The values underlying eugenic abortion in Poland versus the Constitution and the real world

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Olgierd Pankiewicz*

Rezumat: Continuăm seria articolelor despre mișcarea pentru viață din Polonia cu eseul lui O. Pankiewicz, dr. jur. și membru al Centrului juridic „Ordo Iuris”. Acesta urmărește să demonstreze că avortul așa-zis „terapeutic”, legal în Polonia (avortul la cerere este prohibit în această țară) nu are de fapt temei juridic și încalcă drepturile omului prin caracterul său eugenic (urmărește suprimarea înainte de naștere a oamenilor cu dizabilități). Prelegerea a fost rostită în fața participanților la conferința internațională „Fundamente intelectuale și mijloace legale pentru protecția vieții umane în fază prenatală: O perspectivă comparativă”, găzduită de Universitatea din Varșovia pe 24-25 septembrie 2012.

Ladies and Gentlemen,

Dr. Olgierd Pankiewicz
Dr. Olgierd Pankiewicz

thank you for the opportunity to speak to you. I will shape my presentation as a courtroom speech. Applicable Polish laws set a specific proceedings, in which the custodial court decides whether to give permission to a minor to terminate her pregnancy. It stems from these regulations, although I haven’t heard of anyone trying it in practice, that someone acting as an attorney of the unborn child (curator ventris) or a public prosecutor may possibly be allowed by a custodial court to act on the child’s behalf in such a proceedings. Therefore let me make a closing argument in a case like this, and let us imagine that we are before a court where such a case is being heard.

Honorable Court!

After all that has been said throughout the hearing: the argumentation presented by the social service officer, the physician, and the applicant herself, it might be difficult to grasp the very issue which you are about to decide.

Statute-wise,  you  are  about  to  give  or  not,  your  permission  to  the  applicant  to terminate her pregnancy. This decision includes examination whether statutory conditions have been met, i.e. whether the mother wants the pregnancy to be terminated and if there are medical findings which indicate a high risk of the fetus’ malformation or disease. Article 4a of the Act on family planning, the protection of the human fetus and the conditions permitting termination of pregnancy (the 1993 Act) says that an abortion can be carried out until such time as the fetus is capable of surviving outside the mother’s body, provided that prenatal tests or other medical findings indicate a high risk that the fetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease.

From the language of next lines it shows that to check the fulfillment of statutory conditions: mother’s consent, her representative’s written consent, the high risk of the fetus’ malformation or disease and that the age of the child is proper according to the physician’s opinion – is not enough to decide the case. Having heard all the arguments the Court shall still have the last word. If it wasn’t so, the court’s permission would be useless. Yet the cited article reads in section 4., that performing abortion requires a written consent of an adult woman. But when the woman is a minor under the age of thirteen or older, but her legal representatives did not grant their consent, the Court hears her opinion and takes the decision on permitting the abortion.

What is such a decision based upon then? Are there any objective grounds, on which the Court may rest? I believe there are. Law is all about values. This is because regulations refer to the real world. In this world they protect some goods directly and others indirectly, overlook others and sacrifice some of them for the sake of those which were given priority. The cited abortion law reflects a particular view on the hierarchy of values too. Following this view it says which behaviors are legally permitted, ad which are not. Therefore the Court must examine this hierarchy of values.

The Court can not refrain from confronting this axiology with the values laid down in the Constitution. Yet you must apply laws in accordance with the Constitution. And the Court should take a close look at the reality in which it rules, when deciding which values shall be protected and which shall be sacrificed. These are the objective grounds for the Court’s decision in this case. There is a certain scope of Court’s discretion and it lays just here: in making the ruling coherent with the Constitution and with the real life.

Art. 4a. of the 1993 Act reads in its relevant part as follows.

1. An abortion can be carried out only by a physician where (…) prenatal tests or other medical findings indicate a high risk that the fetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease.

