CONSCIENTIOUS OBJECTION RELATED TO THE PROTECTION OF HUMAN LIFE: POLAND

Por

KRZYSZTOF WOJTYCZEK

Professor at the Jagiellonian University

[email protected]

Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 57 (2021)

ABSTRACT: In Poland, under, the Constitutional Court's case law, the guarantees of freedom of conscience are considered directly applicable and understood as encompassing in particular the freedom to act in accordance with one's conscience and the freedom from being constrained to act against the conscience. The ordinary legislation implements the specific constitutional conscience clause in respect of military service and contains also detailed conscience clauses applicable to physicians, dentists, nurses and midwives. The ordinary and administrative courts adopt a cautious approach and usually refrain from applying directly the Constitution as source of a conscience clause, although some judgments show a high sensitivity to the necessity of protecting the conscientious objection.

KEYWORDS: Conscientious objection, right to life, freedom of conscience, Poland.

LA OBJECIÓN DE CONCIENCIA RELATIVA A LA PROTECCIÓN DE LA VIDA HUMANA: POLONIA

RESUMEN: En Polonia, con arreglo a la jurisprudencia del Tribunal Constitucional, las garantías de la libertad de conciencia se consideran directamente aplicables y se entiende que abarcan, en particular, la libertad de actuar de acuerdo con la propia conciencia y la libertad de no estar obligado a actuar contra la conciencia. La legislación ordinaria implementa la cláusula constitucional específica de conciencia con respecto al servicio militar y contiene también cláusulas de conciencia detalladas aplicables a médicos, dentistas, enfermeras y comadronas. Los tribunales ordinarios y administrativos adoptan un enfoque cauteloso y suelen abstenerse de aplicar directamente la Constitución como fuente de una cláusula de conciencia, aunque algunas sentencias muestran una alta sensibilidad a la necesidad de proteger la objeción de conciencia.

PALABRAS CLAVE: Objeción de conciencia, derecho a la vida, libertad de conciencia, Polonia.

SUMARIO: 1. INTRODUCTORY REMARKS. 2. THE CONSCIENTIOUS OBJECTION AND CONSCIENCE CLAUSE IN THE CONSTITUTION. 3. THE CONSCIENTIOUS OBJECTION AND DEATH PENALTY. 4. The conscientious objection and MILITARY SERVICE. 5. THE CONSCIENCE CLAUSE FOR MEDICAL PROFESSIONS. 6. CONCLUSION.

1. INTRODUCTORY REMARKS

Conscientious objection is a fundamental human rights issue intrinsically linked with human dignity and moral autonomy. The existence of effective conscience clauses is one of the major litmus tests for an advanced system of comprehensive human rights protection. In Poland, legislation protecting individuals from coercion to act against their conscience was enacted in a specific historic context. During the time of communist rule in Poland, the State was not neutral but can be rather characterized as a specific denominational State which established marxism-lenism as the ruling ideology. The State was a tool of the communist party used by it in particular to impose its ideology upon a society which in its great majority rejected communist ideas. The authorities were sometimes trying to impose obligations colliding with the moral principles professed by the majority of the citizens. The collapse of the communist regime in 1989 brought a reaction which entailed the enactment of legislation protecting the freedom to act according to one's conscience. The purpose of the present article is to present briefly the current Polish legislation in this domain, insofar as it pertains to conscientious objection related to the protection of human life.

Democratic societies are characterized by a high level of moral pluralism. There is no uniform conception of morals(1) as people do not adhere to a single moral doctrine but profess a multitude of moral convictions. In this context, there is a serious risk that legislation adopted by democratically elected parliaments, even it reflects the views prevailing in the society, may collide with profound moral convictions of numerous individuals.

One has to note further that the international human rights law protects personal autonomy which includes moral autonomy(2), encompassing the free choice of moral convictions. It further emphasizes the value of diversity which "should be perceived not as a threat but as a source of enrichment".(3) "A healthy democratic society needs to tolerate and sustain pluralism and diversity".(4) "The pluralism is indissociable from a democratic society."(5) "There can be no democracy without pluralism."(6) Diverse moral convictions enrich the society with diverse sensitivities. If diversity has to be perceived not as a threat but as a source of enrichment, then the logical consequence is respect for fundamental moral convictions not reflected in legislation. No one should be subjected to legal obligations this person finds morally unacceptable and hurting the moral duties felt as binding in the conscience. Subjection to such legal obligations is perceived by those concerned as highly oppressive and alienating. A State which obliges to commit what people consider as profound injustice cannot be perceived as "one's own State" where the citizens would have the feeling of being at home, but appears as an alien, hostile and distant structure appropriating individual freedom. Violating individual conscience is not only a mark of disrespect for human dignity and disdain for diversity but triggers hostile reactions, undermining the effectiveness of law and social cohesion. There is therefore a need to find solutions accommodating different moral sensibilities within the society.

