February 4, 2025
Dear Prime Minister Tusk,
Human Rights Watch is an international NGO that works to document human rights violations and advocate for change in about 100 countries around the world.
We have worked on human rights in Poland for more than a decade. This work includes documenting violations of the rights of women and girls, an issue that became of increased concern during the previous Law and Justice-led government. We appreciate the efforts your government has made to bring reforms in support of the rights of women and girls, and we believe there is much more that needs to be done.
We want to share with you some of our findings regarding violations of the rights of women and girls, based on research we conducted during the previous administration. We know that you are aware of these issues; we hope that our research may be helpful to you as you continue to pursue reforms.
We appreciate the efforts by the government to reinstate the rule that would permit women and girls over the age of 15 to access emergency contraception without a prescription, and we are aware that President Duda has vetoed this legislation. This is an urgently important issue, and we hope that you will continue your efforts to find a solution that would enable this much needed reform.
We believe there are other important issues too, some of which may be susceptible to administrative reforms, as well as reforms through legislative and judicial processes. The annexed document includes findings in three areas: 1) barriers to accessing abortion care; 2) barriers to accessing contraception, including but not limited to emergency contraception; and 3) rights violations resulting from how Poland manages the use of IVF.
This is not an exhaustive list of issues; our research also found rights violations related to: failure to provide comprehensive sexuality education in schools; abuses targeted at women’s rights defenders; and harmful anti-women rhetoric in the media. These are also important issues which demand government attention.
As you know, Poland has an obligation to uphold women’s and girls’ rights under national and international law, including as a party to the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.
Very briefly, we propose the following recommendations to your government. We believe these can best be addressed across government, rather than being left to a single ministry, and hope your office can provide leadership in advancing them.
Comprehensive sexuality education
- Take steps to ensure that comprehensive sexuality education, based on international best practices, is provided to all students in all schools, in age-appropriate ways.
Access to contraception
- Make emergency contraception available without a prescription, including to young people under the age of 18.
- Issue an order that healthcare providers employed by government facilities may not invoke “conscientious objection” to refuse to provide contraception to patients.
- Issue guidance clarifying that pharmacists are not permitted to invoke “conscientious objection” to refuse to stock or fill prescriptions for contraception and impose penalties on individuals and pharmacies that violate this rule.
Access to abortion care
- Call on parliament to pass legislation fully decriminalizing abortion and ensuring full access to abortion care.
- Put in place protections to ensure that when “conscientious objection” is invoked with regard to abortion care, it is applicable only to individual healthcare providers, not institutions as a whole, and mandate that when a healthcare provider invokes conscientious objection that provider and the institution in which the provider works both have an obligation to ensure that the patient is able to access the requested care from another healthcare provider in a timely and accessible manner.
- Protect and ensure unimpeded access to funding for the work of organizations assisting women and girls who need to travel outside of Poland to access abortion care and provide resources for women and girls from rural areas who need to travel within the country to access abortion care.
- Expand access to sexual and reproductive health services, including abortion care in rural areas.
- Issue clear guidance to healthcare providers regarding their duty to provide information about abortion and about the circumstances in which they are legally permitted to provide abortions, including clarifying that the exception in cases of a “threat to life or health” includes mental health, to try to counteract excessive caution by healthcare providers due to fear of prosecution.
- Launch a public information campaign to share information about how to access abortion care, especially in rural areas.
Access to IVF care
- Reform the law to amend language that effectively excludes families led by LGBT people and single women from access to IVF treatment services, and to ensure that same-sex couples, trans people, and single women can access a full range of IVF treatment services on the same basis as heterosexual couples.
- Revise the law governing IVF to give people who have produced embryos control over what is done with those embryos, including the option to have them destroyed.
I have attached our research findings in a separate document. I hope very much that this is useful to your office, and if there is anything that I or my colleagues can do to assist as you strengthen protections for women and girls in Poland, please do not hesitate to ask. You can contact Lydia Gall at galll@hrw.org.
