The Ruling of the Constitutional Tribunal

of 28th May, 1997
sign. of the records K 26/96

The Constitutional Tribunal consisting of:

• Andrzej Zoll - president and rapporteur
• Zdzisław Czeszejko-Sochacki
• Tomasz Dybowski
• Lech Garlicki
• Stefan J. Jaworski
• Krzysztof Kolasiński
• Wojciech Łączkowski
• Ferdynand Rymarz
• Jadwiga Skórzewska-Łosiak
• Wojciech Sokolewicz
• Janusz Trzciński
• Błażej Wierzbowski

Joanna Szymczak - précis-writer

having looked on 27th May, 1997, with the participation of authorised representatives of the participants of the proceedings: the mover, the Parliament of the Republic of Poland and the Public Prosecutor General, into the motion brought by a group of Senators of the Republic of Poland that requested the examination:
whether Article 1.2, 1.4b, 1.4c, 1.5 - in the scope referring to Article 4a.1.4, Article 2.1, 2.2, and Article 3.1, 3.2, 3.4 of the Act of 30th August, 1996 in regard to an amendment to the Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination and to some other acts (Statute Book No. 139 item 646) - is compatible with Article 1, Article 67.1, 67.2 and Article 79.1 of constitutional provisions continued in force on the basis of Article 77 of the Constitutional Act of 17th October, 1992 on Mutual Relations between the Legislative and Executive Institution of the Republic of Poland and on Local Self-government (Statute Book No. 84 item 426; amendment of 1995 No. 38 item 148, No. 150 item 729; of 1996 No. 106 item 488)

rules:

3. Article 1.5 of the Act of 30th August, 1996 on the amendment to the Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination, and to some other acts (Statute Book No. 139 item 646) - in the scope referring to Article 4a.1.4 of the Act of 7th January, 1993 on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination (Statute Book No. 17 item 78; amendment of 1995 No. 66 item 334) - is incompatible with Article 1 and Article 79.1 of constitutional provisions continued in force on the basis of Article 77 of the Constitutional Act of 17th October, 1992 on Mutual Relations between the Legislative and Executive Institution of the Republic of Poland and on Local Self-government (Statute Book No. 84 item 426; amendment of 1995 No. 38 item 148, No. 150 item 729; of 1996 No. 106 item 488), because
it legalises abortion, while failing to adequately justify the necessity to protect another value, right or constitutional freedom and it makes use of vague criteria in this legalisation, in this way infringing constitutional human life guarantees.

5. Article 2.2 of the Act of 30th August, 1996 on the amendment to the Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination, and to some other acts (Statute Book No. 139 item 646) is incompatible with Article 1 and Article 67.2 of constitutional provisions continued in force on the basis of Article 77 of the Constitutional Act of 17th October, 1992 on Mutual Relations between the Legislative and Executive Institution of the Republic of Poland and on Local Self-government (Statute Book No. 84 item 426; amendment of 1995 No. 38 item 148, No. 150 item 729; of 1996 No. 106 item 488), because,
by depriving the child of the opportunity to lodge its financial claims against the mother, the article has reduced the child's rights in a way that is contrary to the rule of a democratic state of law and the principle of equality.

6. Article 3.1 of the Act of 30th August, 1996 on the amendment to the Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination, and to some other acts (Statute Book No. 139 item 646) is incompatible with Article 1. and Article 79.1 of constitutional provisions continued in force on the basis of Article 77 of the Constitutional Act of 17th October, 1992 on Mutual Relations between the Legislative and Executive Institution of the Republic of Poland and on Local Self-government (Statute Book No. 84 item 426; amendment of 1995 No. 38 item 148, No. 150 item 729; of 1996 No. 106 item 488), because
it has infringed constitutional guarantees pertaining to the protection of the health of the conceived child and its undisturbed development.

8. Article 3.4 of the Act of 30th August, 1996 on the amendment to the Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination, and to some other acts (Statute Book No. 139 item 646) is incompatible with Article 1 and Article 79.1 of constitutional provisions continued in force on the basis of Article 77 of the Constitutional Act of 17th October, 1992 on Mutual Relations between the Legislative and Executive Institution of the Republic of Poland and on Local Self-government (Statute Book No. 84 item 426; amendment of 1995 No. 38 item 148, No. 150 item 729; of 1996 No. 106 item 488), because
it has limited legal protection of the health of the conceived child to such an extent, that the remaining legal measures do not fulfil the requirements to protect this constitutional value adequately.

(...)