2.(…) an abortion can be performed until such time as the fetus is capable of surviving outside the mother’s body. (…)

First  of  all  this  language is  challenging. E.g.  what  medical  findings  should  be allowed as evidence here? In what way must these findings indicate the risk of illness – directly, or indirectly? Would it be enough to examine the genotypes of parents and their ancestors to establish a high risk that they will have an ill baby?  What is the measure of high risk? What is the measure of severity here? What does it mean that the disease is incurable? If the health of the fetus develops as it grows, and the baby gets better from a life-threatening, to a lighter disease – will such a disease still be considered incurable? And taking into consideration all the accessible medical devices it is certainly tough to determine that the given child is unable to survive outside of mother’s body. I have heard of cases in Poland where in the same hospital ward, in one room babies with Down syndrome are rescued with help of a cutting-edge medical equipment whereas in another room similar babies of the same age are delivered and left to die, although it sometimes takes hours. Are those babies capable of surviving outside the mother’s body? I shall leave the answers to the Court.

It can be seen at first glance that this regulation is concentrated on the state of illness. It even names two kinds of illness: a severe, irreversible damage, and an incurable, life-threatening disease. The medical examinations referred to in this article, are targeted at determining whether there is a risk of such an illness. The illness of the fetus is the central point, and it is puzzling why it is not precisely described or named with medical terms. Instead it is described in a colloquial speech such as: “fetus will be severely and irreversibly damaged or suffering from an incurable life-threatening disease”. Why is it so? Look at the number of strong, emotional notions describing the fate of the child: “high risk”, “the fetus will be: severely damaged, irreversibly damaged, suffering from an incurable disease, suffering from a life-threatening disease”.

This is an emotional text and the emotion beyond it is the fear. But of what is this fear? For two reasons it is not the illness itself. Firstly, because it is not described precisely enough to be cured, secondly, because the prescribed solution to the problem is not the treatment but elimination. This is the fear of an ill child, an ill life among us living. And it is crucial to see because fear affects our perception, particularly the perception of values. The one who is afraid tends to exaggerate the object of his fear (there is a proverb in Slavic languages saying that “fear has big eyes”; Pol. “Strach ma wielkie oczy”). The fearful man ascribes too much of negative value to the object of fear and focuses so strongly on it that all the other surrounding reality loses it’s value to him. We must remember to look at this state of affairs without fear, to remain realistic.

This law mentions such actors as the fetus, it’s mother, her legal representatives (parents) and different physicians. They carry out examinations, come up with some findings, try to estimate the risk of illness, and finally terminate the pregnancy. The mother is also active: she subjects herself to the examinations, asks for abortion, undergoes it. The baby might seem passive, but it is not. It tacitly develops and when it will reach the capability of surviving outside the mother’s body, it will no longer be subject to a lawful elimination. So my little Client it is running for it’s life! Note a few other connections between these actors and their acts. The child’s vitality which can save him life is measured by the same physicians who determine his illness – the premise of termination. However, if the women will not agree she shall not have abortion and the baby will live irrespective of his illness. Yet she is under the pressure of time. Diagnosis takes time, especially a thorough diagnosis. And it will never provide her with a certain judgment, only suspicions. As time runs the baby gains the ability to be delivered and sustained. Mother has to make a decision under this pressure. And one feature adds to this: she is a young mother, dependent on her parents. Parents have their word in the court proceedings not to mention the obvious fact that they were in a position to force the young mother to launch the procedure of examination, assessment of risk and possible termination. At the end of this route is the Court with it’s decision.

It shows that in the center of this legal framework lays the decision on abortion: whether the termination is admissible. The whole structure is build consequently to make this decision possible. Opinion of the mother, decision of her parents, opinions and findings of physicians, the time frame – these are just factors in the decision-making process. At final stage, where we are now, the decision is about whether the authority of law will grant it’s approval to the intention of killing the child.

