Current challenges for the protection of women’s rights in Poland – selected issues

Abstract

Open AccessCurrent challenges for the protection of women’s rights in Poland – selected issuesRafał Świergiel, Katarzyna Witkowska-ChrzczonowiczRafał ŚwiergielSearch for more papers by this author, Katarzyna Witkowska-ChrzczonowiczSearch for more papers by this authorhttps://doi.org/10.7767/9783205217381.21SectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail About1. Introduction A rather lively discussion on women’s rights is currently taking place in Poland. In popular opinion, the category of women’s rights is often reduced to the issue of access to abortion. This is, of course, an approach far removed from the real issue: the current challenges of protecting women’s rights anywhere in the world, not only in Poland. Such rights consist of a whole range of aspects that concern women but also concern girls from schools, education systems and girls’ earliest years in kindergartens, or health and social care understood as a whole. The aim of this study is to analyse the most important legal regulations concerning women’s rights and women’s actual position in society in contemporary Poland. 2. Historical backgroundFor centuries, women in Poland have been very independent. The long period of partitions, uprisings and struggles for independence meant that virtually every generation of men took part in these, often leaving their wives widows and their children orphans. In this context, Polish society was traditionally well aware of the need to entrust a woman with the responsibilities of managing the home, making decisions and even running the family business independently. Women gained the right to vote (actively and passively) in Poland in 1918,1 after Poland regained its independence following World War I. Previously, Poland had been under partition for 123 years: the country had completely disappeared from the map of Europe, being divided by Russia, Prussia and Austria. The communist period after 1945 involved the de facto erasure of human rights in general. Of course, the official narrative of the policy-makers of the time assumed the formal equality of men and women in civil rights, but because of the system itself, which in its essence did not assume individual freedom, these rights were largely illusory and reduced to empty slogans and declarations. For example, there was the ‘women tractors’ slogan in the popular consciousness, and on Women’s Day (8 March), it was a national ‘ritual’ to present ladies with the traditional carnation and a pair of tights, which were a scarce commodity at the time. In the People’s Republic of Poland, the Act of 27 April 1956 on the Conditions for Permissibility of Termination of Pregnancy2 was in force, which introduced the possibility of abortion by a doctor in three cases: when medical indications concerning the health of the fetus or the pregnant woman were in favour of aborting the pregnancy; when there was a justified suspicion that the pregnancy was the result of a crime; and when the pregnant woman had difficult living conditions. In regard to the last point, in practice the woman only made a statement about her difficult living conditions, and her statement was not verified in any way, which in fact gave women the possibility to perform abortions on request (for so-called social reasons). During the communist period, women were relatively active in the workforce and corporations did not exist, so a woman who had several children, with one of them ill, did not have to worry that her absence from work would affect the termination of her employment. She simply took childcare as often as necessary, and this was met with general understanding by employers. Parents did not send their sick children to nurseries and kindergartens due to the parents’ fear of losing their jobs. The period of intense political transformation after the fall of communism in Poland was a very difficult time for women (and also for most of society). The new social and political order, the introduction of a free-market economy, the uncertainty of living conditions, rising unemployment and high inflation all affected the lives of Polish families quite strongly. After the fall of communism, the Catholic Church – which had made a major contribution to the change to a democratic system by supporting the opposition throughout the communist years (e. g., in the person of Blessed Father Jerzy Popieluszko) and paid a supreme price for the struggle against communism – gained greater political influence. This was a period of lively social discussion about when human life begins and whether a woman has the right to decide for herself whether she wants to become a mother or not. On 7 January 1993, the Act on Family Planning, the Protection of the Human Fetus and the Conditions for the Permissibility of Interrupting Pregnancy came into force.3 This Act severely restricted Polish women’s access to legal abortion, as it abolished the possibility of performing it for the so-called social reasons mentioned above. The Act provided for the possibility of legal abortion in one of the following situations: when the pregnancy posed a threat to the life or health of the pregnant woman (without restrictions due to the age of the fetus); when prenatal tests or other medical premises indicated a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life (until the fetus became capable of independent life outside the organism of the pregnant woman); when there was a justified suspicion that the pregnancy (up to 12 weeks from conception) resulted from a prohibited act. This solution was later called the ‘abortion compromise’. Let us also add that the new Penal Code,4 enacted in 1997, is complementary to the provisions of this Act. According to Article 152 of the Criminal Code:Let us add for the sake of argument that a pregnant woman is not criminally responsible for aborting a pregnancy.In