The respect for moral diversity and pluralism finds its expression in conscience clauses. The conscience clause enables individuals to refuse to perform certain legal obligations invoking strong moral convictions which collide with these obligations. It is a tool eliminating conflicts between moral obligations based upon strong moral convictions and legal obligations. The conscientious objection and the conscience clause play a fundamental role in managing moral diversity and pluralism and are a key tool for constructing social cohesion.(7) It is a necessary element of "the living together" (vivre-ensemble)(8) in a democratic society, attenuating the intensity of "culture wars".

Legislation, which imposes certain obligations on holders of specific positions or persons exercising specific professions without accommodating profound and fundamental moral convictions, may have another effect: it prevents the objectors from seeking these positions and choosing these professions. As a result, whole professions and whole sets of important public positions, which should be open to everyone, become actually closed to persons belonging to "moral minorities". In the long run, the absence of conscience clauses is highly discriminatory and tends to marginalize some moral and religious groups within the society. It therefore contradicts the principle of inclusiveness.

At the same time, the question of limits of conscientious objection arises. The conscience clauses may protect only profound and fundamental moral convictions. They pertain to specific acts perceived as highly unjust an entailing moral repulsion. Moreover, it is impossible to accommodate all profound moral convictions. It is difficult to imagine for instance the acceptation of conscientious objection in respect of the obligation to pay taxes.(9) Some limitations upon conscientious objections are therefore necessary. Legitimate limitations upon conscientious objections have to take into account the teachings of various religious groups and more important minority currents of philosophical thought. In practice, the scope of the accepted conscientious objection will therefore necessarily depend upon sociological realities and the existence of groups professing certain moral views which achieved a certain level of social influence. Isolated moral views professed by just one person can be accommodated only exceptionally.

2. THE CONSCIENTIOUS OBJECTION AND CONSCIENCE CLAUSE IN THE CONSTITUTION

In the Polish legal system, the protection of conscientious objection has a constitutional basis. The examination of the conscience clause in the Polish legal system has therefore to start with the presentation of the relevant constitutional provisions and their interpretation in the case law.

The Polish Constitution, enacted in 1997, guarantees the freedom of conscience and religion in Article 53 para. 1 in the following terms: Freedom of conscience and religion shall be ensured to everyone.(10) The only limitative clause in this domain is Article 53 para. 5 which provides:

The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others.(11)

Limitations may be imposed only on freedom to publicly express religion not on freedom of conscience nor of freedom to chose religion.

The notion of freedom of conscience has not been defined in the Constitution, unlike the freedom of religion whose scope has been defined in article 53 para. 2. Under the Constitutional Court's case law, the notion of freedom of conscience is understood as encompassing in particular the freedom to act in accordance with one's conscience and the freedom from being constrained to act against the conscience. The general constitutional provision on freedom of conscience is therefore understood as guaranteeing a general right to conscientious objection whose boundaries have been set forth in the case law of the Constitutional Court.

At the same time, the Constitution contains specific provisions concerning the military service. Under Article 85 para. 1 the defense of the Homeland is an obligation of every citizen. Under Article 85 para. 3, any citizen whose religious convictions or moral principles do not allow him to perform military service may be obliged to perform substitute service in accordance with principles specified by statute. The existence of specific conscience clause pertaining to military service clause may prima facie suggest, that - a contrario – in other domains the conscientious objection is not protected constitutionally. Given the interpretation established by the Constitutional Court, the interpretation a contrario is not justified. Article 85 para. 3 is just an exemplification of a more general principle enshrined in Article 53 para. 1 of the Constitution.