3. The Constitutional Tribunal considered the following:

A preliminary analysis of the purport of those provisions contained in the Act of 30th August, 1996 that were appealed against by the mover, leads to the conclusion that they specify the legal status of the foetus and the limits of legal protection of the foetus's goods, in particular its health and life.
In considering the constitutionality of particular provisions challenged by the mover it therefore seems necessary to establish first, whether and to what extent the foetus's life and health enjoy protection within the scope of constitutional regulations. This will chart the constitutional bases to control most of the appraised provisions of the Act of 30th August, 1996.
There are no provisions relating directly to life protection in the constitutional regulations in force in Poland. This is not to say, however, that human life is not a constitutional value.
The basic provision from which constitutional life protection should be educed, is Article 1 of the constitutional provisions continued in force, in particular the rule of a democratic state of law. Such a state is realised only as a community of people; so only people can be proper carriers of rights and duties enacted in such a state. The basic attribute of a human being is his or her life. Thus depriving somebody of life at the same time annihilates a human being as a carrier of rights and duties. If the content of the rule of a state of law is a constellation of basic directives that are educed from the very essence of a democratically legislated law and that guarantee a minimum of its justice, then respecting in a state of law the value, without which any legal personality is impossible, i.e. human life from the moment it develops, must be a primary directive. In a democratic state of law a human being and the goods most precious to him or her are of paramount value. Such a good is life. So in a democratic state of law life, in each and every stage of its development, must be protected by the Constitution.
The value of the constitutionally protected legal good of human life - including life evolving in the pre-natal stage - cannot be differentiated. This is so, because there are no sufficiently fine and justified criteria for distinguishing the value of human life according its developmental phase. Human life, therefore, becomes a value protected under the Constitution from the moment it develops. This applies also to the pre-natal stage.
Moreover constitutional protection of the pre-natal phase of human life is also confirmed by the Convention on the Rights of the Child that was ratified by Poland on 30th September, 1991. The preamble of this Convention, in relation to the Declaration of the Rights of the Child, declares in paragraph 10 that the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. That this principle has been included in the preamble of the Convention must lead to the conclusion that the guarantees contained therein relate also to the pre-natal phase of human life.
Also ordinary [Polish] legislation reflects the recognition that life protection is vested in the human being from the moment of conception. The Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination states in Article 1 from before as well as from after the amendment that the right to life - including the pre-natal stage - is protected; and occasioning the death of the conceived child by abortion is principally an outlawed and punishable act (the new Article 152a and 152b of the Penal Code in the context of circumstances legalising abortion).
Recognising the value of the life of the conceived human being must be the sole reason for proscribing abortion, a reason that in general applies also to the pregnant woman herself (as shall follow from subsequent considerations).
Also other provisions of the law in force evidence that the life of the foetus is legally protected. Article 31 of the Penal Code of the year 1969, in particular, states beyond any doubt that capital punishment is not applicable to a pregnant women, regardless of how advanced the pregnancy is. There is just one way to explain this provision, namely that the life of the human being in the womb of the convicted woman is a value. The protection of the foetus's life takes precedence over any reasons of criminal policy, although these reasons in turn are more important in this case than the right to life of the child's mother. The regulation under Article 31 of the Penal Code quite clearly indicates the value attached by the legislator to the foetus's life.
A regulation that may be conducive to regarding the life of the conceived child as a constitutional value can also be found under Article 79.1 of constitutional provisions. This article points to the duty of motherhood and family protection. It is reasonable to hold that motherhood protection cannot signify merely a protection of the interests of a pregnant woman and a mother. The use of an attributive noun phrase in the constitutional provisions indicates that a special relationship is attributed to the woman and her child, including a child that has just been conceived. On the strength of Article 79.1 of constitutional provisions this relationship, in its entirety, is a constitutional value. It therefore encompasses also the life of the foetus, without which the motherhood relation would have been broken. So motherhood protection cannot be taken to mean a protection realised solely from the point of view of the mother/pregnant woman.