If at the center here lays a choice, then it is right to ask about the options between which one is choosing. First option: law admits the termination and in effect the child can be killed because of a risk that it is ill. If it was sound, it could not be killed. Second option, denial of admissibility, results with different chances: the child has the chance to live and develop and it has the chance to be taken care of medically. The woman who will be carrying and possibly delivering the child despite the risk of it’s illness shall have the chance to grow up to be a mother. The Court can not change the natural cycles, you do not change the reality. The child might develop, might die. It may become sound or ill, the mother might change her mind and love the child or leave it in hospital, or kill it with her own hands. What the court actually decides is whether law agrees with the decision to kill this particular unborn child because of the risk that it might be ill.

In the real-world outside this courtroom wealth and illness, development and passing are all aspects of life. They are nothing but ways, modes in which the life shows itself. There is no constant feature in it, besides the constant change. As an ever-changing phenomenon, life is a protected value. Not only the vitality is protected, not only the well-being. Life, including it’s full range of manifestations is protected by law because it the most fundamental, most basic human value. Without this value no other can be possible. The right to life is commonly recognized as a natural right. Our Constitution affirms it and points at the inalienable and inviolable human dignity as it’s source. It goes further by laying an obligation on the public authorities to respect and protect human dignity and life. Art. 38 reads: “The Republic of Poland shall ensure the legal protection of the life of every human being.” According to a settled construction by the Constitutional Tribunal, in the cases: U.8/90, U.1/92, W.16/92, K.26/96, K.14/03, human life is protected from the moment of conception, because there is no reasonable grounds for any differentiation of value of life in different phases of it’s development. Hence, all the doubts concerning life of a human must be solved in favor of the life, in dubio – pro vita humana.

The Constitutional Tribunal have never had the chance to evaluate the contemplated regulation as to it’s coherence with the Polish supreme law. However when it was overturning the  previous law  which  enabled abortion on  grounds of  severe personal or  economical situation of the woman, in the ruling of 28.05.1997, case K. 26/96, the Tribunal had set forth the constitutionality test: 1. whether the termination of pregnancy is sufficiently justified with a necessity of protection of another constitutional value, right or freedom; 2. whether criteria of the legalization of abortion are clear and precise enough not to violate the constitutional guarantees of human life protection. The eugenic – based abortion law is neither justified enough, nor precise enough to pass the constitutionality test.

The damaged people with their abnormal, not-wealthy look evoke contradictory reactions of others, such as anger or compassion, fear or help. This reaction depends on the greatness of ones heart, ability to act for others. Reactions to encountering people suffering from life-threatening diseases that do not change the looks, are not so extreme. They usually include some amount of compassion. These reactions can be divided into: asking, what would be good for the ill, and deciding what is the best for him (which always equals what is most convenient to the other).

Let us realize that by using the premise of the risk of illness in order to kill an unborn child one gains nothing, but an ease from the fear of having such a child. Please note that at the moment of taking the decision on termination there is no real burden yet, just the fear. Yes, this burden can come true, including life perturbations, maybe change of address or dwelling in hospitals for years, a heavier work. It can involve a constant presence of an ill person by one’s side, including the most intimate relationship with such a child, the burden of fear that others will laugh, or that they will pity. This all can come true. But no one knows whether it will, and no one knows for how long the child will live, and what will the burden really be. Those who take care of such children do not raise claims for eliminating them. Those who had the chance of holding their lethally ill baby for a moment after birth, just to let it die soon afterward, do not regret. The plan to use the premise of the risk of illness to terminate one’s child comes from fear, not from real experience. Such an idea is only possible as long as the mind is affected by fear. Everything becomes different when one gets into the real life.

The very premise of law – the law’s reaction to illness and suffering in this article – is evidently eugenic. As Madison Grant, an American advocate of eugenics put it in 1921: “A rigid system of selection through the elimination of those who are weak or unfit – in other words, social failures – would solve the whole question … [and] get rid of the undesirables who crowd our jails, hospitals and insane asylums …[T]he state through sterilization must see to it that his line stops with him. … This is a practical, merciful and inevitable solution of the whole problem and can be applied to an ever widening circle of social discards, beginning always with the criminal, the diseased and the insane and extending gradually to types which may be called weaklings rather that defectives and perhaps ultimately to worthless race types”.

