Abortion: Poland Condemned by a UN Feminist Committee

On August 26, 2024, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) condemned Poland for its abortion legislation. On October 22, 2020, the Polish Constitutional Tribunal prohibited eugenic abortion. It is therefore no longer legal in the country to have an abortion on the grounds of a child’s disability. CEDAW Vice President Genoveva Tisheva conducted a confidential investigation “into allegations made by civil society organizations” and visited Poland in 2022. She found that “the situation in Poland constitutes gender-based violence against women and may rise to the level of torture or cruel, inhuman or degrading treatment.”[1] The Committee is therefore asking Poland for reforms to ensure that access to abortion complies with the principles of the Convention on the Elimination of All Forms of Discrimination against Women. The country is also asked to take legislative measures to decriminalize and fully legalize abortion. Finaly, the CEDAW calls on Poland to recognize the right to abortion as a fundamental right.

An activist strategy at odds with the law

CEDAW’s report against Poland is a response to a denunciation[2] made by several Polish pro-abortion activist organizations and the Center for Reproductive Rights. The Committee refers to the Convention on the Elimination of All Forms of Discrimination against Women, ratified by Poland in 1980. However, no article of this Convention remotely refers to abortion. Nevertheless, some articles of the Convention are interpreted by CEDAW members as guaranteeing abortion, because… the Convention is a “living” legal instrument. In 2010, Committee member Shanthi Dairian explained[3] that “abortion rights are in the spirit of the treaty.” According to her, abortion would implicitly be mentioned in the article on non-discrimination and in article 12 on health.

Still, when the Convention was signed, no State had made any reservations or expressed an interpretation that would guarantee abortion. Indeed, the most conservative countries could have made interpretative statements or written interpretations clauses to the effect that they did not interpret any particular article as guaranteeing abortion. If they did not do so, it was because they thought that the Convention would be fairly interpreted. Similarly, the Committee on the Rights of the Child had asked the Holy See, as a party to the Convention on the Rights of the Child since 1990, to provide family planning and reproductive health services, as well as appropriate counseling and social support to prevent unwanted pregnancies (CRC/C/VAT/CO/2 § 36). The Convention contains no article to this effect, and it is clear that the Holy See never interpreted any article in this sense at the time of signing. The Committee on the Rights of the Child, just like the Committee on Women’s Rights, twisted the law to exert political pressure on a State.

A committee of abortion activists

The CEDAW has 23 members. Nine of them have publicly taken a stand in favor of abortion.[4] This is particularly true of Genoveva Tisheva, the Committee’s Vice-President. These unelected members use the prestige of the UN to advance their ideologies by twisting international law. This situation is also due to the fact that some CEDAW members come from NGOs that themselves have a liberal approach to abortion. This is the case of Nahla Haidar, who was a commissioner at the International Commission of Jurists (supported by the Open Society Foundations, among others), and Dalia Leinarte, who has collaborated on several occasions with the Open Society Institute in Lithuania. It should be noted that Ana Pelaez Narvaez, the CEDAW’s president, who is herself a disabled person, has not publicly commented on this decision.

The strategy has been the same for years. Before the country review sessions, NGOs such as the Center for Reproductive Rights submit reports on abortion rights violations in the countries reviewed to the UN Committees. At the same time, these NGOs conduct strategic litigation before national and international courts. Strategic litigation is a legal action that does not aim at obtaining compensation for a victim, but rather a change in the law. The Center for Reproductive Rights is very active in the use of this strategy, particularly at the European Court of Human Rights (ECHR). Indeed, since 2000, the organization has been involved in numerous cases with the aim of seeing Polish abortion legislation condemned by the ECHR (e.g. Tysiąc v. Poland, R.R. v. Poland, P. and S. v. Poland, B.B. v. Poland, K.B. v. Poland, A.M. et al v. Poland and ML v. Poland). In several of these recent cases, these abortion lobbies have failed to bring Poland to justice. This was the case, for example, in B.B. v. Poland and A.M. et al. v. Poland, where the ECLJ intervened.

This condemnation is part of a more global strategy on the part of abortion lobbies to exploit the goodwill of members of UN committees to obtain legal advances. It's a real instrumentalization and privatization of international law bodies. These lobbies, of which the Center for Reproductive Rights is one of the most active, have been using this method for years with some success. The decisions of these committees are not legally binding, but they contribute to create a “soft law” which ends up exerting considerable influence on States and international courts of justice. In response to these abuses, it is the role of States to regain power by carrying out audits and initiating a reform of these institutions.

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[1] https://www.ohchr.org/en/press-releases/2024/08/poland-violated-womens-rights-unduly-restricting-access-abortion-un

[2] https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FPOL%2FIR%2F1&Lang=en

[3] https://c-fam.org/wp-content/uploads/20101124_CEDAW_testimony_CFAM.pdf

[4] Nicole Ameline ; Marion Bethel ; Hilary Gbedemah ; Yamila González Ferrer ; Daphna Hacker ; Dalia Leinarte ; Rhoda Reddock ; Natasha Stott Despoja ; Genoveva Tisheva.