the meantime (i. e., until the Constitutional Tribunal’s verdict further restricted the right to abortion in Poland in 2020), there were various attempts to change this situation, which stabilised after 1993. Various political groups tried to lobby for an amendment to the Polish Constitution and the enshrinement therein of the right to life from conception to natural death. It is also worth mentioning the amendment to the 1993 Act, passed by the Sejm on 30 August 1996,5 legalising abortion anew on social grounds. This amendment entered into force on 4 January 1997, while on 28 May 1997,6the Constitutional Tribunal of the Republic of Poland in its full composition – with three dissenting opinions – ruled that this provision was incompatible with the constitutional provisions upheld by the so-called Little Constitution of 19927 by stating that the provision ‘legalises the termination of pregnancy without sufficient justification by the need to protect another constitutional value, right or freedom and uses unspecified criteria for this legalisation, thus violating constitutional guarantees for human life’. Furthermore, in the justification for this ruling, the Constitutional Tribunal expressed the view that the Constitution of the Republic of Poland, enacted on 2 April 1997,8 ‘confirms in Article 38 the legal protection of human life. The constitutional basis on which the Constitutional Court based its ruling was therefore confirmed and clearly articulated in the [new] Constitution of the Republic of Poland.’ The provisions concerning this premise expired on 23 December 1997.Until 2020, there were several more attempts to influence the narrowing of the grounds for legal abortion by pro-life organisations and far-right political parties, as well as to extend the possibility to perform this procedure on social grounds. All attempts to implement changes by having Parliament pass a relevant law (inspired, among others, by the Stop Abortion movement in 2016) ended in failure and numerous demonstrations in the streets of Polish cities; there was even a debate in European Parliament on 5 October 2016 regarding women’s situation in Poland.9 Ultimately, it was only the parliamentary elections won by Law and Justice and the changes in the composition of the Constitutional Tribunal, contrary to the 1997 Constitution of the Republic of Poland, that opened the way for a renewed narrowing of access to legal abortion in Poland, not through the activity of the Polish legislator but through the ruling of the aforementioned tribunal.3. Women’s rights in contemporary Poland – selected issuesAt present (i. e., in Q1, 2022), the labour force participation rate in the 15–89 age bracket for men is 65.8%, while for women the rate is only 49.4%.10 Currently, it is estimated that four million women between the ages of 20 and 64 are unemployed in Poland11 – with low registered unemployment (at 4.9%12) but very high inflation13 (Poland is not part of the euro area, and monetary policy in relation to the złoty is conducted by the National Bank of Poland). Traditionally, there are also regions in Poland where the burden of running the home and bringing up children is borne entirely by women, who are generally not professionally active, while men devote themselves to supporting the family as their sole breadwinners (many families who observe this model of sharing responsibilities live in Silesia and are most often families of miners and people professionally involved in mining). By virtue of the judgment of the Constitutional Tribunal of 22 October 2020, Article 4a(1)(2) of the Act of 7 January 1993 on Family Planning, Protection of the Human Fetus and Conditions for the Permissibility of Termination of Pregnancy, indicating the possibility of terminating a pregnancy only by a doctor when prenatal tests or other medical indications point to a high probability of severe and irreversible disability of the fetus or an incurable disease threatening its life, was declared incompatible with Art. 38 (concerning the protection of life of every human being) in conjunction with Article 30 (concerning human dignity) in conjunction with Article 31(3) of the Polish Constitution.14 In its reasoning, the Court deduced that ‘from the essence of the inherent and inalienable dignity belonging to every human being and its equality derives the prohibition of differentiating the value of a given human being and therefore of his or her life. It is impermissible to claim that, because of some characteristic, one individual is worth less than another as a human being. This claim applies not only to the postnatal phase, but also to the prenatal phase of a person’s life’.15 The Court also pointed out, inter alia, that ‘for the admissibility of the deprivation of human life during the prenatal period, it is not sufficient that there is a probability of circumstances where prenatal tests or other medical indications point to a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life, regardless of its possible gradation, and therefore also a ‘high probability’.16 Two judges, Leon Kieres and Piotr Pszczółkowski, submitted dissenting opinions to the judgment. In the opinion of the first judge, ‘[… for] pregnant women and their families who receive information about a high probability of the child having a severe and irreversible disability or a serious life-threatening disease […] The State should provide them with the necessary assistance and not force them to be heroic’.17 Furthermore, according to the judge Piotr Pszczółkowski, ‘The Constitutional Tribunal misinterpreted (overinterpreted) the benchmarks of control indicated in the operative part and, moreover, by incorrectly assessing the proportionality of the limitation of the protection of the legal good, which is life in the prenatal stage, it took into account only one perspective – the perspective of the protection of life in the prenatal stage. At the same time, it omitted the