Author: Eska-Mikołajewska, J
Published in National Security Journal, 05 April 2021
From the most liberal laws to the “abortion compromise”
The provisions of the abortion law in Poland have evolved over the years. It should be emphasized that Polish abortion legislation in the 1930s, although very restrictive, as both the mother and the abortionist were punished, was one of the most liberal in Europe.6 There were only two exceptions to punishment: due to medical indications or when pregnancy occurred as a result of rape, incest or sexual intercourse with a minor under 15 years old.7 Pursuant to the ordinance of the President of the Republic of Poland of September 25, 1932 on the performance of medical practice, it became obligatory to determine a medical reason for termination of pregnancy verified by two doctors other than the one performing the procedure.8 The only period when abortions could be performed to an unlimited extent (“on demand”) were the years of the Nazi occupation (1943-1945).9 The Nazi’s rationale for such a liberal approach to abortion was based on paradigm of “Social Darwinism” that considered to be scientific. The aim of Nazi policy on abortion was to ensure the extermination of those nations whom were referred to as “inferior genetic stock.” They included the communities of Eastern Europe, including the Polish, and Jews.10
The next stage of liberalisation of the abortion law was the period of the People’s Republic of Poland, officially initiated by the introduction of the new constitution in 1952, according to which the equal rights of women and men were guaranteed by the care of the mother and child and the protection of the pregnant woman.11 Shortly after the adoption of the Basic Law, on July, 1954, the Minister of Health issued an instruction that changed the criteria for determining the necessity of an abortion to the health of the pregnant woman. Pursuant to this Act, a hospital medical committee consisting of two to three doctors decided on the necessity to terminate the pregnancy for the health of the woman.12
Apart from Yugoslavia, where abortion laws existed since 1951, Poland, along with Hungary and Bulgaria, was one of the first countries in the former Eastern Bloc to legalise abortion. Thus, while termination of pregnancy for health reasons was allowed in the Soviet Union in 1955, Poland did so in 1956. The Act of 27 April 195613 on the conditions for the admissibility of termination of pregnancy introduced the possibility of performing an abortion in three cases: a) when medical indications were in favor of termination of pregnancy; b) when the pregnancy was a result of a crime, and c) the difficulty of the living conditions of a woman. In the brief reference to this Act, it was emphasised that its purpose is to protect the health of a woman against the negative effects of abortion, performed in inappropriate conditions or by non-doctors. Both the medical indications and the difficult life conditions of the woman could only be determined by a doctor, while the existence of a reasonable suspicion that the pregnancy resulted from a crime was confirmed by the prosecutor in the form of a certificate.
In legal terms, the adoption of the 1956 Act also had certain effects as it repealed the previous articles 231-234 of the Criminal Code. They concerned the punishment of a woman for aborting a fetus or allowing another person to do so, committing such an act with the consent of the pregnant woman or assisting her in doing so, as well as aborting the fetus without the consent of the pregnant woman. It is noteworthy that the punishment facing a woman for abortion was more lenient than those of the third parties. The Act of 1956 introduced its own penal provisions concerning the penalisation of forcing a woman in any way to undergo an abortion and demanded doctors to perform the procedure only with the consent of the pregnant woman.14
The pre-World War Two Penal Code established broad grounds by excluding the punishability of abortion in comparison with other European countries at that time.