Sincerely,
Hugh Williamson Macarena Saez Director Executive Director
Europe and Central Asia Division Women's Rights Division
_____
Annex to February 2025 Letter from Human Rights Watch to the Government of Poland
Violations of the rights of women and girls documented by Human Rights Watch which require urgent attention from the government
“In our own countries we are beggars for our rights, for women’s rights.” —M, a Polish woman interviewed by Human Rights Watch in 2023
Poland’s current government inherited laws and policies that are deeply harmful to women and girls and violate their sexual and reproductive health rights. Some of these laws and policies were put in place by the previous government, controlled by the Law and Justice (PiS) party, which made it a priority to roll back rights of women and girls; other harmful laws and policies pre-date the PiS government. In either case, it falls to the current government, in line with Poland’s obligations under international human rights law, to work to reform rights-violating laws and end rights-violating policies, and to take steps to “future-proof” Poland against engaging in such abuses in the future.
The following is a more detailed look at three areas where our research documented harms to women and girls: 1) barriers to accessing abortion care; 2) barriers to accessing contraception, including but not limited to emergency contraception; and 3) rights violations resulting from how Poland manages the use of IVF.
Attacks on access to abortion care
While in power, the PiS-led government carried out a sustained attack on reproductive rights. Most notably, it enacted a near-total ban on legal abortion and made it a priority to punish women and girls suspected of having abortions as well as doctors and activists it alleged were aiding access to abortion. This criminalization of abortion endangered the lives and health of women and girls – causing or contributing to multiple deaths – and compounded fear, anxiety and uncertainty for women and girls, activists, and health care providers. Simultaneously, curbs on access to emergency contraception and in vitro fertilization and the introduction of a “pregnancy registry” reinforced the sense of increasing hostility in what was already one of the least reproductive rights-friendly environments in Europe.
Impact of the Constitutional Tribunal’s Decision Imposing a Near-Ban on Legal Abortion
The October 2020 decision by the Constitutional Tribunal, which entered into force in January 2021, bans almost all access to abortion by ruling that grounds of “severe and irreversible fetal defect or incurable illness that threatens the fetus' life” were unconstitutional. Experts interviewed by Human Rights Watch cited its dire real-life impacts.
The Constitutional Tribunal’s abortion ruling exacerbated existing barriers to legal abortion. Broad use and lack of regulation of “conscientious objection” allowed medical professionals to refuse to perform abortion due to personal or religious belief, often rendering abortion care inaccessible in practice. Cumbersome requirements to show evidence of rape made it exceedingly difficult for survivors of sexual violence to obtain legal abortions. “Abortion was already banned – they just banned it more,” one activist told Human Rights Watch “They made it impossible for the small percentage of the people who could get it.”
Doctors who were previously able to terminate pregnancies in cases of severe or fatal fetal anomalies described how the decision hurt patients. A gynecological resident at a Warsaw hospital long renowned for treating pregnancy complications, including providing legal abortion, described what she and other doctors did in cases of severe fetal abnormality after the ruling took effect: “We don’t do anything. We just wait. We watch. And it’s inhuman.”
Activists who help women access abortion outside Poland said that after the Tribunal’s ruling they were suddenly assisting women with severe health risks due to pregnancy complications that healthcare professionals in Poland could no longer treat.
Multiple interviewees said that, following the judgment, a sense of insecurity and fear around being or becoming pregnant proliferated for women and girls in Poland.
Interviewees also said that the Constitutional Tribunal’s anti-abortion ruling exacerbated existing hesitation among doctors to provide even legal abortion or discuss abortion with patients. “With criminalization and legal uncertainty also comes social criminalization and a chilling effect on the part of providers – they err on side of the most conservative reading possible of the law,” said an attorney providing legal support to organizations providing or facilitating abortion access.
Our research found there is a common misconception among medical personnel that providing information about abortion care is criminalized. Experts said that although they did not know of any cases where doctors were prosecuted over facilitating abortion, doctors often cited fears of prosecution as a reason for not sharing information with patients about abortion and fearing even to discuss the issue with other doctors. One gynecologist interviewed said she provided this information to patients but feared legal risks in doing so. Some doctors said they felt they were being monitored and surveilled regarding how they communicated with patients on issues related to abortion.
