Constitutional Court of Poland rules against eugenic abortion

October 22 2020, Warsaw, Poland – The Constitutional Court of Poland declared in a ruling that the practice of “eugenic abortions” violates the state’s constitution. The decision was prompted by a request submitted by 119 MPs from 3 political parties (PiS, Konfederacja and PSL-Kukiz’15) on November 19, 2019, and it was reached with a majority of 11:2 votes. It means that from the moment it takes effect, abortion will remain legal only in cases of incest, rape, and when the life of the mother is at risk.

Constitutional Court of Poland. Photo by Jurij. Used under CC BY-SA 3.0 license.

The verdict was welcomed by Andrzej Duda, the President of Poland. “I have talked about it many times, and I have never concealed that abortion for so-called eugenic reasons should not be allowed in Poland. I believe that every child has a right to life,”  he said. The Children’s Rights Commissioner, Mikołaj Pawlak supported this opinion, too, saying that disability-based abortion equals “denying the right to life” and “allows for the killing of an unborn child solely on the basis of suspicion of a serious disease.” Even though the legal deadline for publishing it has passed, the Government still (as of Nov 13) hasn’t published the judgment and thus it hasn’t entered into force; it is unclear when this might happen.

“Eugenic” abortions are performed when “prenatal examinations or other medical data indicate a high probability of serious and irreversible disability of the foetus or an incurable life-threatening illness.” That is, the law previously permitted abortions on the basis of disability. They account for 98% of all legal abortions in Poland; there were 1.074 such disability-selective abortions performed in 2019, out of which 435 are believed to have been performed because the foetus was suspected to have Down Syndrome. Down Syndrome, or trisomy 21, is a genetic disorder caused by the presence of a third copy of chromosome 21 and one of the most common chromosomal abnormalities in humans. It is a condition that has been associated with a lot of prejudice and misinformation in the past and thus every year WYA celebrates the dignity, resilience, and the wonderfulness of every individual with trisomy 21, for example with the mismatched socks campaign.

According to article 38 of the Polish Constitution “The Republic of Poland provides every human with the legal protection of life.” The Tribunal ruled that disability-based abortion is incompatible with this provision as it denies some preborn babies legal protection solely on the basis of their disability. The ruling also stressed that “human life is a value at every stage of development and, as a value derived from constitutional provisions, it should be protected by the legislator not only in the form of provisions guaranteeing human survival as a purely biological entity, but also as a whole being, for whose existence it is also necessary to have appropriate social, living and cultural conditions that make up the entire existence of an individual.” This is in effect a call to the governmental entities to enact decisions that would ensure appropriate conditions for persons with disabilities and provide them with the support they need at all stages of life. Legally, the decision is the final expression of the Constitutional Court’s interpretation of fundamental articles of the Polish Constitution and thus no law contradicting it can be passed as long as the Constitution itself is unchanged.

World Youth Alliance stresses in its Charter that “the intrinsic dignity of the person is the foundation of every human right” and has always advocated on behalf of persons with disabilities. To treat them equally means to acknowledge their inalienable dignity, especially when making decisions involving the life of unborn persons. WYA considers this ruling to be a significant step in the right direction for Poland as it will ensure equal legal protection for unborn babies with disabilities which will result in saving thousands of lives.

Want to learn more about the law surrounding this topic? Check out WYA’s white paper and fact sheet on reproductive health, available here.