Abortion has always been a topic of dispute regarding both women’s rights and a broader notion of human rights.
Various political, medical, religious or ethical views on the topic have eventually led to the deepening of the controversy and blocked the way to figure out a common solution across the world. Today, there are also ongoing debates in the EU concerning the ethics and legitimacy of abortion.
The issue is attributed utmost importance not only by most of the EU Member States, but also by the EU itself, as well as the candidate countries having to comply with the acquis to realise their prospective EU membership aspirations.
Having being defined by the Lisbon Treaty, the EU’s fundamental values are listed as; respect for human dignity, respect for human rights, freedom, democracy, equality and the rule of law. The importance of the values stems from not only the fact that they have to be respected when carrying out internal and external actions of the EU, but also from the result that no third country can become a member of the EU without complying with these values.
But then, one may wonder what happens in the event of a breach of these values by a country which is already an EU member state? Poland springs to mind, being a recent and concrete example to think about when it comes to such violations. The previous discussions regarding the country’s so-called “judiciary reform” that undermined the rule of law have already been overtaken by the grave judgment of the Polish constitutional tribunal to severely restrict access to pregnancy terminations.
Very recently the finger of suspicion has been pointed at Poland’s ruling party – Law and Justice Party- after the tribunal’s ruling that resulted in a nearly total ban on almost all kinds of voluntary termination of pregnancy.
On 22 October 2020, the Polish constitutional tribunal ruled that abortion must be outlawed also when a foetus is diagnosed with a disability or with an incurable or severe birth defect that could even be potentially fatal for the foetus.
Poland faced one of the country’s most massive protests in the aftermath of the delivery of this ruling and the anger seems to be going far beyond a few groups of opponents of the ruling party. In fact, even before this ruling, the situation was unjust in terms of women’s rights in Poland, and the country already had one of the most rigorous abortion laws within the EU.
Once published, the judgment will result in more restrictive abortion laws in Poland and limit abortion to cases of severe foetal defects which put the mother’s life in danger and criminal acts such as incest and rape.
According to some women’s rights organizations, even before the judgment, restrictive regulations in Poland had already led to the performing of only a limited number of terminations in practice, as doctors in the country are legally authorized to turn abortion requests down on grounds of religion.
Yet, prior to the controversial ruling of the Polish tribunal, there was at least the legal basis for Polish women to end a pregnancy in the case of severe foetal abnormalities. Bearing in mind the already restrictive legislation and practice in the country, why did some groups such as the rightwing MPs seek tighter abortion laws and probably politically paved the way to the tribunal’s controversial ruling?
Backers of the ruling mostly rely on the right of disabled persons as a justifying ground. Some of them also assert that before the ruling, it was a clear discrimination to be able to terminate pregnancies with a disabled foetus whilst not being allowed to decide on such a termination in most of the other instances.
However, what the backers miss out is the rights of women who are actually going through the difficulty of making such a tough decision. It is not only a foetus’s right to be discussed here. More primarily, the women’s mental and physical health and right to self-determination should prevail as they will be the ones to take care of an innocent baby with extra physical, medical and emotional needs.
Also, compelling women to continue with an unwanted pregnancy is a discrimination itself against those women. Why should the laws not give them a chance to contemplate all aspects (such as their own social, financial, mental circumstances) thoroughly and let them prefer to voluntarily end a pregnancy if they wish so?
It is of course not a debate to end an advanced pregnancy (beyond certain weeks of gestation) just because the child is disabled or has irreversible abnormalities. But when a very young foetus, a foetus of for example 10 weeks, turns out to have severe and incurable defects, women should be given the right to decide, both on their own lives and on the further development of the foetus.
If it is the case that a woman does not consider herself capable of looking after and raising a child with a severe birth defect, her decision cannot be neglected. The decision may be based on financial, emotional, social or mental grounds. No matter what the underlying reason is, every woman should be entitled to make the ultimate decision herself.
Disregarding women’s individual circumstances and physiological needs will be nothing else but a true torture to those women, making them bear all the hardship. It is also possible that the child to be born will suffer both from having severe defects and being raised in an unhappy family environment with lack of sufficient care.