The rhetoric behind eugenics is such: suffering is most evil, therefore it should be eliminated, therefore it would be best for the suffering people not to exist. One of the reasons why this argument is unacceptable and false is that it is formed by the Sound in the name of the Ill. This is a different situation than when a suffering person himself asks to be killed, although answering such a plea remains a manslaughter. In the ninth circle of Inferno, according to Dante, there strive the Count Ugolino and his sons, starving to death in a tower. Sons ask their father to eat them and end their suffering.

 Father our pain’, they said,

‘Will lessen if you eat us you are the one

Who clothed us with this wretched flesh: we plead

For you to be the one who strips it away’.

(Dante Alighieri, Divine Comedy, Inferno, Canto XXXIII, lines 56–59)

But  no  one,  whether  he  asked  or  silently  suffered  termination,  is  thus  protected  from suffering. It is logically impossible that someone would stop to exist but still had features, because features are ontologically dependent on existence. Look at the absurdity of the concept of someone not living, but well being! Yet the eugenicists justify elimination of the Ill as a protection, not a penalty. Let us ask again, who is thus protected? The answer is: the society, those who survive. By getting rid of the weak individuals, the social organism is supposed to become sound. Ugolino can help us again grasp the essence of this mad idea, but we must not forget that he speaks from hell.

… And I,

Already going blind, groped over my brood Calling to them, though I had watched them die, For two long days. And then the hunger had more

Power than even sorrow over me

(Canto XXXIII, lines 70-73)

Our law would not justify Ugolino for devouring his sons, neither upon the argument that he stopped their suffering, nor because he saved them their father. It demands an equal legal protection for the life of every human being irrespective of the possible burden to others that comes with it.

Normally  parenthood  is  something  different.  Normally  it  consists  in  parent’s resignation from their well-being for the well-being of their children. And normally this huge effort is supported by the community. The fact that life inevitably includes illness, weakness and dying, is true for an individual, as well as for a society. Based on this recognition, and the principal rule of solidarity, Art. 68 of the Constitution obliges the public authorities to ensure special health care for children, pregnant women, impaired persons and the elderly, and Art.

69 safeguards the right of the impaired to receive help from the public authorities. Article 71 of the Constitution explicitly protects the good of the family. The state is supposed to grant the families, especially those having many children and those parted, a special help. Further this article restates this obligation of public authorities towards mothers, in the period before and after giving birth to a child. The child itself, should it be in any need, including the lack of parents, shall be embraced with special help from the public authorities according to Art. 72.

By what logic are these norms connected with the rule, that, if there is a risk that the child will be damaged or suffering from a life-threatening disease, it does not deserve the protection of law and can be killed? The answer is: by no logic at all! And there are no values, no rights and no such freedoms in the Constitution that would justify en exception from the protection of life in this case. Further, this rule is too vague to even apply – the court and the physicians would have to pretend that they know what the wording of this article precisely means and where are the limits between the applicable and the inapplicable. The conclusion must be that the contemplated rule is unconstitutional and cannot be applied pursuant to Art. 8 of the Constitution. If the Court will not tell the constitutional, lawful interpretation of the abortion law from unlawful ones in this case, no other authority will. Yet negligence in this matter is expensive; it costs life and dignity of the unborn child and solidarity of us all, as well as the rule of law for us and for the future.

Honorable Court! Please, take all the necessary time to weigh all the arguments and to take a clear insight into the real life situation under your decision. Please, contemplate upon the values which are here at stake. You certainly have enough time not to hurry, taken the time frame for abortion under this premise. And there are good reasons to take this time. The child develops and the diagnosis might change. It is established that the most worthy and infallible examinations can be carried out between 18th  and 22nd  week of pregnancy. Some severe malformations which are believed to fall under the premise of the discussed rule, can be successfully treated if a reference center is timely consulted. What is most important, in such a case the mother’s mind can change.

* juris doctor, lawyer – Wrocław, Poland

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