The analysis of the concept of "family" as a constitutional value should lead to analogous conclusions. This concept implies the protection of a certain complex social reality, which is a sum of bonds linking, in the first place, the parents with their children (though in a wider context the concept of family should also comprise other relations developing through blood bonds or adoption). Inherent in the fundamental procreative function of the family must be the notion that the life of the conceived child must enjoy the protection granted by the Constitution to the family, becoming in this way a constitutional value. Just as the fatherhood or motherhood relationship is protected in respect to children already born, it must also be protected in respect to children in the pre-natal phase of their lives.
The statement, that the life of a human being in each and every phase of its development is a protected constitutional value does not mean that the intensity of this protection should be the same in every phase of life and under all circumstances. For the intensity and kind of legal protection does not follow from the value of the protected good in a straightforward way. The intensity and kind of legal protection is influenced not only by the value of the protected good, but also by a number of various factors which the ordinary legislator must take into account in deciding upon the choice and intensity of legal protection. This protection, however, should always be adequate from the point of view of the protected good.
Constitutional guarantees of the protection of the health of the conceived child should be inferred, in the first place, from the constitutional value of human life - including the pre-natal stage. The protection of human life cannot be taken to mean merely a protection of the minimum of biological functions that are indispensable for survival; it should be understood as a guarantee of correct development, as well as attaining and maintaining a normal mental and physical condition proper to a given developmental age (life stage). Regardless of the number of factors considered relevant to this condition, beyond any doubt it includes a certain state of a given person's organism, in the aspect of its physiological as well as mental functions, that is optimal from the point of view of life processes. Such a state can be identified with the notion of mental and physical health. So constitutional guarantees of the protection of human life must necessarily comprise also the protection of health. Provisions that are the basis for these guarantees, therefore, are at the same time the basis for concluding that the protection of life, regardless of the stage of its physical, emotional, intellectual or social development, is a constitutional obligation. Since human life is a constitutional value also in the pre-natal stage, should anybody attempt to limit legal protection of health enjoyed by the carrier at this stage, he would plainly have to employ a non-arbitrary criterion in order to justify such a distinction. The state of knowledge of empirical sciences so far does not support the introduction of such a criterion, however.
The stance that human life should also enjoy legal protection in the pre-natal stage is directly confirmed in the Convention on the Rights of the Child. Article 24.1 of the Convention states that State Parties recognize the right of the child to the enjoyment of the highest attainable standard of health ... . Whereas in the second paragraph of this article it is said that State Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: ... d) To ensure appropriate pre-natal and post-natal care for mothers. In the light of paragraph 10 of the preamble to the Convention, the concept of a child employed in the Convention should also embrace the child before its birth. Whatever this wording, Article 24 indicates directly that the right to the enjoyment of the highest attainable standard of health comprises also the conceived child. This is the only possible explanation of the obligation, implied under Article 2, to provide mothers with pre-natal care. For this obligation has not been introduced in view of the interests of the pregnant woman herself, but - as Article 24.2 clearly states - in the first place to pursue full implementation of this right (as specified in paragraph 1). Plainly, what is meant here, are guarantees for the conceived child to enjoy the best possible health.
It is also possible to find a basis for the constitutional protection of health of the conceived child under Article 79.1 which regards, inter alia, motherhood and family as constitutional values. As has already been mentioned, the concept of motherhood implies a necessary relationship between the mother and her child, a relationship that develops on several levels - the biological, emotional, social and legal one. The function of this relationship is to foster a proper development of the life of a human being in its initial stage, at which it requires very special care. In the earliest phase it is absolutely impossible to find a replacement for this care, which is realised mainly on the biological level. Nobody but the mother is capable of sustaining the life of the conceived child during this phase.
Considering the function of motherhood as discussed above, the constitutional protection of this value is not undertaken solely in the interest of the mother. An equivalent recipient of this protection must be the foetus and its proper development. This principle embraces obviously the protection of the health of the conceived child and a prohibition to cause health damage or bodily injury to it.
In view of all the arguments brought above, it should be beyond any doubt that constitutional provisions guarantee the protection of the health of the conceived child. In particular, they imply the legislator's duty to proscribe inflicting health injury to the conceived child and to legislate legal measures that guarantee to a sufficient extent the abidance by this prohibition.