The Constitutional Court has defined the meaning, basis and scope of the freedom of conscience in several judgments or decisions. The first important decision was delivered under the transitory constitutional provisions in force after the collapse of the communist regime and under legislation inherited from this regime providing an easy access to abortion. In the decision of 15 January 1991, U 8/90, the Constitutional Court found that § 14 of a regulation, which granted physicians the right not to issue a statement confirming that the conditions for a legal abortion had been fulfilled, was compatible with the Constitution.(12) The Constitutional Court expressed, in particular, the following view: Freedom of conscience does not only mean the right to adopt a specific worldview, but above all the right to act in accordance with one's conscience and to be free from the coercion to act against one's conscience.(13)

One has to highlight that under this approach conscientious objection is an important element of the freedom of conscience protected by the Constitution and has to be observed in ordinary legislation. The wording of the reasoning leaves no doubt that the views expressed therein are not limited to medicine but have a universal dimension and apply in all possible fields. At the same time, the Constitutional Court did address the issue whether and to which extent freedom from the coercion to act against one's conscience allows limitations.

For the Constitutional Court, the right to act in accordance with one's conscience stemmed directly from the Constitution (in force at that time) and was confirmed in the medical code of ethics. The provision under review which granted physicians the right not to issue a statement confirming that the conditions for a legal abortion had been fulfilled was thus a superfluum. It repeated a legal rule already in force in the legal system.

The Constitutional Court further confirmed and developed its approach under the 1997 Constitution. In 2014, the High Medical Council lodged an application with the Constitutional Court for declaring contrary to the Constitution certain elements of provision on the conscience clause for physicians and dentists (Article 39 of the Act of 5 December 2015 on the professions of physician and dentist)(14). The application was aiming at removing from the legal system some obligations limiting the effectiveness of the conscience clause. In its judgment of 7 October 2015, K 12/14, the Constitutional Court declared contrary to the constitution the provision under review, to the extent it imposed the obligation to provide a medical service contrary to the conscience in "other urgent cases".(15) The Court considered that provision had not been worded with sufficient precision. It is necessary to explain here that the term "other urgent cases" was referring to cases other than danger loss of life, serious injury or serious health impairment. The Constitutional Court also declared contrary to the constitutional provision protecting the freedom of conscience and religion the same Article 39 to the extent it imposed on a physician refraining from performing a certain medical service the obligation to provide information about the possibility to obtain the service from another physician or health centre. The Constitutional Court further expressed the view that the obligations to inform in writing the superior about a refusal to provide a medical service and to record every case of the conscientious objection in medical records are both compatible with the Constitution.

At the same time, the Constitutional Court expressed general views about conscientious objection and inferred certain general principles from the Constitution. For the Court, conscientious objection is intrinsically linked to human dignity. The Court explains this relationship in the following way: The Polish constitution-maker has firmly departed from the idea of granting protection, guaranteeing or tolerating freedom of conscience and religion. Such an approach would assume the existence of an authority entitled to define the limits of protection or tolerance. Instead, this freedom is sometimes considered supra-positive, axiologically related to the very nature of man, which is an essential element of his dignity. Hence, a legal system which would not guarantee it, "would be ab initio incomplete, ineffective and inefficient, and consequently also undemocratic, because it departing from the model of a state that respects the necessary minimum minimorum in the field of human rights protection" (J. Szymanek, Freedom of conscience and religion ... , p. 39). The need to respect it is closely related to the respect and protection of human dignity, which is the duty of public authorities.

For the Constitutional Court, the conscience clause plays an important role in the context of philosophical and moral pluralism: As noted by the Tribunal in the decision of 15 January 1991 (case no. U 8/90, OTK 1991, item 8), freedom of conscience not only means the right to adopt a specific worldview, but above all the right to act in accordance with one's own conscience and freedom from coercion to act against one's conscience. It is the so-called conscience clause, which is the institution guarding this freedom, clause understood as the possibility not to act in manner which is legal and due but at the same time contrary to worldview (ideological or religious convictions) of the person concerned. In its ethical dimension, this construction may demonstrate the primacy of conscience over the requirements of statutory law, and on the legal level - it ensures the realization of the freedom of conscience and eliminates the collision of enacted law with ethical norms, enabling an individual to behave in a decent manner, consistent with his own convictions.

[...] The findings made so far justify the thesis that although we do not have a legal definition [of conscience], it is possible to indicate the conditions necessary to talk about respect for the freedom of conscience by the legal order. On the one hand, it is ensuring the freedom for an individual to adopt a set of moral, philosophical, religious and social views and rules and to act in accordance with it; forcing someone to act in a manner contrary to conscience would be a violation of inalienable human dignity. On the other hand, realization of the freedom of conscience depends upon ensuring that no one will force others to obey orders which - in their conscience - each of these persons considers as [non]-binding.(16)

For the Constitutional Court, Article 53 para. 1 of the Constitution which its inherent protection of conscientious objection is directly applicable: Freedom of conscience - including its element which consists in conscientious objection - must therefore be respected regardless of whether there are statutory provisions confirming it.

