Family planning, the protection of foetuses, and grounds for permitting the termination of a pregnancy K 1/20
On 22 October 2020, the Constitutional Tribunal considered the application lodged, by a group of Sejm Deputies (hereinafter: the applicants), with the Tribunal for it to examine the conformity of Article 4a(1)(2) and Article 4a(2), first sentence, of the Act of 7 January 1993 on Family Planning, the Protection of Foetuses, and Grounds for Permitting the Termination of a Pregnancy with the Constitution of the Republic of Poland.
The Constitutional Tribunal adjudicated that Article 4a(1)(2) of the Act of 7 January 1993 on Family Planning, the Protection of Foetuses, and Grounds for Permitting the Termination of a Pregnancy is inconsistent with Article 38 in conjunction with Article 30 in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
The ruling was adopted by a majority vote.
There were two dissenting opinions, filed by Judge Leon Kieres and Judge Piotr Pszczółkowski.
In the case in question, what the applicants impugned was two provisions of the Act of 7 January 1993 on Family Planning, the Protection of Foetuses, and Grounds for Permitting the Termination of a Pregnancy (hereinafter: the Family Planning Act), namely:
Article 4a(1)(2) of the Family Planning Act, pursuant to which only a competent medical practitioner may terminate a pregnancy where, “on the basis of prenatal tests and/or on other medical grounds, there is a high probability of the foetus’s severe and irreversible impairment or of the foetus’s life-threatening incurable illness”, as well as Article 4a(2) of the Family Planning Act, which additionally specifies that, in the said circumstances, “the termination of a pregnancy is permissible until the foetus is able to live outside the body of the pregnant woman”.
The Tribunal noted that the applicants’ constitutional doubts could be summed up as the essential question of constitutional guarantees for the life of a child during the prenatal period in the event of a conflict of interests. Such determination of the nature of the constitutional problem allowed the Tribunal to reconstruct the applicants’ main allegation, which was the non-conformity of the challenged provisions to Article 38 in conjunction with Article 30 in conjunction with Article 31(3) of the Constitution. At the same time, the Tribunal reconstructed the subject of the constitutional review in the present case, limiting it to Article 4a(1)(2) of the Family Planning Act, for the essence of the case was to determine whether, in the light of the Constitution, a pregnancy may be terminated where, on the basis of prenatal tests and/or on other medical grounds, there is a high probability of the foetus’s severe and irreversible impairment or of the foetus’s life-threatening incurable illness; by contrast, the temporal limits of the permissibility of terminating a pregnancy were irrelevant here.
The resolution of the constitutional problem presented to the Tribunal required the following: firstly, to determine the legal status of a child at the prenatal stage, i.e. to determine whether such a child is recognised as a subject of rights and obligations under law; and secondly, to examine the permissibility of terminating a pregnancy and the limits related thereto, i.e. to analyse actions in the event of the conflict of values and the weighing of interests.
While analysing Article 38 in conjunction with Article 30 of the Constitution, the Tribunal upheld the view expressed in the Tribunal’s ruling of 28 May 1997, ref. no. K 26/96, namely that human life constitutes a value at every stage of its development and, as a value arising from the provisions of the Constitution, it should be protected by the legislator.
Moreover, the Tribunal held that an unborn child – as a human being, entitled to the inherent and inalienable dignity of the person – is recognised under law as a subject of rights and obligations who enjoys the right to life; the legal system must provide due protection for the unborn child’s dignity, which constitutes a central value without which being recognised as a subject of rights and obligations would be ruled out.
On the basis of those findings, the Tribunal deemed that it is possible to have a situation where one of constitutional interests in the conflict of interests concerns an unborn child. The termination of a pregnancy entails depriving the child of his/her life. Although the said child is not refused the right to life, the legal protection thereof becomes restricted. Therefore, the Tribunal examined Article 4a(1)(2) of the Family Planning Act in the light of the principle of proportionality, construed in a broad sense, as expressed in Article 31(3) of the Constitution.
At this point, making reference to its judgment of 30 September 2008, ref. no. K 44/07, the Tribunal pointed out that the methodology of evaluation – devised on the basis of Article 31(3) of the Constitution with regard to solutions restricting the legal protection of life – is applicable with two key reservations. Firstly, every instance of restricting the legal protection of human life must be “absolutely necessary”, and must be treated as an ultima ratio measure. Secondly, taking into account the fundamental character of the right to life, not every interest indicated in Article 31(3) of the Constitution may justify solutions undermining the said right. There is the requirement of a symmetry between values: the sacrificed one and the safeguarded one.
In the Tribunal’s view, where, on the basis of prenatal tests and/or on other medical grounds, there is a high probability of the foetus’s severe and irreversible impairment or of the foetus’s life-threatening incurable illness, the evaluation whether it is permissible to terminate the pregnancy, i.e. to sacrifice the interest of the child, requires indicating an analogous interest on the part of other persons. Given the nature of terminating a pregnancy, such an analogous interest may only be sought with reference to the mother of the child. Although a high probability of the foetus’s severe and irreversible impairment or of the foetus’s life-threatening incurable illness may also pose a threat to the life and health of the mother, Article 4a(1)(2) of the Family Planning Act does not, however, concern such a situation, especially that the said situation has been addressed, by indicating it as a separate ground for the termination of a pregnancy in Article 4a(1)(1) of the Family Planning Act. Moreover, the Tribunal stated that the mere fact of an impairment and/or incurable illness of a child at the prenatal stage – which is linked with eugenic considerations, as well as with potential discomfort in the ill child’s life – may not, alone, weigh in favour of the permissibility of terminating the pregnancy.
Thus, when assessing Article 4a(1)(2) of the Family Planning Act, the Tribunal concluded that the legalisation of the procedure of terminating a pregnancy – where, on the basis of prenatal tests and/or on other medical grounds, there is a high probability of the foetus’s severe and irreversible impairment or of the foetus’s life-threatening incurable illness – is not constitutionally justified.
When considering the effects of its ruling, the Tribunal stated that the legislator has the right, as well as the obligation, to adjust the legal situation to the issued ruling, which entails analysing whether the existing legal solutions within the scope of a mother’s right to special assistance from public authorities before and after birth, enshrined in Article 71(2) of the Constitution, suffice in the case where Article 4a(1)(2) of the Family Planning Act has been eliminated from the legal system.
Within the meaning of Article 1 of the Constitution, the Republic of Poland, as the common good of all its citizens, should facilitate the development of individuals and their communities, especially the family. The legislator may not shift solely onto the mother the burden of raising her child who is severely and irreversibly impaired or incurably ill, since the obligation to take care of persons in the most difficult circumstances primarily lies with public authorities and society as a whole.
The case was considered by a full bench of the Constitutional Tribunal. The presiding judge was the President of the Constitutional Tribunal, Judge Julia Przyłębska, and the judge rapporteur was Judge Justyn Piskorski.