perspective of women, whose dignity, life and health are undoubtedly values covered by constitutional protection.’18Nearly two years after the Constitutional Court’s judgment, there has been a noticeable increase in the number of women who, while pregnant with a sick or disabled fetus, use the services of psychiatrists.19 Doctors in such situations can issue a certificate that indicates the deterioration of a woman’s mental health, in which, for example, depression or anxiety attacks may appear. On this basis, it is possible to perform an abortion. A famous case in Poland was that of a young woman who was admitted to hospital at 22 weeks’ gestation. Doctors found that there was no amniotic fluid but waited for the baby to die; the pregnant woman subsequently died from septic shock.20 Pro-life environments operating in Poland demand further restrictions on legal abortion in Poland, by abolishing the premise about the pregnancy being the result of a prohibited act.21 According to official data, approximately 1,000 legal abortions per year were performed in Poland until the announcement of the Constitutional Tribunal (CT) ruling in October 2020. In 2021, according to official data, this number fell tenfold to 107.22 Unofficial statistics oscillate between around 7,000 to 13,000 abortions, although sometimes a much higher number is given, amounting to as many as 200,000 abortions per year being performed on Polish women in the country (in the abortion underground in various sanitary conditions) or abroad legally (e. g., in the Czech Republic).23 It is worth noting that during the COVID-19 pandemic, such trips were quite difficult due to restricted border traffic. Following the announcement of this verdict, a social movement, the Women’s Strike, was born, which despite the restrictions of the COVID-19 pandemic, organised mass demonstrations in many cities and towns in Poland over many months. These protests were often aggressively and violently suppressed by the police. The protests were revived locally and in larger cities each time that a pregnant woman died in hospital because doctors, afraid to carry out an abortion, delayed the decision too long and waited for spontaneous fetal demise. Unfortunately, such cases do occur, which only confirms that the Constitutional Tribunal’s judgment has had a paralysing effect on many doctors, and situations in which a termination of pregnancy can be performed legally for the sake of the woman’s health and life are not at all clearly interpreted. The effect of these changes, as well as the poor economic situation due to the economic downturn caused by the COVID-19 pandemic, the war in Ukraine and rampant inflation, also means that women are now less likely to decide to have more children or to have a child at all.In Poland, there is no sexuality education subject in schools. The curriculum only includes Education for Family Life (from the fourth grade of primary school), a subject that conveys a very conservative view of human intimacy. Since 2017, it has also not been possible to buy the so-called morning-after pill without a pharmacy prescription: EllaOne, for example, has been available only on prescription since this time.24Young girls in Poland also have limited access to hormonal contraception. They cannot obtain it free of charge from the school nurse, as teenagers do, for example, in Belgium or France,25 and Poland’s reimbursement system for hormonal contraception is very poorly developed. Finally, more and more doctors are invoking the so-called conscience clause and refusing to issue this type of prescription. Add to this the fact that a teenage girl under the age of 18 must, de facto, have the consent of her parent or legal guardian for any medical appointment, as well as permission to be prescribed any prescription drug (including the morning-after pill or hormonal contraception). This, in practice, entails a visit to the gynaecologist with a parent, which, due to the conservative mentality of a large part of Polish society, is in itself often unbearable for such young girls. It is an absurd situation when a 15-year-old girl can, according to Polish law, make a conscious decision to have sexual intercourse but cannot independently (i. e., without a consultation with a doctor) decide to take hormonal contraception.26 Many of these aspects contribute to the fact that fertility in Poland is declining. This is confirmed by the declining fertility rate, which has decreased from 1.991 in 1990 to 1.378 in 202027 (it is worth recalling that a rate of 2.00–2.15 enables the replacement of generations).28 In addition, there has been a negative natural increase every year since 2013.29 In this context, it should also be stated that women in Poland have difficulties accessing modern infertility treatment methods, as the IVF procedure is not reimbursed by the National Health Fund. It can be performed privately but demands a large financial outlay from the patient, and it is only financed by certain local authorities (e. g., the city of Poznań and Warsaw).30In Poland, accessing nurseries and kindergartens is still a big problem, so this has a negative impact on the position and stability of young mothers in the labour market. Also, the recent influx of refugees from Ukraine has significantly exacerbated this problem, as both the pre-school care system and schools have to absorb new children, who often have war trauma and do not know the Polish language. Incidentally, we should add here that it is no systemic solution to simply increase nursery or pre-school groups and add new desks in schools. This is because a common problem today is that mothers who fear losing their jobs through repeated absences from work due to child illness are sending their sick or under-treated children to these nurseries or pre-schools. The government programme Family 500+, introduced after the Law and Justice party won the parliamentary elections in the autumn of 