4.1 In accordance with Article 1.2 of the Act of 30th August, 1996 in regard to the amendment to the Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination and to some other acts (Statute Book No. 139 item 646), Article 1 of the Act of 7th January, 1993 on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination (Statute Book No. 17 item 78; amendment of 1995 No. 66 item 334) that was in force so far has been given a new wording as follows:

The right to life enjoys protection, including the pre-natal phase, within the limits specified in the act.
In the wording from before the amendment, Article 1 stated in paragraph 1:
Every human being has an inherent right to life from the moment of conception,
whereas in paragraph 2 it stated:
The life and health of a child, from the moment of its conception, is under legal protection.

Article 1 of the Act of 7th January, 1993, in the wording from before the amendment, explicitly indicated the conceived child's right to life, by declaring that this right is inherent. Moreover, by stating that the life and health of a child are under legal protection, it confirmed that both these qualities are legal values, repeating in this respect a guarantee that follows from constitutional provisions, in particular from Article 1 and Article 79.1.
After the amendment introduced with the Act of 30th August, 1996, Article 1 of the Act of 7th January, 1993 states that the right to life enjoys protection, including the pre-natal phase, within the limits specified in the act. Thus the difference is as follows:

1. the statement about life being inherent has been deleted;
2. the way of specifying the period of time for the enjoyment of the right to life has been modified by substituting "from the moment of conception" with the phrase: "pre-natal phase"; moreover
3. the child's health, including the health of a child before its birth, has been deleted from the scope of legal protection provided by Article 1; furthermore
4. Article 1 of the Act of 7th January, 1993 from before the amendment did not describe in any clear way the "legal protection" that comprised the life and health of the conceived child. The same provision in the wording from after the amendment indicates that the right to life in the pre-natal phase is protected within the limits specified in the act.

Two different issues comprise the evaluation of the constitutionality of the content of Article 1 in the wording given to it by the amending act, namely examining

1. whether the content of directives and prohibitions following from this prescription contradicts a certain constitutional value;
2. whether such a value has not been violated by repealing provisions hitherto in force.