As a consequence of these heightened restrictions and fears, Human Rights Watch was told by one doctors that she increasingly chose not to treat patients who sought or required abortion care. Some other doctors said that, when seeing such patients, they would refuse to discuss abortion, including at times in cases where abortion would be permitted under the law--even to the point of failing to disclose to women fetal abnormalities detected during prenatal examinations. One doctor described often receiving patients who had been denied abortion care elsewhere.
The atmosphere grew so restrictive that it became virtually impossible for patients who were entitled to access legal abortion under the very narrow circumstances permitted by law to obtain care in practice. A deputy medical director at a hospital described how, in her experience, some health facilities would promise to provide abortion care to a patient but repeatedly delayed it, as an intentional tactic to block women from ending a pregnancy. Interviewees pointed to how the absence of meaningful oversight or regulation of health care providers with regard to abortion care leaves providers free to deny care with no accountability.
The only remaining legal grounds for abortion in Poland are if a pregnancy results from rape or incest or if “pregnancy poses a threat to the life or health of the pregnant woman.” In such cases doctors are obliged to provide care, including abortion. But the determination of a “threat to the life or health of the pregnant woman” relies on a doctor’s judgment of what constitutes such a threat, leaving women at the mercy of the health care providers’ discretion, fears of legal exposure, and personal views on abortion.
Even when there appears to be a clear risk to life or health, doctors do not always provide abortion or even inform patients that it could be an option. A lawyer described a case she handled where the doctor neither performed an abortion despite evidence of a high-risk pregnancy, nor informed the patient that the pregnancy threatened her life or health. At around eight weeks pregnant, the woman’s uterus ruptured, and she experienced life-threatening hemorrhaging.
In September 2021, a woman died in a hospital in Pszczyna in southern Poland following pregnancy complications, prompting mass protests. As of November 2023, six women were known to have died since the Constitutional Tribunal ruling after their pregnancies were not terminated, despite complications that put their lives or health at risk.
Another major stumbling block under the previous government was its failure to clarify that “threat to life or health” includes mental health, and to ensure access to abortion on these grounds. Experts said that even when a psychiatrist was willing to issue a certificate saying that a woman required access to an abortion due to a threat to her mental health, it would likely be difficult to find a healthcare facility willing to honor that certificate and perform the abortion.
In a widely reported December 2021 case, a 26-year-old woman was denied an abortion at a Białystok hospital despite obtaining certification from two psychiatrists after her fetus was diagnosed with acrania, a fatal condition in which skull bone is absent. FEDERA, representing the woman, filed a complaint with the Ombudsman for Patients’ Rights. In May 2023, the Ombudsman issued a decision finding a violation of the patient’s rights and affirming that the law establishing the right to abortion on grounds of threat to life or health “should be understood to include the mental health of a pregnant woman.” The decision further notes that patients have the right to elect a termination of pregnancy on this basis in any public hospital and that the hospital “should provide the patient with all necessary information in this regard.”
Poland’s violations of the sexual and reproductive health rights of women and girls has disproportionately harmed those living in poverty, those living in rural areas, and members of marginalized groups.
The need to travel long distances or across borders to access care means that people living in rural areas or without financial means or the ability to travel may not be able to access abortion. Financial strain can be compounded by lost wages and difficulty taking time off work and by caregiving responsibilities for those needing to travel to access abortion.
Interviewees also pointed to a lack of access to services and information, especially in rural areas, as an exacerbating factor. A doctor said the Constitutional Tribunal ruling specifically impacted people outside of major cities, particularly in cases where they experienced an unexpected pregnancy complication: “In general, the changes in the law affect women mostly outside of Warsaw, Krakow bubble…Women in bigger cities can find information, ways to get help.