2015, was supposed to be the answer to the aforementioned demographic crisis in Poland. The programme entered into force on 1 April 2016, by virtue of the Act of 11 February 2016 on state aid in rearing children.31 It consists of the state providing families with a monthly child-rearing benefit of PLN 500 per child and is intended to partially cover expenses related to raising children. The Explanatory Memorandum to the submitted draft Act identifies two objectives of the Family 500+ programme: the first is to reduce the financial burden of raising children and the second is to encourage people to have more children.32 From April 2016 to June 2019, the child-rearing benefit for the first child was available to families whose income per person did not exceed PLN 800. However, this condition did not apply to the second and each subsequent child. From July 2019, the income criterion was abolished. Currently, the child-rearing benefit of PLN 500 for the first and each subsequent child can be received by families, regardless of their income level. After six years of the Family 500+ programme being in force, in our opinion it is impossible to say that it has met all its objectives. Polish society is still struggling with a demographic crisis and continuing to record a negative birth rate. Only in 2017, a slightly higher growth rate of -0.9 (in thousands) was recorded, compared to previous and subsequent years. On the other hand, however, the programme has contributed to reducing extreme poverty in Poland, particularly in families with many children, from 6.5% in 2015 to 4.2% in 2021.33Of interest, from the point of view of the topic of this article, are two social programmes: Good Start and Family Care Capital. The first one, implemented in 2018, consists of providing families with financial support of PLN 300 for each child and is to help defray expenses related to the start of the school year.34 It is a universal programme, as receiving the benefit does not depend on one’s income. According to government data, Good Start provides support for 4.4 million students in Poland.35 The Family Care Capital, on the other hand, is a new programme, which was implemented on 1 January 2022. The Explanatory Memorandum to the draft Family Care Capital Act of 17 November 202136 indicates that the purpose of the benefit is to ‘mitigat[e] adverse demographic trends’. It is worth noting this issue in the context of the previously described ineffectiveness of the Family 500+ programme, which did not contribute to an increase in fertility rates in Poland over several years. The Family Care Capital is another universal benefit, as family income is not taken into account in the payment of funds. The programme consists of granting financial support in the amount of PLN 500 or PLN 1,000 per month (for 24 or 12 months respectively, with the maximum amount of support being PLN 12,000 per child) for the second and each subsequent child in the family from the first day of the month in which the child turns 12 months old until the last day of the month preceding the month in which the child turns 36 months old.37 In view of the short period in which the Family Care Capital has been in force, it is not yet possible to assess whether it has contributed to an increase in the fertility rate in Poland. Taking into account the constitutional principle of the well-being of the family and the mother’s right to assistance from public authorities,38 the Mama 4+ parental supplementary benefit was introduced in 2019. It consists of support for mothers who are over 60 and have given birth and have raised or are raising at least four children. The programme is also addressed to fathers aged 65 and over who are raising at least four children. The support is relevant in the event of the death of the children’s mother or the abandonment of the children by the mother, as well as in the event that the mother ceases to raise the children over a long period of time. The benefit is granted to the above-mentioned fathers upon fulfilment of the above-mentioned conditions, taking into account the income they earn and whether or not it provides them with the necessary means of subsistence.39It is also worth pointing out the idea of introducing a scheme in Poland to pay benefits to grandparents looking after their grandchildren when the children’s mothers return to work. A similar solution is in place in Hungary.40 For the time being, this type of benefit in Poland remains at the conceptual stage. However, in our opinion, such social support could contribute to keeping seniors active while at the same time lead to the strengthening of intergenerational relations in families. Grandchildren would remain in the permanent care of grandmothers and grandfathers, who would receive support to cover their grandchildren’s living expenses. In fact, there are still many seniors in Poland who are at risk of poverty; in 2019, such a group accounted for 17.4% among people over 65 years of age.41The changes in the Polish Labour Code42 concerning leave related to the rearing of a newborn child should be assessed positively. Currently, a mother is entitled to 20 weeks of maternity leave after giving birth.43 Once she has taken at least 14 weeks of leave after giving birth, she has the right to give up the remaining six weeks, which is then transferred to the father.44 After maternity leave, there is parental leave of 32 weeks. This can be taken either entirely by one parent or by both.45 The father is also entitled to paternity leave, which is 14 days.46In Poland, the retirement age is 60 years old for women and 65 years old for men. In 2021, there were around six million pensioners in Polish society and, importantly, this demographic will grow.47 In view of the intensification of the demographic crisis, along with increasingly longer life expectancy and better living conditions, the retirement age for women and men should be delayed. However, as