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WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

The widespread violation of women’s rights in terms of the access regulations meant to prevent widely defined discrimination ,
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to legal abortion is reflected in the cases submitted to the Euro- the first legal act to regulate it in a comprehensive manner (with
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pean Court of Human Rights . the regard to various social and economic circumstances) is
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During the last 20 years, the Warsaw Legal Clinic was involved the Act on equal treatment of 2010 . This legislation, however,
in some legal activities, concerning reproductive rights. The most features several defects and legal loopholes that make it ineffec-
significant action taken by the legal clinic at the University of tive. Furthermore, the stipulations of this Act and its definition
Warsaw was the extensive involvement in both assisting as well of “discrimination” do not guarantee women’s protection against
as arguing reproductive rights cases before the European Court discrimination in such areas as health, education, or private and
of Human Rights. Some of those cases were completely super- family life.
vised by the University of Warsaw’s Legal Clinic, like for example Due to this lack of comprehensive national legislation, under Arti-
the case of Z. v. Poland or partly as the Tysiąc v. Poland case, whilst cle 91 of the Constitution of the Republic of Poland, the Conven-
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others were supervised by lawyers who were former students at tion on the Elimination of All Forms of Discrimination against
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the Legal Clinic like in R.R. v. Poland case for example . Women (CEDAW) constitutes an integral part of the national
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Each of those judgements ruled in favour of the wronged appli- legal system and is directly applicable . Article 2 of the CEDAW
cants are of the utmost importance to them personally, as they Convention obligates states to ‘condemn discrimination against
restore their lost sense of dignity and allow them to obtain some women in all its forms’ and to ‘pursue by all appropriate means
financial compensation. However, even those favourable rulings and without delay a policy of eliminating discrimination against
had no impact on the implementation of the 1993 Act, nor did women’. As the CEDAW Committee has pointed out several times,
they improve the observance of women’s rights concerning access restrictive abortion laws violate the rights guaranteed under
to legal abortion, since they failed to give rise to the proper reac- the Convention. In its General Recommendation on the core ob-
tion from national authorities and, de facto, did not lead to any of ligations of state parties under Article 2, the CEDAW Committee
the legal changes recommended by the ECHR. states that ‘discrimination can occur through the failure of States
The situation in Poland presented above which solicits almost no to take necessary legislative measures to ensure the full realization
practical access to women’s reproductive rights, constitutes wide- of women’s rights, the failure to adopt national policies aimed at
spread discrimination on the grounds of sex, and it prevails de- achieving equality between women and men and the failure to en-
spite the equality between men and women, as well as the pro- force relevant law’.
tection against any kind of discrimination being guaranteed in All the arguments listed above show that in not amending
Articles 32 and 33 of the Constitution of the Republic of Poland . the Family Planning Act since 1993, Poland has failed to provide
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Moreover, even though Polish legislation provides for several women with any protection in cases of legal abortion, has not
adopted effective legal instruments (which means that women
living in Poland are being discriminated against by not being pro-
See Tysiąc v. Poland, ECHR application no 5410/03; R.R. v. Poland, ECHR appli-
37 vided with a fundamental health care service), and finally has failed
cation no 27617/04; Z. v. Poland, application no. 46132/08; P. and S. v. Poland to adopt any effective anti-discriminatory legislature. The cur-
ECHR application no 57375/08. At the 8 of July 2021, the European Court of
th
Human Rights has given notice to the Government of Poland of 12 applications rent legislative status violates women’s rights, such as the right
(applications nos. 1819/21, 3682/21, 4957/21, 6217/21, 3639/21, 4188/21, to privacy, the right to health and to be free from discrimination
5876/21, 6030/21, 3801/21, 4218/21, 5114/21 and 5390/21) and requested in health care, the right to liberty, and the right to be free from
that they submit their observations. The applications have been classified into
three groups of four applications. Over 1,000 similar applications concern abor- inhumane or degrading treatment. Restrictive interpretations of
tion rights in Poland have been received by the Court. statutory indications for pregnancy termination and limited access
38 Tysiąc v. Poland, ECHR application no 5410/03.
R.R. v. Poland, ECHR application no 27617/04, http://hudoc.echr.coe.int/
39 to legal abortion mean that women are denied the right to make
eng?i=001-104911. private decisions that affect their bodily autonomy and are refused
Depriving women of access to appropriate prenatal tests in the context of limit- the right to self-determination.
ing their right to an informed decision, whether to continue a pregnancy or ter-
minate it, was the subject of the R.R. v. Poland case before the European Court To conclude, it is useful to look at the current situation in Po-
of Human Rights. In this case, concerning the delay in the patient’s genetic tests, land from the perspective of recent statutory changes in Ireland
a woman was forced to give birth to a child with Turner syndrome in a situation and the factors that have contributed to them, as it encourages
where she already had two children with the same disability. The Court pointed
out that the procedure for enforcing a referral and asserting the right to genetic an equal prioritisation of social engagement and the activism
testing exposes a woman to humiliation and a degrading, inhuman treatment of Polish legal clinics alongside the strictly legal actions they are
associated with long-term fear sourced in her uncertainty about the health of
the fetus. According to the Court, depriving a woman of the opportunity to bene- taking (e.g., arguing cases before both Polish and international
fit from this kind of examination, and thus of the right to the information neces- courts). Moreover, it is also advisable to consider intensifying such
sary to make an informed decision, infringes the right to privacy. In the present
case, the Court confirmed that Poland had violated the prohibition of inhuman
or degrading treatment in Article 3 and the right to privacy and family life under 41 A. Teutsch, E. Zielińska, Sprawiedliwość i prawa człowieka in: Polityka równości Płci.
Article 8 of the ECHR. Polska 2007, Raport. UNDP 2007.
nd
40 The Constitution of the Republic of Poland of 2 April, 1997, Article 32: 42 Act of 3 December 2010 on implementation of some regulations of the European
1. All persons shall be equal before the law. All persons shall have the right Union concerning equal treatment http://isap.sejm.gov.pl/DetailsServlet?id=W-
to equal treatment by public authorities. DU20102541700.
2. No one shall be discriminated against in political, social or economic life for 43 Article 91 of the Constitution of the Republic of Poland reads as follows:
any reason whatsoever. „1. After promulgation thereof in the Journal of Laws of the Republic of Poland,
Article 33 a ratified international agreement shall constitute part of the domestic legal order
1. Men and women shall have equal rights in family, political, social and economic and shall be applied directly, unless its application depends on the enactment of
life in the Republic of Poland. a statute.
2. Men and women shall have equal rights, in particular, regarding education, 2. An international agreement ratified upon prior consent granted by statute shall
employment and promotion, and shall have the right to equal compensation for have precedence over statutes if such an agreement cannot be reconciled with
work of similar value, to social security, to hold offices, and to receive public hon- the provisions of such statutes.
ors and decorations. 3. If an agreement, ratified by the Republic of Poland, establishing an internation-
Retrieved from: http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm al organization so provides, the laws established by it shall be applied directly and
(accessed 22.9.2021). have precedence in the event of a conflict of laws.
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