Article 1.2 of the amending act has a double normative meaning: it introduces a new legal provision and, by so doing, it abrogates the rules binding so far. Both these actions of the legislator are subject to control by the Constitutional Tribunal in view of constitutional standards.
As to the new wording of Article 1 of the Act of 7th January, 1996, according to which the right to life enjoys protection, including the pre-natal phase, within the limits specified in the act, the phrase used in the provision, that the right to life, in the pre-natal phase, enjoys protection within the limits specified in the act, gives rise to doubts. Incidentally, such doubts have been expressed by the mover. This phrase means that the life of the unborn enjoys legal protection only within limits provided in a clear way by an ordinary act.
The term "limits of protection" comprises both a rule which prohibits directly the violation of specific goods - in this case the life of the unborn - and measures provided for the execution of abidance by this rule. The reservation that the life of the unborn enjoys protection exclusively within the limits of the act must mean that only a regulation under an ordinary act becomes the source of a potential prohibition of offending the life of the unborn. Similarly, only an ordinary act can provide the measures to enforce this prohibition.
In the latter case, it is evident that the ordinary legislator should have the competence to specify measures which would guarantee abidance by the norm that prohibits offending the life of the conceived child. In the former case, however, bestowing such an exclusive power to enact a prohibition itself, is incompatible with the duty to protect constitutional values which is incumbent on the legislator.
Conditioning the validity of the prohibition of offence against the life of the unborn upon regulations from ordinary acts must result in a lack of any protection of this life, should the legislator fail to introduce such a prohibition or limit its scope.
So the present wording of Article 1 of the Act assigns to the ordinary legislator the right to specify if, and to what extent, the life of the unborn enjoys legal protection. This in turn means that for a prohibition of offence against the life of the unborn to be in force in the legal system, a statutory basis is required.
Such a power, however, breaches constitutional provisions as regards the protection of life.
Because, if human life - including the life of the conceived child - is a constitutional value, then an ordinary act cannot lead to some censorship and suspension of the binding of constitutional rules. The prohibition to offend human life - including the life of the conceived child - follows from constitutional rules. The ordinary legislator, therefore, cannot be empowered to decide under what conditions such a prohibition is binding, because this would render constitutional norms contingent. In particular, the ordinary legislator cannot make this prohibition dependent on regulations in ordinary acts. Therefore, if constitutional guarantees become merely contingently binding due to the enactment of any norms of this kind by the ordinary legislator, it contradicts constitutional norms.
Life - including life in the pre-natal phase - is one of fundamental constitutional values. Article 1 of the Act, in the wording given to it by the Act of 30th August, 1996, conditioned the prohibition to violate this value on decisions taken by the ordinary legislator and by so doing, it violated constitutional provisions basic to the protection of life in the pre-natal phase, in particular Article 1 and Article 79.1 of constitutional provisions continued in force. The ordinary legislator has only the power to define potential exceptions, whose occurrence makes it necessary - due to a conflict of goods that are constitutional values, of rights or of constitutional freedoms - to sacrifice one of the conflicting goods. When the legislator consents to sacrifice a constitutional good, because it conflicts with another good, right or constitutional freedom, this good still retains its attribute of being a constitutional good enjoying protection.
The former analysis of the normative amendment to Article 1 has shown that the content of this article is much narrower now. As has already been mentioned, the new provision does not speak of legal protection of the health of the child - including the conceived child -, it does not comprise the declaration that the right to life is inherent and it alters the way of specifying the period of time during which the right to life enjoys legal protection.
The repeal of the declaration that the right to life is inherent cannot be taken to be a normative change. Whether a given right or freedom is in fact inherent or not, does not depend on the legislator's will; so it is impossible to nullify (abrogate) the quality of inherence by a statutory act. For the legislator does not have the power to grant or cancel the right to life as a constitutional value. The inherent character of the right to life, therefore, cannot be influenced by the legislator stating it explicitly in statutory provisions or not.
In the amended Article 1, the legislator employed a different expression to specify the period of time during which human life enjoys legal protection. This could suggest that the legislator wanted to change the scope of this protection in this way. The change of terminology, however, is void of any semantic significance. Article 1.1 of the Act from before the amendment spoke of a period "from the moment of conception", whereas after the amendment there is "the pre-natal phase". The latter phrase, without indicating the initial moment, implies in particular that legal protection of human life comprises also the period before birth. This one change in terminology, however, should not lead to the conclusion that in this way the legislator allegedly desired to shift the moment at which this protection begins. The change in terminology by itself does not justify imputing such intents to the legislator, especially as the new phrase does not support the view that the period of the protection of life before birth has been narrowed in respect to the period specified under Article 1.1 from before the amendment. Decisive in this respect, therefore, remains the scope of human life protection implied by constitutional provisions; the changes to the content of Article 1.1 of the Act of 7th January, 1996 cannot be interpreted as an attempt to define a new moment, at which legal protection of human life begins.
As has already been established, human health - including the health of the conceived child - has undoubtedly the quality of being a constitutionally protected value. From this point of view, any behaviours directed at harming the health of a human being must be regarded as behaviours that violate a legal good. The repeal of a provision which just served to confirm the constitutional protection of the health of a human being - including the conceived child - can be interpreted neither as a legalisation of violations as such, nor as the legislator's departure from resorting to legal consequences (e.g. penal law sanctions) for behaviours that violate this good. Only the giving up of sufficient protective measure concerning a good which is a constitutional value must be regarded as a violation of constitutional guarantees that relate to this good.
As has already been mentioned, when a certain value, right or freedom is guaranteed by the constitution, it becomes a legal good. Such a value demands legal protection and ensuring it is, in the first place, the duty of the ordinary legislator. The basic instrument for guaranteeing this protection is a legislation of prohibitions and directives designed to assure the inviolability of a given good. Because of such prohibitions (or directives), a specific conduct that violates a constitutional value is considered unlawful.
Such protection, although it is rudimentary and fundamental, is not sufficient. It is necessary to introduce into a constitutional values protection system in ordinary legislation specific consequences that would ensure the effectiveness of substantial norms and also special procedures that would make it possible to execute both the substantial norms and the consequences of their violation.
The Constitution should be regarded as a direct source, potentially and factually, for prohibitions and directives which operate within a legal system and which concern certain constitutional values. Thus, from the Constitution itself follows the prohibition to infringe freedom of expression, freedom of assembly, personal inviolability or the privacy of letters. At the same time, however, if one wanted to refer only to the Constitution in order to determine definitively, whether a conduct that violates or limits a given constitutional value is illegal, one would have to examine, whether this conduct is sufficiently justified in relation to the realisation of another constitutional value. In particular, e.g. offence against the life of an aggressor may be justifiable by the need to protect the life of the victim.
Notwithstanding this direct regulating power of the Constitution, the ordinary legislator is not exempt from the duty to legislate substantial norms as regards the protection of constitutional values; in particular, however, it is incumbent on the legislator to solve, in a general way, conflicts that may occur in the process of a practical implementation of constitutional values. Moreover, by construing legal consequences of inobservance as well as procedures of execution, the legislator should specify how substantial norms are to be executed.
In the latter respect, the legislator is endowed with considerable freedom to follow a given policy that would ensure the effectiveness of the substantial norms legislated. This freedom, however, ought not to go beyond certain limits. In particular the legislator cannot completely forfeit the protection of certain legal goods; on the contrary, it is incumbent on the legislator to ensure "a sufficient protection" of these goods.
The normative sense of the repeal of Article 1.1 of the Act of 7th January, 1993 in its former wording in respect to the protection of the health of the child - including the conceived child - should be evaluated in this context. This repeal means that the prescription under Article 1 of the Act is no longer a basis to implement a prohibition on violating the health of a child - including the conceived child. This conclusion by itself, however, does not warrant the view that this change is contrary to constitutional provisions which the motion indicated. The constitutionality of the Act under examination will be decided on the basis of the rules that introduce legal measures aimed at protecting the health of the conceived child.