Summing up, the Tribunal found that the right of a doctor to invoke the conscientious objection clause within medical law relations does not arise from Art. 39 of the Act on the professions of physician and dentist, but directly from constitutional provisions and instruments of international law. Therefore, there are no grounds for formulating a separate right to the "conscience clause", and - as a consequence - there is no doubt that the legislator cannot freely shape this "privilege" or abolish it, but must respect the constitutional conditions for restricting the rights and freedoms of the man and the citizen (Article 30 and Article 31 (3) of the Constitution).(17)

For the Constitutional Court, in the light of the constitutional hierarchy of values it would be difficult to admit that other patients' rights, not connected with their life and health, could have priority over the value which, in a democratic State ruled by law, is freedom of conscience, derived directly from human dignity.(18)

The Constitutional Court recognizes the particular value and weight of conscience as instance guiding human behaviour. One may add that the obligation to provide information about the possibility to obtain a medical service from another physician or health centre has lost its importance in the age of Internet.

Under Article 8 para. 2 of the Constitution, the provisions of the Constitution are directly applicable, unless the Constitution provides otherwise. There are no reasons, not to apply directly the provision guaranteeing the freedom of conscience and religion. The case law of the Constitutional Court has recognized a general directly applicable constitutional conscience clause for individuals. The practice of State bodies and the case law of other courts is, however, more much cautious and limits itself to applying the conscience clauses provided for in ordinary legislation. The ordinary and administrative courts do not follow the Constitutional Court's interpretive stance on direct applicability of Article 53 para. 1 with its inherent conscience clause. The case law clearly states, for instance, that parents cannot invoke any conscience clause to refuse compulsory child vaccination.(19)

The Supreme Court had to deal with the meaning of constitutional guarantees of the freedom of conscience in connection with the question whether the conscientious objection may be a "justified cause" (in the meaning of Art. 138 of the Code of Petty Offenses) for an entrepreneur for refusing to provide a service to a customer. Under Art. 138 of the Code of Petty Offenses a person professionally providing services who without a justified cause refuses to provide a service shall be punished by a fine. The Supreme Court expressed the following view in this respect:

For the above reasons, it should be considered that while a conflict of fundamental freedoms and rights between the provider and consumer arises in connection with providing a specific service, the notion of "justified cause" used in art. 138 of the Code of Petty Offenses encompasses religious beliefs, which means that if these beliefs conflict with the characteristics and the nature of the service in an obvious manner, it is permitted to refuse to provide the service even if these beliefs collide also with other values, including constitutional ones such as the prohibition of discrimination. However, a refusal cannot be justified by the individual characteristics of persons (such as denomination, manifested opinions or sexual preferences) to whom the service has to be provided.(20)

The Supreme Court takes into account the importance of the freedom of religion and states in this judgment that conscience may in principle be invoked to refuse providing services.

3. THE CONSCIENTIOUS OBJECTION AND DEATH PENALTY

In Poland, the capital punishment was abolished in 1998 and in 2000 Poland ratified protocol no 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms abolishing this punishment. In 2014, Poland ratified Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances. The question of conscientious objection to death penalty no longer arises.

4. THE CONSCIENTIOUS OBJECTION AND MILITARY SERVICE

In 1989, the Polish legislator introduced the conscience clause in respect of military service with the enactment of the Act of 17 May 1989 on guarantees of freedom of conscience and religion.(21) Under Article 3 para. 3 of this Act, citizens can request to perform a replacement service because of the religious convictions or moral principles professed. Initially the detailed procedure was regulated in the Act of 21 November 1967 on the universal obligation to defend the Homeland(22) (as subsequently amended) and is regulated currently by the Act of 28 November 2003 on the replacement service(23).

Under Act of 28 November 2003 on the replacement service, persons applying for the replacement service should lodge a reasoned application. The application for the replacement service is examined in non-contentious administrative procedure with two possible instances and the right to lodge an appeal to a higher administrative instance. The applicant may further start judicial proceedings before administrative courts with the possibility to examine the case at two levels of administrative courts: the applicant may lodge a complaint against an administrative decision before a regional administrative court and subsequently a cassation appeal before the Supreme Administrative Court to contest the judgment of the first instance administrative court.