Backers of the judgment should also take into account that women who make the decision to terminate a pregnancy are probably already going through a very cruel challenge in their lives. Many women feel the need to contemplate such a decision for so long, and in the end, many will still be questioning their decision for months, years or even for a lifetime. Some will have to live with the trauma maybe for the rest of their lives, as demonstrated by many studies, such as “Abortion and Mental Health: Quantitative Synthesis and Analysis of Research” published by Cambridge University.
Back in 1990s, R.E.Kendall had already suggested the scientific correlation between suicide rates and unwanted pregnancies. So, why is it so hard to put ourselves in others’ shoes?
A mother-to-be may wish to consider the opportunities related to health and education facilities in the country she lives, as well as her own financial means and own health to support her child’s growth. For example, the world is full of big-hearted and wonderful people to give birth to children with Down syndrome. It is something to admire and be inspired of. Those children are magical with so much love to give to their families and to the societies they live in, and the women who deliver, raise or adopt them deserve more than appreciation and much respect.
Most of the time, thanks to such parents, children with Down syndrome can indeed grow in a family where they feel real love and can access social facilities such as; education and health to become healthy and strong individuals.
However, that may not always be the case. The study named “Perceived Experiences of Life Problems for Parents with a Down Syndrome Child” written by T.Rahimi and Z.Khazir sets forth many challenging experiences parents go through. For example, a woman may have limited financial capacity to cope with the difficulties of raising a child with additional needs or in another scenario, a single woman can be questioning her own health conditions and keep asking herself “what if I don’t live long enough to raise my child who has additional needs?”
The governments’ commitment or capacity to offer enough support and facilities to children with such conditions vary from one country to another. Whatever belief or opinion we hold, the reality is that all women have different conditions and views. Thus, such a vital decision should be merely a woman’s own decision, certainly not political or religious groups’.
Putting aside the moral aspects of the debate, it should be drawn attention that each year, more women in Poland are seeking an abortion abroad. Abortion Without Borders stresses that since the delivery of the court ruling, it has already helped many women travel outside Poland. Soon, this will inevitably deteriorate the gap and disparities between the rich and the poor.
Legal abortion is a requirement of human rights and human rights should always be accessible to all persons without any discrimination on financial grounds. However, when abortion is such severely restricted by laws, women with sufficient financial means will somehow travel and manage to access safe abortion performed by medical experts, whilst many women with no adequate budget will resort to illegal methods and suffer in the hands of persons lacking the necessary skills to carry out a safe abortion. Plus, some of those abortions will be performed in an environment of unsafe conditions and leave behind complications such as infection or damage to internal organs.
This being the case, instead of adding more physical, moral and emotional burdens on women by tightening abortion laws further, it should be borne in mind that safe abortion is also a matter of human rights. Unsafe abortion is scientifically proved to be one of the major causes of maternal mortality (responsible for maternal deaths at the rates varying from 4.7% to 13.2%, according to the World Health Organization), and thus, any restriction on legal abortion increases illegal practices that aggravate the risk of unsafe abortion.
This can lead to serious health issues for women, as well as a backsliding concerning their reproductive and sexual rights. It would also constitute a breach of states’ commitments under the Convention on the Elimination of All Forms of Discrimination Against Women, particularly with regard to its article 12 pursuant to access to health services.
Last but not the least, it should be recalled that abortion is part of the right to self-determination, and is a matter of human rights. Despite the concerns caused by the judgment of the Polish court and the risk of undermining human rights, hopes still remain for Poland as the judgment has not been published yet. Legally speaking, that means the judgment has not yet entered into force, and hopefully speaking, it also means to leave the door open to back down from the controversial ruling and look for a possibility of a constructive dialogue between opposing views and groups.
From the perspective of the EU, it is a good sign of solidarity and respect for human rights that many MEPs have already called for the Council and Commission to take necessary action against the human rights violation in Poland, in line with the EU’s fundamental goal to avoid gender-based discrimination, promote the rights of women and ensure respect for human rights.