When the Women on Waves’ ship visited Poland in late June, it helped shine an international spotlight on the heavy price that Polish women have paid for their country’s draconian abortion law. Polish women are forced to resort to an estimated forty to fifty thousand illegal, potentially unsafe abortions every year.
Abortion in Poland is legal only in cases of fetal impairment, threats to the life or health of the woman—when confirmed by a second doctor—or in cases of rape or incest, which must be verified by a prosecutor. These restrictions on a woman’s right to reproductive freedom are relatively new for women in the country. From 1956 to 1993, first-trimester abortions in Poland were legal on broad grounds.
The narrow exceptions to the country’s current abortion law can be hollow guarantees for women facing the most harrowing of circumstances. Many doctors—even entire hospital administrations—invoke conscientious objection, some as a pretext for performing more expensive abortions in private clinics, illegally.
Take the case of Barbara, a 28-year-old woman with a son who suffers from a disease that causes severe pain, disfigurement of the joints and underdevelopment of the limbs. When Barbara became pregnant for a second time—despite contraceptive use—she wanted to consider the option of abortion if her fetus had the same genetic disorder as her son. But the medical manager of the hospital she visited refused to give her referrals for prenatal testing. He told her that nobody in the hospital would perform the abortion even if her fetus showed signs of the same disorder that afflicted her son.
After an unsuccessful battle with the Polish health-care bureaucracy, Barbara gave birth to a daughter with the same disorder as her son. She and her husband don’t receive any government assistance and are struggling to support the medical needs of their children.
Barbara is not alone. In 1999, the Warsaw-based Federation of Women and Family Planning (FWFP) surveyed 193 Polish doctors and nurses, and found that one-in-four knew of situations where a legal abortion was refused to a patient.
Conscientious objection clauses invoked to deny reproductive health care services discriminate against women because they pertain to services that only women need, thereby violating European and international law.
Under the European Convention on Human Rights and Biomedicine, to which Poland is a signatory, governments have a duty to provide "equitable access to health care of appropriate quality."
The CEDAW Committee, which oversees compliance with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), has stated, "It is discriminatory for a State party to refuse to legally provide for the performance of certain reproductive health services for women."
Poland should fall in line with international legal standards. Furthermore, Poland’s Ministry of Health should ensure that doctors who decline to perform abortions refer their patients to those who will provide the service.
Many of Poland’s health-care providers agree that strict monitoring of conscientious objection is needed. The FWFP survey found that six out of ten health-care providers agreed that there is a need to regulate conscientious objection clauses and that health-care facilities should identify abortion providers who refuse to perform the procedure.
The CEDAW Committee is in agreement on this point: "if health service providers refuse to perform such [reproductive health] services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers."
It is time for the Polish Ministry of Health to stop anti-choice doctors from flouting the law and endangering the lives of thousands of women by guaranteeing women the right to access safe and legal abortion services.
Christina Zampas is the Center’s legal adviser for Europe
July 11th marked a new day for African women. The African Union—the regional body charged with promoting unity and solidarity among member states—adopted a landmark Protocol on the Rights of Women in Africa ("the Protocol") to supplement its regional human rights charter, the African Charter on Human and Peoples’ Rights. The Protocol, which will enter into force once it has been ratified by 15 African governments, provides broad protections for women’s human rights in several domains, including the area of sexual and reproductive rights.
For the first time in international law, the Protocol articulates a woman’s right to abortion, calling upon governments to permit the procedure when a pregnancy is the result of sexual assault, rape or incest, or when the continuation of a pregnancy endangers the mental or physical health of the pregnant woman, her life or that of the fetus. Another first is the Protocol’s explicit call for the criminalization of harmful practices such as female genital mutilation (FGM), which has ravaged the lives of countless young women on the continent.
The Protocol also calls upon states to:
- Provide adequate, affordable and accessible health services to women;
- Establish and strengthen pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while breast-feeding;
- Guarantee women’s right to consent to marriage and set the minimum age of marriage at 18;
- Ensure equality and the enjoyment of equal rights in marriage;
- Protect women during armed conflicts;
- Enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex;
- Prohibit all medical or scientific experiments on women without informed consent; and
- Reform existing discriminatory laws and practices in order to promote and protect the rights of women.
Reproductive and sexual choice is central to addressing the major challenges facing African women—from the spread of HIV/AIDS, to sexual violence in conflict situations, to increasing rates of poverty. Yet the reality for many women in Africa is that they have little or no control over their reproductive and sexual lives. Tradition and cultural values, as well as written customary laws, are constantly asserted to justify practices that curtail women’s fundamental rights in all spheres, including practices that threaten women’s lives. Inadequate or poorly enforced laws and legal norms at the regional and national levels stand as barriers to women’s access to reproductive health services—either in and of themselves or because they buttress existing social barriers at the family, community and governmental levels. For example, sexual abuse of women and girls, often those orphaned by AIDS, contributes significantly to the spread of HIV among women across Africa. In several southern African countries, including South Africa where sexual violence against women remains at crisis levels, the police force and the justice system provide little protection or redress against violent sexual crimes.