(...)

4.3 The challenged provision of the amending Act of 31st August, 1996 introduced a new regulation to the Act of 7th January, 1993 on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination. This regulation admitted of the possibility of abortion to be performed only by a doctor, if the pregnant woman had difficult life conditions or a difficult personal situation (Article 4a.1) ⁽¹⁾ and the pregnancy did not last longer than 12 weeks (Article 4a.2) ⁽²⁾. As a formal condition for the doctor to perform an abortion, the woman must submit a written consent (Article 4a.4) ⁽³⁾, a statement relating to the difficult life conditions or a difficult personal situation, and, moreover, a certificate that she has consulted ⁽⁴⁾a doctor from the basic health care, other than the doctor who is to perform the pregnancy termination, or another qualified person (Article 4a.6). ⁽⁵⁾ No less than three days must elapse between the date of the consultation and abortion. Abortion can be performed both in a health-care institution or in a private surgery. The legislator declared at the same time under Article 4b that individuals covered by social insurance or entitled to free health care on the basis of other provisions have the right to free pregnancy termination in a public health-care institution. ⁽⁶⁾

In evaluating the normative significance of the prescription under Article 4a.1.4, it should be concluded that it legalises specific behaviours that are aimed at abortion. In so doing, it admits of behaviours that are, in principle, outlawed. In the context of the remaining provisions of the Act, especially Article 1 in its new wording, but also the new Articles 152a and 152b of the Penal Code, it should be concluded that also on the basis of new regulations relating to the conceived child, its life enjoys legal protection from the moment of conception; and any acts aimed at taking its life, including, in particular, abortion, are generally outlawed.
Article 4a.1.4, however, limits this prohibition, by allowing the doctor to take the life of a foetus which is not older than 12 weeks, provided the pregnant woman submits documents specified under Article 4a.4.6 and three days elapse between the consultation and abortion.
The legalisation of the doctor's behaviours that relate to abortion must also refer to auxiliary actions of the medical personnel that have to do with abortion, as well as to actions of the mother that are aimed at the doctor's terminating the pregnancy. Article 4a.1.4, however, is no basis for legalising behaviours which the mother undertakes independently and which directly occasion the death of the foetus.
The conclusion that the regulation under Article 4a.1.4 is legislative in character should also be educed from the fact that the legislator has provided for financing abortions performed at public health-care institutions from public funds and, moreover, that in Article 4b the legislator legislated a claim (right) on the pregnant woman's side to have abortion, addressed to public health-care institutions. Therefore, when a doctor terminates a pregnancy for so called social reasons, the preconditions of which are specified under Article 4a.1.4 as difficult life conditions or a difficult personal situation of the pregnant woman, on the basis of the binding legal state it cannot be maintained that this action definitely excludes the possibility of applying penal sanctions in such a case and does not determine the lawfulness or unlawfulness of the abortion itself.
It would be possible to accept this interpretation, if regulation from Article 4a.1.4 formed an integral part of the Penal Code, complementing, in particular, the repealed Article 149a § 3 which contains also a catalogue of circumstances in which the perpetrator of the death of a child did not commit a crime. Including this regulation in a separate act, which fails to specify the type of punishable acts; assigning public institutions to engage in organisational activities related to procuring an abortion; and, moreover, financing these abortions from public funds leaves no shadow of a doubt - according to the provisions in force since 4th January, 1997, pregnancy termination, under conditions specified under Article 4a.4, is regarded as legal.
Pregnancy termination, an action permitted by the legislator under Article 4a.1.4, is designed to remove an evolving foetus (embryo) from the mother's organism. Since this prescription applies to terminating a pregnancy when the foetus is not older than 12 weeks, at the present stage of medical knowledge removing this foetus from the mother's organism is equivalent to occasioning its death. Anyway, the legislator does not specify, whether the foetus dies when it is still in the mother's organism or already after it has been expelled from it.
Thus, pregnancy termination necessarily involves taking the life of an evolving foetus. The essence of the evaluated regulation from Article 4a.1.4 is the legalisation of actions aimed at taking the life of the foetus and undertaken in conditions specified in this regulation. A constitutional evaluation of this legalisation must therefore determine:

1. whether the good, whose violation the legislator legalises, is a constitutional value,
2. whether the legalisation of violations of this good is justifiable on the basis of constitutional values, being, in particular, a result of settling a conflict of specific values, rights or freedoms that are guaranteed in the Constitution, and
3. whether the legislator kept the constitutional criteria to be followed in an attempt to settle such conflicts and, in particular, whether the legislator complied with the requirement - which the Tribunal has repeatedly deduced from Article 1 of constitutional provisions (from the rule of a state of law) - to maintain balance in the settling of conflicts that arise between constitutionally protected goods, rights and freedoms.