When lodging the application before the administrative authorities, the applicant should present, in particular, a declaration of the professed religious beliefs. He should also either: (i) identify, in the professed religious doctrine, the principles which exclude the possibility of performing military service and demonstrate a genuine connection with this doctrine or (ii) identify the professed moral principles which collide with the duties of a soldier serving in the army. The administrative and judicial practice put an emphasis on showing the adherence to a religious doctrine or an elaborated moral doctrine prohibiting the military service. The following quote from the case law illustrates this attitude:

The applicant has not stated any moral rules, which he mentioned in the course of administrative proceedings, and even more so he has not demonstrated that he considers the professed principles as an imperative which had shaped his personality, worldview or life attitude.(24)

For the administrative courts, only moral principles which are logical, internally consistent, generally approved and which give an answer to the question why military service in its basic form is incompatible with them are relevant.(25)

In other words, under this approach, conscientious objection cannot be based upon a mere strong moral intuition or repulsion in respect of military service. It has to be justified by a broader coherent doctrine of moral or religious nature. Given that many recruits tried to escape the burden of the military service, there is undeniably the necessity to verify the authenticity of moral convictions. The condition is relatively easy to fulfill by persons belonging to religious denominations prohibiting military, it is more complicated for persons who do not profess any religion. It may be even more complicated for persons belonging to religious denominations which do not prohibit military service as these persons have to explain why they disagree on this point with the religious teaching of their denomination. At the same time, the task may be easier for persons from educated families who can carefully prepare their statements with the help of other persons and more difficult for those with a weaker educational background who are simply not able to express their moral convictions in a coherent and persuasive way.

The question of conscientious objection to military service lost part of its importance with the suspension of military draft in 2009. However, as the draft may be reestablished at any time, persons objecting to military service may have an interest in being qualified for the civil replacement service. Moreover, persons qualified as fit for the military service may be called for military training or maneuvers.

Under the Act of 21 November 1967 on the universal obligation to defend the Homeland, the obligation of defense is not limited to military service. For the purpose of defending the country, the authorities may impose other legal obligations upon the citizens, such as the obligation to perform specific military obligations in case of mobilization or in emergency situations, to work for specific employers in case of mobilization or to provide specific personal services for the army. The issuance of decision imposing the obligation to provide personal services to the army has entailed litigation by some persons concerned who tried to invoke conscientious objection in order to avoid these obligations.

The administrative courts had to deal with a conscientious objection to the obligation of performing various personal services to the army consisting, for instance, in traffic management(26), evacuation of persons in a port(27), the work as courrier (delivering post)(28) or other services(29). The local authorities imposed such obligations upon citizens at the request of the competent military bodies. Some persons concerned contested these obligations by invoking moral convictions. The administrative courts found against the applicants stating that conscientious objection to military service does not apply to personal services in favour of the army imposed upon citizens. The courts applied in this respect the letter of the ordinary legislation on the military service. The Supreme Administrative Court explained further that in such a situation the person concerned cannot rely directly upon the general conscience clause inherent in article 53 para. 2 of the Constitution.(30)

5. THE CONSCIENCE CLAUSE FOR MEDICAL PROFESSIONS

Medical legislation has also established a conscience clause for physicians, dentists, nurses and midwives. This clause operates in the context of the following substantive provisions. Under the Polish law, euthanasia is illegal (art. 150 of the Criminal Code). Polish law does not allow surrogacy and any civil contracts on surrogacy are invalid under the Polish law.(31) W. Górowski summarizes relevant Polish legislation in the following terms: "In my opinion, the entry into force of the Act [on Infertility Treatment] penalized a part of behaviors treated as elements of surrogate motherhood and, in fact, caused a lack of legal possibility of conducting such practices in Poland."(32) Moreover, there are no reports of surrogacy taking place in Poland. Against this backdrop, there should be no need in Poland to invoke the conscience clause in respect of euthanasia and surrogacy.

Under the Act of 7 January 1993 on family planning, on protection of the fetus and on conditions of admissibility of abortion(33) (as worded until 2020), abortion could be performed only if: (i) there was a threat to life or health of a woman or (ii) there was a justified suspicion that the pregnancy is a result of an illegal act or (iii) prenatal tests or other medical premises showed a high probability of severe and irreversible impairment of the fetus or an incurable life-threatening disease. This third premise for abortion was found contrary to the Constitution by the Constitutional Court in 2020.(34)

Polish law contains further legal rules protecting human life in its pre-natal stage from conception. Art. 157a of the Criminal Code criminalizes any bodily damage to an unborn child and any health impairment which threatens the life of an unborn child. Art. 23 para. 1 (1) of the Act on professions of physicians and dentists prohibits any types of research and experiments on unborn children. The Act of 25 June 2015 on the treatment of infertility(35) allows and regulates the procedure of in vitro fertilization but prohibits in particular in its art. 25 and art. 85-87 cloning of embryos as well as creation of embryos for purposes other than procedures of assisted procreation.