Inadequate sexuality education in schools leaves many children and young people without information about sexual and reproductive health, including the right to access abortion. An educator who works to provide comprehensive sexuality education described the increased difficulties of doing this work and how the unmet need for this information especially affects immigrant and LGBT youth. A school counselor in a rural area described not only intense pressure not to provide comprehensive information about sexuality to students, but also the establishment at her school of classes focused solely on promoting abstinence.
Increased Barriers to Accessing Contraception, Including Emergency Contraception
The European Contraception Policy Atlas--an annual assessment of access to contraception, family planning counseling, and online information about contraception--ranked Poland last among countries in Europe every year between 2019 and 2023. (No atlas was available for 2021.) In 2020, Poland was mentioned as “the only European country to increase restrictions to contraception for the past four years.”
Denial of care, including due to invocation of a so-called “conscience clause” by doctors and pharmacists, can make contraception and emergency contraception virtually inaccessible in the public health system. This forces women and girls to resort to costly private providers—if they can afford to--and creates delays that can render emergency contraception less effective or ineffective. A requirement that young people under 18 have the accompaniment or consent of a parent or guardian for reproductive health care compounds the challenges to access for many adolescents.
Harmful use of the “Conscience Clause”
According to the World Health Organization, emergency contraception can prevent up to 95 percent of unwanted pregnancies. However, it must be taken within five days of unprotected sex and is most effective when taken as soon as possible after unprotected sexual intercourse, including rape. Delays in access can thus inhibit or preclude its effectiveness. For example, instructions for EllaOne, the emergency contraceptive pill authorized for sale without a prescription by the European Medicines Agency--and sold without prescription in Poland between 2015 and 2017—state that it should be taken as quickly as possible and within a maximum of 120 hours after unprotected sex or contraceptive failure. The World Health Organization “strongly recommends” making emergency contraception available to all over-the-counter and without a prescription.
Both doctors and pharmacists sometimes invoke the “conscience clause” to deny prescriptions and provision of contraception and emergency contraception, even though this is not provided for under the law. “It’s not legal – the ‘conscience clause’ only applies to abortion, not to prescribing medications, but doctors do it anyway because they have the power and not a lot of people know that they can’t deny it,” an activist told Human Rights Watch.
Government officials have provided inconsistent and confusing interpretations of Polish law with regards to whether pharmacists are permitted to invoke conscientious objection to deny sales of medication or fulfillment of prescriptions. For example, in responding to a question from MPs in September 2017, then deputy health minister Martin Czech said that the pharmaceutical law, which remains unchanged currently, contained no provisions for pharmacists to use conscientious objection. However, in an October 2017 response to then Ombudsman Adam Bodnar, then Minister of Health Radziwill pointed to the constitution to defend the possibility of pharmacists invoking the “conscience clause.”
The Association of Catholic Pharmacists of Poland and Ordo Iuris, an ultra-conservative organization with ties to the Polish Catholic church, has repeatedly urged pharmacists to use a “conscience clause” to deny women and girls access to contraception.
The European Court of Human Rights has found that pharmacists do not have the right to deny legal sales of contraception and that requiring them to fill these prescriptions does not infringe upon their rights, saying that they “cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.”
In her 2019 report on her visit to Poland, Council of Europe Commissioner for Human Rights Dunja Mijatovic said that the minister of health “clarified that the scope of the conscience clause was very precise and did not encompass situations where the refusal of service would endanger the life or health of the patient, nor could the conscience clause be invoked by professionals (e.g. pharmacists) other than those performing the actual pregnancy termination service.”
Yet interviewees told Human Rights Watch about ongoing refusals by pharmacists to issue or fill prescriptions. “Catholic pharmacists try to abuse the law and say, ‘No, no, no, we don’t have contraception, no EllaOne [emergency contraception], we don’t have it at the moment, we ran out of it,” said an expert in western Poland. She said that when asked when they will receive more pharmacists say they don’t carry it anymore.
Saying that animals can access medications for abortion or emergency contraception more easily than women, protesters have used slogans such as “my dog has more rights than me.” The media has also reported denial of prescriptions for emergency contraception, including a case where a woman said in 2021 that “a vet friend saved me” by providing her the medication.