Meanwhile, customary and religious laws in many African countries effectively deny women their rights to make decisions concerning their reproductive health that are free of coercion, violence, and discrimination. Over the last three years, several states in northern Nigeria have introduced Sharia-based criminal codes, which include punishments that constitute torture and cruel, inhuman or degrading treatment. Under these codes, women convicted of adultery can be sentenced to flogging or to death by stoning. The increasing application of Sharia and customary laws—both of which have provisions that violate established human rights standards—shatter hope for Nigerian women’s enjoyment of their rights.
The Protocol triumphs over customary values and traditions that usurp the rights of women. Through its provisions on marriage, children and inheritance, the Protocol reaches into the private sphere of the home and family, where discrimination and violence are brewed and applied against women in Africa on a daily basis. The Protocol serves to relocate the rights abused in the domestic realm to the public realm of unacceptable violations for which nation states must be held accountable.
None of this would have been possible without the unwavering activism of African women’s groups who pressured the African Union to issue protections for women’s rights on the continent—a move that was long overdue. It’s no secret that many African governments viewed the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)—the seminal international treaty protecting women’s rights—with disdain. CEDAW was adopted with numerous religious and cultural reservations by governments with no intention of taking it seriously. It was widely viewed on the continent as a colonial relic, a Western construct alien to African values and society. Yet, the Protocol is a binding regional instrument that reinforces the guarantees of international treaties, including CEDAW. The difference is that the rights espoused in the Protocol have been articulated by Africans and for Africans.
And that is why the success of the Protocol—from its entry into force to its impact on the lives of African women most in need of protection—depends heavily on the continued involvement of civil society groups throughout the continent.
It is crucial that African civil society groups secure the ratification of the Protocol—without reservations—by at least 15 governments. Advocates must also push their governments to officially recognize sexual and reproductive rights as entitlements for all women, without exception. This requires that the Protocol’s guarantees be translated into national-level laws and policies that are matched by programs that turn those rights into reality. Advocates must help women understand and appreciate their sexual and reproductive rights and feel ready to claim them. And with the establishment of strong mechanisms to implement the Protocol should come civil society’s aggressive enforcement of reproductive rights provisions in order to build a vibrant jurisprudence at the African regional and national levels.
The Protocol provides a strategic platform for advocates to bring reproductive rights to the attention of governments, policymakers and ordinary people throughout Africa. Advocates should develop strategies and human rights education tools that are capable of reaching all sectors of society, including the least educated and most under-privileged. NGOs and activists can lobby their governments to amend existing laws or to adopt new legislation that safeguards the rights guaranteed in the Protocol. Pursuing litigation before regional or national courts is yet another means of incorporating the standards established by the Protocol into national systems.
At the same time, proponents of reproductive rights must engage religious and traditional values as serious challenges to the legitimacy of human rights in African societies. Advocates need to step beyond mere standard-setting and address the legitimacy of the human rights framework as a normative basis for ensuring respect for women’s reproductive rights. Education and awareness campaigns aimed at advancing the human rights paradigm on a national level will be key. Advocates can also draw attention to existing violations, such as the high rate of HIV infections among women, to hold their governments accountable for their failure to respect women’s reproductive rights.
The African Union’s visible commitment to gender equality along with the growing strength of women’s groups presents African women with unprecedented opportunities to push for their rights and needs.
For African women long suffering from the devastation of HIV/AIDS, poverty and sexual violence, the time for action is now.
Rumbi Mabuwa is the Center’s legal adviser for Africa.
In August, another Nepali woman imprisoned under the country’s longstanding, punitive approach to abortion was released from prison. Nepal legalized abortion in September 2002.
The woman was the tenth to be released since King Gyanendra pardoned four women on July 7. Subsequent to the King’s pardons, five women were released by the courts, which continue to consider the release of women on a case-by-case basis.
The woman—like many of the almost 50 still languishing in prison on often trumped-up charges related to the end of their pregnancies—had suffered a miscarriage, but was convicted of violating Nepal’s now defunct abortion ban.
At the time of her conviction, Nepali law prescribed a three-year sentence for abortion, but she received a 20-year sentence, which is normally given to perpetrators of infanticide. Her sentence was later reduced to six years. She had served almost five years at the time of her release.
"We will continue to work with our local partners to pressure the government to grant justice to all of the women," said Melissa Upreti, the Center’s legal adviser for Asia.
In June, the Nepal-based Forum for Women, Law and Development completed a survey of the women who remain in prison, and found that 96% had been charged with infanticide. A closer examination of their case histories reveal that the majority suffered from miscarriages, stillbirths or induced abortions.
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