If the legislation protecting unborn children limits to some extent the possible scope of conscientious objection, it does not eliminate it completely. The Polish law permits some actions which many medical professionals consider as morally unacceptable. The conscience clause plays therefore a fundamental role for them.

The Act on the professions on physicians and dentists contains a conscience clause worded as follows:

Art. 39. A physician may refrain from performing health services incompatible with his conscience, subject to article 30, but he has an obligation to record this fact in medical records. A physician practicing on the basis of an employment relationship or as part of service has moreover a prior obligation to notify in writing his superior.

One has to note here the wording of Article 30 to which Article 39 refers:

Art. 30. A physician is obliged to provide medical assistance in any case when a delay in granting it could cause a danger loss of life, serious injury or serious health impairment.

It should be noted that this last clause - which may seem obvious to many persons - is nonetheless especially problematic from the perspective of Jehovah's Witnesses who are not entitled to invoke the conscience clause in order to refuse to order or perform a transfusion in an urgent case.

The conscience clause has a general nature and covers all health services incompatible with one's conscience. The exception is the obligation to provide medical assistance when a delay in granting it could cause a danger of loss of life, of a serious injury or of a serious health impairment. The physicians and dentists have two obligations connected with the exercise of conscientious objection: (i) to inform in writing the superior in the exercise in the framework of an employment relationship or of a service relationship (such as military service if the physician is a military) (ii) to record every case of the conscientious objection in medical records. It is not clear whether the physician should inform the superiors in advance and in a general way that he intends to invoke the conscience clause in respect of certain types of medical services (such as abortion or in vitro fertilisation) or can inform the superiors only when a specific case appears.(36) It is difficult to accept that the fact a physician who informed his superiors in general way about his intention to rely on the conscience clause could not go beyond the initial statement and rely on the conscience clause if an unexpected case - not covered by the initial statement - arises. In a such case a specific notification prior to the refusal of providing the medical service in question should suffice.

The protection of the conscientious objection is particularly important for nurses and midwives, given their lower rank in professional and medical hierarchy and the real danger of pressures from the physicians or managers of health centres. The conditions for the exercise of the conscience clause by nurses and midwives are worded differently:

Art. 12. 1. A nurse and a midwife are obliged, in compliance with their professional qualifications, to provide assistance whenever a delay in granting it could result in a state of sudden threat to health.

2. A nurse and a midwife may refuse to perform a medical order or another health service incompatible with their conscience or with the scope of their qualifications, giving the reason for the refusal immediately in writing to the superior or to the ordering person, unless there are circumstances referred to in paragraph 1.

3. In the case referred to in par. 2, the nurse and the midwife have the obligation to immediately notify the patient or his legal representative or a de facto guardian of such refusal and indicate real possibilities of obtaining the service from another nurse, midwife or from a health center.

4. In the event of refusing to provide health services for reasons referred to in para. 2, the nurse and the midwife are required to justify this refusal and to report it in the medical records.(37)

The level of protection of conscientious objection of nurses and midwives is lower than for physicians. The law imposes upon nurses and midwives the obligation to indicate real possibilities of obtaining the service from another nurse, midwife or from a health center. In the light of the Constitutional Court's case law on the conscience clause for physicians, the question arises whether this last requirement is compatible with the Constitution.

Nurses and midwives have also two additional obligations: (i) to give the reason for the refusal immediately in writing to the superior or the ordering person and (ii) to report it in the medical records. It appears that the obligation to justify a refusal to provide a medical service means above all stating whether the refusal is based upon the moral convictions or lack of qualifications. Obviously, they are not expected to provide a more extensive moral reasoning.

The personal of the conscience clauses in the medical domain includes physicians, dentists, nurses and midwives. It does not include other categories of the staff such as secretaries who may be required to make appointments for abortion. It is not certain that the ordinary courts, while adjudicating on possible labour law disputes, will follow the Constitutional Court and directly apply the inherent constitutional conscience clause in their case.

