After the birth, the applicant's illness (severe myopia) worsened, as a result of which the woman became a person with disabilities.

In the decision in this case, the ECtHR concluded that, given the right to respect for private and family life under Art. 8 of the Convention, a woman still has the right to have an abortion for her own subjective reasons.

In cases against Poland, the ECtHR has repeatedly found that there is a lack of effective mechanisms in law to determine whether there are legal grounds for abortion due to a threat to the mother's life.

The ECtHR emphasized the importance of the existence of legal and procedural guarantees in situations where a woman has objective grounds to fear that pregnancy and childbirth will have a negative impact on her health, and noted that failure to provide such guarantees is a violation of Art. 8 of the Convention.

Irish precedent

The practice of the European Court of Human Rights in relation to another European country with strong conservative influences - Ireland - is indicative.

Until recently, Irish women were banned from performing abortions under threat of imprisonment for up to 14 years.

Exceptions were not made even for women who became pregnant as a result of rape or if the fetus was found to have serious malformations. Not wanting to put up with harsh legislation, Irish women traveled to the UK and other countries to have abortions there.

In the judgment in Case A, B and C v. Ireland (application № 25579/05) The ECtHR stated in 2010 that Ireland's ban on abortion had forced the applicants to go abroad to have abortions. In that case, the ECtHR found that the prohibition of abortion, when required for reasons of a woman's health and / or well-being, fell within the scope of the right to respect for her private life.

The judgment found that Ireland had violated the right to privacy of applicant C., a woman with a rare form of cancer, and feared that the pregnancy might worsen her condition.

On May 25, 2018, a nationwide referendum was held in Ireland. The issue of repealing the amendment to the constitution, which enshrined the right to life of the unborn child along with the right to life of the mother, was put to the vote. According to official data, in 2018, legalization of abortion was supported by 66.4% of participants. Ireland now has a law that allows women to have an abortion of their own accord up to the 12th week of pregnancy.

The ECtHR's approach to determining when a child begins life is also important.

In this aspect, the case of Vo is indicative. v. France (application № 53924/00). In its judgment in the present case, the ECtHR stated that the State had no obligation to classify the deprivation of life of an unborn child (fetus) as murder. The emergence of a child's right to life is closely linked to the moment of the beginning of life (birth), the definition of which is left to the discretion of the state.

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Thus, the European Court of Human Rights recognizes the right of each sovereign state to autonomously regulate the issue of abortion.

However, the case law of the ECtHR establishes several important principles that States parties to the Convention must take into account:

- recognizes the right of women to decide on abortion in the context of the right to respect for private and family life, guaranteed by Art. 8 of the Convention;

- does not consider abortion as a crime against life and murder of an unborn child.

Compliance with these requirements is mandatory for all countries when it comes to regulating abortion.

 

Authors:

Talina Kravtsova, Family Law Practice Partner, Asters Law Firm

Marina Kornienko, Junior Lawyer, Asters

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