An acknowledgement of the constitutional value of human life - including its pre-natal phase - does not prejudge that, in some exceptional situations, the protection of this value may be limited or even cancelled due to the need to protect or realise other constitutional values, rights or freedoms.
When the ordinary legislator decides to forfeit the protection of a specific constitutional value or even legalise behaviours that violate such a value, the decision must be justified by a conflict of constitutional goods, rights or freedoms presented above. The legislator, however, is not qualified to settle such conflicts in an uncontrolled and arbitrary manner. The legislator should, in particular, follow the results of comparing the value of conflicting goods, rights or freedoms. The criteria that specify the scope of a permissible violation should match the nature of the settled conflict.
In view of this, the regulation under Article 1.5 of the Act of 30th August, 1996 in the extent to which it concerns the legalisation of abortions when the pregnant woman has difficult life conditions or a difficult personal situation, does not fulfil the conditions specified above.
As can be concluded from the content of Article 4a.1, the reason to legalise abortion as specified in subparagraph 4 were difficult life conditions or a difficult personal situation of the pregnant woman. A comparison with the remaining grounds for abortion enumerated in Article 4a.1 leads to the conclusion that the so called difficult life conditions, and in particular a difficult personal situation, mean neither a threat to the life or health of the pregnant woman (this is regulated in subparagraph 1), nor genetic defects of the foetus (subparagraph 2) nor do they relate to the pregnancy as a result of a prohibited act (subsection 3). Subparagraph 4, therefore, must have been legislated for a situation which is not embraced by the remaining provisions specified under Article 4a.1.
As to difficult life conditions, they comprise in particular the material situation, which may deteriorate or loose a chance for improvement in relation to more advanced stages of the pregnancy or as a result of bearing the child. And in case of a difficult personal situation, the legislator most probably meant a specific mental state related to becoming with child. A state that may result from strained relations with other people (family members as well as the environment) because of the pregnancy or from the necessity to limit specific needs of the woman, including her rights and personal freedoms.
Therefore, although the prerequisites specified under Article 4a.1.4 are fairly vague (this element shall be discussed later), they support the conclusion that this regulation probably protects the following values: that the pregnant woman retains a specific material status that could deteriorate or lose a chance for improvement in relation to continuing the pregnancy and bearing the child; or else that the pregnant woman retains the type of relations with others she used to have before her pregnancy and the extent to which she used to realise her specific need, rights and freedoms.
The prerequisites specified under Article 4a.1.4, however, must be interpreted in the light of paragraph 6 of the same provision. This regulation implies that only the woman herself is entitled to determine the circumstances listed in 4a.1.4, by presenting an appropriate statement concerning this issue. In this way, the legislator has prejudiced that the prerequisites specified under Article 4a.1.4 are to be understood in a subjective way. In the light of this provision, therefore, the woman's subjective conviction that her material situation or her personal relations or else the possibility to realise her own needs, rights and freedoms may perhaps be under threat, becomes a legal good.
This shows that the prerequisites specified under Article 4a.1.4 do not refer to extreme situations, such as could, at the same time, be taken to contradict the principle of the protection of the dignity of the human person.
In addition, it is possible to conclude from the preamble of the Act that a prerequisite for the enacted regulations was, inter alia, the recognition of every individual's right to decide responsibly if to reproduce.
Weighing against each other the value of the conflicting goods specified in this way disqualifies the regulation under Article 4a.1.4.
Human life, as stressed by the preamble of the Act itself, is a fundamental good of the human being. The right of the pregnant woman to avoid aggravating her material situation follows from the constitutional protection of the freedom to shape ones living conditions freely and from the right of the woman that pertains to this freedom to satisfy the material needs she and her family may have. But this protection cannot lead so far as to involve the violation of the fundamental good of human life; in comparison with this good, living conditions are a secondary issue and may change.
As has been mentioned, in case of the precondition pointing to a difficult personal situation, there is a whole set of various legal goods related to reputation, proper relations with others, the possibility to exercise specific rights and freedoms, which may conflict with the protection of human life in the pre-natal phase. The legislator, however, failed to specify what constitutional value was meant. With such a term as a difficult personal situation used by the legislator, it is impossible to assign to it specific denotations even approximately. An attempt to define this term along the lines implied by the systemic interpretation complicates the situation still further. This is so, because a difficult personal situation is not a situation related to a threat to life or health (which is discussed in Article 4a.1.1); nor is it a difficult material situation, because this category is expressed, though quite vaguely as well, by the phrase difficult life conditions. Moreover, a difficult personal situation describes a state which is not a common effect of the pregnancy, because those ordinary complications do not suffice to remove the foetus. Any attempt to define this term can only lead to the conclusion that it refers to a limitation, specified in a general way, on the rights and freedoms of the pregnant woman. Because the term applied by the legislator is so vague, however, it is not possible to specify exactly what rights and freedoms are meant.
Due to the ambiguity of the prerequisites formulated by the legislator, it is impossible to identify the constitutionally protected values, by virtue of which the legislator decides to legalise the violation of another constitutional value. Such a situation is impermissible, especially when these prerequisites allow for the destruction of human life, i.e., as the very legislator specifies in the preamble, for the violation of a fundamental good of a human being. The ambiguity of the phrase difficult personal situation disqualifies, from the point of view of constitutional requirements, Article 4a.1.4 of the Act of 7th January, 1996 in the version from after the amendment. For it is possible to educe from the phrase a rule permitting the destruction of life without due consideration of other constitutional values. The ambiguity of this precondition challenges the very principle of protecting life in the pre-natal phase.
The very nature of the recognition that human life is a constitutional value implies a necessary limitation on the rights of a pregnant woman. The evolving life not only makes use of the mother's goods in the biological sense; it may also, for purely factual reasons, limit the mother's possibility to enjoy the rights and freedoms that are vested in her. Also in the private sphere, the evolvement of the life of the child is correlated with a set of responsibilities resting in the child's mother, as well as its father, which rise sharply with the moment of birth. The conception of a child and providing legal protection to life in the pre-natal stage entails the emergence of responsibilities of the child's mother and father. The change in the legal situation does not justify taking the life of the conceived child. Constitutional provisions, in providing for the legal protection of motherhood and the family, assume that parental duties cannot influence the extent of life protection that the conceived child enjoys.
Also the Act of 7th January, 1993 in the wording from after the amendment assumes that a limitation on the rights and freedoms of a pregnant woman, resulting from newly emerging duties, cannot by itself justify taking the life of the conceived child.