The Act on the treatment of infertility does not contain any specific conscience clause. In this domain, physicians and nurses may rely on the above-mentioned general conscience clauses in statutes but other members of the staff of infertility treatment centres are left without protection in ordinary legislation. In this case again, it is not certain that the ordinary courts, will directly apply the inherent constitutional conscience clause. The only option for the persons concerned may be not to seek employment in medical centres involved in vitro fertilisation.

The critics of a broad conscience clause emphasize that its application collides with the patients' right of access to legal medical services and unduly limits this access.(38) This critic seems to be exaggerated. In a pluralistic society like the Polish one, finding a physician ready to provide legal medical services which other physicians refuse does not appear to be difficult.

6. CONCLUSION

In conclusion, one has to note that the Polish 1997 Constitution, as interpreted by the Constitutional Court, offers a broad and strong protection to conscientious objection. The ordinary legislation implements the specific constitutional conscience clause in respect of military service and contains also detailed conscience clauses applicable to physicians, dentists, nurses and midwives. The case law pertains mainly to compulsory children's vaccination and military service or other military contributions. The ordinary and administrative courts usually refrain from applying directly the Constitution as source of a conscience clause, although some judgments show high sensitivity to the necessity of protecting the conscientious objection. The case law pertaining to other questions is scarce and this scarcity may be explained by the fact that the Polish legislator tries to refrain from imposing obligations conflicting with strong moral convictions of the population. De lege ferenda, given the cautious approach of the courts, it would be preferable to extend the scope the conscience clauses to non-medical members of the staff in hospitals and health centres. It is also desirable to reinforce labour law guarantees against a termination of employment with employees invoking conscientious objection.

BIBLIOGRAPHY

R. Flejszar, "Selected issues of civil proceedings concerning personal and financial aspects of surrogate motherhood" in: Fundamental legal problems of surrogate motherhood : global perspective, 2019, P. Mostowik (ed.), Warszawa, Wydawnictwo Instytutu Wymiaru Sprawiedliwości 2019.

W. Górowski, "Surrogate motherhood in Polish criminal law - de lege lata", in: Fundamental legal problems of surrogate motherhood : global perspective, 2019, P. Mostowik (ed.), Warszawa, Wydawnictwo Instytutu Wymiaru Sprawiedliwości 2019.

M. Olszówka, "Art. 53", [in:] Konstytucja RP. Tom I, Komentarz do art. 1–86, M. Safjan, L. Bosek (eds.), Warszawa C.H. Beck 2016.

K. Orzeszyna: "The Right of Conscientious Objection in a Democracy in Light of Polish Legal Solutions", Annali del Dipartimento Ionico, vol. 6 (2018).

NOTAS:

(1). European Court of Human Rights (ECtHR), Handyside v. The United Kingdom, judgment of 7 December 1976, 5493/72, para. 48.

(2). Joint Partly Concurring Opinion of Judges Lemmens, Vehabović and Bošnjak (para. 7), appended to the ECtHR, Big Brother Watch and Others v. The United Kingdom, judgment of 25 May 2021, 58170/13, 62322/14, 24960/15.

(3). ECtHR, Nachova and Others v. Bulgaria, judgment of 6 July 2005, 43577/98 and 43579/98, para. 145.

(4). ECtHR, Eweida and Others v. The United Kingdom, judgment of 15 January 2013, 48420/10 et al., para. 94.

(5). ECtHR, S.A.S. v. FRANCE, judgment of 01 July 2014, 43835/11, para. 124.

(6). ECtHR, Centro Europa 7 S.R.L. and Di Stefano v. Italy, judgment of 07 June 2012, 38433/09, para. 129.

(7). Compare ECtHR, Bayatyan v. Armenia, judgment of 7 July 2011, 23459/03, para. 126.

(8). On this notion see, ECtHR, S.A.S. v. FRANCE, mentioned above, paras. 121, 122, 141, 142, 153 and 157.

(9). Compare European Commission of Human Rights, C. v. The United Kingdom, decision of 15 December 1983, 10358/83 .

(10). Polish constitutional provisions quoted according to the official translation into English provided by the first chamber of the Polish Parliament, the Sejm, https://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm

(11). On these question see in particular: M. Olszówka, "Art. 53", [in:] Konstytucja RP. Tom I, Komentarz do art. 1–86, M. Safjan, L. Bosek (eds.), Warszawa C.H. Beck 2016, p. 1261-1264; for a brief overview in English see for instance: K. Orzeszyna: "The Right of Conscientious Objection in a Democracy in Light of Polish Legal Solutions", Annali del Dipartimento Ionico, vol. 6 (2018), pp. 223-237.