practice has proven, pension reform should be carried out in a non-violent manner, with the public duly informed of the rationale for change. This was lacking in 2012, when the then government of Donald Tusk carried out reforms in this area, whereby women and men were to eventually retire at the age of 67. At the time, Poles strongly opposed this reform.48 In 2017, at the instigation of Law and Justice, the retirement age was lowered in Poland, returning to 60 years old for women and 65 years old for men.To some extent, women in Poland have a privileged position in the event of divorce (let us add that the majority of divorce petitions in Poland are filed by women). The Polish Family and Guardianship Code49 does not provide for the institution of alternate custody; moreover, it still has not formulated a legal definition of this concept.50 In practice, alternate custody is very rarely given and only in cases where the parties can prove that there is no conflict between them and at their express request.51 In most situations, the child in a divorce lives with the mother, and the fathers can take care of them (unless the parties agree on a joint parenting plan involving the father to a greater extent, which is then approved by the court) on strictly defined days, weekends or part of the holidays. In Poland, domestic violence perpetrated against women is also a big problem (which has intensified, as in other countries during the repeated lockdowns during the COVID-19 pandemic). In spite of this, the extremely Eurosceptic Minister of Justice declared in July 2020 that Poland should denounce the Istanbul Convention,52 which, according to him, uses the concept of cultural rather than biological sex and pays homage to gender ideology. The minister stated that without this convention, the guarantees of the rights of female victims of domestic violence stand at a high enough level in Poland.53Women in de facto relationships with other women cannot legalise their relationships in any way in Poland. According to Article 18 of the Polish Constitution, marriage is a union between a man and a woman, and Polish law does not provide for other ways of legalising same-sex unions, such as the ‘registered/live-in partnership’ common in many Western European countries. The only effective way of securing joint interests in a same-sex relationship is to draw up a will in notarial form or a notarial contract, which may include appropriate mutual powers of attorney (e. g., to decide on the treatment of the partner, to dispose of the partner’s property, to use and register in a dwelling, to inspect medical records and so on. In Poland, statistically, women are better educated,54 yet it is still a problem that women in comparable positions do not earn as much as men. Recently, a quite visible trend is that young women from the countryside or small towns are moving en masse to big cities, which offer them different (often better) educational and professional opportunities, while young men, often farmers and less educated, cannot find a partner nearby with whom they can start a family. A symbol of this phenomenon has become the highly emotionally charged reality TV show ‘The Farmer Wants a Wife’. Although Poland has a reputation abroad as a conservative country, many women in Poland are employed in high positions and hold influential positions (e. g., in business). In Poland, quotas on electoral lists have been in force for more than a decade for elections to the Sejm and for elections to municipal councils and cities with more than 20,000 inhabitants. These quotas indicate that the number of female candidates should not be lower than 35% of the number of all candidates on the list. The introduction of quotas on electoral lists was the result of the activities of the civic movement Women’s Congress, which submitted a civic bill on this issue in January 2010.55 The rationale for quotas introduction on electoral lists was to increase the presence of women, particularly in the Sejm.56 Nevertheless, it is not possible to conclude from analysing the results of the elections to the Sejm that the validity of electoral quotas has contributed to an increase in the number of female MPs. Specifically, in the seventh legislature there were 344 men and 116 women, in the eighth legislature there were 335 men and 125 women, and in the (current) ninth legislature there are 328 men and 132 women.57 The way in which the electoral lists are filled remains problematic, as the ‘taking places’58 are more often given to men.59 However, it should also be noted that in Poland after 1989, as many as three women have held the office of Prime Minister (Hanna Suchocka, Ewa Kopacz and Beata Szydło, respectively). Currently, the second person in the state, according to the Polish Constitution, after the President of the Republic of Poland, is the Speaker of the Polish Sejm, Elżbieta Witek.4. ConclusionsContemporary Poland (especially in the context of its presence in the EU) certainly faces problems regarding the rule of law, and these are mainly due to reforms of the judiciary and the broader justice system, which have been going in the wrong direction for several years. Women’s rights are currently a hotly debated topic, and as we have tried to demonstrate in our study, they do not begin and end with the issue of access to abortion. Despite the many worrying observations made above, some important steps have been made regularly over the last few years. The 500+ programme has not increased the fertility rate, but it plays a big social role, thanks to which many mothers (also single mothers) are able to buy their children, for example, winter boots or go on holiday for the first time in their lives. Of course, there are parents who spend this money inappropriately, but that is always the case with social programmes. The same is true of the Good Start programme and the Family Care Capital. Women are now better educated and more aware