Barriers and Opposition to Accessing In-Vitro Fertilization
The previous government’s attack on reproductive rights also included creating new barriers to accessing assisted reproductive technologies. We take note of the current government’s important decision to restore funding for IVF treatment through public hospitals—but there are further reforms needed.
Discriminatory Legislation
Legislation in June 2015 established regulations in Poland for in vitro fertilization (IVF), a form of medically assisted reproduction. The 2015 law effectively eliminates access to IVF for single women or same-sex couples. It specifically defines a “partner donation” as one between “a recipient who is married to or in cohabitation with a donor”, and defines the donor as a man and the recipient as a woman. It further states that “non-partner donation” may occur if there is consent from “the recipient and her husband or the man with whom the recipient co-habits.”
“It is the idea that every child needs to have one mom, one dad, based on an ideological approach,” said Marta Górna, chairwoman of Nasz Bocian, an organization that advocates for and supports people experiencing infertility. “For same-sex couples, single people – they need to go abroad and look for help where it is more expensive. It is an even bigger burden.”
Ombudsman for Human Rights Bodnar challenged the constitutionality of 2015 law, arguing it was unconstitutional on multiple grounds. The attorney general, defending the law against this constitutional challenge, argued that “infertility as a disease involves at least two people” and therefore only affects couples. Moreover, he tried to defend the discriminatory law using harmful anti-rights language, suggesting it is in a child’s best interests to have two parents of different genders who are a married or permanently co-habiting couple.
The Constitutional Tribunal in 2018 agreed with the attorney general and dismissed the Ombudsman’s petition, finding that the Sejm, Poland’s parliament, has a responsibility to uphold “the constitutional principles of protecting the good of the family and the protection of the child”, and that prohibitions on “implantation of an embryo into the body of a single woman” are in line with these principles. The court went on to say that “even if one were to assume that the situation of single women is protected in light of the principle of trust, the legislature’s obligation to respect it would conflict with the need to protect the family and protect the rights of the child.”
At time of writing, the 2015 law remains in effect and continues to block access to IVF treatment for single women and same-sex couples.
Control of Embryos
Among the most controversial aspects of the 2015 law, are the regulations it introduced on control of embryos produced through fertility treatment: the law requires that rather than being destroyed, as is possible in other jurisdictions, unused frozen embryos must be donated following the end of the storage contract and within 20 years of storage.
In practice this means that people’s embryos can be transferred to another couple without their consent, including embryos frozen before the law came into force. An expert working with an organization assisting people experiencing infertility, who opposes the law and says that it should be up to people to decide what happens to their own embryos explained: “The main focus [of the law] is to protect embryos – just like with abortion. Couples don’t have right to destroy or give away their embryos.”
Additionally, the law specifies that a woman must have consent from her husband or co-habiting partner to use embryos. In the absence of consent from a husband or co-habiting partner, a guardianship court must approve transfer of the embryo. The structure put in place by the law assumes that the potential recipient has a husband or partner and makes no provision for single women to use embryos created with anonymous donor sperm. As a result, women who froze embryos created with donor sperm have been denied access to any remaining embryos after the 2015 law took effect.
In his 2015 petition to the Constitutional Tribunal to declare the law unconstitutional, Ombudsman Bodnar raised concern about the prohibition on single women using embryos that they froze using donor sperm prior to the law’s entry into force. He argues that these women “acted in confidence with the applicable law” at the time and, with regards to freezing of their embryos, “could expect that the actions they took, in accordance with the law, would also be permitted by legal order in the future.” He argued that forced donation is unconstitutional because: “the legislator deprives these women of…the ability to decide on the use of embryos.”
Ombudsman Bodnar stated that the law thus violates the principles of a democratic state of law and of justly acquired rights and the right to privacy.
In its decision to discontinue proceedings with regards to Ombudsman Bodnar’s petition, the Court informed parliament that the law has “irregularities”, specifically a “loophole” that fails to establish a legal means for single women to apply for the use of embryos created with anonymous donor sperm. It called on parliament to rectify this gap in the legislation.