(12). Judge Bakalarski appended a dissenting opinion.

(13). All quotes from the Polish case law have been translated by the author of this paper.

(14). Ustawa z dnia 5 grudnia 1996 r. o zawodach lekarza i lekarza dentysty, consolidated version published in Dziennik Ustaw RP [Journal of Laws of the Republic Poland- hereinafter: Dz.U. 2021], item no, 790 amendment 2021, item no. 1559.

(15). Judges Biernat, Wronkowska-Jaśkiewicz, Liszcz and Wróbel appended individual dissenting opinions.

(16). Emphasis added.

(17). Emphasis added.

(18). Ibidem.

(19). The case on this issue is extensive; there are more than 300 judgments of administrative courts; see for instance Regional Administrative Court in Białystok, judgment of 16 April 2013, II SA/Bk 18/13; Regional Administrative Court in Warsaw, judgments of 16 February 2018, VII SA/Wa 1916/17; 9 June 2021, VII SA/Wa 2339/20; Regional Administrative Court in Cracow, judgment of 25 June 2020, III SA/Kr 244/20.

(20). Supreme Court, judgment of 14 June 2018, II KK 333/17; this judgement was commented in English by A. Gajda, "Refusal to Provide the Service Due to the Freedom of Conscience and Religion of the Service Provider in Poland", Przegląd Konstytucyjny, 2019, no 6.

(21). Ustawa z dnia 17 maja 1989 r. o gwarancjach wolności sumienia i wyznania, initial text published in Dz.U. 1989, no 29, item no. 155, consolidated version Dz.U. 2017, item no. 1153.

(22). Ustawa z dnia 21 listopada 1967 r. o powszechnym obowiązku obrony Rzeczypospolitej Polskiej, consolidated version published in Dz.U. 2021 item 372, amendment 2021 item no. 1728.

(23). Ustawa z dnia 28 listopada 2003 r. o służbie zastępczej, consolidated version published published in Dz.U. 2018 no 885.

(24). Regional Administrative Court in Gliwice, judgment of 16 November 2005, IV SA/Gl 47/04

(25). Ibidem.

(26). Regional Administrative Court in Szczecin, judgment of 19 December 2018, II SA/Sz 799/18.

(27). Regional Administrative Court in Szczecin, judgment of 24 July 2019, II SA/Sz 451/19

(28). Supreme Administrative Court, judgment of 12 March 2020, II OSK 1529/18.

(29). Regional Administrative Court in Wrocław, judgment 30 January 2018, IV SA/Wr 455/17; Regional Administrative Court in Szczecin, judgment of 24 February 2021, I SA/Sz 667/20; Supreme Administrative Court, judgments of: 12 March 2020, II OSK 1259/18, 1 December 2020, II OSK 1434/18;

(30). Supreme Administrative Court, judgment of 12 March 2020, II OSK 1529/18.

(31). R. Flejszar, "Selected issues of civil proceedings concerning personal and financial aspects of surrogate motherhood" in: Fundamental legal problems of surrogate motherhood : global perspective, 2019, P. Mostowik (ed.), Warszawa, Wydawnictwo Instytutu Wymiaru Sprawiedliwości 2019, p. 869.

(32). W. Górowski, "Surrogate motherhood in Polish criminal law - de lege lata", in: Fundamental legal problems of surrogate motherhood : global perspective, op. cit., p. 951.

(33). Ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży, Dz. U. 1993, no. 17, item no. 78, with subsequent amendments.

(34). Constitutional Court, judgment of 22 October 2020, K 1/20.

(35). Ustawa z dnia 25 czerwca 2015 r. o leczeniu niepłodności, consolidated text published in Dz. U. 2020, item 442.

(36). Judge Liszcz in her above-mentioned dissenting opinion appended to the Constitutional Court's judgment of 7 October 2015 (see above) considered this obligation unconstitutional because it is vague and unclear.

(37). Act of 15 July 2011 on the professions of midwife and nurse (Ustawa z dnia 15 lipca 2011 r. o zawodach pielęgniarki i położnej), consolidated version published in Dz.U. 2021, item no, 479, amendment 2021, item no. 1559.

(38). See for instance: T. Gardocka, "Klauzula sumienia – głos drugi" [The clause of conscience - the second standpoint], Medyczna Wokanda, 2017, no 2; see also the above-mentioned dissenting opinions of judges Biernat, Wronkowska-Jaśkiewicz and Wróbel.