An essential condition for the legalisation of abortion, on the basis of the Act, is a prerequisite specified as a difficult personal situation. But can a prerequisite with such a phrasing justify, on the basis of the Constitution, taking the life of the conceived child?
It cannot. In particular, attention should be drawn to the fact that a difficult personal situation resulting, inter alia, from the necessity to take care of the children, may arise also after the child is born. It resembles the situation when one is obliged to take care of a person who is in a special condition (the spouse, parents). In neither of these cases, even a considerable new burden suffices as a prerequisite for taking the life of the conceived child whose conception gave rise to these duties.
If, therefore, in respect to the life of the foetus these circumstances suffice to legalise abortion, this must necessarily meant that the legislator evaluates the life of the conceived child in a different way than the life of a child that has already been born.
It remains to be considered, whether the regulation under Article 4a.1.4 is justifiable by virtue of the right to responsibly decide about reproduction. Such a right may indeed be educed from the scope of basic human rights and freedoms, and, within constitutional provisions, from guarantees provided therein for motherhood and the family. The right to parenthood must be interpreted both positively and negatively. It must signify a prohibition of actions that limit the freedom to reproduce, as well as the prohibition of actions that coerce to reproduce.
The right to parenthood concerns, in particular, the decision to conceive a child. In reality any interference in this sphere, be it by the authorities, be it by other people, should be regarded as an intolerable violation of a fundamental right of every human being. The question arises, whether the right to decide to reproduce can be understood in a broader sense, to comprise also the right to decide about bearing a child. In which case, the introduction of a legal prohibition on bearing a child, a prohibition that would be executed by the state, would be impermissible. Similarly, the legislation of any negative legal consequences relating to bearing a child would also be impermissible. Any public or private interests that might justify the introduction of such a regulation should be challenged by the paramount value of the life of the conceived child and by the right of the parents to reproduce.
A separate matter is considering the right to bear a child in its negative aspect, i.e. also as a right to terminate the pregnancy. In this case, due to the development of life, the right to decide about reproduction should in fact be reduced to the right not to have a child. One cannot decide about having a child, when this child is already evolving in the pre-natal phase and, in this sense, the parents already have it. The right to have a child, therefore, can be interpreted solely in its positive aspect, and not as a right to annihilate a developing human foetus.
So the right to decide responsibly if to reproduce is reduced in its negative aspect to the refusal to conceive a child. Once the child has already been conceived, however, this right can be realised only in its positive aspect, as, inter alia, the right to bear and bring up a child.
From the very nature of things, the right to decide if to reproduce is a common right of the child's mother and father. Only a free-will decision to conceive a child realises this right. In this context, it is not possible to refer to this right as to a constitutional basis for the legalisation of abortion for "social" reasons, because the Act has made the mother the sole decision maker in regard to the life of the foetus. But the child's mother alone is not entitled to make such decisions. If for no other reason than this, it is out of the question that the regulation of Article 4a.1.4 be justified by the wish to create conditions for the realisation of this right.
As has already been mentioned, the very nature of constitutional values to which one could refer in an attempt to justify the regulation from Article 4a.1.4 implies neither their primacy to nor even equivalence with the value of human life - including its pre-natal stage. The only rational attempt to justify the adopted solution would be to prove that the value of human life before and after birth is different. If this were proved, the comparison of conflicting values could indeed lead to a solution in disfavour of the life of the unborn.
As has been stressed several times, an attempt to differentiate the value of human life on the basis of rational preconditions must specify the criterion from which such a differentiation were to follow. To this end it is not enough to refer to nothing else but the specific statutory regulations which, in particular, differentiate property rights of the child before and after birth. Irrespective of the fact that this case relates to another category of rights, ordinary legislation cannot have a direct impact on specifying the scope of protection that is outlined in constitutional provisions, if only because it may incorrectly recognise the hierarchy of values specified in the Constitution.
Regardless of preceding findings, i.e. regardless of the conclusion that the way the legislator settled the conflict of constitutional values (legalising abortion in circumstances specified under Article 4a.1.4) violated the principle of the proportionality of these values, it turns out that the legislator infringed also other constitutional principles binding in the settlement of such conflicts, in particular the principle to adequately specify the criteria which admit of a violation of a constitutional value.
For it is incumbent on the legislator who decides to legalise actions aimed at violating a certain constitutional value to adequately outline the scope of circumstances under which this violation is permissible. This adequacy must in particular refer to the nature of the conflicts of constitutional values which the adopted legal regulation is to resolve. The regulation following from Article 4a.1.4 of the Act of 7th January, 1993 has not satisfied this condition.
Phrasing the basic substantial prerequisites for the legalisation of occasioning the death of the conceived child, the legislator specified the situation of a pregnant woman who decides to have an abortion. The circumstances specified under Article 4a.1.4, however, have not been linked to the occurrence of pregnancy in any way. So what follows from this provision, is that even if difficult life conditions and, in particular, a difficult personal situation did not relate in any way to the evolving life of the foetus and to a possible bearing of a child, they still are preconditions that justify an abortion. In this respect, the way of phrasing the preconditions in the challenged provision is completely inadequate to the conflict of constitutional values which were to be their basis.
The period of time during which circumstances justifying an abortion occur has not been specified clearly, either; what is most striking, even a short-term fleeting occurrence of the circumstances discussed under Article 4a.1.4 is a precondition for occasioning the death of the conceived child. This does not match the nature of the conflict of constitutional values that has been assumed.
The legislator has legalised acts which occasions the death of the foetus only in respect to those acts which are undertaken before the foetus is 12 weeks old. This criterion is entirely arbitrary in the context of the Act as a whole. For the nature of a potential conflict between constitutionally protected interests of the pregnant woman and constitutionally protected life in the pre-natal phase does not change in any way either before or after the 12th week of pregnancy. It is at most possible to prove that factual limitations and burdens which the pregnant woman may encounter are likely to increase considerably after the 12th week of the pregnancy.
The legislator does not legalise abortion in view of possible difficult life conditions or of a difficult personal situation that may emerge in the future due to continuing the pregnancy or bearing the child, but, on the contrary, links these circumstances with the moment at which the pregnant woman decides to have an abortion. As has been mentioned, however, such circumstances may be short-lived, while the pregnancy and bearing the child is not bound to influence the future situation of the mother. In other words, on the basis of Article 4a abortion is not a means of avoiding a future threat to the interests of the pregnant woman; it aims at repealing an already existing violation of such interests....